UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
LIBRARY
u.o^q
v.\
ANNOTATED FORMS
OF
PLEADING AND PRACTC^
AT /'V'-
COMMON LAW
AS MODIFIED BY STATUTES
For Use in All Common-Law States and Especially Adapted to the
States of Illinois, Michigan, Mississippi, Florida, Virginia,
West Virginia, Maryland and District of Columbia
BY
JOHN LEWSON
OF CHICAGO AXD SPRINGFIELD BARS
Author of "Monopoly and Trade-Reslraint Cases"
IN THREE VOLUMES
VOLUME I
CHICAGO
T. H. FLOOD & COMPANY
1914
COPYRIGHT NINETEEN HUNDRED FOURTEEN
BY
JOHN LEWSON
3-2 V '5?
f^<
Deab Mr. Flood :
In this restless and constructive age when the true motives
of men are so complex and so difficult of discernment and still
more difficult of belief and trust, the dedication of a work to its
publisher is full of danger and may tend to cut both the author
and the publisher. But I, for one, dare to take the risk, and I
shall leave it to you to assume the other. It might be asked, why
a dedication, why dedicate the work to anyone. My answer is
that established custom affords the opportunity of revealing the
true inspirer and benefactor of a literary^ effort, and I propose
that this opportunity shall not escape me.
For years, the general idea of this work was in your mind
awaiting someone to carry it out. You stood ready and willing
to sacrifice a large sum of money to make that idea bear fruit.
I came, and you entrusted the work to me. The idea was yours ;
I was but the instrument.
Thus, the commencement, the conclusion, and all that this
work attempts to be, is a direct result of your influence and
substantial support. It therefore gives me great pleasure to most
cordially dedicate this work to you ; and may a noble and learned
profession fully justify your efforts in its behalf.
John Lewson,
To Mr. Laurence J. Flood.
lU
PREFACE
It has been correctly said that the remedy is the life of the
right ; and it may be as accurately stated that no remedy at law
is possible without proper forms. The forms of an action are
inseparable from the right itself. Therefore, it often occurs that
a substantial right is either waived or it is completely lost, by an
omission of certain formalities. It is through the forms of the
law, that the entire range of pleading and practice becomes
useful, and it was with the object to make pleadings and prac-
tice available that this work was undertaken and developed.
Common law forms will always be of value to the legal
profession, as the main difference between common law and code
pleading lies in the manner and not in the substance of pleading.
Thus, a good common law pleader presents the different phases
of a cause of action under distinct counts and includes a con-
solidated count to cover the entire action. A competent code
pleader states the cause of action in a single count or complaint
that is equivalent to the consolidated count of the common law
pleader. The ultimate object of the two modes of pleading is
necessarily the same, the modern tendency of common law plead-
ing being toward the use of a consolidated count as against the
old method of pleading a multiplicity of counts.
It will be observed that this work has three main features — the
general principles of pleading and practice, the forms or prece-
dents and the annotations.
Little need be said about the first division. A glance at the
Contents of Volume I will afford a sufficient general idea of
pleading and practice.
With reference to the precedents this much may be said here.
Precedents are general, special or statutory. General precedents
may be used literally. These are the common counts, general
pleas or issues, general replications, etc. The statutory prece-
dents should be used similarly. But special precedents are
suggestive only. Great care must be exercised in their use. The
Vi PREFACE
value of a special form is twofold: it shows what has been
considered good form under certain circumstances; and it sug-
gests the course to be pursued in the construction of a similar
form. From these considerations it should not be difficult, in
actual practice, to draw a form that would hold good in a case
which involves similar but not identical facts. On account of
the suggestive character of special forms they have been given
substantially as they have occurred in actual cases. They could
have been shortened; but this would have taken away much of
their clearness and suggestive force, which no amount of ex-
planation could replace. A form which is not understood is
worse than no form at all. After a form is understood, it is
comparatively eas^^ to change it to conform to the particular
case in hand.
In gathering material for annotations several definite objects
were sought to be accomplished by them. It was not simply to
annotate the form. To an effective use of the most important
forms, one must possess a clear and comprehensive knowledge
and appreciation of his right of action or defense. Therefore,
one of the objects was to note precisely how far the courts have
allowed or rejected causes of actions or defenses. Another object
was to fully annotate every distinct part of the form. And still
another object was to place the annotations in their natural and
logical positions. Ordinarily, annotations follow the matter
annotated. This has a tendency to greatly limit the scope of
annotating and to place more prominence to the form than to the
annotations. A better way, it was thought, was to treat the
forms and the annotations as of equal importance and to classify
according to the subject-matter rather than to place the annota-
tions arbitrarily below or above the forms.
As some of the states have different ways of citing the same
class of cases, it has been deemed advisable to follow the mode
of citation that prevails in each state in preference to using a
uniform citation for all of the states. Thus, no change has been
made in the manner of citing Lyle v. Cass Circuit Judge, a
^Michigan case, although it would have appeared differently if
it was harmonized with the citation of similar cases in Illinois.
But to facilitate the looking up of cases brought by or against
towns, villages and cities, this class of cases appears under the
name of the town, village or city and not under "village of,"
etc. The searcher for a ease of this kind has usually in mind the
PREFACE Vll
name of the municipality and is not concerned by the fact
that it is a village, a town or a city. Thus, if anyone desires
a case brought by or against Meridian (city), Ft. Myers (town)
or Ridgway (village) he is apt to turn to the names of these
municipalities and not to their classes.
The arrangement and the classification of a work has become
of some importance to the profession. Many a nice point of
practice may easily be obscured under an impractical scheme of
classification. Great care has therefore been given to the proper
placing of the subject matter. General matter has been placed
under general headings; matter which is of limited scope will be
found under special heads. To take the subject of parties for
illustration. It will be observed that this subject is susceptible of
a general and special division. For this reason it is under more
than one head. It ^vill be found under parties generally, and
also under the different forms of actions. The same is true of
defenses. In its ordinary sense, the defense of a suit has special
reference to the defendant alone. But under special circum-
stances, as where the defendant alleges new matter requiring the
plaintiff's answer, the plaintiff becomes as much a defendant with
reference to that matter as the defendant is in regard to the
matter that is alleged by the plaintiff". Therefore, under
"Defenses" will be found rules and principles which relate
to both parties to the suit, depending upon the particular posi-
tion they occupy during its progress. So, with appeal and error,
points on this subject most naturally arise at the time the appeal
is prayed and allowed, at the time the case is upon review
regardless of the court reviewing it, and in the particular court
of review. Hence, matters of appeal and error have been classi-
fied under appeal at the end of the specific action or proceeding
where the points peculiarly relate to such action ; again under
Appeal and Error as a separate chapter ; and further, under
chapters on Appellate Court and Supreme Court. All general
matter, such as commencements and conclusions are contained
in the first volume. But when a form has a special commence-
ment or conclusion, it has been given in the form itself.
A classification has a distinct and separate place in legal
literature, and should not be confused with an index. Primarily,
the classification serves the author to logically arrange the sub-
ject matter. After that has been accomplished, the practical
value of the classification is secondary. The practitioner is not
Vm . PREFACE
vitally concerned about the classification; but this cannot be
said of the index. To the practitioner, the index is the key to
the book. With this object in view, the index of this work has
been constructed; and it is hoped that it may prove all that
could be desired.
J. L.
Springfield, Illinois.
TABLE OF CONTENTS
BOOK ONE
PAKT I
COMMENCEMENT OF ACTIONS
Chapters Page
I Theory of the Case 3
II Causes and Forms of Actions 10
III Election of Remedies 19
IV Statute of Limitations 25
V Jurisdiction 46
VI Venue 51
VII Parties 57
VUl Costs 72
IX Praecipe 87
X Process 90
PART II
PLEADING AND PRACTICE
Chapters
XI Rules of Court 129
XII Pleading in General 132
XIII Declaration 146
XIV Appearance 186
XV Abatement and other Dilatory Pleas 194
XVI Demurrer 228
XVII Defenses and Pleas in Bar 258
XVIII Similiter 331
XIX Replication 333
XX Rejoinder and Subsequent Pleadings 337
ix
X TABLE OF CONTENTS
BOOK TWO
PART III
COMMON LAW ACTIONS
Chapters Page
XXI Assumpsit 343
XXII Case 625
XXIII Personal Injuries 783
XXIV Covenant 1145
XXV Debt 1149
XXVI Detinue 1225
XXVII Ejectment 1237
XXVIII Replevin 1278
XXIX Trespass 1319
XXX Trover 1370
BOOK THREE
PART IV
STATUTORY AND OTHER ACTIONS
Chapters
XXXI Account 1385
XXXII Administration 1395
XXXIII Adoption 1528
XXXIV Ad Quod Damnum 1533
XXXV Agreed and Compromised Case 1534
XXXVI Appeals, Intermediate 1544
XXXVII Application for Judgment and Order of Sale . . . 1553
XXXVIII Arbitration 1630
XXXIX Arrest for Debt and Release 1638
XL Attachment 1650
XLI Attachment in Aid 1701
XLII Attachment of Water-craft 1708
XLIII Boundary Lines 1719
XLIV Caveat 1729
XLV Certiorari .1732
XLVI City's Incorporation, Annexation and Discon-
nection of Territory 1783
XLVII Civil Service 1788
XLVIII Condemnation 1792
TABLE OF CONTENTS
XI
Chapters Page
XLIX Confession of Judgment 1906
L Conservator or Committee 1911
LI Contempt 1920
LIT Coram Nobis 1927
LIII Dependent Children 1929
LIV Disbarment 1933
LV Distress for Rent 1952
LVI Drainage Organization, Assessment, Dissolution
and Taxation 1959
LVII Elections, Contest 2038
LVIII Forcible Detainer 2083
LIX Garnishment 2097
LX Guardianship 2126
LXI Habeas Corpus 2172
LXII Inheritance Tax 2189
LXIII Liens' Release 2214
LXIV Lost Records 2217
LXY Lunacy 2222
LXVI Mandamus 2253
LXVII Motion for Judgment 2370
LXVIII Ne Exeat 2376
LXIX Outlawry 2381
LXX Prohibition 2382
LXXI Quo ^yarranto 2389
LXXII Roads and Bridges 2440
LXXIII Schools 2473
LXXIV Scire Facias 2493
LXXV Special Assessments 2508
LXXVI Special Taxation 2578
LXXVII Taxation 2614
LXXVIII Township Organization and Taxation 2635
LXXIX Villages 2640
LXXX Writ Ad Quod Damnum 2647
BOOK FOUR
PART V
MISCELLANEOUS FORMS AND PROCEEDINGS
Chapters
LXXXI Affidavits 2651
LXXXII Amendment 2654
Xll
TABLE OF CONTENTS
Chapters Page
LXXXIII Notice 2659
LXXXIV Change of Venue 2661
LXXXV Removal of Causes 2672
LXXXVI Continuance 2678
LXXXVII Motions and Petitions 2683
LXXXVIII Stipulations 2689
LXXXIX Evidence and Depositions 2697
XC Trial 2723
XCI Instructions 2731
XCII Propositions of Law 2746
XCIII Special Verdict and Findings of Fact 2748
XCIV Verdict 2754
XCV Auditors and Referees 2763
XCVI Orders and Judgments 2777
XCVII Particular Judgments 2793
XCVIII New Trial 2809
XCIX Arrest of Judgment 2824
C Execution 2831
CI Remanded Cause 2861
PART VI
APPELLATE PROCEDURE
Chapters
CII Appeal and Error 2871
cm Appellate Court 3047
CIV Supreme Court 3072
PART VII
CITY COURTS
Chapters
CV Municipal Courts
,3107
BOOK ONE
PART 1
COiVlMENCEMENT OF ACTIONS
ANNOTATED FORMS OF PLEADING
AND PRACTICE
CHAPTER I
THEORY OF THE CASE
8§ §§
1 Generally 4 Pleading
2 Wrong theory 5 Estoppel and discontinuance
3 Correct theory 6 Appeal and error
1 Generally
The scheme or plan of the legal ground or grounds upon which
an action is prosecuted, or upon which an action is defended,
constitutes the theory of the case or the theory of the defense.
An action is about to be commenced, what is the nature and
character of the liability ? Is it contract, or is it tort ? Does it
arise from general liability, or does it rest upon some special
relationship, such as master and servant, agency, or the like?
What shall be the form of the action 1 Assuming that an action
was begun, and a party has been called upon to defend it, what
general or special course must he pursue ? Should he attack the
jurisdiction of the court ? Should the defect in the process first
receive his attention? Or, should he enter, at once, upon the
merits of his defense? And if the latter, what was the theory
upon which the plaintiff has proceeded, and is it the one he
should not have adopted ? All these, and many other questions,
present themselves at the very threshold of a proceeding and
require an accurate solution. It will thus be seen, that the
theory or theories of an action or of a defense, is essential for
the marshaling of the facts, for the preparation of the pleadings,
for the presentation of causes or defenses, and for the trial and
the disposition of all legal controversies. The theory of an action
or of a defense is to a civil suit, what the motive is to the un-
3
4 ANNOTATED FORMS OF PLEADING AND PRACTICE
raveling' of a ♦;rJminal prosecution. Therefore, this theory-
should be decided upon as soon as practicable. In so far as each
, parley 'ic/ fiie'litig&tiep is concerned, the theory of the action or
of the defense should not be left for development upon the trial,
n^s^r upon ;4ppea;l or error. It is true, that in some instances, the
tliobry- of an action, or of a defense, is simple and of little
practical value. But it is also a fact, that there are many times
when the determination of the proper theory of the action or of
the defense proves to be of the utmost importance, and that it
is likely to be overlooked, unless special attention be given to
it at the proper time. For the ascertainment of a reliable theory
of an action or of a defense, a party should be in possession
of all of the provable facts necessary to support his position;
not alone for the establishment of a prima facie case, but also
for rebuttal. Upon the adoption of a certain theory of pro-
cedure, it should be adhered to from the inception of the action,
or of its defense, to its final termination.
2 Wrong theory
The consequences that follow a misapprehended theory of an
action is illustrated by the following cases : In the Hayes case,^
a collector of garbage picked up an electric wire in an alley and
was killed. His administrator brought an action against the city
and a telephone company upon three theories of liability; first,
negligence of the city; second, negligence of the telephone
company ; and third, liability of the telephone company for the
city's negligence. No effort was apparently made to try the
case upon the correct theory, which was the liability of the
telephone company for the city's negligence. As a result, a
jury found the city not guilty, which disposed the first
theory. On appeal to the appellate court, that court found the
telephone company not guilty, which disposed the second
theory. And on further appeal the supreme court decided that
the third theory could not be sustained on account of the pre-
vious findings. Thus, an otherwise meritorious cause of action
was disposed of against the injured party. The Thompson case 2
proceeded on the theory that the defendant owed to the plaintiff
the duty to ring a bell ; whereas, the actionable duty was not to
wantonly or wilfully injure the plaintiff. Apparently, in the
1 Hayes v. Chicago Tel. Co., 218 2 Thompson v. Cleveland, C, C. &
111. 414 (1905). St. L. Ey. Co., 226 111. 542 (1907).
THEORY OF THE CASE 5
Skszypczah case^ the omission in the declaration to include a
count charging wilful negligence and to follow up the charge
by proper testimony, caused the loss of a seven thousand dollars'
judgment. In the Hubbardston case"^ the plaintiff proceeded
upon the theory of rescision when he should have sued for a
breach of the contract. In the Henning case,^ a misconceived
theory of the cause of action resulted in the mis-statement of the
cause and in the making of improper parties defendant. The
Stoudt case^ shows that a trial judge's erroneous theory of an
action will effect aU of his rulings, and accomplish a miscarriage
of justice. The Lemon case "' w^as reversed because the trial
court directed a verdict upon the wrong theory. In the Ball
case,^ the plaintiff framed her declaration upon a single theory
of liability. On the trial, the case was submitted upon a dif-
ferent theory, the plaintiff recovering a judgment of fifteen
hundred dollars. The appellate court affirmed this judgment;
but the supreme court reversed and remanded the cause
principally on the ground that a theory was pursued which
found no foundation in the pleadings. In the East St. Louis
case^ the proceedings were based upon a paving ordinance
requiring the payment for a local improvement to be made
from special taxation of contiguous property. The petition for
the assessment denominated the proceeding as a "Special assess-
ment for a local improvement." The commissioner who was
appointed to spread the assessment named the proceeding a
"Special assessment by special taxation of contiguous prop-
erty;" but in making up the roll and spreading the assessment,
he acted as in proceedings to levy a special assessment and not
a special tax. In the lower as well as in the supreme court,
the case was presented and tried as a special assessment pro-
ceeding. The case was reversed and remanded on account of
the conflicting theories that were thus pursued. In the Thomas
case^^ an appeal was uselessly prosecuted to the supreme
court. The action was forcible detainer. The appellant pro-
3 Belt Ey. Co. v. Skszvpczak, 225 s Ball v. Evening American Pub-
Ill. 242. 245 (1907). " lishing Co., 237 lU. 592, 608, 609
* Hubbardston Lumber Co. v. (1909).
Bates, 31 Mich. 158, 169 (1875). 9 East St. Louis v. Illinois C. E.
5 Henning v. SampseU, 236 HI. Co., 238 HI. 296 (1909).
375, 381 (1908). lo Thomas v. Olenick, 237 HI. 167
6 Stoudt V. Shepherd, 73 Mich. (1908).
588, 599 (1889).
T Lemon v. Macklem, 157 Mich.
475 (1909).
6 ANNOTATED FORMS OF PLEADING AND PRACTICE
ceeded upon the theory that a freehold was involved in that
action; whereas, the title to premises cannot be questioned in
such an action. So, in the Roberts case,^^ which was an action of
trespass quare clausum fregit to which a plea of liberum tene-
mentum was pleaded, it was held that ordinarily an appeal
may be taken directly to the supreme court, but that an appeal
lies to the appellate court when the case is tried on the sole
theory of a right to possession, and not of title. In Wiard v.
Semken,^^ the simple failure to understand what constitutes the
gist of the action of detinue caused considerable confusion in the
pleadings and required two courts to pass upon them.
3 Correct theory
The ascertainment of rights, the determination of the rele-
vancy of evidence, and the application of instructions to the
evidence were made possible in the following cases by a clear
understanding of the true theory upon which each party
proceeded in the cause. In the Chew case,^^ a railroad company
entered into a contract with general contractors for the con-
struction of its railroad. The general contractors procured a
subcontractor to deliver to them certain ties for the construction
of the road. For part of the ties, the subcontractor was paid;
for the remainder, no payment was received by the subcon-
tractor. Subsequently the railroad company consolidated with
another company. The subcontractor brought an action of
assumpsit against the latter company for the unpaid portion of
the ties; in which action, he recovered judgment. In deter-
mining the liability of the defendant company, the supreme
court, in substance said, that the theory upon which the plaintiff
must have recovered and was entitled to recover was that the
ties were delivered in pursuance of a contract for the construc-
tion of the railroad, that the defendant company, in taking over
the railroad as a part of the consolidation, converted the ties
not paid for to its own use, that it was benefited by the con-
version, and that if there was a partial tortious taking, the
plaintiff could waive the tort and could recover in indebitatus
assumpsit. In the Mee case,^"^ the simple but sharp conflict
"Douglass Park Bldg. Ass'n. v. i3 Toledo, W. & W Ry Co v
Roberts, 218 111. 454, 457 (1905). Chew, 67 111. 378, 382 (1873)."
12 Wiard V. Semken, 2 App. D. C. i* Chicago Union T. Co. v. Mee
424 (1894). 218 111. 9, 12 (1905).
THEORY OF THE CASE 7
in the evidence supporting the different theories of the parties
involved the consideration of a number of questions, such as,
the necessity of giving correct instructions, the burden and
shifting of proof, the exercise of ordinary care, the prepon-
derance of the evidence, and the ultimate question of liability.
The action was ease for an injury caused by a collision between
a street car and a wagon. The plaintiff's theory was that the
car ran into the wagon before it left the car tracks and while
a part of the rear end of the wagon was still on the track. The
defendant claimed that the plaintiff's wagon had left the track,
and had gone a sufficient distance to justify the motorman to
pass the wagon, but that after the plaintiff had driven his
wagon off the track, he ran against a telephone or telegraph
pole, and that he was either forced to and did back his wagon
into the track, or that his horse voluntarily so backed the wagon
and thereby struck the car. Armstrong v. Wilcox ^^ involved a
clear understanding of the different theories upon which the
evidence was introduced and an ascertainment of which of the
theories found the better support in the proofs. In the Kies-
wetter case,^^ the plaintiff, in an action on a life insurance
contract, attempted to prove the insanity of the insured to avoid
the self-destruction clause contained in the contract. Objection
was promptly made to the introduction of the evidence; where-
upon it was ruled out. The ruling was approved of by the
reviewing court upon the ground that the plaintiff's theory of
her cause of action was wrong. So, in the Hart case ^"^ complaint
was made that the trial court permitted incompetent evidence;
but the reviewing court overruled the objection by ascertaining
the theory upon which the declaration proceeded and by
reconciling the evidence with that theory. The McNamara
case ^^ was an action of replevin. The plaintiff proceeded
througout the trial upon the theory that he was the owner of the
entire property, to the exclusive possession of which he was en-
titled ; whereas, the defendant claimed that he had an interest in
the property with the plaintiff. In passing upon the instructions
in the case, it was necessary to have in mind these contradictory
claims. In the Ball case'^^ an instruction was considered
15 Armstrong v. Wilcox, 57 Fla. is McNamara v. Gorlair, 161 HI.
30, 31 (1909). 228, 233 (1896).
16 Kiesewetter v. Maccabees, 227 i« Ball v. Evening American Pub-
Ill. 48, 52 (1907). lishing Co., supra.
17 Hart V. Wabash S. Ev. Co., 238
Dl. 336, 338, 339 (1909).
8 ANNOTATED FORMS OF PLEADING AND PRACTICE
erroneous because it permitted a recovery upon a different
theory from that which was justified by the declaration. So,
in the Christy case,^^ an instruction was offered, which, if it had
been given as presented, would have misled the jury. The trial
court modified the instruction, and gave it. This was urged as
error, but the reviewing court approved of the modification on
the ground that the various theories of liability that were pre-
sented by the declaration justified the trial court's action.
4 Pleading
A pleader is not confined to a single theory of liability or
defense. He may frame his pleadings upon as many different
views of liability or defense as appear to him to be necessary .21
But no antagonistic theories should be injected into a case, as
they lead to uncertainty, confusion and error.22
5 Estoppel and discontinuance
The adoption of a specific theory of an action or of a defense
may operate as an estoppel against the party making the choice,
or it may amount to a discontinuance of the cause against one
or more of the defendants. Thus, in the Siegel case^^ there
was a protracted and expensive trial of a condemnation suit
upon an agreed theory on the proper elements of damages to be
allowed. At the end of the trial, one of the parties attempted
to repudiate this theory. On the ground of estoppel, the trial
and the supreme courts refused to permit it to be done. So, in
the Trah case ^^ a party was estopped from asserting important
rights by entering into a stipulation. The Strohschein case ^^
was an action of assumpsit against co-partners for work and
labor brought before a justice of the peace. Judgment was
rendered by the justice against all of the defendants. On appeal
by one of them, which was authorized by statute, a judgment
was rendered against the one who appealed. This judgment was
reversed, on further appeal, on the ground of discontinuance,
because the only theory upon which the plaintiff could have
recovered in that case was that of joint liability.
20 Christy V. Elliott, 216 HI. 31, 23 Metropolitan W. S. E. E. Co.
48 (1905). V. Siegel, 161 111. 638, 646 (1896).
21 Christy v. Elliott, supra. 24 Grant Park v. Trah, 218 111.
22 Illinois C. R. Co. v. Abrams, 84 516, 520 ri905).
Miss. 456, 464 (1904); Grubb v. 25 Strohsehein v. Kranieh, 157
Milan, 249 111. 456, 462, 465 (1911). Mich. 335, 338 (1909).
THEORY OF THE CASE 3
6 Appeal and error
A party will not be permitted to try his case upon one theory
and to present it for review upon another theory.^^
Upon review, the theory of the case should be determined from
the pleadings, the evidence, and the instructions of both parties,
and not from the argument of counsel. ^^^
26 United States Wringer Co. v. 27 Chicago City Ry. Co. v. Shaw,
Cooney, 214 111. 520, 524 (1905); 220 111.532,534 (1906).
Davis V. Illinois Collieries Co., 232
111. 284, 291 (1908).
CHAPTER II
CAUSES OF ACTIONS
IN GENERAL FORMS OF ACTIONS
7 Terms defined
8 Abolishing forms of actions,
effect
9 Common law and statutory
actions, nature
EX CONTRACTU ACTIONS
10 Acceptance, signature
11 Maturity
12 Demand
EX DELICTO ACTIONS
13 Act of God
14 Continuous cause
15 Damages, permanent and tem-
porary, test, measure of
SURVIVORSHIP
16 Statutory actions
17 Test
18 Enumeration of actions
ACTIONS
19 Dog license, statutory penalty
20 Drainage benefits, upper and
lower districts
21 Farm crossings, notice and
service
22 Goods in transit
23 Illegal contracts
24 Lights in subway
25 Municipality, bad faith and col-
lusion, practice
26 Penalties, foreign
27 Surety
28 Taxes, voluntary payment
29 Telegraph poles, rental
30 Transportation, refusal
IN GENERAL
7 Terms defined
The terms "right of action" and "cause of action" are
equivalent expressions. The term includes every fact that is
necessary for the plaintiff to prove to entitle him to recover and
every fact that the defendant has a right to traverse. A cause
accrues when facts exist which authorize one party to maintain
an action against another.^ The particular mode by which a
right is required to be enforced is called the form of an action.
8 Abolishing forms of actions, effect
The distinctive nature of actions are not affected by the
abolition of the forms of action or the adoption of the new ones.^
1 Walters v. Ottawa, 240 111. 259,
263 (1909).
2 Stirling v. Garrittee, 18 Md. 468
(1862).
10
CAUSES OF ACTIONS 11
9 Common law and statutory actions, nature
A common law and a statutory liability are different and
distinct causes of action, the allegations and proof which are
necessary to make out a case under each being materially
different.2
EX CONTEACTU ACTIONS
10 Acceptance, signature
A contract is binding upon a party without his signature
thereto, if his assent to the contract is expressed by some overt
act. But the mere mental intention to accept an offer, however
deliberate that may seem, is insufficient as an acceptance.^
11 Maturity
The maturity of the indebtedness before the institution of a
suit thereon is essential to the right of recovery in an ordinary
common law action."' No ex contractu action is maintainable
before a demand is due.^
12 Demand
A demand before suit is necessary when the contract is to pay
a collateral sum upon request, or when the contract is to deliver
any onerous property on demand, without specifying the time
or place of delivery. A demand is not necessary when the
contract is founded upon a precedent debt or duty, as in case
of a bond, single bill, or for money lent, or is for the payment
of a collateral sum on a day certain, or otherwise than upon
request, or when the debt or duty arises immediately upon the
performance of the consideration."^ The making of a demand
for the performance of a contract is a condition precedent to
the institution of an action for a breach of it, unless the demand
has been waived, or for some lawful reason has been dispensed
with.8
3 Bradley v. Chicago -Virden Coal « Niekerson v. Baboock, 29 111.
Co., 231 111. 622, 627-628 (1908). 497, 500 (1863).
< Clark V. Potts, 255 111. 138, 188 7 Minor v. Michie, Walker 24, 29
(1912). (Miss. 1818).
5 Stitzel V. Miller, 250 111. 72, 76 s Manning v. West, 6 Cush. 463,
(1911). 465 (Mass. 1850).
) 1S)03^
12 ANNOTATED FORMS OF PLEADING AND PRACTICE
The insolvency of a debtor dispenses with the necessity for
making a demand before instituting suit.''
EX DELICTO ACTIONS
13 Act of God
The natural causes which exclusively produce an injury or a
loss and which could not have been prevented by human care,
skill, and foresight constitute an act of God.
An act of God excuses an injury when it is the proximate and
sole cause of the injury : an act of God does not excuse an injury
which is the result of negligence and an act of God combining
as an active co-operative cause of the injury.
This rule is applicable to telegraph companies for the reason
that they are required to use a high degree of care and skill in
the correct and prompt transmission of messages. ^^
14 Continuous cause
An injured party has a separate cause of action for each
•wrongful or negligent act ; and he is not bound to assume that
such an act will be continued. ^^
15 Damages, permanent and temporary, test, measure of
For an injury that has been occasioned by a structure which
is of a permanent character, there can be but one recovery, which
must include all damages, present and prospective.^ 2
A person is liable for all consequences which might have been
foreseen and expected to result from his conduct, but not for
those which he could not have foreseen and which he was there-
fore under no obligation to take into consideration. i^
An injury is not permanent within the rule which limits but
one recovery of all damages, past, present and prospective,
where the continuance and operation of a permanent structure
are not necessarily injurious, but may or may not become so.^^
In an action for permanent injuries to real estate, the correct
» Kelly V. Garrett, 1 Gilm. 649, 12 Price v. Union Drainage Dis-
653 (1844). trict, 253 III. 114, 119 (1912).
10 Providence- Washington Ins. Co. is Nail v. Taylor, 247 111. 580
V. Western Union Tel. Co., 247 111. 584 (1910).
84, 89 (1910). 14 Jones v. Sanitary District, 252
iiRamey v. Baltimore & Ohio S. Ill, 591. 599 (1912).
W. R. Co., 235 111. 502, 506 (1908).
CAUSES OF ACTIONS 13
measure of damages is the difference in the cash value of the
land before the same was damaged and its fair cash value after-
wards : in an action for temporary damages, the proper measure
of damages is the actual loss sustained during the continuance
of the in jury. 15
SURVIVORSHIP
16 Statutory actions
Statutory actions do not survive at common law.^®
17 Test
A right of action will not survive if it is so entirely personal
that the party in whom it exists cannot by contract place it
beyond his control, i'
FORMS OF ACTIONS
18 Enumeration of actions
The common law forms of ex contractu and ex delicto actions
are in force in Illinois. ^^ The principal common law ex con-
tractu actions are: Assumpsit; Debt; Covenant; Detinue; and
the ex delicto actions are, Case (Personal Injuries); Trover;
Eeplevin; Trespass, {vi et armis and trespass quare calusum
f regit) ; Ejectment.
With slight exception, the following is a list of the statutory
and other actions and proceedings now in use : Account ; Admin-
istration ; Adoption ; Agreed and Compromised Case ; Appeals-
Intermediate ; Application for Judgment and Order of Sale;
Arbitration ; Arrest for Debt and Release ; Attachment ; Attach-
ment in Aid; Attachment of Water-craft; Boundary Lines;
Caveat; Certiorari; City's Incorporation, Annexation and
Disconnection of Territory ; Civil Service ; Condemnation ; Con-
fession of Judgment; Conserv-ator or Committee; Contempt;
Dependent Children ; Disbarment ; Distress for Rent ; Drainage
Organization, Assessment, Dissolution and Taxation; Elections,
15 Jones V. Sanitary District, 252 is Raisor v. Chicago & Alton Ry.
lU. 601- Price v. Union Drainage Co., 215 111. 47, 56 (1905); Sec. 1,
District, 253 111. 119. c 62, Rev. Stat. 1845 (1911 Hurd'a
16 and 17 Selden v. Illinois Trust & Stat., p. 519).
Savings Bank, 239 111. 67, 77-78
(1909).
14 ANNOTATED FORMS OF PLEADING AND PRACTICE
Contest ; Forcible Detainer ; Guardianship ; Garnishment ;
Habeas Corpus; Inheritance Tax; Liens' Release; Lost Records;
Lunacy; Mandamus ; Motion for Judgment; Ne Exeat; Prohibi-
tion ; Quo Warranto; Roads and Bridges ; Schools ; Scire Facias;
Special Assessments; Special Taxation; Taxation; Township
Organization and Taxation ; and Villages.
ACTIONS
19 Dog license, statutory penalty
An ordinance which requires a dog license and which imposes
a penalty for the failure to secure it, is valid and enforcible
as a police regulation, whether the license is designated in the
ordinance as a license, a tax or a fee, and regardless of any dis-
position that is to be made of the license fund.^^
20 Drainage benefits, upper and lower districts
The Act of 1903 which authorizes a recovery by a lower dis-
trict for benefits derived by an upper district, constitutes class
legislation and is invalid, because it fails to confer a similar
right upon the upper district. ^o
21 Farm crossings, notice and service
To the railway company :
Notice is hereby given to you that the undersigned, ,
is the owner of the following described real estate : beginning
(Insert legal description).
Notice is further given you that a farm crossing has become
necessary to be constructed across the right of way of the
railway company, so that the undersigned, may cross the
same to get the benefit of the railway company ; that
the railway company is a traction company operating
cars over said road by electric motive power ; that the line runs
from the city of Illinois, to the city of
, in the state of Illinois ; that it is necessary for
wPaxton V. Fitzsimmons, 253 111. 194, 200-201 (1912); Act May 14,
355, 357-60 (1912); CI. 80, sec. 1, 1903 (1911 Kurd's Stat., p. 927);
art. 5, Cities and Villages act (1911 Drainage Commissioners v. Union
Kurd's Stat., p. 267); Sees. 1 and Drainage District, 211 111. 328
10, art. 9, Constitution 1870. (1904), overruled; People v. Crews,
20 Bay Island Drainage District 245 111.318 (1910), overruled.
T,
Union Drainage District,. 255 111.
CAUSES OF ACTIONS 16
the undersigned to frequently go to and to
the city of ; that the ears run each way
from o 'clock in the morning until o 'clock in
the evening ; that the undersigned 's dwelling house is on his said
farm, as above described, and north of the line of said railroad,
the railway company ; that the track is between the
dwelling house on the undersigned's farm and the said trac-
tion line, and that the undersigned has no way of getting across
the said railroad to the said traction company's line so as to
board the cars and take advantage of the same ; that it has become
necessary and is necessary for the use of the undersigned, who
is the proprietor of said farm above described, so adjoining the
right of way, as aforesaid, that a crossing for said farm be put
in by the said railroad company, so that the undersigned, as
proprietor, may cross over to the interurban and board the cars
of said interurban company; that the undersigned suffers great
inconvenience and damage in the operation of his farm by being
cut off from the use of said mode of travel, which is, in certain
seasons of the year, the only mode of travel for the undersigned
to the county seat and to the markets of the county from his
said farm ; that he either has to be cut off from egress and ingress
to and from this mode of travel, aforesaid, by the traction com-
pany, or become a trespasser on the right of way of the said
railroad company;
Therefore, notice is given to you that a farm crossing has
become necessary to be constructed across the right of way of
the railway company for the use of the under-
signed, the said , who is the owner and proprietor
of said lands above described adjoining such railroad on the
north.
Notice is further given that if you shall refuse to build the
said farm crossing across your right of way in accordance with
the provisions of the statute in that case made and provided,
that the undersigned, who is the owner, occupant and proprie-
tor of said land above described, will build said farm crossing
across the right of way, if you refuse or neglect to build the same
within thirty days, and will thereafter bring suit against you
so refusing or neglecting to build said farm crossing, to recover
double the value thereof, with interest at one per cent per month
as damages from the time such farm crossing shall be built,
16 ANNOTATED FORMS OP PLEADING AND PRACTICE
together with costs, as provided by the statute in such cases
made and provided.
Witness the signature of , the owner of said land, this
day of ,19..
(Venue) .
, being first duly sworn on oath, states that he is
one of the deputies to the sheriff of the county of afore-
said, and that he did on the day of ,
19 , serve a copy of the attached notice on the rail-
way company by delivering a true and correct copy of the same
to , station agent of the said railway company.
, Deputy Sheriff.
Subscribed, etc.^i
22 Goods in transit
The consignor, the consignee, and the real owner of goods in
transit have each a special interest in the goods transported,
giving each an ex contractu or an ex delicto right of action against
the common carrier for breach of duty as carrier or warehouse-
man.22
The common carrier and the wharfinger are bound to obey the
directions of the consignor of goods with respect to their desti-
nation or delivery, and they are liable for loss that occurs from
a failure to obey these directions.^^
23 Illegal contracts
A contract entered into in violation of an express statutory
prohibition cannot be made the basis of an action in contract
or tort.24
24 Lights in subway
A railroad company cannot be required by ordinance, under
the general police power of a municipality, to maintain lights
in a subway created by the elevation of its tracks.^s
21 Shea V. Cleveland, C, C. & St. v. Morlan, 78 HI. 162, 166 (1875).
L. Ey. Co., 250 111. 97, 101 (1911). 24 Ellison v. Adams Express Co.,
22Edgerton v. Chicago, E. I. & 245 111.410,418 (1910).
P Ey. Co., 240 111. 311, 315, 317 25 Chicago v. Pennsylvania Co.,
(1909). 252 111. 185, 192 (1911); Sec. 1997
23 Lewis V. Galena & C. U. E. Co., Municipal Code, Chicago.
40 HI. 281, 289, 290 (1866) ; HoweU
CAUSES OF ACTIONS 17
25 Municipality, bad faith and collusion, practice
The proper practice for a tax-payer to present the question
of bad faith and collusion in the abandonment of a case by or
against a municipality, is to apply to the trial court for leave to
intervene and to be heard; and if this be denied, and it be
desired to have the judgment reviewed by the appellate court,
to preserve his rights by proper exceptions, and then to appeal
or to sue out a writ of error from the appellate or the supreme
court.26
26 Penalties, foreign
The penal laws of other states are unenforcible beyond the
state of their enactment.^"^
27 Surety
In the absence of statute, a surety has the right to require
of his creditor only that no affirmative act shall be done that
would operate to his prejudice.^s
28 Taxes, voluntary payment
Money voluntarily paid for taxes are not recoverable on the
ground that the act under which the tax was collected is uncon-
stitutional.29
29 Telegraph poles, rental
A municipality has authority to require of telegraph com-
panies a reasonable compensation for the exclusive use of streets
and alleys for the erection and maintenance of poles. This does
not conflict with the acts of Congress; and the compensation
is not a license nor a tax, but it is a charge in the nature of a
rental.^^
26 People V Lower, 254 111. 306, so SpringrfieM v. Postal Tel. C,
309 (1912). Co., 253 111. 346, 353, 354 (1912);
27 Eaisor v. Chicago & Alton Ry. Post Roads act of Congress of 1866,
Co., 215 111. 51. amended in 1884; Sec. 4, c. 134 R. S.
28 People V. Whittemore, 253 111. (1911 Hurd's Stat., p. 2309).
378, 382 (1912).
29 People V. Whittemore, 253 111.
385.
18 ANNOTATED FORMS OP PLEADING AND PRACTICE
30 Transportation, refusal
An action on the case is maintainable against the common car-
rier for a failure to carry goods that have been received.^i
But, the refusal and neglect of a railroad company to furnish,
start or run cars for the transportation of goods offered to it,
does not give the owner of the goods a right of action for treble
damages under sections 22 and 23 of the Fencing and Operating
Eailroad act of 1874.32
31 Phelps V. Illinois C. R. Co., 94 Ry. Co. v. People, 227 111. 270
111. 548, 357 (1880). (1907).
32 Atchinson, Topeka & Santa Fe
CHAPTER III
ELECTION OF REMEDIES
IN GENERAL
§§
31 The doctrine
32 Application
33 Effect
34 Abandonment and discontinu-
ance
APPLICATION TO SPECIFIC
INSTANCES
35 Arrest for debt
36 Bail bond
37 Obligations, joint and several
38 Sales, refusal to accept goods;
re-sale
39 Taxes, personal representatives
40 Tax titles
41 Wrongful attachment
APPLICATION TO PERSONS
§§
42 Heirs
43 Joint wrongdoers
44 Sheriffs and constables
APPLICATION TO ACTIONS
45 Appeal or certiorari
46 Assumpsit or trespass
47 Assumpsit, replevin or trover
48 Case or trespass
49 Debt and covenant
50 Interpleader or replevin
51 Replevin or trespass
52 Replevin or trover
53 Special assessments
IN GENERAL
31 The doctrine
A party who, by law or contract, may enforce his rights through
different remedies, must choose between them. Upon making
the choice, he is bound by it ; as an election of one of the reme-
dies, is a waiver of the others.^
32 Application
The rule that a plaintiff is bound by his election has no appli-
cation where he has no choice of remedies ; ^ nor where the action
is misconceived or mistaken.^
1 Piatt v. Aetna Ins. Co., 153 111.
113, 120 (1894); Christy v. Farlin,
49 Mich. 319, 320 (1882).
2 Carbary v. Detroit I'^nited Ry.,
157 Mich. 683, 685 (1909); Glover
V. Radford, 120 Mich. 542, 544
(1899).
3 McLaughlin v. Austin, 104
Mich. 489, 491 (1895); Chaddock
v. Tabor, 115 Mich. 27, 33 (1897);
Bryant v. Kenyon, 123 Mich. 151.
155 (1900); Chicago Terminal
Transfer R. Co. v. Winslow, 216 111.
166, 172 (1905).
19
20 ANNOTATED FORMS OF PLEADING AND PRACTICE
33 E£fect
The election of a remedy is considered as of the date the
action is commenced, irrespective of subsequent dismissal of
the suit.'*
34 Abandonment and discontinuance
The discontinuance or the abandonment of an independent and
collateral remedy, before judgment, is no bar to the commence-
ment of a new like remedy, if the discontinued and the new
remedy are not inconsistent or irreconcilable.^
Replevin and trespass are not opposite and irreconcilable
claims of right.*^
APPLICATION TO SPECIFIC INSTANCES
35 Arrest for debt
Upon the satisfaction of a joint judgment, a joint debtor
under arrest for debt may either move for the recall of the exe-
cution and for his discharge, or he may obtain his release upon
habeas corpus^
36 Bail bond
For a failure to put in special bail under a bail bond, the
parties for whose benefit the bond was executed may proceed
against the officer to whom it was given, or they may take an
assignment of it and bring an action against the sureties.^
37 Obligations, joint and several
On a joint and several obligation, a party is at liberty to pro-
ceed against the obligors jointly, or severally ; but once the elec-
tion has been made, the action will be governed by the rules
that are applicable to the particular kind of action that was com-
menced. That is to say, if the action is joint, the rule of recov-
ery should be as in an action upon a joint contract alone.^
•t Thomas v. Watt, 104 Mich. 201, « Wilcox v. Ismon, 34 Mich. 268,
20.5 f 189.5). 272 (1876).
5 and 6 stier V. Harms, 154 111. 9 Gould v. Sternburg, 69 111. 531,
,474, 479, 481 (1895). 532 (1873).
7 Eisen v. Zimmer, 254 111. 43, 48
(1912); Sec. 22, c. 65, Eev. Stat.
(111.).
ELECTION OP REMEDIES 21
38 Sales, refusal to accept goods ; re-salo
Upon the vendee's refusal to accept goods purchased, the ven-
dor has three remedies : first, to store the goods for the vendee,
to give him notice thereof, and to recover the full contract price ;
second, to keep the goods and to recover the excess of the contract
price over and above the market price of the goods at the time
and place of the delivery; and third, to re-sell the goods at a
fair price or to the best advantage, and to recover from the ven-
dee the loss if the goods fail to bring the contract price. ^^
In the latter case, it is not necessary that the re-sale shall be
at the original place of the delivery, but it may be made wher-
ever the best possible price can be obtained for the goods, not-
withstanding the existence of a contract specifying the place of
delivery and it is for goods to be produced or manufactured.^^
39 Taxes, personal representatives
The people may enforce the payment of taxes due from a
personal representative in the probate or county court, or by
an action of debt.^^
40 Tax titles
The owner of unoccupied premises which are claimed under
an invalid tax title may either file a bill in chancery to remove
the cloud, or he may bring ejectment. ^^
41 Wrongful attachment
A defendant in attachment, who has been wrongfully sued,
may defend the attachment, he may sue on the attachment
bond,^^ or he may bring an action for malicious prosecution.^^
APPLICATION TO PERSONS
42 Heirs, or devisees
Under Illinois statute, a creditor may sue a personal repre-
sentative and the heirs jointly, or he may sue the personal
10 Bagley v. Findlay, 82 111. 524, is Phillips v. Glos, 255 111. 58, 60
525 (1876); Ames v. Moir, 130 111. (1912); Sec. 7, Ejectment act (111.).
582, 591 (1889) ; Osgood v. Skinner, i* Thomas v. Hinsdale, 78 111. 259,
211 111. 229, 240 (1904). 260 (1875).
11 White Walnut Coal Co. v. Cres- is Spaids v. Barrett, 57 111. 289,
cent Coal & Mining Co., 254 111. 368, 293 (1870).
374-377 (1912).
12 People V. Hibernian Banking
Aas'n., 245 111. 522, 529 (1910).
22 ANNOTATED FORMS OF PLEADING AND PRACTICE
representative and the devisees jointly, or he may sue the per-
sonal representative, the heirs and the devisees jointly. In each
case the personal representative must be joined in the action,
unless judgment has been previously obtained against the
personal representative and there are no assets in his hands for
its payment, or the estate is not administered within one year
from the death of the testator or intestate.^'''
43 Joint wrongdoers
A person who is injured by the joint wrong of several persons
may sue all in one action, or he may sue each in a separate action
and recover several judgments, of which he can have but one
satisfaction.^'^
All who contribute to a tort either by will or act, even though
in an inferior degree, are liable severally for the entire damages
to the person injured, whether they are personally present or
absent at the time of the injury. ^^
44 Sheriff and constables
Damages which result from the failure of a sheriff or a con-
stable to take a sufficient return bond in replevin may be
recovered in an action on the case, or in an action of debt upon
the official bond.^^
APPLICATION TO ACTIONS
45 Appeal or certiorari
If a court proceeds irregularly, the remedy is by appeal, and
not by certiorarL^^
46 Assumpsit or trespass
At common law, the owner of land which is occupied by a
trespasser, and the owner of personal property which is wrong-
fully taken and which has not been sold, cannot waive the
trespass and sue in assumpsit. But, after the personal property
leEyan v. Jones, 15 HI. 1, 4 i9 People v. Core, 85 111. 248
(1853); Sees. 11, 14 and 15, c. 59, (1877); Sec. 12, c. 119, 1909 Hurd'a
Eevised Statute (111.). Stat., p. 1820.
17 Severin v. Eddy, 52 111. 189, 20 Schlink v. Maxton, 153 111. 447,
191 (1869). 454 (1894),
18 Kankakee & Seneca R. Co. v.
Horan, 131 111. 288, 300 (1890).
ELECTION OF REMEDIES 23
has been converted into money the owner of the property may
waive the trespass and sue in assumpsit.^^
Under Michigan statute, a trespass on land may be waived and
assumpsit may be brought for the damages sustained by the tres-
pass.22 If assumpsit is brought, the action must proceed as
for a trespass under the statute and not upon contract.
47 Assumpsit, replevin or trover
A party who elects to sue in assumpsit cannot afterwards
sue in replevin or trover for the same subject matter.^s
48 Case or trespass
The Illinois statute merely abolishes the technical distinction
between the two forms of action of case and trespass; it does
not affect or change the substantial common law rights and
liabilities of the parties.^^
49 Debt and covenant
Debt and covenant are concurrent remedies for the recovery
of demands arising from contracts under seal.-^
50 Interpleader or replevin
The owner of personal property upon which an attachment
against another person has been levied, may either replevin the
property or he may claim it by interpleader in the attachment
proceedings.26
51 Replevin or trespass
Property upon which a wrongful distress warrant has been
levied may be either replevined, or the owner of the property
may recover damages for its value in an action of trespass.^^
21 Lockwood V. Thunder Bay 23 Cooper v. Smith, 109 Mich. 458,
Eiver Boom Co., 42 Mich. 536, 539 460 (1896) ; Thomas v. Watt, supra.
et seq. (1880); Watson v. Stever, 24 Blalock v. Eandall, 76 111. 224,
25 Mich. 386, 387 (1872); May v. 228, 229 (1875).
Disconto Gesellschaft, 211 111. 310, 25 Stewart v. Sprague, 71 Mich.
315 (1904); Toledo, W. & W. Ey. 50, 59 (1888).
Co. V. Chew, 67 111. 378, 383 (1873) ; 26 JuiHiard & Co. v. May, 130 111.
Ward V. Bull, 1 Fla. 271, 278, 280 87 (1889).
(1847). 27 Stier v. Harms, supra.
22 Lockwood V. Thunder Bay
Eiver Boom Co., supra; Sec.
(11207), C. L. 1897 (Mich.).
24 ANNOTATED FORMS OF PLEADING AND PRACTICE
52 Replevin or trover
Trover and not replevin should be brought where the prop-
erty sought to be recovered is incapable of identification.^*^
53 Special assessments.
The failure to bring injunction, to commence mandamus, or
to file objections to the application for judgment and sale to
enforce payment of a special assessment will not preclude a
party from bringing a personal action against the members of
the board of local improvements for the recovery of special
damages arising from the construction of a local improvement
under a conspiracy between them and the contractor. 29
28 German National Bank v. 29 Gage v. Springer, 211 111. 200,
Meadowcroft, 95 111. 124, 129 208 (1904).
(1880).
CHAPTER IV
STATUTE OF LIMITATIONS
PRINCIPLES
§§
54 Controlling elements
55 Form of action
56 Cause of action, accrual
57 Cause of action, fraudulent
concealment
58 Commencement of running of
statute
59 Commencement of suit, gen-
erally
60 Commencement of suit, sum-
mons and declaration
61 Commencement of suit, what
not
PARTIES
62 Aliens
63 Minors and adults
64 Nonresidents, persons claim-
ing under
65 Sheriffs
66 Sureties
67 Trustees in bankruptcy
68 State and municipalities
69 Dissolved corporations
SPECIFIC CAUSES
70 Abduction
71 Assault and battery
72 Animals at large
73 Bonds, administrator's
74 Bonds, penal
75 False imprisonment
76 Fraud and deceit
77 Gambling options
78 Insurance policy
79 Judgments, Illinois
80 Judgments, Michigan
81 Libel
82 Malicious prosecution
83 Malpractice
84 Nonsuit, new actions
85 Penalties, statutory, Illinois
86 Penalties, statutory, Missis-
sippi
87 Personal injuries, generally,
Illinois
88 Personal injuries, municipali-
ties
89 Personal injuries, railroads
90 Rent
91 Replevin bond insuflScient
92 Sale of real estate
93 Seduction
94 Slander
95 Stockholder's liability
96 Suggestion of claim for mesne
profits
97 Taxes, money paid as
98 Waste
ACTIONS AND PROCEEDINGS
99 Assumpsit, account current
100 Assumpsit, contract
101 Attachment of water-craft
102 Case, continuing injury
103 Case, damages
104 Case, Illinois
105 Case, Michigan
106 Certiorari, generally
107 Certiorari, justice's proceed-
ing
108 Claims against estates, admin-
istrators
109 Claims against estates, con-
tingent
110 Claims against estates, Illinois
111 Claims against estates, Michi-
gan
25
26
ANNOTATED FORMS OP PLEADING AND PRACTICE
112 Coram nobis
113 Covenant
114 Debt, Illinois
115 Debt, Michigan
116 Disbarment
117 Distress for rent
118 Ejectment, Florida
119 Ejectment, Illinois
120 Ejectment, Michigan
121 Election contest, Illinois
122 Election contest, Michigan
123 Mandamus
124 Quo Warranto
125 Replevin
126 Trespass, generally
§§
127 Trespass, Illinois
128 Trespass, Michigan
129 Trover
130 Writ of error, Illinois
131 Writ of error, Michigan
SUSPENSION OF STATUTE
132 Absence
133 Death
134 Disability, generally
135 Disability, Illinois
136 Disability, Michigan
137 Legal proceedings
REVIVAL
138 Torts, new promise
PEINCIPLES
54 Controlling elements
The limitation of an action is controlled by the law of the
forum, by the cause of the action, by the person, corporation or
municipality who sues or who is being sued, and by the form of
the action.
55 Form of action
In states where the common law forms of action prevail, and
in absence of statutory provision to the contrary, the form of
the action, and not the cause of action, determines the bar of
the statute. 1
Some of the provisions of the Michigan statute limit the action
according to its form ; other provisions, bar the action regardless
of the form of action chosen. 2
56 Cause of action, accrual
A cause of action accrues when facts exist which authorize one
party to maintain an action against another regardless of the
residence of either party,^ unless the statute expressly postpones
1 Bates v. Bates Machine Co., 230
111. 619, 622 (1907); Christy v.
Farlin, 49 Mich. 319 (1882).
2 Christy v. Farlin, supra ; Avery
V. Miller, 81 Mich. 85, 88 (1895);
(9728), C. L. 1897 (Mich.); Snyder
V. Hitchcock, 94 Mich. 313, 315
(1892); (9751), C. L. 1897
(Mich.).
3 Davis V. Munie, 235 HI. 620, 622
(1908).
STATUTE OP LIMITATIONS 27
its operation on account of the absence from the state of one
of the parties.
57 Cause of action, fraudulent concealment
In Illinois, the fraudulent concealment of the cause of action
entitles the party upon whom the fraud has been practiced to
sue within five years from the discovery of his rights or of the
perpetration of the fraud. To entitle a party to bring an action
within five years from the discovery of a fraudulent conceal-
ment of a cause of action, something of an affirmative character
designed to prevent, and which does prevent, a discovery of the
cause of action must exist, where the original basis of the action
is not fraud. Mere silence of a person who is liable to an action
is insufficient under the statute.^
58 Commencement of running- of statute
The statute of limitation begins to run from the time of the
injury or from the time of the accrual of the cause of action.^
59 Commencement of suit, generally
The bringing of a suit terminates the running of the statute
of limitations, regardless of when a recovery of judgment is had.^
60 Commencement of suit, summons and declaration
The issuance of the first summons, or other process, to bring
the defendant into court, is the commencement of a suit for the
purpose of arresting the running of the statute of limitations,
if the first declaration filed states a good cause of action,
although defectively. If the declaration states no cause
of action and an amended sufficient declaration is filed, or if
a new count is filed which brings forward a new cause of action,
the date of the filing of the second declaration or new count is
the commencement of the suit for the purpose of preventing the
running of the statute.'^
♦Fortune v. English, 226 111. 262, 165 111. 185, 190 (1897); Milwaukee
267 (1507); Sec. 22, c. 83, Hurd's M. Ins. Co. v. Schallman, 188 111.
Stat. 1909, p. 1447. 213, 220 (1900); Fish v. Farwell,
5 Jones V. Sanitary District, 252 160 111. 23G, 247 (1896); Schroeder
HI. 598. " V. Merchants & M. Ins. Co., 104 111.
6 Converse v. Dunn, 166 111. 25, 71, 79 (1882); Chicago & North-
29 (1897). western Rv. Co. v. Jenkins, 103 IlL
TEylenfeldt v. IlUuois Steel Co., 588, 594 (1882).
28 ANNOTATED FOKMS OF PLEADING AND PRACTICE
In actions commenced by declaration, the suit is not begun,
within the meaning of the ^Michigan statute of limitations, until
there is personal service upon the defendant of a copy of the
declaration and rule to plead.**
61 Commencement of suit, what not
The substitution of an Assignee or trustee in bankruptcy as
plaintiff, without changing the cause of action that is then pend-
ing, is not the bringing of a new suit.^
PAETIES
62 Aliens
The statute of limitations in personal actions does not run
against nonresident aliens, nor against subjects or citizens of a
country which is at war with the United States. ^'^
63 Minors and adults
A joint action in favor of an adult and a minor is not barred
until two years after the minor has attained his majority.^^
64 Nonresidents, persons claiming under
In personal actions, the statute of limitations begins to run
against a resident immediately after he acquires title to a cause
of action from a nonresident, by death or otherwise.^2
65 Sheriffs
Actions against sheriffs for misconduct or negligence of their
deputies must be commenced within three years of the accrual
of the cause of action.^^
66 Sureties
The bar of a cause of action against the principal and one
surety does not discharge or release another surety.^^
8 Detroit Free Press Co. v. Bagg, 12 Wolf v. District Grand Lodge.
78 Mich. 650, 654 (1889). 102 Mich. 23, 28 (1894).
9 Chicago & Northwestern Ey. Co. 13 (9730), C. L. 1897 (Mich.)
V. Jenkins, 103 111. 594, 598. 14 People v. Whittemore 233 Dl.
10 (9735), C. L. 1897 (Mich.). 378, 385 (1912).
11 Beresh v. Knights of Honor,
255 111. 122, 124 (1912); Sec. 21,
c. 83, Limitation act (111.).
STATUTE OF LIMITATIONS 29
67 Trustees in bankruptcy
Suits by or against trustees in bankruptcy cannot be brought
after two years of the closing of the estate. ^^ Writs of error
are suits within the foregoing rule.^^
68 State and municipalities
Statutes of limitations do not run against the state or minor
municipalities created by the state as local governmental agen-
cies, such as counties, cities and to%vns, in respect to public rights,
unless the state or the municipality, is included within the terms
of the statute. This rule does not extend to a state or a munici-
pality which acts in a matter involving private rights.^^
The statute of limitations does not run against the state so
long as it holds title for the use of the public. ^^ An action of
debt by the people to enforce payment of taxes is not subject to
the statute of limitations.^^ Suits for the recovery of lands on
behalf of the state may be commenced within twenty years after
the cause of action has accrued-^*^
A municipality is considered to act in its private capacity
when it seeks to enforce rights in which the public in general
have no interest in common with the people of the municipality.
Thus, the trustees of schools act in a private capacity with
respect to property held by thorn for the use of a particular
school district.2i So, a municipality's rif?lit of action for dam-
ages done to a bridge is based upon private and not public
rights.22
69 Dissolved corporations
A corporation, in Illinois, may sue within two years after
dissolution; it may be sued at any time during the general
statute of limitations.2 3
15 2 Supplt. U. S. Rev. Stat., p. " People v. Hibernian Banking
849 sec. 11, cl. (d). Ass'n.. 245 111. 522, 529.
16 International Bank v. Jenkins, 20 (9724), C. L. 1897 (Mich.).
107 111. 291 (1883). 21 Brown v. School Trustees,
17 Brown v. School Trustees. 224 svpra.
HI 184, 187 (1906); People v. 22 Chicapo v. Dunham Towing &
Eo'ck Island, 215 111. 488, 493 Wrecking Co., 246 111. 31.
(1905); Whittemore v. People, 227 23 Singer & Talcott Stone Co. v.
HI 453 474 (1907); Chicago v. Hutchinson, 176 111. 48, 51, 52
Dunham Towing Sc Wrecking Co., (1898); Sees. 10-12, c. 32, Eev.
246 111. 29, 30 (1910). Stat. (HI.).
18 Black V. Chicago, B. & Q. R.
Co., 237 HI. 500 (1909).
30 ANNOTATED FORMS OF PLEADING AND PRACTICE
SPECIFIC CAUSES
70 Abduction
An action for abduction must be commenced within two years
next after the accruing of the action.24
71 Assault and battery-
Actions for assault and battery are barred within two years
from the time the action had accrued.^^
72 Animals at large
An action on the case for damages caused by permitting dis-
eased sheep or domestic animals to run at large is barred
within five years.^s
73 Bonds, administrator's
The statute of limitations begins to run against distributees
of an estate upon an administrator's bond from the date the ad-
ministrator fails to pay the money to the distributees in accord-
ance with the final order or judgment of the court, after demand
has been duly made upon him.^^
In Michigan, an administrator who fails to pay debts against
an estate in accordance with an order of court must be sued
within ten years from the date limited by the order to pay the
debts, whether the debts are outlawed or not, if the action is
debt.28
74 Bonds, penal
An action on a penal bond may be brought within the time
limited by the provision of the bond for the bringing of the
action, although all of the damages have not accrued at the time
of the commencement of the action.29
24 Sec. 14, c. 83, Hurd's Stat. 27 Frank v. People, 147 111. 105,
1909. 112, 113 (1893).
25 1909 Acts, p. 422 (Mich.), 28 Avery v. Miller, 81 Mich. 88.
(9729), C. L. 1897. 29 Lesher v. United States Fidel-
26 Mount V. Hunter, 58 111. 246, ity & Guaranty Co., 239 111. 502,
248 (1871); Sec. 258, c. 38, Hurd's 514 (1909).
Stat. 1909, p. 803; Sec. 15, c. 83,
Hurd's Stat. 1909, p. 1446.
STATUTE OF LIMITATIONS 31
75 False imprisonmeiit
In Illinois and in Michigan an action for false imprisonment
is barred after two years from the accruing of the action.^*^
76 Fraud and deceit
An action on the case for fraud and deceit must be brought
in Illinois within five years and in Michigan within six years
next after the cause of action had accrued.^^
77 Gambling options
An action to recover back moneys paid upon options to buy or
sell grain must be brought within six months after payment.^ 2
78 Insurance policy
A stipulation not sue after a certain period contained in an
insurance policy is binding upon the insured, and no action can
be brought after the prescribed period, unless prevented by the
insurer's fraud, or the holding out of reasonable hopes of an
adjustment.23
An action upon a fire insurance policy must be brought within
twelve months from the end of the sixty days, and not from the
fire, under a provision in the policy limiting the commencement
of an action thereunder to twelve months "next after the fire"
and another provision forbidding the commencement of suit for
sixty days.2*
79 Judgments, Illinois
Scire facias or debt may be brought to revive a dorment domes-
tic judgment within twenty years after the date of the judgment,
and not afterwards.^^ A claim or action founded upon a foreign
judgment must be commenced within five years next after the
30 Sec 14, c. 83, Hurd 's Stat. 33 Peoria Marine & Fire Ins. Co.
1909; 1909 Acts, p. 422 (Mich.). v. Whitehill, 25 111. 466 (1861).
31 Bates V. Bates Machine Co., 34 Hogl v. Aachen Ins. Co., 65 W.
230 111. 621; Krue^er v. Grand Va. 437. 438 (1909).
Rapids & I. R. Co., 51 Mich. 142, 144 35 ^\Tiite v. Horn, 224 111. 238,
(1883) 244 (1906); Ambler v. Whipple,
32Bartlett v. Slusher, 215 lU. 139 111. 311. 321 (1891); Limita-
348 352 (1905); Sec. 132, c. 38, tion act (Hurd's Stat. 1909, p.
Hurd's Stat. 1909, p. 778. 1447, par. 26).
32 ANNOTATED FORMS OF PLEADING AND PRACTICE
cause of action had accrued, irrespective of where the action ac-
crued, or where the parties reside.^^
80 Judgments, Michigan
All actions upon judgments, except judgments rendered by
courts of record, must be commenced within six years.^^ Actions
upon domestic or foreign judgments, or decrees rendered by a
court of record, must be commenced within ten years of their
entry, regardless of the form of the action chosen.^s
81 Libel
Actions for libel must be begun within one year after the accru-
ing of the cause of action in Illinois and in Michigan.^^
82 Malicious prosecution
An action for malicious prosecution is barred in two years. '*^
A cause of action for malicious prosecution does not arise until
the expiration of two years from the making of the final order of
reversal in reversed and remanded cases.^^
83 Malpractice
Actions for malpractice by physicians, surgeons and dentists
must be brought within two years next after the action had ac-
crued.'*^
84 Nonsuits, new action
In Illinois, a new action must be commenced within one year
of an involuntary nonsuit.^ ^ This rule has no application to non-
suits which are voluntary.^*
36 Davis V. Munie, 235 111. 620; 4i McElroy v. Catholic Press Co.,
Ambler v. Whipple, 139 111. 321; 254 111. 290, 292 (1912).
Sec. 15, Limitation act (Hurd's 42 1909 Acts, p. 422 (Mich.).
Stat. 1909, p. 1446). 43 Hinchliff v. Eudniek, 212 111.
37 (9728), C. L. 1897 (Mich.). 569, 574 (1904); Sec. 25 Limitation
38 Snyder v. Hitchcock, 94 Mich. act.
315; (9751), C. L. 1897 (Mich.). 44 Koch v. Sheppard, 223 III. 172,
39 Sec. 13, c. 83, Hurd's Stat. 174 (1906).
1909; 1909 Acts, p. 422 (Mich.).
40 Sec. 14, c. 83, Hurd's Stat.
1909.
STATUTE OF LIMITATIONS 33
85 Penalty, statutory, Illinois
An action for a statutory penalty must be commenced within
two years next after the accruing of the cause of action.^^
86 Penalties, statutory, Mississippi
An individual 's action for a penalty or a forfeiture given by a
penal statute must be brought within one year next after the
offense was committed.'*^ An action for demurrage, or for delay
in transportation of goods, based upon the Kailroad Commission
Rules is in the nature of compensation and it is not a penalty
within the meaning of section 3101 of the Code of 1906.^'^
87 Personal injuries, g^enerally, Illinois
Excluding municipalities, actions for personal injuries which
do not result in death must be commenced within two years next
after the accruing of the cause of action.^^ g^its for the wrong-
ful death of persons must be brought within one year next after
the cause of action had accrued.-* ^ The recognized distinction be-
tween the two classes of actions is that the action brought under
section 14, chapter 83 of the Revised Statutes is purely for per-
sonal injuries ; whereas, the action maintainable under section 2,
chapter 70 of said statutes is for pecuniary loss sustained by the
widow and next of kin as a result of the wrongful death.^^ In
both classes, of actions, the cause of action is the wrongful act or
the default causing the injury or the death, and not the death.
The statute, therefore, begins to run from the date of the com-
mission or the omission of the wrongful act, neglect or default."^
88 Personal injuries, municipalities
Since 1905 suits at law in Illinois for personal injuries against
cities, villages or towns must be commenced within one year from
the time an injury is received, or from the time the cause of
action has accrued. ^^
45 Sec. 14, c. 83, Hurd's Stat. so Lake Shore & M. S. Hy. Co. v.
1909. Dylinski, 67 111. App. 114, 116
46 Sec. 3101, Code 1906 (Miss.). (1896).
47 Keyston Lumber Yard v. Ya- si Leroy v. Springfield, 81 111. 114,
zoo & M. V. E. Co., 53 So. 8, 11 115 (1876); Crane v. Chicago &
(Miss. 1910). W. L R. Co., 233 111. 259, 262
48 Sec. 14, c. 83, Hurd's Stat. (1908).
1909 ; McAndrews v. Chicago, L. S. 52 Erf ord t. Peoria, 229 111. 546,
& E. Ry. Co., 222 111. 232 (1906). 552 (1907).
*» Sec. 2, c. 70, Hurd 's Stat. 1909.
34 ANNOTATED FORMS OP PLEADING AND PRACTICE
An action against the city of Grand Rapids, Michigan, for
personal injuries resulting from a defective sidewalk is barred
after ten days of the injury, if no preliminary notice of the
injury has been given v^^ithin that time.^s
89 Personal injuries, railroads
Actions against a common carrier for personal injuries to their
employees caused by the negligence of the common carrier, its
employees or equipment, must be brought within two years from
the time the cause of action has accrued.^ ^
90 Rent
Actions for arrears of rent must be commenced within six
years of the accrual of the cause of action. ^^ Rent due on a
parol lease is barred in six years of the accrual of the action,
whether the action is assumpsit, or debt: rent due upon a lease
by indenture is barred in ten years next after the accruing of
the rent provided the action is debt and not assumpsit ; the one
is governed by subdivision 3 (9728), the other by (9734), C. L.
18975«
01 Replevin bond insufficient
An action on the case for the failure to take a sufficient replevin
bond must be commenced within three years next after the ac-
crual of the cause of action.^'^
92 Sale of real estate
In the absence of statute, an application for the sale of a de-
cedent's real estate must be made within seven years, unless a
longer delay is satisfactorily explained ; ^^ and when an order of
sale is entered, execution must be issued and the order enforced
within seven years of its entry. If not so enforced the order
must be revived by bringing the parties into court within twenty
years of the entry of the original order, which will only be re-
vived when there is something in the condition of the title which
53Moulter v. Grand Rapids, 155 s? Sees. 12, 13, c. 119, Hurd's
Mich. 165, 168 (1908); 1905 Local Stat. 1909, p. 1820.
Acts, No. 593, tit. 16, sees. 5, 6. ss Graham v. Brock, 212 111. 579,
54 1909 Acts, p. 210 (Mich.). 581 (1904); White v. Horn, 224 ni.
55 (9728), C. L. 1897 (Mich.). 243, 245.
56 Stewart v. Sprague, 71 Mich.
50, 60 (1888).
STATUTE OF LIMITATIONS 35
has prevented a sale, but not if it is a mere question of market
value.^^
The application for the sale should not be made until after
the determination of a homestead, and then only within a reason-
able time thereafter, not to exceed seven years from the death of
the owner of the homestead.^''
Creditors are bound to wait until the homestead estate is
terminated and they do not lose their right to enforce payment
of their proved claims from real estate by its increase in value
during the time that the law requires them to withhold proceed-
ings to enforce payment.^^
93 Seduction
In Illinois actions for seduction or criminal conversation must
be commenced within two years.^^ j^ Michigan the action for
seduction must be brought within six years,^^
94 Slander
An action for slander must be commenced within one year in
Illinois and two years in Michigan, next after the accruing of
the cause.^^
95 Stockholder's liability
A stockholder's liability to creditors of an insolvent corpora-
tion is barred within ten years from the contracting of the in-
debtedness by the corporation. "^^
96 Suggestion of claim for mesne profits
The action or proceeding for mesne profits must be commenced
in Illinois within one year of the recovery of the judgment in
ejectment, and the damages which are recoverable are for five
years immediately preceding the filing of the suggestions of claim
for mesne profits.^^
59 White V. Horn, 224 111. 243, 64 See. 13, c. 83, Hurd's Stat.
245. 1909; 1909 Acts, p. 422 (Mich.).
60 Frier v. Lowe, 232 111. 622, 65 Schalucky v. Field, 124 111. 617,
627 (1908). 622 (1888); Sec. 16, c. 83, Hurd's
61 Atherton v. Hughes. 249 111. Stat. 1909, p. 1446.
317, 323, 324 (1911). 66 Ringhouse v. Keener, 63 111.
62 Sec. 14, c. 83, Hurd's Stat. 230, 234, 235 (1872) ; Sec. 43, Eject-
1909. ment act (111.).
63 Watson V. Watson, 53 Mich.
168, 178 (1884); Stoudt v. Shep-
herd, 73 Mich. 588, 597 (1889).
36 ANNOTATED FORMS OF PLEADING AND PRACTICE
97 Taxes, money paid as
A tax buyer who purchases under a void sale may recover back
the amount of his bid and the taxes paid thereafter to protect
the purchase, within five years of the making of the payments.^''
98 Waste
Actions for waste must be brought within six years next after
the cause of action had accrued.^*
ACTIONS AND PROCEEDINGS
99 Assumpsit, account current
In actions to recover the balance due upon a mutual and open
account current, the cause of action is deemed to have accrued
at the time of the last item.^^
100 Assumpsit, contract
Actions of assumpsit founded upon any contract or liability,
express or implied, must be commenced, in Michigan, within six
years next after the cause of action had accrued.'^ "^
101 Attachment of water-craft
A lien against a water-craft must be asserted within six months
from the date that the claim for labor or materials is due.'^^
102 Case, continuing injury
A cause of action arises upon a continuing injury day by day.'^^
103 Case, damages
The statute of limitations bars a recovery of all damages,
whether nominal or substantial which are sustained prior to the
time within which the law requires an action for their recovery
to be brought/^
67 Joliet Stove Works v. Kiep, 230 110, 117 (1869) ; Stewart v.
111. 550, 556 (1907). Sprague, 71 Mich. 60; (9728), C.
68 (9728), C. L. 1897, subdn. 5 L. 1897 (Mich.).
(Mich.). 71 Sec. 3087, Code 1906 (Miss.).
69(9732), C. L. 1897 (Mich.); 72 Krueger v. Grand Rapids & I.
Sperry v. Moore's Estate, 42 Mich. R. Co., 51 Mich. 144.
353, 357 (1880). 73 McConnel v. Kibbe, 33 lU.
70 Goodrich v. Leland, 18 Mich. 175, 179 (1864).
STATUTE OF LIMITATIONS 37
104 Case, Illinois
An action on the case is barred within five years, unless the
particular form of action, as actions for slander and actions for
personal injuries, are made to bar sooner."^
105 Case, Michigan
All actions upon the case founded upon any contract or liabil-
ity, express or implied, except for slander or libel, must be com-
menced within six years after the cause of action had accrued."^
106 Certiorari, generally
In analogy to the statute relating to the review of judgments
of justices of the peace by certiorari, a petition for a writ to re-
view the action of an inferior tribunal should be brought within
six months from the date of the entry of the final order or judg-
ment to be reviewed ; and by analogy to the statute limiting the
time within which to prosecute writs of error, the petition should
be presented within period which governs the prosecution of
writs of error. In either case a further delay will not bar the
right, if the delay is satisfactorily explained in the petition.'^
Lapse of time alone, short of limitation for the prosecution of a
writ of error, will not bar the issuing of a common law writ of
certiorari, unless it appears that since the making of the record
sought to be reviewed, and upon its assumed validity, something
has been done which would cause great public detriment or incon-
venience by declaring it invalid.'^'^ A common law writ of cer-
tiorari will not be granted to test the legality of the existence of
a municipal corporation after long delay and acquiescence in the
exercise of its powers J ^
Under the present statute, a ease is reviewable upon certiorari to
the appellate court when there is a constitutional question in-
volved, when appellate court grants a certificate of importance, or
74 Mount V. Hunter, 58 HI. 249; 76 Clark v. Chicago, 233 ni. 113,
Sec. 15, c. 83, Kurd's Stat. 1909, 115 (1908).
p. 1446. 77 Schlosser v. Highway Commis-
76(9728), C. L. 1897, subdns. 4, sioners, 235 111. 214, 216 (1908);
7 (Mich.) ; Krueger v. Grand Rap- Chicago v. Condell, 224 111. 595,
ids & I. E. Co., 51 Mich. 142; White 598 (1907).
River Lig & Booming Co. v. Nelson, 78 Deslauries v. Soueie, 222 111.
45 Mich. 578, 581 (1881). 522, 525 (1906).
38 ANNOTATED FORMS OF PLEADING AND PRACTICE
when the judgment in actions ex contractu exceeds the sum of
$1,000 exclusive of costs. A mere judgment for costs is not re-
viewable on certiorari in the supreme court/''
The Michigan limitation period for writs of certiorari is the
same as for writs of error.^^
107 Certiorari, justice's proceeding
A proceeding by certiorari to review a justice's judgment
must be brought within six months from the time of the rendi-
tion of the judgment.^ ^
108 Claims against estates, administrators
The bar of the statute for unpresented claims against estates
applies to claims of administrators.^ ^
109 Claims against estates, contingent
A contingent claim against an estate is barred within the time
limited for the presentation of claims.^^
110 Claims against estates, Illinois
Prior to 1903 the limitation of claims against estates of de-
ceased persons was two years from the date of the issue of let-
ters of administration. Since 1903 claims against these estates
must be filed within one year from the date of the issue of the
letters.s^ A debtor's death extends the running of the statute
of limitations to the expiration of one year from the date of
the issuance of letters of administration, and the filing of a
claim on the adjustment day stops the running of this statute.^^
The period fixed by statute for the presentation of claims
has reference merely to the right to participate in the property
inventoried. It does not affect general actions or set-offs based
upon claims against decedents where the claimant is not seek-
ing the right to a distributive share in the inventoried prop-
erty.^^
79 International Text Book Co. v. s* Hathaway v. Merehants ' Loan
Machorn (unreported). & Trust Co., 218 111. 580, 583
80 (10499), C. L. 1897 (Mich.) (1905).
811909 Hurd's Stat., p. 1405, ss De Clerque v. Campbell, 231
par. 77. 111. 442, 445 (1907).
82 7ft re Hodges' Estate, 157 se Peacoek v. Haven, 22 111. 23,
Mich. 198, 201 (1909). 26 (1859); CI. 7, sec. 70, c. 3,
83 Pearson v. McBean, 231 111. Hurd's Stat. 1909, p. 124.
536 (1907).
STATUTE OF LIMITATIONS 39
111 Claims against estates, Michigan
The general provisions of the statute of limitations are ap-
plicable to claims against decedent's estates.^'^
112 Coram nobis
A motion in the nature of a writ of error coram nobis must
be made in Illinois at any time within five years after the rendi-
tion of final judgment in the case, except in cases of minority,
non compos mentis, or duress, in which cases the time of dis-
ability is to be excluded from the five years.* ^
113 Covenant
An action of covenant in Illinois and in Michigan must be
brought within ten years next after the accruing of the cause
of aetion.^^ A cause of action for a breach of covenant accrues
at the time of the breach of covenant, regardless of when
the damages were sustained in consequence of the breach. And
if an action of assumpsit is resorted to, the action will be
barred in Michigan within six years from the breach of the cov-
enant.^*'
114 Debt, Illinois
An action of debt is barred in ten years if it is based upon a
bond, promissory note, bill of exchange, written lease, written
contract or any other written evidence of indebtedness.^ ^
115 Debt, Michigan
Actions of debt upon contracts under seal must be brought
within ten years next after the accruing of the cause of action.^ ^
Actions of debt founded upon contract or liability not under seal,
except judgments or decrees of courts of record, must be insti-
tuted within six years next after the cause of action had ac-
crued.^^
87 Sperry v. Moore's Estate, 42 so Sherwood v. Landon, 57 Mich.
Mich. 357. 219, 224 (1885).
88 Sec. 89, Practice act 1907 si See. 16, c. 83, Kurd's Stat.
(ni.). 1909, p. 1446.
89 Stelle V. Lovejoy, 125 111. 352, 92 Stewart v. Spra^e, 71 Mich.
358 (1888); Sec. 16, c. 83, Kurd's 59; Goodrich v. Leland, 18 Mich.
Stat. 1909, p. 1446; Post v. Cam- 117; (9734), C. L. 1897 (Mich.),
pau, 42 Mich. 90, 94 (1879); 93(9728), C. L. 1897, subdn. 1
(9734), C. L. 1897 (Mich.); Stew- (Mich.).
art V. Sprague, 71 Mich. 60.
40 ANNOTATED FORMS OF PLEADING AND PRACTICE
116 Disbarment
Proceedings of disbarment are not included in the express
terms of the Illinois statute of limitations, and courts will not
establish a limitation by analogy to suits, unless, from the nature
or the circumstances of the particular case, justice to the
respondent requires it.^*
117 Distress for rent
The landlord's right to distrain is barred in Illinois in six
months from the expiration of the term or the termination of the
tenaney.^^
118 Ejectment, Florida
The exception to the seven years' limitation period in favor of
minors is applicable to persons to whom the title first accrues ;
it has no application to persons who are minors at the time the
statute begins to run against the parent.^^
119 Ejectment, Illinois
An action of ejectment may be brought at any time within
twenty years.^''' A mortgagee must bring ejectment before the
indebtedness to secure which the mortgage was given, is barred
under the statute of limitations.''^
120 Ejectment, Michigan
An action of ejectment by individuals or private corpora-
tions must be brought within fifteen j^ears next after the cause
of action had accrued, if the defendant claims title by adverse
possession.9^ Ji^ actions by or in behalf of the state, the suit
must be commenced within twenty years after the accrual of
the people's right of title.^*'*'
94 People V. Hooper, 218 111. 313, as Pollock v. Maison, 41 111. 516,
322 (1905). 519 et seq. (1866).
95 See. 28, c. 80, Hurd 's Stat. 99 Miller v. Beck, 68 Mich. 76, 78
1909, p. 1409. (1888) ; Curbay v. Bellemer, 70
96 Armstrong v. Wilcox, 57 Fla. Mich. 106, 110 (1888).
30, 34 (1909); See. 1723, Gen'l. loo (9724), C. L. 1897 (Mich.).
Stats. 1906.
97 Illinois Central E. Co. v. Gav-
ins, 238 111. 380, 385 (1909).
STATUTE OF LIMITATIONS 41
121 Election contest, Illinois
Suits under the election law, like suits under the act for
the removal of county seats, must be brought within thirty days
after the result of election has been declared. ^'^^
122 Election contest, Michigan
An application to the board of county canvassers for a re-
count of ballots cast at a city election must be made on or before
the last day on which the board is in regular session for the
purpose of taking action relative to the applicant's claim to
the office in controversy. It comes too late if made on the last
day on which the board of canvassers is required to meet for
the issuing of the certificate of election.i"^ Xo adjournment of
the board of canvassers will authorize a contestant to postpone
making his application.^ "^^
123 Mandamus
A proceeding by mandamus is an action at law and should
be commenced, in Illinois, within five years of the accruing of
the cause of action.^''-* Under Michigan practice, a writ of
mandamus will not be allowed to parties who have been culpably
dilatory in making the application.^o^
124 Quo warranto
At common law neither lapse of time nor the conduct of the
relator constitutes a bar to a proceeding by quo warranto which
is not brought in the interest of the relator.^"'' But as a part
of the discretion vested in a court to grant or refuse leave to
file the information, the court may consider the -time that has
elapsed in applying for the leave, along with all of the other cir-
cumstances of the case.^*^^ The statute of limitations relating
to civil actions has no application to quo warranto proceedings
which seek to oust a party who is charged with unlawfully ex-
ercising the office of magistracy.^ °^
101 Devous V. Gallatin County, lo* Kenneallv v. Chicago, 220 111.
244 111. 40, 44 (1910); Laws 1871- 485, 50.5 (1906).
72, pp. 309, 380, as amended in i^s People v. Judge Superior
1895. Court, 41 Mich. 31, 38 (1879).
102 Newton v. Canvassers, 94 loe People v. Anderson, 239 111,
Mich. 45.5. 458 (1892); Sec. 3725, 266, 270 (1909); People v. Karr,
C. L. 1897 (Mich.). 244 111. 374. 385 (1910).
103 Drennan v. Common Council, lo^ and los McPhail v. People, 160
106 Mich. 117, 118 (1895). 111. 77, 81 (1896).
42 ANNOTATED FORAIS OF PLEADING AND PRACTICE
125 Replevin
An action of replevin must be brought in Illinois within
five/°^ and in Michigan within six ^^^ years from the accruing
of the cause of action. The action of replevin or trover accrues
immediately upon the appropriation of the property to one's
own use under a claim which is inconsistent with that of its
owner.^^^
126 Trespass, generally
An action for a trespass which has resulted in immediate
damage accrues at the time the trespass is committed, except in
cases of continuous trespass when the commission of each tres-
pass is a new cause of action. No right of action of trespass
arises unless there is concurrence of wrong and damage. The
plaintiff must fix some distinct wrong upon the defendant result-
ing in damage within the period of the statutory limitation."^
127 Trespass, Illinois
An action of trespass to recover damages for an injury done to
personal or real property is barred within five years next after
the accrual of the cause of action.^ ^^
128 Trespass, Michigan
Actions of trespass upon land must be brought within two
years of the accruing of the right of action.^^^
129 Trover
An action of trover is barred, in Illinois, within five,ii5 and
in Michigan within six^io years from the accrual of the cause
of action.
io9Carr v. Barnett, 21 111. App. "3 Sec. 15, c. 83, Hurd's Stat.
137, 138 (1886); Sec. 15, c. 83, 1909, p. 1446. ,,,. , ^
Hurd's Stat. 1909, p. 1446. "* 1909 Acts, p. 422 (Mich.) ;
no (9728) C. L. 1897, subdn. 6 White Eiver Log & Booming Co. v.
(Mich) Nelson, 45 Mich. 581.
111 Carr V. Barnett, SMpra. ns Sec. 15, c. 83, Hurd's Stat.
112 National Cooper Co. v. Minne- 1909, p. 1446.
sota Mining Co., 57 Mich. 83, 92, "« (9728), G. L. 1897, subdn. 6
93 (1885). (Mich.).
STATUTE OF UMITATIONS 43
The statute of limitations runs against each separate and
distinct wrongful conversion. ^^^
130 Writ of error, Illinois
A writ of error must be brought within three years of the
rendition of the judgment, unless, at the time of the entry of
the judgment, the party aggrieved is an infant, non compos
mentis, or under duress, in which case the time of disability is
exeluded.i^^ The time for suing out a writ of error does not
begin to run until the judgment becomes final. If a motion for a
new trial has been made and has been continued from term to
term, the judgment does not become final until the motion is
disposed of. This rule is applicable to cases of the fourth class
reviewable under section 23 of the Chicago Municipal Court
act.119
In the organization of a drainage district under the Levee
act a writ of error may be sued out at any time within three
years to review the final order organizing the district.^^o
131 Writ of error, Michigan
No writ of error can issue beyond one year of the rendition of
the judgment, except in case of extension of time, in case of
disability and death, and in actions of debt or scire facias. An
additional -six months to the one year of limitation, but no more,
may be obtained from the supreme court by special motion and
upon proper showing. Persons under twenty-one years of age,
insane persons, persons imprisoned for any term of years less
than for life on a criminal charge, and persons under coverture,
may bring a writ of error within two years after the removal
of the disability ; or in case of death of the person under dis-
ability, the heirs may bring error within two years after the
death, provided that in either case the writ is issued within
five years of the rendition of the judgment. In debt or scire
facias the writ may be sued out within two years after the
bringing of the action of debt or scire facias }^^
117 Knisely v. Stein, 52 Mich. 380, 120 Drummer Creek Drainage Dis-
382 (1884). trict v. Eoth, 244 111. 68, 72 (1910).
118 Sec. 117, e. 110, Kurd's Stat. 121 (10492-10496). C. L. 1897
1909. (Mich.); Bliss v. Caille Bros. Co.,
ii9Hosking V. Southern Pacific 157 Mich. 258, 259 (1909).
Co., 243 lU. 320, 330, 331 (1910).
44 ANNOTATED FORMS OP PLEADING AND PRACTICE
SUSPENSION OF STATUTE
132 Absence from the state
The time that a person is absent from the state is not consid-
ered in Illinois a part of the limitation period ; but this has no
application where both parties are nonresidents.^ ^2
133 Death
Actions which survive and which have not been barred prior
to a person's death, may, in Illinois, and in Michigan, be com-
menced by his representatives within one year after the death
and the expiration of the regular period ; or they may be prose-
cuted against the representatives of the deceased person within
one year from the issuance of the letters and the expiration of
the regular period of limitation.^-^ After the statute of limita-
tions has commenced to run against a person, its rumiing is
not interrupted by his death, notwithstanding the existence of
minors.^-'*
134 Disability, generally
The disability of minority is not removed by appointment of a
guardian, but the minor has the full period of the time, after
reaching majority, within which to bring his action.^^s
135 Disability, Illinois
Persons under disability have two years additional from the
removal of the disability within which to bring suit. The per-
sons under disability are minors, males under twenty-one years
of age, females under eighteen years of age, non compos mentis,
and imprisoned criminals.^ ^^
136 Disability, Michigan
Persons under twenty-one years of age, married women, in-
sane persons, convicts, absentees from the United States, except
those who are within one of the British North America prov-
122 Sec. 18, c. 83, Hurd's Stat. ^25 Keating v. Michigan Central
1909. E. Co., 94 Mich. 219, 221 (1892).
123 Sec. 19, c. 83, Hurd's Stat. 126 Sec. 21, c. 83, Hurd's Stat.
1909; (9723), C. L. 1897 (Mich.). 1909.
124 Armstrong v. Wilcox, 57 Fla.
34.
STATUTE OF LIMITATIONS 45
inces, and all persons claiming under them are allowed five
years from the time of the removal of the disability within which
to make an entry or to bring an action for the recovery of real
estate, notwithstanding the bar of the action under the other
provisions of the statute. ^^7 ^he same class of persons, after
their respective disabilities have been removed, are allowed the
same time within which to institute personal actions as is pro-
vided for persons who are not under disabilities. ^^^ Since
the Act of 1855, notwithstanding the Amendatory act of 1863,
marriage is no longer a disability under the limitation statute,
the provision of the statute concerning marriage being regarded
as a repeal by implication.^^s
137 Legal proceedings
During the pendency of an action on appeal or writ of error,
in Illinois, the statute of limitations is suspended until the entry
of final judgment.130 So is the running of the statute ar-
rested during the continuance of an injunction staying the
commencement of the action, or during statutory prohibition.^^!
The statute of limitations does not commence to run against a
remanded cause until the expiration of two years from the date
of the rendition of the reviewing court's judgment.^ ^^ Iq
Michigan, upon the arrest of a judgment, or its reversal, a
new action must be brought for the same cause of action at any
time within one year after the determination of the original
action, or after the reversal of the judgment, ^^a
REVIVAL
138 Torts, new promise
A subsequent promise will not remove the bar of the statute
of limitations against actions ex delicto}^^ And this is true
in cases where the tort might be waived and an action of as-
sumpsit maintained, for the foundation of the action is the tort
and not the promise.^^^
127 (9718), C. L. 1897 (Mich.) "2 McElroy v. Catholic Press Co.,
128(9733), C. L. 1897 (Mich.); 254 111. 292.
Watson V. Watson, 53 Mich. 178. i33 (9723), C. L. 1897 (Mich.).
129 King V. Merritt, 67 Mich. 194, is* Nelson v. Petterson, 229 111.
217 (1887); (8692), C. L. 1807; 240, 245, 247 (1907); Holtham v.
Curbay v, Bellemer, 70 Mich. 110. Detroit, 136 Mich. 17, 21 (1904).
130 Nevitt V. Woodburn, 160 IlL i^s Nelson v. Petterson, supra.
203, 212 (1896).
131 Sec. 23, c. 83, Hurd's Stat.
1909.
CHAPTER V
JURISDICTION
IN GENERAL
§§
139 Jurisdiction defined
140 Jurisdiction, test
141 Due process of law
142 Law and fact
143 Persons, nonresidents
144 Persons, partners
145 Subject matter, consent
146 Subject matter, estoppel and
waiver
147 Want of jurisdiction, notice
148 Concurrent
149 Statutory remedies
150 Federal statutes, penal
151 Collateral attack, generally
152 Collateral
want of
attack, petition.
COURTS
153 Circuit courts, administration.
154 Circuit courts, drainage
155 County and probate courts,
administration
156 County and probate courts,
drainage
157 County and probate courts,
trespass
158 City courts
PARTICULAR SUBJECTS
159 Attorney's lien
IN GENERAL
139 Jurisdiction defined
Jurisdiction is authority to hear and to decide a case.^ Ju-
risdiction of the person is the authority obtained by process or
appearance to render a personal judgment.^ Jurisdiction of
the subject matter is the power to hear and to determine a case
of the general class to which the proceeding in question belongs.^
140 Jurisdiction, test
The power to pass upon the question, and not which way it
has been decided, is the test of jurisdiction.*
141 Due process of law
The power to render judgment is a question of due process of
law ; and if a party is not amenable to service of process within
1 People V. Superior Court, 234
111. 186, 199 (1908).
2 and 3 People V. Harper, 244 111.
121, 122, 123 (1910).
4 People V. Belz, 252 HI. 296, 299
(1911).
46
JURISDICTION 47
the state, a judgment is not rendered in pursuance to due proc-
ess of law.-^
142 Law and fact
Jurisdiction is not always a question of law, but it might
be one of law and fact.^
143 Persons, nonresidents
A civil action is maintainable against a nonresident defend-
ant and service of process may be had upon him during his
voluntary attendance before a notary public^
144 Persons, partners
A summons against a nonresident partner is original process,
and not in aid of jurisdiction, where jurisdiction has been
acquired by service of process upon a resident co-partner in a
personal action. And if a court has no extra-territorial juris-
diction, it is without power to issue summons against a non-
resident partner.^
145 Subject matter, consent
The parties to a suit cannot invest a court with jurisdiction
by agreement or consent, where the law has not conferred upon
the court jurisdiction of the subject matter.®
146 Subject matter, estoppel and waiver
The appearance of parties generally in a matter over which a
tribunal lacks jurisdiction does not estop them from afterwards
raising the question of jurisdiction.^^ Jurisdiction over the
subject matter is not waivable.!^
BBooz V Texas & P. Ey. Co., 250 111. 268, 271 (1904); Bates v. Hal-
Ill. 376, 379 (1911). linan. 220 111. 21, 25 (1906).
6 Hill Co. V. Contractors' Supply m Drainage Commissioners v.
& Equipment Co., 249 111. 304, 309 Cerro Gordo. 217 HI. 488, 494
(1911) (1905) ; People v. Sang^amon Drain-
7 Greer v. Young, 120 HI. 184, age District, 253 111. 332, 337
187, 190 (1887). (1912).
8 Wilcox V. Conklin, 255 111. 604, " Harty Bros. v. Polakow, 237
608 (1912). III. 559, 563 (1909); Highway Com-
9 Audubon v. Hand, 223 111. 367, missioners v. Smith, 217 111. 250,
370 (1906); Fisher v. Chicago, 213 260 (1905).
48 ANNOTATED FORMS OF PLEADING AND PRACTICE
147 Want of jurisdiction, notice
A court may take notice of a want of jurisdiction upon its own
motion.^ 2
148 Concurrent
In the courts of a state, that court which first acquires juris-
diction retains it until it makes a complete disposition of the
matter; but in courts of different states, two suits may proceed
until judgment is rendered in one of them. After judgment,
its recovery and payment, without collusion and upon full dis-
closure of the suit, will bar a recovery in the other suit, regard-
less of which suit was first commenced. The recovery of the
first judgment fixes the rights of the parties, and a judgment
debtor who fails to pay it and to set it up as a bar in the other
suit will not be protected. The foregoing rule is applicable to
attachment and garnishment. ^^ The rule that a court which
first acquires jurisdiction retains it until final disposition of the
subject matter has no application to courts of different states.^ ^
149 Statutory remedies
In the absence of statutory provision, statutory remedies are
enforcible in courts of law only.^^
150 Federal statutes, penal
A right of action which arises from a breach of duty imposed
by a statute of the United States is enforcible in a state court,
unless the action is penal in its nature. One state cannot enforce
the penal laws of another state or country.^ ^
151 Collateral attack, generally
The decision of a court or other tribunal cannot be attacked
collaterally when it is the result of the exercise of discretion and
the court or tribunal has jurisdiction; but a decision is subject
12 Fisher v. Cliicago, 213 111. 271. is Franklin County v. Blake, 247
13 Becker v. Illinoia Central R, 111. 500,501 (1910).
Co., 250, 40, 44 (1911). i6 Chesapeake & O. Ry. Co. v.
14 Lancashire Ins. Co. v. Corbetts, American Exchang:e Bank, 92 Va.
165 m. 592, 605 (1897). 495, 502, 504 (1896).
JURISDICTION 49
to collateral attack when the particular tribunal lacks juris-
diction.^^
152 Collateral attack ; petition, want of
The failure to find a petition upon which the jurisdiction of
an inferior tribunal depends is insufficient to prove the want of
such a petition.^ s
COURTS
153 Circuit courts, administration
The appellate jurisdiction of the circuit courts of Illinois over
probate matters is limited to the particular order appealed from ;
and when that is disposed of, the order of the circuit court is
transmitted to the county or probate court together with the
original will and probate thereby revesting in the latter court
full and complete jurisdiction over the administration and the
parties.i^
154 Circuit courts, drainage
An appeal from a classification of a drainage assessment only
brings up errors, if any, in the classification of the parties ap-
pealing.^*^
155 County and probate courts, administration
In all matters concerning the probate of wills, the county and
probate courts of Illinois have original exclusive jurisdiction.^^
156 County and probate courts, drainage
On appeal from a classification of a drainage assessment, the
county court has no power to proceed de novo, or to interfere
with the classification made by the commissioners, but it may
correct errors, if any, in so far as the classification relates to the
lands of persons within its jurisdiction.^^
•iTMcDonal.l v. People. 214 111. 20 People v. Grace, 237 111. 265,
83, 86 (1905). 268 (1908).
18 People V. Ellis, 253 111. 369, 21 Schofield v. Thomas, 231 HI.
375 (1912). 122.
19 Schofiel.l V. Thomas, 231 111, 22 People v. Grace, 237 111. 268.
114, 122, 123 (1907); Dean v.
Dean, 239 111. 424, 426, 427 (1909).
50 ANNOTATED FORMS OF PLEADING AND PRACTICE
157 County and probate courts, trespass
A county court, under Illinois law, has jurisdiction in actions
for damages not exceeding $1,000 for an injury to real prop-
erty, but it has no power to try title to such property.^s
158 City courts
The territorial limits of jurisdiction of a city court for the
service of original process is confined to the city limits wherein
the court is located.^^
PAETICULAR SUBJECTS
159 Attorney's lien
In the absence of statute, a court of equity is the only court
which has jurisdiction to enforce a lien. By Illinois statute, an
attorney's lien is enforcible at law or in chancery .25
23 Boyd V. Kimmel, 244 111. 545, 25 Standidge v. Chicago Rys. Co.,
550 (1910). 254 111. 524, 531 (1912); 1909
24 Maccabees v. Harrington, 227 Laws, p. 97 (HI.).
111. 511, 517 (1907).
CHAPTER VI
VENUE
IN GENERAL §§
g8 167 Municipal corporations, Mary-
160 Right, nature land and Michigan
161 Privileges, legal consultation 168 Nonresident partners
162 Criminal process 169 Railroads, Illinois
LOCAL AND TRANSITORY
PARTIES ACTIONS
170 Test
163 Foreign corporations, doing ^„^ ^,,.
171 Illinois
business
.„> „ . X- 172 Maryland
164 Foreign corporations, insur- ^„„ ^,. /.
173 Michigan
ance companies ,«- ttt ^ ^r- • •
,„^ „ . ^. , 174 West Virginia
165 Foreign corporations, personal
injuries ACTIONS
166 Municipal corporations, lUi- 175 Assumpsit
nois 176 Attachment
IN GENERAL
160 Right, nature
A party's right to be sued in the county of his residence is
statutory and substantial ; but this right is waivable.^
161 Privileges, legal consultation
A person is privileged from service with civil process during
his necessary consultation with his attorney in a foreign county. -
162 Criminal process
Criminal process cannot be used to subject nonresidents to
civil process in counties of their nonresidenee.^
1 Humphrey v. Phillips, 57 111. •"' McNab v. Bennett, 66 111. 157,
132, 135 (1870); Sec 6, Practice 160 (187C); Sec. 6. Practice act
act 1907 (111.). 1907 (111.).
2 Jacobson v. Hosmer, 76 Mich.
234, 236 (1889).
51
52 ANNOTATED FORMS OF PLEADING AND PRACTICE
PARTIES
163 Foreign corporations, doing business
A foreign corporation which is neither doing business nor is
having a local agent in the State cannot be sued in Illinois.-*
164 Foreign corporations, insurance companies
An action against a foreign insurance company as sole defend-
ant, upon a policy of insurance issued upon the life of a person
who did not reside at the date of the policy, or at the date of
his death, in the county of its statutory agent, must be brought
in Virginia, in the county of such agent's residence.^
165 Foreign corporations, personal injuries
In Virginia an action for personal injuries against a foreign
corporation may be instituted in the county where the injury
occurred and process may be served upon the statutory agent
in the county of his appointment or residence.^
166 Municipal corporations, Illinois
The bringing of suits by and against counties is purely statu-
tory. All local or transitory actions against a county must be
prosecuted in any court of general jurisdiction in the county
against which the action is commenced. All local or transitory
actions by a county must be commenced in the county in which
the defendant resides.' A proceeding by mandamus is a suit
or action and against a county it must be brought in the county
of the defendant. s
167 Municipal corporations, Maryland and Michigan
In transitory actions, a municipal corporation can only be
sued within its territorial limits. This is at common law and
it is not changed by Maryland statute. In local actions, a muni-
4 Midland P. Ey. Co. v. McDer- 7 Schuyler County v. Mercer
mid, 91 111. 170, 173 (1878). County. 4 Gilm. 20, 23 (1847); Sec.
5Deatrick v. State Life Ins. Co., 31, c. 34 Hurd's Stat. 1909, p. 627.
107 Va. 602, 615 (1907); Sees. 3214, s McBane v. People, 50 111. 503,
3215, Code 1904 (Va.). 507 (1869); Sec. 31, c. 34, Hurd's
6 Carr v. Bates, 108 Va. 371, 376 Stat. 1909.
(1908) ; Sees. 3215, 3220, 3224, 3225,
1104, Code 1904 (Va.).
VENUE 53
cipal corporation is suable in the jurisdiction in which the cause
of action had arisen.^
168 Nonresident partners
A partnership consisting of nonresident members may be sued
in any county in which it is doing business and has an agent.i<^
The word nonresident refers to anyone who does not reside in
the county or in the state. Nonresident does not mean a non-
resident of the state.
169 Railroads, Illinois
An action at law against a railroad corporation having a
principal office in the state may be prosecuted in the county
where the cause of action has accrued, or in any county into
or through which its road runs, by first having a summons
issued and returned that the railroad company has no officer
or agent within the county upon whom a copy of the process
can be delivered for the purpose of affecting service, and by
filing an affidavit of publication, publishing notice, and mail-
ing the same as in chancery cases. This service will sustain a
judgment in personam against it.^i A corporation has a legal
residence for the purpose of suit in the county in w^hich it
exercises corporate powers, and where it lawfully establishes
and maintains a principal office or place of business, although
not in the county where its road is located.^ ^
LOCAL AXD TEAXSITOET ACTIONS
170 Test
Actions in tort are transitory or local in accordance with
the subject of the injury, regardless of where or the means
whereby the injury was committed. Thus, an action for an
injury to real estate or to a private or public easement, is local ;
and an action for an injury to an individual is transitory, for
9 Phillips V. Baltimore, 110 Md. 416 (1910); Sec. 13, Practice act
431, 436 (1909); Sec. 62. art. 23, 1907 (111.).
Code (Md.); Baltimore v. Mere- n Nelson v. Chicago, B. & Q. R.
dith's Ford Turnpike Co., 104 Md. Co.. 22.5 111. 197 (1907).
351, 359 (1906); Pack, Woods & 12 Bristol v. Chicago & A. R. Co.,
Co. V. Greenbush, 62 Mich. 122 15 HI. 436, 437 (1854); Sec. 6,
(1886). Practice act 1907 (111.).
10 Watson V. Coon, 247 111. 414,
54 ANNOTATED FORMS OF PLEIADING AND PRACTICE
the reason that he has no fixed or immovable locality.''^ In
Michigan, since 1861 actions of trespass against nonresident
defendants are transitory and not local.^"*
171 lUinois
Transitory actions must be brought in the county of the
defendant's residence, or where he is found. Actions against
defendants who reside in different counties should be brought
in the county where one of them actually resides. ^^ Personal
actions may be commenced and process may be issued to other
counties for service upon nonresident defendants; but no judg-
ment can be rendered against the nonresident defendants unless
they appear and defend the action or there is judgment against
a resident defendant.^® The court does not lose jurisdiction
over a nonresident defendant, under section 2, of the Practice
act, by directing a verdict in favor of a resident defendant,
where the resident is made defendant in good faith and under
the reasonable belief that a cause of action exists against him,
and the nonresident defendant appears and defends the action.i^
172 Maryland
A person is suable in the county of his residence, or in the
county in which he carries on a regular business, or in which he
is habitually or continuously employed in a fixed occupation
connected with some branch of trade, industry, commerce, or
some usual calling or profession. It is not necessary that the
business should be that of the person sued, as an employee is as
much within the statute as an employer. Nor is the failure to
receive remuneration for services an element of exemption from
the statute. But the mere transaction of one's own private
affairs is not within the statute. Nor does a single transaction
of a particular business constitute the carrying on of business. ^^
isGimther v, Dranbauer, 86 Md. le See. 2, c. 110, 111. Eev. Stat.;
1, 6 (1897). Williams v. Morris, 237 111. 254,
14 Freud v. Rohnert, 131 Mich. 258 (1908).
606, 607 (1902); (10217), C. L. 1 7 Lehigh Valley Trans. Co. v.
1897 (Mich.) amended in 1903 Acts, Post Sugar Co., 228 111. 121, 132
p. 406. (1907). ■
15 Sandusky v. Sidwell, 173 HI, is Gemundt v. Shipley, 98 Md. 657,
493, 495 (1898); Harrison v. 661 (1904); Cromwell v. Willis, 96
Thaekaberry, 248 lU. 512, 515 Md. 260, 266 (1903); Sec. 132, art.
(1911); Sec. 6, Practice act 1907 75, Code (Md.).
(111.).
VENUE 55
173 Michigan
In transitory actions, residents of the state of Michigan have
the statutory right to sue and to be sued in the county of the
plaintiff's or defendant's domicile.^^ This right is not extended
to nonresidents of the state when sued; 20 but it is applicable
to nonresidents who sue, although the action may be brought
against a nonresident.-^ The right to sue out of the county is
as much substantial as it is to be sued in one's county.-^
Defendants who are jointly, and not severally, liable on a con-
tract, in ejectment, or in tort, may be sued in the county where
either of them resides, and the other may be served in the
county of his residence.-^
174 West Virginia
Transitory actions against nonresidents may be brought in
any county where they may be found or have an estate or
debts due them.^*
ACTIONS
175 Assumpsit
An action of assumpsit which is based upon the waiver of
a trespass or injury to real estate, is transitory, -^
176 Attachment
In cases of attachment, jurisdiction is founded upon the
presence of property or effects against which an attachment
may be directed, and not upon the defendant's residence. So
that a defendant's property is attachable in any county where
it is found or where his creditor resides, although his residence
is in a different county. -° An indebtedness which is not due
isHaTwood v. Johnson, 41 Mich. 23(10010), C. L. 1897 (Mich.)
598 (1879); (10216), C. L. 1897 amended in 1901 Acts, p. 354;
(Mich.) amended in 1899 Acts, p. Brown v. Bennett, 157 Mich. 654,
454. 658 (1909).
20 Atkins V. Borstler, 46 Mich. 552 24 Coulter v. Blatchley, 51 W. Va.
(1881). 163, 164 (1902); CI. 4, sec. 1, c.
21 Sleight V. Swanson, 127 Mich. 123, Code (W. Va.).
436 (1901); (10216), C. L. 1897 25 Bradlev-Watkins Co. v. Adams,
(Mich.) swpra. 144- Mich. 142, 146 (1906); (11207),
22 Monroe v. St. Clair Circuit C. L. 1897 (Mich.).
Judge, 84 N. W. 305, 306 (Mich, 26 Smith v. Mulhern, 57 Miss. 591,
1900) ; Jacobson V. Hosmer, 76 Mich. 593, (1880); Barnett ▼. Eing, 55
236. Miss. 97 (1877).
56 ANNOTATED FORMS OF PLEADING AND PRACTICE
is attachable only in the county of the debtor's residence, or
last residence, or where his property is found. -'^ In West
Virginia, for the purpose of attachment and garnishment, the
situs of a debt is the residence of the debtor, and not that of
the creditor, and the debt may be attached and garnisheed in
the hands of a foreign railroad corporation which is authorized
to do business in the state, irrespective of where the debt was
contracted or was made payable. This is based upon the con-
struction of a railroad statute. It has no application to mer-
cantile foreign corporations.-^
27 Yale V. McDaniel, C9 Miss. 337, 58 W. Va. 388 (1905); Sec. 30, c.
338 (1891); Sec. 2459, Coae 1880 54, Code (See. 2322, Ann. Code
(Miss.). 1906 W. Va.).
28 Baltimore & O. K. Co. v. Allen,
CHAPTER VII
PARTIES
PRINCIPLES
177 Legal and equitable title
178 Title or interest, burden of
proof
179 Name, legal
180 Name, assumed
181 Name, middle
182 Nominal and use plaintiff
183 Nominal and use plaintiff, res
judicata
184 Joinder
185 Nonjoinder
186 Misjoinder
187 Withdrawal
PERSONS, CORPORATIONS
AND ASSOCIATIONS
188 Administrator de bonis non
189 Assignee
190 Corporations
191 Counties
192 Executors
193 Foreign corporations
194 Husband and wife
195 Insane persons
196 Joint and several obligees and
obligors, plaintiffs
197 Joint and several obligees and
obligors, defendants
198 Joint owners
199 Joint wrongdoers
200 Legatees
201 Minors
202 Nonresidents
203 Partners
204 Receivers
205 Religious organizations
206 School districts, discontinued
207 State board of health
208 Townships and highway com-
missioners
209 Voluntary associations
PRACTICE
210 Addition and substitution of
plaintiff
211 Bankruptcy, petition for sub-
stitution of trustee
212 Change of defendant, petition
and order
213 Death, suggestion of, neces-
sity of
214 Death of party, practice. Dis-
trict of Columbia
215 Death of party, practice, Illi-
nois
216 Death of party, practice, Mary-
land
217 Death of party, practice,
Michigan
218 Improper parties, dismissal
219 Intermarriage, order of sub-
stitution
220 Minority, petition for appoint-
ment of next friend, and or-
der
221 Misnomer, correction.
PRINCIPLES
177 Legal and equitable title
Actions an contracts must be brought by or in the name of
all of the parties in whom is vested the legal interest in the
57
58 ANNOTATED FORMS OF PLEADING AND PRACTICE
subject matter of the contract.^ So in ex delicto actions, if
an injury is done to property, the remedy must be sought in
courts of common law by some person having an estate in the
property, legal or equitable, which the law recognizes.- The
equitable owner of a chose in action has a right, by virtue of
his ownership, to bring an action at law as use plaintiff in
the name of the party who has the legal title. ^
178 Title or interest, burden of proof
Where an action on a contract is brought by several persons,
they must prove their right to sue as at common law, unless
they sue as partners.'*
179 Name, legal
In the absence of statute, parties to the litigation should be
designated by name and not merely by description of the per-
son; but the failure to so designate a defendant must be taken
advantage of on or before trial.^
180 Name, assumed
A person may be sued by a known name, and held upon a
judgment under that name.^
181 Name, middle
At common law the middle letter is no part of the name of
an individual, and it makes no difference if it is omitted, wrongly
inserted or is erroneous.'^
182 Nominal and use plaintiff
An action upon a contract expressly made for the benefit of
a third person may be brought in the name of the contracting
1 Dix V. Mercantile Ins. Co., 22 5 FeH v. Loftis, 240 HI. 105, 109,
m. 272, 276 (1859) ; Lamed v. Car- 110 (1909).
penter, 65 111. 543, 544 (1872); Mc- a Field v. Plummer, 75 Mich. 437
Lean County Coal Co. v. Long, 91 (1889).
m. 617, 618 (1879). 7 Illinois Central R. Co. v. Hasen-
2 Peoria Marine & Fire Ins. Co. V. winkle, 232 111. 224, 228 (1908);
Frost, 37 111. 333, 336 (1865). Humphrey v. Phillips, 57 111. 135;
3 Foreman Shoe Co. v. Lewis & People v. Dunn, 247 111. 410, 413
Co., 191 111. 155, 158 (1901); Sec. (1910).
23, c. 1, Hurd's Stat. 1909, p. 107.
4 Woodworth v. Fuller, 24 HI. 109,
110 (1860).
PARTIES 59
party for the benefieiarj' 's use.^ The real parties in interest
may prosecute or defend an action at law in the name of a
necessary nominal party against his protest, upon indemnifying
him against costs and damages.^ The fact that a party is named
as beneficial plaintiff, or the use of the words "for the use of,"
etc., does not constitute him a plaintiff in the case. The reason
for using these words is merely to protect the interest of the
usee against the nominal plaintiff who is a necessary party at
every stage of the proceeding.!*^
183 Nominal and use plaintiff, res judicata
The bringing of an action by the nominal plaintiff and a
recovery of a judgment therein is a bar to any future action
by the party benefited by that action. As where suit is brought
by highway commissioners on behalf of their town, the town-
ship is the beneficial plaintiff, and a judgment in such an action
is a bar to any future action that might be commenced, either
in the name of the township or by any agent thereof for the
same cause of action.^^
184 Joinder
Parties who are separately liable for a portion of an indebted-
ness cannot be joined in one action upon the entire debt.^^
185 Nonjoinder
The nonjoinder of necessary parties defendant in actions ex
contractu is available even after judgment by default, where
the omission to make the necessary parties appears on the face
of the declaration. 13
186 Misjoinder
In actions ex delicto the joinder of too few or too many plain-
tiffs is ground of nonsuit on the trial, although the misjoinder
8 Illinois Fire Ins. Co. v. Stanton, 12 Union Drainage District v.
57 HI. 354, 356 (1870). Highway Commissioners, 220 111.
9 Sumner v. Sleeth, 87 111. 500, 503 176, 180 (1906).
(1877). 13 Cummings v. People, 50 111. 132.
loHobson V. McCambridge, 130 134, 135 (1869): International Ho-
111. 367, 375, 376 (1889); MeCor- tel Co. v. Flynn, 238 111. 636, 644
mick V. Fulton, 19 111. 570 (1858). (1909).
11 Highway Commissioners v.
Bloomington, 253 111. 164, 167
(1912).
60 ANNOTATED FORMS OF PLEADING AND PRACTICE
of defendants is immaterial.^* The nonjoinder of persons in-
terested with the plaintiff can be taken advantage of by plea
in abatement, or in mitigation of damages. By omitting to
plead in abatement, a defendant consents to a severance of the
causes of action and authorizes the plaintiff to have judgment
for his aliquot share for the damages sustained. This rule has
no application to a statutory penalty which in its nature is
indivisible.^^
187 Withdrawal
In all proceedings commenced by voluntary petition, any of
the subscribers may withdraw their names as petitioners at any
time before final action is taken upon the petition.^'^
PEESONS, CORPOEATIONS AND ASSOCIATIONS
188 Administrator de bonis non
An administrator de bonis non can sue for or upon only such
of the goods and chattels of the intestate as remain unadmin-
istered in specie, and upon such of the debts as remain unpaid.
His authority does not extend to assets which have been admin-
istered, whether properly or improperly. ^'^
189 Assigfnee
An assignee of a chose in action cannot, at common law, main-
tain an action thereon in his own name.^^ In Michigan such
an assignee may sue in his own name or in the name of the
assignor. 19
190 Corporations
The corporation and not its agent must sue on the contract
made for its benefit through an agent, although there is a writ-
14 Murphy v. Orr, 32 111. 489, 166, 167 (1910); Kinsloe v. Pogiie,
492 (1863); Snell v. De Land, 43 213 111. 302, 306 (1904V
111. 323, 325 (1867); Chicago v. it Newhall v. Turney, 14 111. 338,
Speer, 66 111. 154, 155 (1872); 339 (1853).
Siegel, Cooper & Co. v. Schueek, 167 is McLean County Coal Co. v.
111. 522, 525 (1897). Long, 91 111. 617, 618.
15 Edwards v. Hill, 11 111. 22, 23, i9 Park v. Toledo, C. S. & D. E.
24 (1849). Co., 41 Mich. 352, 355 (1879).
16 Malcomson v. Strong, 245 111.
PARTIES 61
ten promise to pay the agent eo nomine.-^ Corporations may
be sued for tort the same as individuals.-^
191 Counties
At common law, counties can neither sue nor be sued ; there-
fore, actions by or against them depend upon some special
statute.22 In Illinois, under special statutory provisions, all
local or transitory actions against counties must be commenced
or prosecuted in the circuit court of the county against which
the action is brought; and all actions commenced by counties
must be brought in the county in which the defendant resides.^^
192 Executors
The title to goods, chattels and choses in action vests in the
executor upon his appointment for the use of the creditors,
distributees and legatees, and he alone can sue in trover, replevin,
or other appropriate remedy for the recovery of personal prop-
erty, or for its injury.-^
193 Foreign corporations
It is not necessary that a foreign corporation should qualify
as such to enable it to bring suit upon a cause of action which
has not arisen from an unauthorized transaction of business in
the state.25 If such a corporation has a good cause of action,
it may sue in Illinois, regardless of whether or not it can main-
tain an action for the same cause of action in another state. ^^
194 Husband and wife
A wife cannot sue her husband at common law. In Illinois
a married woman cannot sue her husband in an action at law
20 Southern Life Ins. & Trust Co. 25 Alpena Portland Cement Co. v.
V Gray 3 Fla. 262, 366 (1850). Jenkins & Eeynolds Co., 244 111. 354,
21 Harlem v. Emmert, 41 111. 319, 361 (1910); Lehigh Portland Ce-
323 (1866); Kankakee & Seneca R. ment Co. v. McLean, 245 111. 326,
Co. V. Horan, 131 111. 288, 307 333 (1910); See. 6, c. 32, Kurd's
(1890). Stat. 1909; Finch & Co. v. Zenith
22 Schuyler County v. Mercer Furnace Co., 245 111. 586, 591, 592
County, 4 Gilm. 20, 23 (1847). (1910); Simpson Fruit Co. v. Atchi-
23 Sec. 6, Act of Jan. 3, 1827 son, T. & S. F. Ry. Co., 245 111. 596,
(1833 Eev. Laws, p. 139.) 597 (1910).
24 McLean County Coal Co. v. 26 Finch & Co. v. Zenith Furnace
Long, 91 111. 619. Co., 245 111. 594.
62 ANNOTATED FORMS OF PLEADING AND PRACTICE
except where her separate property is involved.-^ Husband and
wife may sue one another in Mississippi. ^^
195 Insane persons
At common law an action upon a contract made by an
insane person could only be brought in his own name.-^ In
Illinois this rule applies until a conservator is appointed. After
the appointment of a conservator suits must be brought in his
name.^*'
196 Joint and several obligees and obligors, plaintiffs
All living obligors at the time suit is about to be commenced,
must join in an action upon an obligation which is expressly
made to two or more persons, notwithstanding the defeasance
may provide for its discharge upon the payment of a sum of
money to one of them, because, the legal interest in such a case
is joint and not several.^^ The legal interest of a party in a
contract is not to be confounded with the benefit to be derived
from or under it. It is the legal interest and not the benefit in
the contract which determines in whose name an action on a
contract, Avhether by parol or under seal, should be brought.
197 Joint and several obligees and obligors, defendants
In actions upon joint obligations, all living joint obligors,
or promisors must be made defendants.^^ Qq a joint and sev-
eral obligation, one may be sued, or all, but not an inter-
mediate number. In case of a joint obligor 's death the survivors
may be sued as if they alone were primarily liable. ^^ Parties
to a contract which is void as to them and valid as to others
should not be joined in an action on the contract with those
who are liable thereon.^*
27 Chestnut v. Chestnut, 77 111. 32 Brooks v. Mclntyre, 4 Mich.
346,350 (1875). 316, 317 (1856); Byers v. First
28 Sec. 2518 Code 1906 (Miss.). National Bank, 85 111. 423, 426
29 Chicago & P. R. Co. v. Munger, (1877).
78 111. 300, 301 (1875V 3^ Cummings v. People, 50 111. 132,
30 Sec. 11. c. 86, Hurd's Stat. 134 (1869).
1909, p. 1460. 34 Md.enn v. Griswold, 22 111. 218,
31 International Hotel Co. v. 220 (18.59); Page v. De Leuw, 58
Flynn, 238 111. 644: Osgood v. Skin- 111. 85, 87 (1871).
ner, 211 111. 229, 237 (1904).
PARTIES 63
198 Joint owners
In actions in form ex delicto the joinder of parties plaintiff
depends upon whether the specific thing, or the damages are
sought to be recovered. If a recovery of the particular prop-
erty is sought, all of the point owners of that property are
necessary parties; if damages alone are sued for, a part of the
owners alone may sue at one time and another part may sue
at another time, each recovering according to their propor-
tionate interest in the property damaged, lost, or destroyed,
unless the nonjoinder of all of the owners of the property is
pleaded in abatement.^^
199 Joint wrongdoers
A party who is injured by joint and independent acts of
several persons may either elect to sue any one of them, or
all or any number of them jointly, and recover against as many
as the proof shows are liable ; ^^^ or after suit has been brought
against all of the wrongdoers, he may exercise such an election
at any time before judgment by dismissing the suit against any
of them.^'^ A release or a discharge of one joint wrongdoer,
however, is a release of the other, on the principle that there can
be but one' recovery or satisfaction.^^ The common law rule
that all persons who are liable for the same tort may be joined
in one action, does not apply to wrongdoers who are indirectly
liable, unless changed by statute.^^
200 Legatees
A legatee cannot maintain an action for the recovery of, or
for an injury to personal property which has been willed to
him, but he must do so through the executor.^°
35 Johnson v. Eiehardson, 17 111, 37 Nordhaus \. Vandalia R. Co.,
302, 303 (1855). 242 111. 166, 174.
36 Nordhaus v. Vandalia R. Co., 38 Moonev v. Chicago, 239 111. 414,
242 111. 166, 174 (1909); Tandrup 422,423 (1909).
V. Sampsell, 234 111. 526, 530 39 Franklin v. Frey, 106 Mich. 76,
(1908); Parmelee Co. v. Wheelock, 78 (1895).
224 111. 194, 200 (1906) ; Severin V. ^o McLean County Coal Co. v.
Eddy. 52 111. 189, 191 (1869). Long, 91 HI. 618 et seq.
64 ANNOTATED FORMS OF PLEADING AND PRACTICE
201 Minors
A praecipe may be executed and process may be sued out in
the name of minors before the appointment of prochein amy
or guardian.*^
202 Nonresidents
A nonresident cannot, against his objection, be made a party
to a proceeding in the nature of an interpleader, by personal
service upon him beyond the jurisdiction of the court.*^
203 Partners
In ex contractu actions all ostensible and publicly known
members of the firm at the time of the making of the contract
to be sued upon must be joined as defendants.*^ The same is
true in cases of a partnership consisting of an infant and an
adult, as such a partnership is not void.'*'* It is optional for the
plaintiff to join or omit secret or nominal partners unless he
knows, or has notice, of their existence and by the omission to
join them, the defendant is deprived of presenting a defense
in the nature of set off or recoupment.^^
204 Receivers
The receivers of corporations alone are proper parties defend-
ant to an action for personal injuries resulting while they are
in control and possession of the corporate properties.*^ Re-
ceivers may be sued as joint wrongdoers.*'^
205 Religious organizations
Under former Illinois law religious societies could sue only
by their trustees.*^ The present laws relating to religious
41 Stumps V. Kelley, 22 111. 140, « Lasher v. Colton, 225 111. 234,
141 (1859). 237, 239 (1907); Page v. Brant, 18
42 Dexter v. Liehliter, 24 App. D. 111. 38.
C. 222, 227 (1904); Sec. 1531, Code 46 Henningr v. Sampsell, 236 111.
(D. C). 375, 381 (1908).
43 Page V. Brant, 18 111. 37, 38 47 Tandrup v. Sampsell, 234 111.
(1856) ; Goggin v. O'Donnell, 62 111. 526, 533 (1908).
66, 67 (1871); Blackwell v. Reid & 48 Ada Street Methodist Episco-
Co. 41 Miss. 102 (1866). pal Church v. Garnsey, 66 111. 132,
44 0sborn v. Farr, 42 Mich. 134 133 (1872).
(1879).
PARTIES 65
organizations require suits by and against them to be brought
in the name under which they are organized.^^
206 School districts, discontinued
Upon the discontinuance of a school district in Illinois, an
action for a breach of contract may be brought against the
board of education of the township of the discontinued dis-
trict.50
207 State board of health
The State Board of Health is a branch of the executive
department of the government; it is neither a corporation, an
association, nor an individuals^
208 Townships and highway commissioners
Incorporated townships may sue in their corporate names.'^'^
The institution of an action in the name of the highway com-
missioners in place of that of the township is a waivable irregu-
larity, and an objection on that ground comes too late when
first urged in the reviewing court.^^
209 Voluntary associations
At common law all of the members of a voluntary association
should be joined as parties to an action. The name of a society
cannot be used in suing. On the principle of waiver, however,
a voluntary association is bound by a judgment which has been
rendered against its society name, where the association assumed
a corporate name, where it has exercised corporate powers, and
where it has been sued and has been served as a corporation
and the want of proper parties is urged for the first time on
appeal or in a collateral proceeding.^^ A person who has been
*9 Zion Church v. Mensch, 178 111. 53 Highway Commissioners v.
225 (1899); Church of Christ v. Bloomington, 253 111. 167; Par. 46,
Christian Church, 193 111. 144 c. 139, Hurd's Stat. 1909.
(1901). 54 Schuetzen Bund v. Agitations
00 Chalstran V. School District, 244 Verein, 44 Mich. 313, 316 (1880);
111. 470, 479 (1910); Sec. 44, art. Fitzpatrick v. Rutter, 160 111. 282,
3. School law (Hurd's Stat. 1908, p. 286 (1896); Ada Street Methodist
1920). Episcopal Church v. Garnsey, 66 111.
51 People V. Dunn, 255 111. 289, 134; Warfield-Pratt -Howell Co. v.
291 (1912). WiUiamson, 233 lU. 487, 496 (1908).
52 Morris v. School Trustees, 15 HI.
266, 270 (1853),
66 ANNOTATED FORMS OF PLEADING AND PRACTICE
made a member of a voluntary association without his authority
or illegally, may be omitted as a party to the action.^^ The
Grand Lodge of Illinois Odd Fellows must sue and be sued in
the name of "The Grand Lodge of the State of Illinois, of the
Independent Order of Odd Fellows;" subordinate lodges must
sue and be sued in the name of ' ' The trustees of .... Lodge
No , Independent Order of Odd Fellows. ' ' ^^
PEACTICE
210 Addition and substitution of plaintiff
Necessary parties plaintiff may be added to an action by
amendment after verdict upon cross motion to a motion to dis-
miss for want of proper parties.^'^ The addition of a necessary
party plaintiff to an action is neither the commencement of a
new suit nor the statement of a new cause of action within the
meaning of the statute of limitations.^^ Thus, the cause of
action is in no way affected by making the proper beneficiary
plaintiff to an action upon a benefit insurance certificate in
place of a person who was improperly made plaintiff.^^
211 Bankruptcy, petition for substitution of trustee
®° And now comes , in his own proper person, by
, his attorney, and shows to the court here that he
has been duly appointed the trustee in bankruptcy of the above
named by the district court of the United States
for the district of , and by leave of
the court here files in this case a certified copy of the adjudica-
tion in bankruptcy of the said , and also a certified
55 Boyd V. Merril, 52 111. 151, 153 by the title of the case, as a cap-
(1869). tion, thus:
56 Marsh v. Astoria Lodge, 27 111. state of ,|
421, 425 (1862); Laws 1849, p. 46 ••• county. ( •'^-
67 Hougland v. Avery C. & M.
Co., 246 lU. 609 619 (1910); Sec. ,^1^-"^. Lporm of Action)
1, c. 7, Kurd's Stat. 1909, p. 154; f
Sec. 39 Practice act 1907 (111.) • Defendant. J
Malleable Iron Eange Co. v. Pusey, I* is customary to entitle all
244 111 184 196 (1910) pleadings on behalf of the plaintiff
58 Hougland v. Avery' C. & M. ^« i; ^J' p,f ' ^^°/ f P^^^^if^
r 9Afi Til «ia o° behalf of the defendant as C D
;'o 4 u \r . r.. ^ TT ats. A B. The declaration, the
9^^^f''^?s ^' ^°'^^*^ ""^ ^°°°''' replication, the surrejoinder and the
255 111. 128. surrebutter should be entitled as
60 All forms of an action should A B v. C D; whereas the plea, the
be preceded by the venue, by the rejoinder and the rebutter as C D
name and the term of the court, and ats. A B.
In the court of county
To the term. 19....
PARTIES 67
copy of his appointment as such trustee, and also a certified
copy of the assignment to him of assets and effects of said
bankrupt, and prays the court here that he may be substi-
tuted in the place of the said as plaintiff herein,
and that he may be allowed to prosecute this suit as plaintiff
in place and stead for the use of ,
to whom he has sold and assigned the claim and cause of action
in this case.
Trustee of
Bankrupt.
212 Change of defendant, petition and order
To the honorable, the judge of said court:
Your petitioner, the defendant in the above entitled cause rep-
resents unto your honor that heretofore, to wit, on or about
, 19 . . , the corporate name of your petitioner was
changed by proper amendment of its charter to that of
, which amendment has been duly filed in the state
of
Your petitioner therefore prays that the name of the defend-
ant be now changed on the docket and the pleadings be so
amended to that of the present name of the defendant corpora-
tion, to wit,
As is in duty, etc.
Attorney for petitioner.
Ordered, this day of , 19 . . , by the court
of that the docket be changed and the pleadings be
amended as prayed.
«i
213 Death, suggestion of, necessity-
It is not necessary to suggest the death of a beneficiary who
is not a party to the suit and whose death does not affect the
suit in any way.^^
214 Death of party practice. District of Columbia
Now comes the plaintiff by his attorney and
suggests to the court the death of the defendant
on the day of and further suggests that let-
ters of administration on the estate of said were,
on the day of issued to who
has qualified as administrator of said estate, plaintiff therefore
suggests that the said in his capacity as adminis-
«i German Union Fire Ins. Co. v. 62 Reichert v. Missouri & Illinoia
Cohen, 114 Md. 130 (1910). Coal Co., 231 111. 238, 246 (1907).
68
ANNOTATED FORMS OF PLEADING AND PRACTICE
trator of the estate of deceased be made a party
defendant to this cause.
Attorney for plaintiff.
215 Death of party, practice, Illinois
Comes now the , executor and trustee under the
last will and testament of , deceased, and suggests
to the court the death of the said , who died on
, 1. . ., and that the undersigned,
has been appointed and has duly qualified as executor and
trustee under the last will and testament of said ,
and therefore asks that the undersigned, , as
executor and trustee under the last will and testament of ....
, deceased, be substituted as defendant in the above
entitled cause.
Attorneys for
216 Death of party, practice, Maryland
The plaintiff by his attorney suggests to the
court that pending this action one of the defendants
has departed this life leaving a will and appointing
and executors, and that letters testamentary have
been granted upon his personal estate to the said
and ; wherefore, the plaintiff, by his attorney,
moves that the said and executors of
the estate of , deceased, be made parties defend-
ant in the above entitled cause and that summons directed to
them may be issued from this honorable court.
Attorney for plaintiff.
Prayer of petition granted, and let summons issue as prayed.
Judge.
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PARTIES 69
217 Death of party, practice, Michigan
Affidavit
of being duly sworn deposes and
says that , the sole plaintiff in this action, the cause
of which does by law survive, departed this life on the
day of last, intestate ; that on the day of
this deponent was duly appointed sole
administratrix of the said deceased, by order of
the court for county in said state ;
and that this deponent therefore praj's that the death of the
said may be suggested upon the record of this
cause, and that she, this deponent, may be allowed to prosecute
this suit as such administratrix.
Subscribed, etc.
Order
On reading and filing the affidavit of filed in
the above entitled cause and it appearing that said plaintiff,
died intestate on the day of
last and that was appointed sole administratrix of
the estate of deceased by order of the judge of
probate of county in said state on the
day of
Therefore, on motion of attorney for plaintiff,
it is ordered that said administratrix may appear
and take upon herself the prosecution of this suit in her capacity
as administratrix of said estate, as provided by the laws of said
state within days after service of notice of this
order upon the defendant in said cause or its attorney.
Notice
To attorney for defendant.
Please take notice that an order to revive suit by
administratrix of the estate of deceased, of which
the attached hereto is a copy was duly entered by order of said
court in session held at the court house in the of
in said county on this day of ; which
order was based on the affidavit of , a copy of
which is hereto attached, and the records and files in said cause ;
and that said suit is duly revived in the name of
administratrix of the estate of , deceased, plaintiff
against , defendant, in accordance with said order
of said court and by virtue of the statute in such case made
and provided.
Dated, etc.
Plaintiff's attorney.
(Attach affidavit of service)
70 ANNOTATED FORMS OF PLEADING AND PRACTICE
218 Improper parties, dismissal
A motion to dismiss a suit for want of proper parties is appro-
priate if the defect appears on the face of the proceedings.^^
The dismissal from a suit of an improper party is not the com-
mencement of a new action as to the remaining party .*5*
219 Intermarriage, order of substitution
Upon suggestion of attorneys for the plaintiff that the plain-
tiff herein has intermarried since the institution of the above
entitled case, and that her name is now , it is ordered by
the court that the name of be substituted in lieu of
as the name of the plaintiff herein.
220 Minority, petition for appointment of next friend, and
order
The petition of of the city of ,
county of and state of Michigan, an infant under
the age of twenty-one years, to wit, of the age of years,
respectfully shows that he is about to commence a suit in the
court for the county of against, . . .
, a corporation organized under the laws of the state
of Michigan, and doing business in the city of • ,
to recover damages for personal injuries sustained by him
while in the employ of said defendant at its plant in said city,
on the day of , 19 . . , while wheeling castings
in a wheelbarrow, and coming in contact with an unguarded
emery wheel, severely injuring the back of his right hand to
such an extent that he has lost the use of two fingers and
greatly impairing the use of the hand.
Your petitioner respectfully prays that inasmuch as he is
an infant, as above stated, his mother, , of the
city of , county of and state of Michi-
gan, a competent person, may be appointed to prosecute said
suit for your petitioner, as his next friend, according to the
statute in such case made and provided.
Dated, etc.
In presence of
I hereby consent to become the next friend of ....
in a suit to be commenced as stated in the above petition.
Dated, etc.
OS Conway v Sexton, 243 111. 59, C4 Dickson v. Chicago, B. & Q. "R.
62 (1909). ■ Co., 81 111. 215, 216, 217 (1876).
PARTIES 71
(Venue)
of the city of , county of
and state of Michigan, being duly sworn, deposes and
says that in the foregoing petition named,
did on the day of , duly sign said petition
in the presence of this deponent. Deponent further says that
, of the city of , county of
and state of Michigan, also in the prayer of said petition men-
tioned, did at the same time sign the consent or agreement
thereunto written, as the next friend of the said ,
in the presence of this deponent.
Subscribed, etc.
Order
On reading and filing the foregoing petition duly verified,
it is ordered that , of the city of ,
mentioned in said petition be, and she is hereby appointed as the
next friend of , in a suit to be commenced as stated
in the above petition.
Dated, etc.
Circuit Judge.
221 Misnomer, correction
After a plea of misnomer in abatement and a demurrer thereto,
the plaintiff may be allowed to withdraw his demurrer and to
amend his summons and declaration or petition to correct the
misnomer.^ 5 ^j^g mere change of the description, or the cor-
rection of a defect in the name, of a party defendant, does not
make it a new cause of action where the identity of the action
is not thereby destroyed.^*^
65 Heslep V. Peters, 3 Scam. 45, 66 Wilcke v. Henrotin, 241 111. 169,
46 (1841). 175 (1909).
CHAPTER VIII
COSTS
IN GENERAL
SECURITY OR BOND
§§
222 Taxing costs
223 Administrators and executors
NECESSITY OF SECURITY
224 Nominal and use plaintiff
225 Nonresidents, Florida
226 Nonresidents, Illinois
227 Nonresidents, Michigan
228 Nonresidents, Mississippi
229 State
230 Writ of error
PRACTICE
231 District of Columbia, motion
for costs
232 Illinois, application, time
233 Illinois, motion to dismiss,
waiver
234 Illinois, cross motion, right
235 Maryland, motion
236 Michigan, motion
237 Michigan, affidavits
238 Michigan, notices
239 Mississippi, motion
240 Mississippi, affidavit
241 West Virginia, motion
242 District of Columbia
243 Illinois
244 Michigan
245 Mississippi
246 Virginia
247 West Virginia
248 Filing
249 Amendment
250 Additional bond, affidavit, re-
quisites
251 Effect
252 Execution, issuance
253 Execution, form
POOR PERSON
254 District of Columbia, affidavit
255 Illinois, rules of court
256 Illinois, motion
257 Illinois, affidavit and order
258 Illinois, petition to sue as
next friend and as poor
person, order
259 Mississippi
260 West Virginia
IN GENERAL
222 Taxing costs
The right to allow or to tax costs is purely statutory, and
costs should not be awarded unless it is authorized by statute.
Statutory provisions which impose costs are strictly construed.^
iGalpin v. Chicago, 249 111. 554,
566 (1911).
72
COSTS 73
223 Administrators and executors
Executors and administrators are not liable for costs in suits
prosecuted by them in their official capacity, unless they act
male fide, or they are guilty of ^oss negligence.^
NECESSITY OP SECUEITY
224 Nominal and use plaintiff
In actions commenced by nominal and use or beneficial plain-
tiffs, the person for whose use the suit is brought is the real
party who institutes it, and where this party is a nonresident,
a bond for costs is required ;^ and where the use or beneficial
plaintiff is a resident, no security for costs is necessary, although
the nominal plaintiff is a nonresident.*
225 Nonresidents, Florida
No formal security for costs is required in Florida. In rare
eases, where the financial responsibility of a party is doubtful,
the clerk of a court may require a small amount of actual money
to be deposited with him at the time of the commencement of
the suit to stand as security for costs. When that amount is
exhausted by the fees charged in the ease a further sum or sums
may be obtained as a deposit, from time to time, until the entire
costs have been covered.
226 Nonresidents, Illinois
Nonresident persons who are about to institute a suit, or non-
resident beneficiaries for whose use a suit is about to be com-
menced, are required to furnish security for costs in all com-
mon law actions, in actions on official bonds, in actions on
executor's, administrator's and guardian's bonds, and in actions
on penal bonds.^
227 Nonresidents, Michigan
In Michigan a defendant is secured against costs by an en-
dorsement on the writ or process of the name of the attorney,
2 Burnap v. Dennis, 3 Scam. 478, * Caton v. Harmon, 1 Scam. 581
483 (1842); Selby v. Hutchinson, (1839); Smith v. Robinson, supra;
4 Gilm. 319, 326 (1847); Sec. 8, c. Sec. 1, c. 33, Hurd's Stat. 1909.
33, Hurd's Stat. 1909, p. 616. s Sec. 1, c. 33, Hurd's Stat. 1909,
8 Smith V. Eobinson, 11 111. 119, p. 615.
120 (1849).
74 ANNOTATED FORMS OP PLEADING AND PRACTICE
solicitor, or other person to whom the writ is issued.^ In ease
an endorser of a writ or declaration leaves the state, the courl
may require new security to be given, and which, when given,
relates back to the commencement of the suitJ
228 Nonresidents, Mississippi
It is discretionary with the clerk whether or not security for
costs shall be given; and this applies to residents as well as
nonresident parties.
229 State
A statutory provision requiring security for costs has no
application to the state.^
230 Writ of error
A nonresident who prosecutes a writ of error is required to
give security for costs.^
PEACTICE
231 District of Columbia, motion for costs
w Now comes the defendant, by his attorney, and moves the
court that an order issue requiring the plaintiff to file security
for costs, for the reason that the said plaintiff is a nonresident
of the District of Columbia.
Attorney for defendant.
(Add notice to call up motion)
232 Illinois, application, time
A motion to require security for costs should be made before
answer or plea and the trial of a case.^^
233 Illinois, motion to dismiss, waiver
Formerly a motion to dismiss for want of security for costs
in a case of a nonresident plaintiff was considered to be in the
6 Parks V. Goodwin, 1 Doug. 56, 57 9 Eipley v. Morris 2 Gilm. 381,
CMich 1843) 382, 383 (1845); Roberts v. Fahs,
7 (9993), G. L. 1897 (Mich.). 32 111. 474, 475 (1863).
8 People V. Pierce, 1 Gilm. 553, lo See Section 2111, Note 60
555 (1844)- Sec. 1, c. 33, Hurd's n Widmayer v. Davis, 231 111. 42,
Stat. 1909.' 47 (1907).
COSTS 75
nature of a plea in abatement, and if the motion was not made
before pleading to the merits, the right to dismiss for lack of
security was deemed to have been waived. i- The present statute
provides that the right to require security for costs shall not
be waived by any proceeding in the cause. It is held accord-
ingly that the right to insist upon security for costs is not waived
by pleading to the action.^s The failure, however, to give
security for costs must be urged by a motion to dismiss, or the
objection is waived. ^^
234 Illinois, cross motion, right
Upon a motion to dismiss the suit for want of security for
costs, the plaintiff may make a cross motion for leave to file
the security, and the court may allow the cross motion and
overrule the motion to dismiss. ^^
235 Maryland, motion
The defendant by attorney move that a ' ' Rule
Security for Costs" be laid upon the plaintiff, the said plaintiff
being a nonresident of the state of Maryland.
Attorney for defendant.
Service of copy admitted, etc.
236 Michigan, motion
Now comes the above named defendant by , his
attorney, and moves the court now here for an order requiring
the said plaintiff to file a bond for security for costs in the' above
cause, for the following reasons : First, because said
has no property, real or personal, out of which an execution for
costs can be collected. Second, because said defendant has a
good defense to said cause on the merits. This motion is
based upon the files and records in the above entitled cause, and
upon the affidavits of hereto attached.
Dated, etc.
Defendant's attorney.
Business address.
12 School Trustees v. Walters, 12 396 (1879); Sec. 3, c. 33, Hurd's
HI. 154, 158 (1850) ; Roberts v. Stat. 1909, p. 615.
Fahs, stipra. is Richards v. People, 100 111. 390,
13 Kimbark V. Blundin, 6 111. App. 392 (1881); Sec. 3, c. 33, Hurd's
539 (1880). Stat. 1909.
14 Meyer v. Wiltshire, 92 111. 395,
76 ANNOTATED FORMS OF PLEADING AND PRACTICE
237 BGchigan, affidavits
(Venue)
«
being duly sworn deposes and says that he is
of defendant herein, and that he
makes this affidavit for and in its behalf, having knowledge of
the facts therein.
Deponent further states that he has fully and fairly stated all
of the facts upon which the defense of the defendant in the
above entitled cause is based, to , its attorney
herein, and after such statement, as aforesaid, he has been
advised that the said defendant has a full and complete defense
thereto upon the merits thereof.
And further deponent saith not.
Subscribed, etc.
(Venue)
being duly sworn deposes and says that he is
the attorney for the defendant in the above entitled cause, that
he has fully and fairly investigated all of the facts upon which
said cause of action is based.
Deponent further says that after said investigation he believes
that the above named defendant has a full and complete defense
thereto upon the merits thereof.
And further deponent saith not.
Subscribed, etc.
(Venue)
being duly sworn deposes and says that
, the above named plaintiff is a resident of the
of county of ; that he has examined
the records in the office of the register of deeds of the county
of , and of the county treasurer for the county of
and from such examination states that the above
named has no real property in said county as
appears by said records, out of which execution for costs could
be collected if judgment were rendered therefor.
Deponent further says that he has made diligent search and
inquiry to ascertain if said plaintiff is possessed of any personal
property within said county, and after such inquiry states the
fact to be that the said has no personal property
within said county out of which an execution for costs could
be collected if judgment were rendered therefor.
And further deponent saith not, etc.
Subscribed, etc.
COSTS 77
238 Michigfan, notice
To
Please take notice that on filing the plea attached hereto, the
above named defendant expressly reserves the right to make a
motion for security for costs, if upon investigation, the above
named plaintiff is found to be not collectible.
Dated, etc.
Defendant's attorney.
Business address.
To
Attorney for the plaintiff.
You will please take notice that a motion, a copy of which is
hereto attached, has been filed in the above cause and will be
brought on for hearing on the day of ,
19 . . , at the opening of the court on that day, or as soon there-
after as counsel can be heard.
Dated, etc.
Business address.
239 Mississippi, motion
Comes the defendant, by attorney, and moves the court to
require the plaintiff to give security for costs, for the reasons
set out in the affidavit filed in support of this motion.
Defendant's attorney.
240 Mississippi, affidavit
Personally came before me, the undersigned (clerk of the
circuit court of said county, or notary, as the case may be)
attorney for the defendant, who makes oath that
he has good reason to believe, and does believe, that the plaintiff
in the above styled cause cannot be made to pay the costs of
the suit in case the same shall be adjudged against him and
affiant states that the defendant, as he believes, has a meritorious
defense and that this affidavit is not made for delay.
Sworn, etc,
241 West Virginia, motion
The defendant suggests that the plaintiff is a nonresident of
this state and that he be ruled to give security for costs.
p. d.
78
ANNOTATED FORMS OP PLEADING AND PRACTICE
By executors
And now this day of , . . . . , the defendants,
the executors aforesaid, by leave of the court, suggest that the
plaintiffs, appellants, are nonresidents of the state of West Vir-
ginia, and that they be required to give security for costs in this
case.
SECUEITY OE BOND
242 District of Columbia
The plaintiff, and , 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, administrators, successors, and assigns, to
make good all costs and charges that the defendant 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.
Approved, . .
,19-.
Justice.
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243 Illinois
I, do enter myself security for all costs which
may accrue in the above cause.
Dated, this day of
I do hereby enter myself security for costs in this cause and
acknowledge myself bound to pay, or cause to be paid, all costs
i« Sec. 1, c. 33, Hurd 's Stat. 1909.
COSTS 79
which may accrue in this action, either to the opposite party or
to any of the officers of this court in pursuance of the laws of
this state.
Dated, etc.
(Seal)
244 Michigan
"We hereby become security for all costs for which the plaintiflE
may become liable in the within cause.
Dated, etc.
245 Mississippi
We, principals, and sureties, bind
ourselves to pay to defendant, the sum of
dollars, unless the said shall pay all costs which
may be adjudged against him in the suit of said
against commenced in the court of
county.
Witness our hands, this day of
The foregoing bond approved this day of
Clerk
...D. C.
Long form
Know all men by these presents : that we, , prin-
cipals, and , sureties, are hereby firmly bound unto
, sheriff and clerk of the
court in the penal sum of dollars, good and lawful
money of the United States for the payment of which well and
truly to be made, we bind ourselves, our heirs, executors, and
assigns, jointly and severally, firmly by these presents.
Sealed with our seals and dated this day of
The condition of the above obligation is such, that whereas,
the above bound hath commenced a suit in the
court of county, for certain reasons
therein stated against
Now if the said shall well and truly, at the
determination of said suit, pay and satisfy to the said
80 ANNOTATED FORMS OF PLEADING AND PRACTICE
sheriff and clerk, and their successors in office,
all of the costs which shall have accrued therein in said court,
then the above obligation to be null and void; otherwise to
remain in full force and effect.
(Seal)
(Seal)
Justification of surety
I do solemnly swear that I, , am worth the penalty
stated in the above bond over and above all legal liabilities and
exemptions.
Sworn, etc.
Filed and approved this day of
Clerk.
By D. C.
246 Virginia
Know all men by these presents, that am held
firmly bound unto the commonwealth of Virginia, in the sum
of to be paid to the said commonwealth, for which
payment, well and truly to be made, bind myself
heirs, executors and administrators, firmly by these presents.
And hereby waive the benefit of
homestead exemption as to this obligation, and any claim or right
to discharge any liability to the commonwealth arising under
this bond, with coupons detached from the bonds of this state.
Sealed with seal and dated this day of
, in the year one thousand nine hundred and
The condition of the above obligation is such, that whereas a
suit has been instituted in the court of the
of by , and a suggestion on
the record in court was entered by the above defendant that the
above plaintiff not resident of
the state of Virginia, and that security was required of
for the payment of the costs and damages 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 shall well and truly pay all such
fees as are due or may become due from the said .
to the officers of the said court in the prosecution 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
in case the said plaintiff , shall be cast therein,
COSTS 81
and condemned to pay the same, then this obligation is to be
void, otherwise to remain in full force and virtue.
Executed, acknowledged, &c., in the presence of
(Seal)
Justification of surety
In the Clerk's Office of the court of the
of
The above named this day made oath, before
me, of said court, that his estate, after the pay-
ment of all his debts, and of such liabilities as he may have
incurred as security for others, is worth the sum of
the penalty of the above bond.
Given under my hand this day of ,19
Clerk.
247 West Virginia
Know all men by these presents, that we, , prin-
cipal, and and , sureties, are held and
firmly bound unto the state of West Virginia, in the just and
full sum of dollars, to the payment whereof, well
and truly to be made, we bind ourselves, our heirs, executors and
administrators, jointly, severally and firmly, by these presents,
sealed with our seals and dated this day of ,
19..
The condition of this obligation is such, that, whereas,
and others have in the circuit court of
county, in the state of West Virginia, commenced a suit
at law, being an appeal from the county court of
county in the matter of the probate of the will of ,
deceased, against and , executors,
and others, and the said proponents having suggested the non-
residenCe of the contestants and asked that bond as security for
costs of said suit be given and said request having been granted
by the court and such bond required, this bond is executed in
pursuance thereof.
Now, therefore, if the said and others shall, well
and truly and faithfully pay all such costs as may be awarded
against the contestants when thereto required, then this obliga-
tion to be void ; else to remain in full force.
(Signatures and seals)
In the clerk's office of the circuit court of county,
West Virginia.
Taken, subscribed and acknowledged before me in my office
and approved as sufficient, this day of ,
Clerk circuit court county.
82 ANNOTATED FORMS OF PLEADING AND PRACTICE
Surety company
Know all men by these presents, that company
of , a corporation, is held and firmly bound unto
the state of West Virginia, in the just and full sum of
dollars, to the payment whereof, well and truly to be made, it
binds itself, its successors and assigns firmly by these presents,
sealed with its seal, and dated this day of ,
19..
The condition of the above obligation is such, that, whereas,
in a suit now depending in the circuit court of
county, wherein , a corporation, is plaintiff and
is defendant, it has been suggested that the plain-
tiff is a nonresident of this state, and that security is required
of it for the payment of costs, &c.
Now, therefore, if the said plaintiff shall well
and truly pay all such costs as shall be awarded to the defend-
ant and all fees due and to become due, in said suit, to the offi-
cers of the court, then this obligation to be void ; else to remain
in full force.
company.
(Seal) By , Attorney in fact.
Acknowledged before me and approved as sufficient, this
, 19..
Teste: , Clerk.
248 Filing
The filing of a cost bond at any time after the bringing of
suit, even without leave of court, is a substantial compliance
with the statute. The denial of a motion to dismiss the suit
for want of a cost bond, amounts to leave to file it.^'^
249 Amendment
A bond for costs is amendable, even on motion to dismiss
and cross motion to amend. ^^
250 Additional bond, affidavit, requisites
An affidavit in support of an application for additional secur-
ity must state facts which show that the principals' and secur-
ities' circumstances have changed since the approval of the
first bond.19
17 Plaff V. Pacific Express Co., 251 lo Ball v. Bruce, 27 111. 331, 333
111. 243, 247 (1911). (1862); Sec. 4, c. 33, Kurd's Stat.
18 Shaw V. Havekluft, 21 111. 127, 1909, p. 615.
128 (1859).
COSTS 83
251 Effect
A bond for costs covers all costs that may be legally taxed in
the case, regardless of the person to whom they may accrue.^o
252 Execution, issuance
Under Illinois practice, an execution for costs may issue
against the security without recovering a judgment against
him.2i
253 Execution, form (111.)
The people of the state of Illinois, to the sherilf of said county,
greeting :
You are therefore commanded, that of the goods and chattels
of (C. D.), you cause to be made the sum of dol-
lars, and if not paid within days after demand, you
will levy the same on the goods and chattels, lands and tene-
ments of (X and Y) security for costs herein; and proceed in
all things as on a writ of fieri facias.
Given, etc.*^
(Attach fee bill)
POOR PERSONS
254 District of Columbia, affidavit
being first duly sworn on oath deposes and says :
I am the plaintiff in the above entitled cause and am unable to
prosecute said action for the reason that I am entirely without
funds or property and cannot obtain funds and am unable to
pay the clerk of this court his legal fees.
Sworn, etc.
255 Illinois, rules of court, validity
The rule of the Superior court of Cook county, imposing cer-
tain conditions upon applicants who seek leave to sue as poor
persons is invalid.^^
20 Whitehurst v. Coleen, 53 111. 249; See. 28, e. 33, Hurd's Stat.
247, 250 (1870). 1909.
21 WLitehurst v. Coleen, supra; =3 People v. Chytraus, 228 111. 194
Sec. 28, c. 33, Hurd's Stat. 1909. (1907).
22 Whitehurst t. Coleen, 53 111.
84 ANNOTATED FORMS OF PLEADING AND PRACTICE
256 Illinois, motion
Now comes the above named plaintiffs and move the court
for leave to institute and prosecute this suit as poor persons and
without advancing the costs thereof.
Attorney for plaintiffs.
257 Illinois, affidavit
, being duly sworn on her oath says that she is
the mother and next friend of the above named ;
that she and said infant plaintiffs are poor persons ; that neither
they nor she has any money or means whatsoever or property,
except an interest in about dollars' worth of house-
hold goods purchased by her and her husband since their mar-
riage which are now being used in their family ; that she and said
plaintiffs are without any means of paying costs in this suit;
that she desires to institute suit against the above named defend-
ants under the Dram Shop act of the state of Illinois ; that she
has used reasonable diligence to find security for costs but that
she has been unable to obtain the same ; and that if permitted to
prosecute her suit as a poor person she has reason to believe, and
does believe, that she will recover a substantial judgment against
the defendants for injury to the plaintiffs' means of support,
upon the following facts: that the defendants, within the last
years before the beginning of this suit, by sell-
ing and giving intoxicating liquors to , the father
of the above named infant plaintiffs, have caused in whole or
in part his habitual intoxication; that she will prove that he
has wasted his time and squandered his money at the dram-
shop of the defendants ; that he has neglected his business as a
coal miner from which he derives an income of
dollars per week when sober; that she has been compelled to
perform manual labor in order to support said infant plaintiffs ;
that she has had to seek public charity for coal and provisions
while her said husband was drunk on liquor sold or given to
him by the said defendants ; and that she believes said plaintiffs
have a good and meritorious cause of action and will be able
to establish their said charges against the said defendants. She
therefore prays to be permitted to prosecute this suit of the said
infants without giving security or advancing the costs in said
cause.
Subscribed, etc.
Order
It is hereby ordered that the above named infant plaintiffs be
permitted through their mother and next friend, ,
COSTS 85
to institute and prosecute the above entitled cause as poor per-
sons and without advancing any costs thereof.
Judge of said court.
258 Illinois, petition to sue as next friend and as poor person
To the honorable judges of said court:
Your petitioner, C. B., respectfully represents unto your
honors that she is a resident of county,
and for years last past has acted in the
capacity of probation officers for the juvenile court; that she
knows the plaintiffs in this suit ; that their names and ages are
as follows: (Insert names and ages) that since she first knew
them in ,1 , they have resided at
street with their father, , and their mother ;
that their father is an habitual drunkard and does practically
nothing for the support of his wife and family; that the
mother earns money for groceries and coal by doing washing
and scrubbing, while the oldest daughter cares for the other
children who are not at school; that the mother is under the
control and in fear of her husband, who is a strong man
able to work at his trade as a carpenter, and their mother, on
account of such fear, is unwilling and incompetent to represent
said minors in court in this case.
Your petitioner would further show that , the
father, has worked as a saloon porter in the saloons of
the defendants in this case ; and that he has received
as compensation for his work the liquor that he has drunk ; that
said minors have no property whatever, and are of such tender
years that they are unable to earn money with which to pay
the costs of this suit; and that their parents are both without
property.
Your petitioner would therefore pray that she may be ap-
pointed by the court as the next friend of said minors and
empowered to secure an attorney to prosecute this suit against
the above defendants under the Dram Shop act for their lia-
bility to the above named minors, plaintiffs; and that the court
may, in its discretion, allow said minors by her as next friend
to prosecute their suit in this court without costs.
(Verification)
Order
On the petition of , and the affidavit of
, it is hereby ordered that the said be, and
she is hereby appointed the next friend of , and
, minors, and is authorized to employ an attorney
86 ANNOTATED FORMS OF PLEADING AND PRACTICE
and to prosecute a suit against , and
under the Dram Shop act for their liability to the
above named minors. It is further ordered that said minors by
, their next friend, prosecute their suit without
costs, in forma pauperis.
Enter
Judge.
259 Mississippi
Personally appeared before the undersigned authority
, plaintiff in the above styled cause, who makes and
subscribes to the following oath:
I^ , do solemnly swear that I am a citizen of the
state of Mississippi, and that on account of my poverty, I am
not able to pay the costs or give security for the same in the
suit of v now pending in the
court of county, Mississippi, which
i have begun ; and that to the best of my belief, I am entitled
to the redress which I seek by said suit.
Sworn, etc.
260 West Virginia
This day personally appeared before me, the undersigned
authority in and for said county and state, one
and upon his oath says, that he is the administrator of _.
, deceased, and that, as such administrator, he is
plaintiff in a certain action of trespass on the case, now pend-
ing in the court of county,
against , and that he is unable to give a
bond for costs, and prays that he be permitted to prosecute said
action without giving such bond, under section 2, chapter 138
of the Code of West Virginia.
Administrator of . . ,
Taken, subscribed and sworn to before me, etc.
CHAPTER IX
PRAECIPE
IN GENERAL §§
§§ 265 Florida
261 Praecipe, defined 266 Illinois
262 Necessity of praecipe 267 Maryland
263 Requisites 268 Michigan
269 Virginia
FORMS
264 District of Columbia
IN GENERAL
261 Praecipe, defined
A praecipe is an application to the clerk of a court to re-
quire the defendant to appear and to defend an action at a
subsequent term.^
262 Necessity of praecipe
In Florida, and in Illinois suits at law are commenced by
praecipe. A civil suit is commenced in Mississippi by declara-
tion ; no praecipes are used. The summons is very general and
the clerk does not find it difficult to make out a summons from
the declaration itself.
263 Requisites
In actions against receivers the praecipe should describe the
defendant as receiver and not receiver.^
FORMS
264 District of Columbia
^The clerk of said court will please issue summons against
, administrator of the estate of
Attorney for plaintiff.
J Schroeder v. Merchants & Me- 2 Wileke v. Henrotin, 241 111. 169,
chanics' Ins. Co., 104 111. 71, 75 174 (1909).
(1882). 3 See Section 211, Note 60.
87
88 ANNOTATED FORMS OF PLEADING AND PRACTICE
Alias summons
The clerk of said court will please issue alias summons for
the defendant.
265 Florida
To the clerk of said circuit court:
You will please issue a summons ad respondendum in the
above entitled cause of action to of
county, Florida, defendant in the above entitled cause of action,
and make same returnable to the Rule day of , 19. .
Dated, etc.
Plaintiff's attorney.'*
Affidavit
Personally appeared before me, clerk of the circuit court
aforesaid , who, being by me duly sworn, says that
the above suit for (Name action, as assumpsit, etc.,) is brought
in good faith and with no intention to annoy the defendant . . .
and that the cause of action accrued in the county of
, in which the suit is brought.
Subscribed, etc.
266 Illinois
The clerk of said court will issue ^ a summons in the above
entitled cause to said defendant in a plea of *^
to the damage of said plaintiff in the sum of '^
dollars, direct the same to the sheriff of county to
execute, and make it returnable to the term of said
court, 19. .
Dated, etc.
To , Clerk.
Plaintiff's attorney.
4 In Florida, praecipes for sum- ' ' debt ; " if detinue, ' ' detinue ; " if
mons are the same in all actions, the ejectment, "trespass quare clausum
form of the action is shown from f regit — ejectment," or "eject
the caption. ment ; " if replevin, ' ' replevin ; *
5 When suit is commenced by if trespass quare clausum f regit or
capias, say, ' ' writ of capias ad trespass vi et armis, ' ' trespass ; '
respondendum." In assumpsit and if trover, "trespass on the case
attachment in aid insert "summons trover."
and writ of attachment." ^ State the amount to be de
6 If assumpsit say, * ' trespass on manded in the ad damnum, unless
the case on promises ; " if case, suit is commenced by capias, when
' ' trespass on the case ; " if cove- the true amount should be given,
nant, * ' covenant ; " if debt.
PRECIPE
89
267 Maryland
Under Maryland's practice, the praecipe appears on the back
of the declaration, after the number and the title of the case.
See the declaration.
268 Michigan
To the clerk of said court:
Let a writ of issue in the above entitled cause.
Action of
Damages
Dated, , 19 . .
Attorney . . for
Business address ; . .
•If -l-s
^ • s 2
u
o
be
a
S
O
■13
fl a>
269 Virginia
Action of detinue to recover the following personal property :
(Describe each item and give its value.)
Damages $
Summon to the first rules
p. q-
CHAPTER X
PROCESS
IN GENERAL
§§
270 Process, style
271 Process, void; notice
272 Service, persons interested
273 Service, tenants
SUMMONS
274 Nature and effect
REQtnSITES
275 Venue, resident and nonresi-
dent defendants
276 Name, people
277 Name, middle
278 Name, resident and nonresi-
dent defendants
279 Amount claimed
280 Return day
281 Teste
282 Seal
283 Endorsement
FORMS
284 District of Columbia
285 Florida
286 Illinois
287 Maryland
288 Michigan
289 Mississippi
290 Virginia
291 West Virginia
RETURN
292 Officer's authority, deputy
293 Special deputy; return, re-
quisites
294 Special deputy; appointment
and return
295 Return, validity
296 Return, effect
297 Individuals, Illinois
298 Individuals, Maryland
299 Individuals, Michigan
300 Individuals, Mississippi
301 Individuals, Virginia
302 Individuals, West Virginia
303 Partnership, Illinois
304 Corporations, District of
Columbia
305 Corporations, Illinois
306 Corporations, Maryland
307 Corporations, Virginia
308 Corporations, West Virginia
309 Foreign corporations, Illinois
310 Foreign corporations. West
Virginia
311 Railroad companies, Illinois
312 Township
AMENDMENT
313 Power of officer
314 Power of court, notice
315 Nature of amendment
316 Person to amend
PRACTICE
317 Quashing summons
318 Alias summons
319 Amendment
PUBLICATION
320 Pre-requisites
321 Affidavit
322 Notice
323 Certificate of mailing
324 Proof
90
PROCESS
91
DECLARATION
§§
325 Practice
CAPIAS
326 Jurisdiction
327 Practice
AFFIDAVIT
328 Nature and scope
329 Requisites
330 Form, absconding, Virginia
331 Form, assault and battery
332 Form, conversion
333 Form, false representations
BOND
334 Creditors
335 Sheriff
WRIT
§§
336 Service
337 Form, Florida
338 Form, Illinois
339 Form, Michigan
340 Arrest, nature
341 Jurisdictional defects, waiver
342 Bail piece, waiver
343 Bond, validity
344 Bond, liability
345 Objections
346 Irregularities
347 Motion to quash writ
JUDGMENT
348 Discontinuance
IN GENERAL
270 Process, style
When the law expressly directs process to be in a specified
form and to be issued in a particular manner, the form and the
manner prescribed must be followed in every particular, or the
process is absolutely void. Thus if the constitution or the
statute expressly requires all process to run in a certain way,
to be under a certain seal and to be tested in the name of a
certain officer, the failure to follow these requirements renders
the process void, for the reason that these provisions are man-
datory.i This rule is applicable to all orders, judgments, or
writs in the nature of process.- Defects in process to compel
an appearance, make the process void only in a limited sense
when the defendant's appearance is actually entered, as issu-
ance and service of process are waivable by general appear-
ance. In Illinois process must run: "In the name of the
people of the state of Illinois. ' ' ^ The constitutional provision
requiring process to run in the name of the people applies to
1 Sidwell v. Schumacher, 99 111.
426, 433 (1881); Forbes v. Darling,
94 Mich. 621, 627 (1893).
2 SidweU V. Schumacher, 99 HI.
437.
3 Sec. 33, art. VI, Const. 1870
(ni.).
92 ANNOTATED FORMS OP PLEADING AND PRACTICE
original and final process known to the common law, as sum-
monses, executions or fee bills; it has no application to special
statutory proceedings which are unknown to the comjnon law,
unless the legislature has expressly so directed."* Under the
present and former constitutions of Michigan, the style of all
process must be: "In the name of the people of the state of
Michigan."^
271 Process, void; notice
An officer who has notice that the process is void, acts at his
peril.®
272 Service, persons interested
Service of jurisdictional process upon a person who stands
in a fiduciary or a representative relation to others or to the
subject matter to be affected by the action or proceeding and
who has some personal interest which is antagonistic to those
whom he represents, is ineffectual to bind them; and statutory
authority to make such service is invalid.^
273 Service, tenants
An officer, in serving process, has no power to force the outer
door of a tenant who is in the occupation of a distinct portion
of a building occupied by several separate tenants, although
the officer may be within the building.^
SUMMONS
274 Nature and effect
At common law the issuance of a summons constitutes the
commencement of a suit for the purpose of arresting the statute
of limitations.^ The issuing of the first summons in an action
is the commencement of the suit; the omission, in good faith
to place the summons in the hands of the sheriff for service
does not render inoperative the commencement of the suit,
4 Curry v. Hinman, 11 HI. 420, 420 (1911); Par. 52, c. 122 Kurd's
423, 424 (1849). Stat. 1911.
B (9984), C L. 1897 (Mich.). s Stearns v. Vincent, 50 Mich. 209,
"People V. Zimmer, 252 111. 9, 27, 221 (1883).
28 (1911) 9 Eylenfeldt v. Illinois Steel Co.,
'People V. Feicke, 252 111. 414, 165 111. 185 (1897).
PROCESS 93
although it might become necessary to issue and serve a new
summons.^®
REQUISITES
275 Venue, resident and nonresident defendants
A summons is void if it fails to definitely show the county in
which the defendant is required to appear. ^^ A summons
against several defendants who reside in different counties must
be specific and clear in regard to the court to which each one of
them is summoned. ^ 2
276 Name, people
The requirement, in Illinois, that process shall run "In the
name of the people of the state of Illinois," is complied with
by making the writ run thus: "The people of the state of
Illinois, to the sheriff of .... county. ' ' i^
277 Name, middle
The middle letter constitutes no part of a person's name.**
278 Name, resident and nonresident defendants
A summons directed against defendants who reside in several
counties may contain the names of all of them.i'^
279 Amount claimed
A plaintiff's recovery is not limited by the amount claimed
in the summons, but by the amount laid in the declaration.*'
In an action of debt the summons must demand a particular
sum as debt, it being the foundation of the action.*'^
280 Return day
Previous to the Illinois Practice act of 1872, it was necessary,
in circuit courts, to make a summons returnable on the first day
of the next circuit court in which an action was commenced;
and a summons was considered void if more than one term of
10 Schroeder v. Merchants & Me- i* Moss v. Tlint. 13 HI, 570, 571
chamc8' Ins. Co., 104 111. 71, 74 (1852).
(1882); Sec. 1, Practice act 1907 is Orendorff v. Stanberrj, 20 111,
(111.). 92.
11 Orendorff v. Stanberry, 20 HI, is Thompson v. Turner, 22 111, 389,
89, 93 (1858). 390 (1859).
12 Orendorff v. Stanberry, supra. i^ Weld v. Hubbard, 11 HI. 573,
13 Knott V. Pepperdine, 63 111. 219 575 (1850),
(1872) ; Sec. 33, art. VI, Const. 1870
(HI.).
94 ANNOTATED FORMS OF PLEADING AND PRACTICE
court had intervened between the teste and the return day.^'
Under the present statute, in suits commenced ten days prior
to the beginning of a term of court, the summons may be made
returnable on the first day of the next term of court in which
the action is brought; in suits begun within less than ten days
of the next term of court, the summons may be made return-
able to the next term as before or to a second succeeding term
of court; and all summonses may be made returnable to any
term of court which may be held within three months of the
date thereof. ^^ A summons is void if it is not made return-
able at the required term.^o
281 Teste
In signing an Illinois summons the clerk may use the initial
of his first name.-^ In Michigan all process must be tested in
the name of the chief justice, presiding justice or judge, or one
of the judges of the court from which it issues, unless there is a
vacancy in any of these offices, in which case the testing may be
in the name of the chief justice, or one of the associate justices
of the supreme co,urt.-2
282 Seal
The seal of the court, or if there is no such a seal, then the
private seal of the clerk, is an essential part of an Illinois
summons; a sununons is void without a seal, and should be
quashed on motion.^^ Michigan process must be sealed with
the seal of the court from whence it issues.^*
283 Endorsement
In Michigan, before the delivery of process to an officer for
service, it should be subscribed or endorsed with the name of
the attorney, solicitor or officer at whose instance the process
was issued,25 This requirement operates as a security to the
18 Hildreth v. Hough, 20 111. 331, 21 Bishop Hill Colony v. Edgerton,
332 (1858); Miller v. Handy, 40 26 111. 54, 55 (1861).
111. 448, 450 (1866); See. 1, c. 83, 22(9984), C. L. 1897 (Mich.).
Eev. Stat. 1845 (111.). 23 Hanniim v. Thompson, 1 Scam.
18 Sec. 1, Practice act 1907 (111.); 238, 239 (1835); Anglin v. Nott, 1
Schmitt V. Devine, 164 111. 537, 542, Seam. 395 (1837); Beaubien v.
543 (1897); Mechanics' Savings In- Sabine, 2 Scam. 457 (1840); Par.
stitution V. Givens, 82 111. 157, 159 62, c. 37, Hurd 's Stat. 1909, p. 672.
(1876). 24 (9984), C. L. 1897 (Mich.).
2oCavanaugh v. McConochie, 134 25(9934), C. L. 1897 (Mich,).
111. 516. 521 (1890) ; Culver v.
Phelps, 130 111. 217, 224 (1889).
PROCESS
95
defendant against costs, and it is substantially complied with
after process has been issued by an endorsement nunc pro
tunc.^^
FORMS
284 District of Columbia
In the supreme court of the District of Columbia,
Plaintiff
Defendant
At Law
No.
The President of the United States to the Defendant ,
, greeting :
You are hereby summoned 2" to appear in this court on or
before the twentieth day, exclusive of Sundays and legal holi-
days, after the day of service of this writ upon you, to answer
the plaintiff's suit, and show why he should not have judgment
against you for the cause of action stated in his declaration ;
and in case of your failure so to appear and answer, judgment
will be given against you by default.
Witness, the honorable , chief justice of said
court, the day of , 19 . .
, Clerk.
By , Assistant Clerk.
, Attornev.
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26 Parks V. Goodwin, 1 Doug. 56,
57 (Mich. 1843).
27 If it is an alias summons in-
sert here "as you have before been
summoned. ' '
28 Insert alias, if it is a second
summons.
96
ANNOTATED FORMS OF PLEADING AND PRACTICE
Ph"
I— I
^ :
o
s ^ ^
TS CD a>
,£2.2
285 Florida
The State of Florida.
To all and singular the sheriffs of the state of Florida, greeting:
"We command you to summon
if be found within your county, personally to
be and appear before the judge of our circuit court for
county, judicial circuit of Florida, at the
court house in on the day
of next, being the rule day of said court, to answer
in an action of
to the plaintiff's damages dollars; and have
then and there this writ.
"Witness, , clerk of our said circuit court, this
'day of 19..
, Clerk.
286 Illinois
State of Illinois, \
county. \^^-
The people of the state of Illinois,
To the sheriff of said county, greeting :
"We command you that you summon
if he shall be found in your county, personally to be and appear
before the court of county, on the.^
day of the term thereof, to be holden at the court house, in the
city of , in said county, on the first
PROCESS 97
Monday of , 19 • • , next, to answer unto
in a plea of ^^ , to the damage of said plaintiff , as
it is said, in the sum of dollars.
And have you then and there this writ, with an indorsement
thereon, in what manner you shall have executed the same.
Witness, , clerk of our said court, and the seal
thereof, at ' , aforesaid, this day of
,19..
, Clerk.
(Seal of the court)
287 Maryland
State of Maryland, county, to wit,
To the sheriff of county, greeting :
You are hereby commanded to summon (a body
corporate, of county), to appear before the circuit
court for county, to be held at the court house, in
, in and for county, on the
Monday of next, to answer unto (part-
ners trading as ) in a plea of ^"^
And have you then and there this writ.
Witness the honorable chief judge of our said
court, the day of ,
Issued the ' day of ,
(Court's seal)
., Clerk.
29 In all common law actions, the as a plea of ' ' trespass on the case-
Bummons is the same, except the trover."
designation of the form of the ac- In condemnation, as "in
tion and the amount claimed. In certain petition for the condemna-
assumpsit, the form of the action tion of certain property
is described as a plea of "trespass in said petition described, filed in
on the case on promises;" in case, said court," omitting "to the dam-
as a plea of ' ' trespass on the case ; ' ' age, ' ' etc., and concluding with
in covenant, as a plea of "cove- "And have you then and there,"
nant;" in debt, as a plea of etc.
"debt;" or a "plea that he ren- In mandamus, as "in a certain
der to the said plaintiff dol- petition for mandamus filed in said
lars and cents which he owes court, ' ' omitting ' ' to the damage, ' '
to and unjustly detains from the etc.
said ;" in detinue, as In quo warranto, as "in an in-
a plea of ' ' detinue ; " in ejectment, formation in the nature of a quo
as a plea of "trespass gi<flre c?aMSMm warranto," omitting "to the dam-
f regit — ejectment;" in replevin, as age," etc.
a plea of ' ' replevin ; " in trespass, so For designation of form of ac-
as a plea of "trespass;" in trover, tion, see Note 29, supra.
98 ANNOTATED FORMS OF PLEADING AND PRACTICE
288 Michigan
State of Michigan.
The circuit court for the county of
In the name of the people of the state of Michigan.
To :
You are hereby notified that a suit has been commenced
against you in said court by as plaintiff , and
that if you desire to defend the same, you are required to have
your appearance filed or entered in the cause, in accordance with
the rules and practice of the court, in person or by attorney,
within fifteen days after service of this summons upon you.
Hereof fail not, under penalty of having judgment taken
against you by default.
The plaintiff claims damages in said suit not exceeding
dollars.
Service of this summons shall be made on or before the
day of , 19 • • , which is the return day hereof.
"Witness, the honorable , circuit judge, and the
seal of said court, at the of the place
of holding said court, this day of , 19. .
, Clerk.
, Plaintiff's attorney .
Business address
289 Mississippi
The state of Mississippi, to the sheriff of county,
greeting :
"We command you hereby that you summon ,
defendant , if to be found in your county, so that
be before the circuit court to be holden in and for the
district of said county, at the court house thereof, in the city of
, on the Monday of 19 . . , to
answer the declaration of , plaintiff ,
against the said defendant, now on file in the clerk's office of
said court. And have then there this summons.
The amount actually demanded in this suit is the sum stated
in said and lawful interest and costs.
Judgment will be demanded at return term.
Issued the day of 19 . .
P- q-
Declaration filed when summons issued.
Attest :
, Clerk.
, D. C.
PROCESS 99
290 Virginia
Commonwealth of Virginia, to the sergeant of the city of
, greeting :
We command you that you summon to appear
in the clerk's office of our court of law and chancery of the city
of , at the rules to be holden for the said court, on
the Monday in , 19 . . , to answer ,
trading as of a plea of ^^
And have then and there this writ.
"Witness, , clerk of our said court at his office, this
day of , 19 . . , in the year of our founda-
tion.
Teste:
, Clerk.
By ,D. C.
291 West Virginia
State of West Virginia, to the sheriff of county,
greeting :
We command you that you summon , if he be
found in your bailiwick, to appear before the judge of our circuit
court for the county of , at rules to be held in the
clerk 's office of said coui't on the first in
next, to answer in a plea of ^^
And have then and there this writ.
Witness clerk of our said court, at the court
house of said county, in the city of , on the
day of , 19 . . , and in the year of the
state.
, Clerk.
By ,D.C.
EETURN
292 Officer's authority, deputy
But one return can be made of a writ whether the return
is made before or on the return day.^^ A return of process
made by a deputy sheriff in his own name is valid under Michi-
gan statute, although not so at common law.^*
31 Here insert the particular form 33 Eaton v. FuUett, 11 111. 491,
of action and the amount of dam- 493 (1850).
ages, thus: "debt on negotiable 3* Calender v. Olcott, 1 Mich. 344,
note, damages $ ; " or "tres- 347 (1849) ; Wheeler v. Wilkins, 19
pass on the case, damages $ " Mich. 78, 80 (1869).
32 The form of the action and the
damages are designated the saone
as in Virginia.
100 ANNOTATED FORMS OF PLEADING AND PRACTICE
293 Special deputy; return, requisites
The return of a summons by a special deputy may be in the
form of an affidavit.^^
294 Special deputy ; appointment and return
I hereby deputize and appoint , special deputy to
serve the within summons.
Dated, etc.
Sheriff.
Service
Served the within writ on the within named defendants
and by reading the same and delivering to
each of them a true copy thereof this day of ,
19..
, Sheriff.
By , Special Deputy.
Affida/vit
(Venue)
I solemnly swear that I served the within writ as special
deputy at the time and in the manner as in my return thereto set
forth, and that said return is in every way and particular true.
Subscribed, etc.
295 Return, validity
The omission in the return of a summons of the full name
of the defendant does not invalidate the service, if the return
shows that the summons was served upon the person named
in the summons where his full name is given.^s
296 Return, effect
The return of summons is not conclusive of the character of
the person served.^'^
35 Edwards v. McKay, 73 111. 570, 37 Booz v. Texas & P. Ry. Oo., 250
572 (1874). 111. 376, 381 (1911).
36 Verdun v. Barr, 253 111. 120,
126 (1912).
PROCESS 101
297 Individuals, Illinois
The return of process must show on whom, in what manner,
and when service was made.^^ The officer is not required, under
Illinois statute, to date his return. He may merely state the
time of service in his endorsement.^^ The actual placing of
the writ in the clerk's office constitutes the return, and the
clerk's file-mark indicates the date of the return.**^
''I did on the day of , serve this writ, by
reading the same to the within named dated, etc.,
is a good return. "■*!
298 Individuals, Maryland
Summoned and copy of Narr. and notice to plead left with
, one of the defendants ; non es^ as to
and
, Sheriff.
299 Individuals, Michigan
State of Michigan, | gg
County of j
I hereby certify and return that on the day of ....
, 19 . . , at in said county, I served
the within summons personally on
defendant . . . named in said summons, by then
and there, at the place and on the date above
mentioned, showing to said above named defendant
the within summons with the seal impressed thereon, and
delivering to said defendant a true copy of said
summons
My fees $.
Sheriff of said county.
38 Cariker v. Anderson, 27 HI. 358, (1862) ; Cummings v. People, 50 111.
363 (1862) ; Ball v. Shattuek, 16 111. 132, 134 (1869).
299 (1855); Sec. 2, e. 110, Kurd's *o Hogiie v. Corbit, 156 111. 540,
Stat. 1909, p. 1693. 546 (1895).
39 Cariker v. Anderson, supra; •*! Ball v. Shattuek, 16 HI. 299.
Punk V. Hough, 29 111. 145, 148
102
ANNOTATED FORMS OP PLEADING AND PRACTICE
0)
Plaintiff..,
V.
•4^
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a
0)
Q
CO
o
s
Returned and filed this
day of , 19 . .
Clerk.
o
300 Individuals, Mississippi
Executed personally by delivering to a true
copy of the within writ day of ,
19..
, Sheriff.
, Deputy Sheriff.
301 Individuals, Virginia
Executed on the day of within the county
of by delivering a true copy of the within sum-
mons in writing to in person ; not
found at the place of their usual abode. I delivered a true
copy to , a member of the family over sixteen
years of age after explaining the purport of the same.
D. S.
For , Sheriff,
county.
302 Individuals, West Virginia
Executed the within summons on the within named
on the day of , , by delivering to him,
in person, a true copy thereof, in county. West
Virginia.
, Deputy Sheriff for
, S. M. C.
On member of family
Executed the within summons on the within named
, on the day of , , by delivering
on that day a true copy thereof, to , at his usual
PROCESS 103
place of abode in county, West Virginia, a person
found there who is a member of his family, and above the age
of 16 years ; giving the said information of the
purport of said copy ; the said not being found.
, Deputy,
For , S. T. C.
303 Partnership, Illinois
I have duly served this writ on the within named
and partners doing business under the firm name
and style of , by reading the same to, and at the
same time delivering a true copy thereof to agent
of said copartnership, at its place of business in said county of
; the within named and
being nonresidents of and not found in my county, as I am
therein commanded, this day of ^-
304 Corporations, District of Columbia
Served copies of the declaration, notice to plead,
affidavit and this summons on the defendant, by service on ....
president, the day of , 19 . .
, Marshal.
$
305 Corporations, Illinois
In the service of process upon a corporation on any other
agent or officer than the president, the return must show that
the president was not found in the county.^^ Service on
"as president" or "as secre-
tary" is not service upon the president or the secretary of a
corporation.^*
The return on a corporation under the present statute may
be as follows:
42 Watson V. Coon, 247 111. 414, ** Illinois & Miss. Tel. Co. v. Ken-
415 (1910). nedy. 24 111. 319 (1860); Chicago
43 Chicago Planin? Mill Co. v. Planing Mill Co. v. Merchants'
Merchants' National Bank, 86 111. National Bank, 86 111. 589.
587, 588 (1877); Sec. 8, Practice
act 1907 (Kurd's Stat. 1909, p.
1694).
104 ANNOTATED FORMS OF PLEADING AND PRACTICE
Served this writ on the within named defendant
company by delivering a copy thereof to
(cashier) of the said company, the president of said company
coukl not be found in my county, the day of
19..
, Sheriff.
By Deputy Sheriff.''^
306 Corporations, Maryland
Summoned company of county,
Maryhind, body corporate, by service upon
one of the directors of the said company of
county, by reading the summons to said
and by leaving a copy of the summons and a copy of the declara-
tion with said , this day of ,
19..
Sheriff.
307 Corporations, Virginia
Executed in county on the
day of , 19. ., by delivering a true copy of the
within summons in writing to , in person, who is
director of the within , in which county said ....
resides, and said has its principal office ;
and further executed in the county of on said
defendant of , 19. ., by delivering a true copy
of the within summons in writing to , in person,
who is a director of the within defendant and a
resident of the county of , in which county the
, which is a foreign corporation does business.
, Sheriff.
By , Deputy Sheriff.
308 Corporations, West Virginia
Executed , 19 . . , upon the within named
company, a corporation, by delivering an office
copy of the within writ, in person to president of
said corporation, in county. West Virginia, that
being the county and state wherein the said presi-
dent, resided at the time of said service.
S. W. C.
D. S.
Mileage
Fees $ . .
45 Chicago & P. R. Co. v. Kaehler, Shoe Mfg. Co. Ill 111. 309, 312
79 111. 354, 355 (1875); Chicago (1884); Sec. 8, Practice act 1907
Sectional E. U. Co. v. Congdon Brake (111.).
PROCESS 105
309 Foreign corporations, Illinois
A foreif,Ti corporatiou which is doing business in Illinois and
having agents and property there, may be served with process
the same as a domestic company. ^*^ The agent upon whom
service of summons against a foreign corporation is authorized
must be one who has power to represent the corporation in the
transaction of some part of its charter business. Mere solicita-
tion of business by persons who have no other authority, does
not constitute the persons agents within the meaning of the
statute.^" An officer of a foreign coi*poration who passes
through the state on private business cannot be served with
process against a corporation which is not doing business nor
having an office in the state.^^
310 Foreign corporations, West Virginia
Executed the within process on the within named
company, a corporation, on the day of , 19. .,
hy on said day delivering an office copy thereof in
county, West Vir<;inia, in person, to auditor of
the state of West Virginia, and, as such auditor, attorney in
fact, pursuant to chapter 39 of the Acts of 1905, of the legisla-
ture of West Virginia, to accept service of process and notice in
said state for said corporation, and to be served with process and
notice in said state for said corporation. The said
at the time of said service being the auditor of the state, and
residing, at said time in the said county of
./. S. K. C.
By , Deputy.
311 Railroad companies, Illinois
I have duly served the within by reading the same to the
within named railway company, by reading to
agent of the said railway company, at ,
Illinois, and at the same time delivering to him a true copy
thereof as I am therein commanded, this day of
19. . The president, general clerk, clerk, secretary, super-
intendent, general agent, cashier, principal director, engineer or
conductor not found in my county this day of
19..
Sheriff.
Mileage $ .
Fees .
"Mineral Point R. Co. v. Keep, 111. 380, .381 (1911); See. 8, Prac-
22 111. 9, 15 (1859) ; Sec. 8, Practice tice act (111.).
act 1907 (111.). 48 Midland P. Ry. Co. v. McDer-
«7Booz V. Texas & P. Ry. Co., 250 mid, 91 111. 170, 173 (1878),
106 ANNOTATED FORMS OF PLE^VDING AND PRACTICE
312 Township
I have this day executed the within writ on the
within named defendant the town of , personally, by
delivering to , mayor of said town, a true copy of
this writ, this day of , 19. .
(Signatures)
AMENDMENT
313 Power of oflBcer
Until process is actually returned to the clerk's office, the
officer has power to amend it without leave of court."**
314 Power of court, notice
A court has power to permit the sheriff to make an amend-
ment to his return of a summons before or after .iudtrment.
Before the expiration of the term leave may be granted to the
sheriff without notice. After the term has expired the amend-
ment may be made upon reasonable notice.^"
315 Nature of amendment
A defective return of process is amendable according to the
fact notwithstanding that the amendment might defeat a pro-
ceeding by motion in the nature of a writ of error coram nobis
or any other suit, which is founded upon the original return. "'^
316 Person to amend
The person who made the original ser\'ice and the original
return is the one to amend it, although he is out of office.^-
PRACTICE
317 Quashing summons
A motion to quash the return of a summons on account of
want of service is inappropriate after an insufficient plea in
abatement has been disposed of on substantially the same
grounds. Nor is such a motion proper before pleading in abate-
rs Nelson v. Cook, 19 111. 440, 455 si Spencer v. Rickard, 71 S. E.
(1858). 711, 712 (W. Va. 1911); McClure-
50 Chicago Planning Mill Co. v. Mabie Lumber Co. v. Brooks, 46 W.
Merchants' National Bank, 86 HI. Va. 732, 734 (1899).
589 ; Morris v. School Trustees, 15 52 Waite v. Drainage District, 226
111. 266, 269, 270 (1853); Eucker v. 111. 207, 212 (1907).
Harrison, 6 Munf. 181 (Va. 1818).
PROCESS 107
ment, as it amounts to a waiver of the right to so plead.^^ x
defendant does not waive his rights under a motion to quash
summons and to dismiss suit by pleading in bar of the action
pending a decision upon a motion, if the pleading is merely a
denial of all liability and is provisional.^^ A motion to quash
a summons must indicate upon which writ the quashal is sought
where two or more writs have been issued.^^ Upon quashing
a sunmions, a tinal judgment should be entered against the
plaintift' for costs.^"
318 Alia^ summons
An alias summons should not issue aft^r the original has
been (juashed. But if an ''alias" summons does issue, it will
be regarded as the commencement of a new suit.'^^
319 Amendment
The omission to name the form of the action in a summons
is not a substantial defect ; ^^ and the objection may be obviated
by an ameudnient.^" So, it is permissible to allow an amend-
ment of the summons to conform to the praecipe.*^"
PUBLICATION
320 Pre-requisites
Before a person can be served by publication, he must be
made a party to the proceeding.^^
321 Affidavit
being first duly sworn on oath deposes and says :
That this affiant is the attorney for the plaintiflP
hereinbefore named ; that the railroad company,
an Illinois corporation, is the owner of certain right of way, track
and propertv with the county of , aforesaid ; that
there has been returned into the office of the circuit court clerk
of county, a summons duly issued out of said
53 Locomotive Firemen v. Cramer, »« Chester & T^ %.^ni7A?' ^'
164 111 9 15 (1896). Lickiss, 72 111. 521, 523 (1874).
5* Sallee v. Ireland, 9 Mich. 155, »» Chester & T. C. & R. Co. t.
158 (1861) Lickiss, supra.
" Cheney' V. Citr National Bank, co Thompson v Turner 22 lU.
77 111. 562, 564 (1875). 390; Sec. 1, c. 7, Hurd's Stat. 1909.
58 Rattan v. Stone, 3 Scam. 540, p. 154.
541 (1«<42). 01 People v. Dunn, 247 111. 410,
6» Rattan v. Stone, supra. 413 (1910).
108 ANNOTATED FORMS OF PLEADING AND PRACTICE
office in said cause, with the following return of service thereon:
"I return this summons not serveil as to tiie defendant
railroad company, because 1 cannot tind in this county,
the president, nor any clerk, secretary, superintendent, gL'jieral
agent, cashier, principal director, engineer, conductor, station
agent, or any agent of the said railroad company,
this day of , I'J. .
, Sheriff."
That said affiant made diligent inquiry and upon sulIi incjuiry
states that neither the president of said railroad eom-
pany, nor any clerk, seeretary, superintendent, general agent,
cashier, principal director, engineer, conductor, station agent, or
any other agent of said railroad company, can be found within
the said county of so that process could be served
upon them, or either of them ; that in making said incjuiry, said
affiant has inquired of the passenger and ticket
agent of railroail company, at , Illi-
nois, of , the chief clerk in the office of the supeiin-
tendent of the railroad company, at ,
Illinois, of , the head physician in the employ of
the voluntary relief, and of , an at-
torney at law connected with the firm of , attorneys
at , Illinois, as he is informed and believes, for the
railroad company, and that none of said pai-ties
could or would give tiiis affiant, the name of any person in the
employ of the said railroad company, or in any way connected
with the said railroad company, upon whom legal service could
be had.
That this affiant is informed and believes that the principal
place of business of the said railroad company is
at , county, Illinois.
That this affidavit is made for the purpose that service may
be had upon said railroad company by publication,
in accordance with the statute in such case made and provided.
And further affiant sayeth not.
Subscribed, etc.
322 Notice
Affidavit that the said railroad company, an
Illinois corporation, is the owner of certain right of way, track
and other property within the county of , and that
neither the president, nor any clerk, secretary, superintendent,
general agent, cashier, principal director, engineer, conductor,
station agent, or any other agent of said railroad company, can
be found within the county of , having been filed
in the office of the clerk of said circuit court of
county.
Notice is hereby given the said railroad com-
PROCESS 109
pany, an Illinois corporation, one of the defendants above named,
that the plaintiff has tiled his suit in said court
on the common law side thereof, on the day of ,
19.., charging the said defendants with trespass on the
case, and that a summons thereupon issued out of said court
against said defendants, returnable on the day of the
term thereof, to wit, on the day of
, 19. ., as is by law required; and said summons
having been returned by the sheriff not served as to the said
above named railroad company.
Now, therefore, unless you, said railroad com-
pany, an Illinois corporation, shall be and appear before the
said circuit court of county, on the day
of the next term thereof, to be holden at the court house in the
city of in said county, on the day of
, 19.., and plead or demur to the plaintiff's
declaration, the same, and the matters and things therein
charged and stated will be taken as confessed, and a judgment
entered aijainst you.
In witness whereof, etc.
Circuit court clerk.
323 Certificate of mailing
I, , clerk of the circuit court of
county, in the state aforesaid, do hereby certify that on the ....
day of , 19. ., being within ten days after the
first publication of the notice hereunto appended, I sent by mail,
postage prepaid, a true copy of said notice to
railroad company, defendant, at , Illinois.
Witness my hand and the seal of said court, this
day of 19..
Clerk.
(Attach notice)
324 Proof
State of ] gg
County of \
The (which is incorporated and doing busi-
ness under and by virtue of the laws of ) ,
hereby certifies that it is the printer and publisher of the
which is a public newspaper, printed and pub-
lished daily in the city of , in said county and
state aforesaid. Said company further certifies that the
accompanving notice, entitled "Notice to nonresidents," dated
the day of , 19 •• , and signed by
110 ANNOTATED FORMS OF PLELVDING AND TKACTICE
has been published four different times, and suc-
cessive weeks in the said ; that is to say, in each
and every copy thereof, printed and published on the following
respective dates to wit: (Insert the dates of publication).
In testimony whereof, the said company has caused this certifi-
cate to be signed by its president and secretar\' and attested by
its corporate seal, in accordance with the provisions of its by-
laws, at , this day of . .
19.. '
By , President of said corporation.
(Corporate seal)
Attest :
, Secretary.
DECLARATION
325 Practice
Actions for the recovery of any debt or damages may be
commenced in Michigan by original writ or declaration.^- An
action of assumpsit against a municipal corporation may also
be thus comraenced."^
CAPIAS
326 Jurisdiction
The personal actions in which a capias may issue in Michi-
gan are: actions on account of a breach of promise to marry,
actions for money collected by public officers, actions for any
misconduct or neglect in office or professional employment, and
actions for fraud and breach of trust.«^ In actions for a breach
of promise to marry, the defendant is subject to arrest on a
capias upon the conclusive presumption that fraud is the basis
of the promise.'"'^ No capias can issue in an action upon an
express or implied agreement growing out of a contract of
agency, when there is a mere failure by the agent to pay over
a balance due under the contract. ^^
62 (9985), C. L. 1897 (Mich.) Pennock v. Fuller, 41 Mich. 153,
amended in 1905. p. 103. 155 (1879).
63 Menominee V. Circuit Judge, 81 es /„ re Sheahan, 25 Mich. 145
Mich. 577 (1890). See Chapter (1872).
■^l?;«n«^v « , 66 People V. McAllister, 19 Mich.
64(9996), C. L. 1897 (Mich.); 215, 217 (1869).
PROCESS
111
327 Practice
The practice in suits commenced by^ capias is fixed by statute
and must be strictly followed.'^ ^
AFFIDAVIT
328 Nature and scope
^Vn affidavit for a capias ad respondendum is merely for the
purpose of requiring the defendant to give security for the debt
upon which the suit is brought, and is in no sense a pleading
in the case.®*
329 Requisites
In an aftidavit to hold to bail, all of the facta and circum-
stances constituting the ground or grounds upon which a capias
is sought must be stated in detail and as within the personal
knowledge of the affi^mt."" The affidavit should specihcaliy
allege in what way or to what extent the plaintiff is damaged.
It is not necessarj' to attach to the affidavit or to the writ of
capias documentary evidence of the facts which are within the
affiant's own knowledge and so stated in the affidavit.' In
Virginia, the code requires this affidavit to be signed only by
the court in which the case is pending or the judge thereof in
vacation or a justice of the peace."^-
330 Form, absconding, Virginia
This day appeared before me
and made "oath." and showed to my satisfaction that in a suit now
^„„ J- _ \n thp .... court for the
Ltw en .'.'■■■■ plaintiff, and :/ff''^'''h
the said plaintiff has cause of action a.-ainst the said defendant
for . and that there is probable cause for be leving that
the said defendant is about to quit this state, ^"1^;^ ^^^^.^^^^^^^^^
with apprehended; it is therefore hereby directed that the said
.... be held to bail in the sum of dollars.
Given, etc.
«» People V. McAllister, 19 Mich. sec. 2991.
217; Shcri.lan v. Briggs, 53 Mich.
569, 571 (1884).
112 ANNOTATED FORMS OF PLEADING AND PRACTICE
331 Form, assault and battery
being duly sworn, deposes and says that he is a
resident of of in said county of
, and that on the day of ,
19 . . , at the of in the county of
and state of , , late of the
of , with force and arms accosted
and violently attacked this deponent upon the street in the city
of of , where this deponent then
was, and without any provocation whatever, then and there un-
lawfully laid hold of this deponent and with great force and
violence knocked him down, and with his hands and feet dealt
this deponent several violent blows upon his head, face, and
other parts of his body, and gouged the eyes of this deponent,
and then and there with force and arms in and
upon him, this deponent, did make an assault and did beat,
bruise, wound, ill-treat, and commit an assault and battery upon
this deponent, by reason whereof this deponent became and was
sick, and was disabled from attending to his aflfairs and businesa
for a long space of time, to wit, for tlie space of
then next ensuing, and suffered groat bodily pain and mental
distress, and in consequence of such beating, bruising, wounding
and ill-treating this deponent was compelled to and did expend
a large sum of money in procuring medicines, medical aid, and
nursing, and w^as thereby damaged by loss of business and
expenditures of money in restoring himself to health and cur-
ing himself from the injuries so inflicted, and in mental distress
and bodily pain, in a large amount, to wit, the sum of
dollars. '
Subscribed, etcJ^
332 Form, conversion
of the of in said
county and state, being duly sworn deposes and
saitii that he is in copartnership, with of the county
of and state of with whom he is en-
gaged in the business at county and state first
aforesaid, under the firm name and style of ;
that he makes this affidavit as well in behalf of said
as of this deponent, and that he is personally acquainted with
and cognizant of the facts stated and set forth in this affidavit.
And this deponent saith further that on the day of
, 19. ., said and one
purchased a certain horse known as and one
'8 Pease v. Pendell, 57 Mich. 315
(1885).
PROCESS 113
wagon (or any other property), for the sum of
dollars of which said paid , and the
said paid the remainder, by which said purchase
said became the owners of said property in
undivided moieties.
And this deponent further saith that on or about the day of
, 19 . . , the said took said prop-
erty into his possession and agreed with said that
he would pay the keeping of said horse for the use of the same.
And this deponent further saith that on or about
the day of , 19 . . , this deponent, in con-
versation with said asked him, said
to put said horse into the hands of some competent person to be
fitted for trotting, and that said told this deponent
to go to
And this deponent further saith that on or about said
day of , 19 . . , with the intent to defraud
said and said said
secretly disposed of said property, and now refuses to account,
or to pay said for their interest therein.
And this deponent further saith that in conversation with
said on the day of , 19 . . ,
the said told this deponent that said property was
gone, and that this deponent might whistle for his interest there-
in, for he could never have a cent for the same.
And this deponent further saith that said .,
at the time said i)roperty was so aforesaid disposed of by said
, owned an undivided interest therein,
and that the value of said undivided was
dollars :
And this deponent further saith that he verily believes that
upon the aforesaid facts said liave a good cause
of action against said in an action of trespass on
the case, and claim damages in the sum of dollars.
Subscribed, etc."^"*
333 Form, false representations (Illinois)
, being first duly sworn, doth depose and say that
he is the agent and attorney of the firm of of the
said county and state, -which firm is, and for more than a year
last past has been, composed of and
Deponent further says that one is indebted to
the firm of for merchandise consisting of (Describe
property) which were sold and delivered by the said ,
from , 19 . . , to , 19 . . , to the said
T* Wilcox V. Ismon, 34 Mich. 268,
269 (1876).
114 ANNOTATED FORMS OF PLEADING AND PRACTICE
at his special instance and request, in the sura of
dolhirs ($ ) ; that said uinuunt is now due
and unpaid, and that said firm of is about to com-
mence a suit in assumpsit at law, in the circuit court of
county, in the state of Illinois, for the recovery of the amount
so due from the said to the said as
aforesaid.
Deponent further says that the said debt was fraudulently
contracted by the said in this, that prior to the
sale and delivery of any of the merchandise for which the said
is indebted to the said as aforesaid,
he, the said , did, on the day of
19. ., make and deliver to the said in order that
he might obtain credit from said , a certain state-
ment, partially written and partially printed, of his respecta-
bility, wealth, mercantile correspondence and connections, which
statement was sif^ued by the said , and which state-
ment alleged that the representations therein made were to be
the basis of any credit that he, the said , might
require during a period of one year from the date thereof, and
which statement was, at the time of the making thereof, false
and untrue in the respects hereinafter set forth.
Deponent further says that said statement alleged that he,
the said , was, on its date, the owner of merchan-
dise and other personal property of the value of
dollars ($ ), which said statement this deponent says
was untrue in this, that said merchandise and other personal
property then owned by the said was not, at that
time, worth more than dollars ($ ).
Deponent further says that said statement alleged that he, the
said , at the date of the making thereof, was the
owner of first mortgage notes and bonds which were, at that
time, good and collectible, of the face value of
dollars ($ ), which said statement deponent says was
untrue in this, that the said notes of the face value of
dollars ($ ) were not in fact secured
by first mortgages, but that of said notes, notes of the face value
of dollars ($ ) only were then secured
by first mortgages, and that of the said first mentioned notes,
notes of the face value of dollars ($ )
only were then secured by second mortgages; and that the notes
so secured by first and second mortgages as aforesaid were the
only notes which the said then had which were
secured by mortgages of any kind, and that the said
did not, at the date of said statement, have any notes represent-
ing the balance of said dollars ($ ),
to wit, dollars ($ ), and that he did
not, at said time, have or own any bonds whatever.
Deponent further says that all of the notes which were secured
as aforesaid, and which the said had at the time
PROCESS 115
of making said statement, were hypothecated by him within
days after the making of said statement, and that
said secured notes never were worth to exceed per
cent of their face value.
Deponent further says that the said statement alleged that
the said at the time of the making thereof, owed
to grocers for merchandise not due the sum of
dollars ($ ), which said statement said deponent says
was, at that time, untrue in this, that he, the said ,
then owed for merchandise to grocers and others at least the
Bum of dollars ($ ).
Deponent further says that said statement alleged that he,
the said , at the time of the making thereof, owed,
in addition to said dollars ($ ) therein
mentioned, only the sum of dollars ($ ),
which statement was untrue in this, that, in addition to the
indebtedness of the said as set forth in said writ-
ing, there was at that time and now is outstanding and in full
force and effect, a certain judgment which was recovered against
him in favor of , in the court of
county, on the day of , 1 . . . , for
the sum of dollars ($ ), and costs
of suit, and that there was due and unpaid on the
day of , 1 . . ., upon said jud'^'inent and for costs and
interest thereon, at least the sum of dollars
($ ), and that said sum still remains unpaid ; also that
on the day of , 1 . . . , the wife of said
recovered against him, the said , in the
court of county, a judgment by confession for
dollars ($ ) and costs of suit, which
judgment, on the said day of , 1 • • • , remained
in full force and effect, and that there is now due upon said
judgment at least the sum of dollars ($......),
which still remains unpaid; and also that, on the last mentioned
date, the said was indebted to in
the further sum of dollars ($ ) upon
a jud'jrment note signed by him, the said . . , upon
which note judgment was entered by confession in the
court of county on the day of ,
1. . ., and that the amount of said judgment still remains unpaid;
and that also that at said time he was indebted to his stepson,
whose name is to deponent unknown, in the further sura of at
least dollars ($ ), which is still unpaid.
This deponent further says that the said has,
since the day of , 1 • • • , and since the sale and
delivery of said merchandise to him as aforesaid, assigned and
disposed of his property with intent to defraud the said
; that about the day of , 1 • • • .
the said v. ho. at that time, owned and was con-
ducting a store at numbers street, in the
116 ANNOTATED FORMS OF PLEADING AND PRACTICE
city of , county of and state of Illinois,
sold the contents of said store and certain horses and wagons
used in connection with the business done at said place, to
and others; that the consideration for said sale
was a note for dollars ($ ) and also
lots in the village of , county,
; that, at the request of said , the deed
of conveyance to said lots was not made to him, the said
, but to his brother, , and that no
consideration whatsoever passed from the said
for said conveyance, and that the title to said
lots is now in the said
Deponent further says that, at the time said
made said statements which are herein stated to be untrue, he,
the said , knew that said statements were untrue.
Deponent further says that the said firm of ,
at the time of, and after the making of said statement, and
prior to, and at the time of the sale and delivery of said mer-
chandise by them as aforesaid to the said , they,
the said , relied upon said statement and believed
that the matters and things therein set forth were true, and
believed that the said was possessed of the assets
therein luculioncd, and that said assets were of the value therein
stated, and believed that the liabilities of the said
were as therein stated, and that saitl linliilitirs were not greater
than as therein stated, and that, so believing, the said
did sell and deliver to the said the said merchan-
dise above referred to, and for which the said is
still indebted as aforesaid.
And he further says that said would not have
sold and delivered said goods and merchandise, if the said
had not made said statement, and if the said
had not believed said statement and the matters
and things therein set forth to be true.
Deponent further says that since the day of .,
1 . . . , the said has never notified the said
or any one on their behalf, of any change in his
financial condition ; that said is utterly insolvent
and was insolvent on the day of , 1 . • . , when
said statement was made, and has at all times since said time
been insolvent, and that he, the said , knew at the
time he made said statement, that he was insolvent and that his
debts and liabilities were largely in excess of his assets.
Deponent further says that if the said should
recover a judgment against him, the said , in a
suit which the said are about to commence, that
such judgment could not be collected on execution.
Deponent further says that, since the making of said state-
ment, and the sale and delivery of said goods and merchandise,
the said has made an assignment in the county
PROCESS 117
court of county ; and this deponent states, on inves-
tigation, information and belief, that the estate of said
in said court will not pay cents on the
dollar.
Subscribed, etc.
Order
The clerk of the circuit court is hereby directed to issue a
cajnas ad respondendum in favor of et al., herein
before named, and against , the said
to give bail in the penal sum of dollars, upon
the plaintiff,- , «;iving bond in the penal sum of
dollars.
Dated, etc.
Judge court.
(Michigan)
being duly sworn, deposes and says that he is
the agent of and copartners as
and doing business as such in the city of ,
in the state of Michigan, and as such agent, on behalf of said
, makes this affidavit, and deposes and says that
., of the city of , was at said city lately
engaged in the retail trade of and had there a
stock of and deponent was then and there the
agent and traveling salesman for said firm of , as
aforesaid, and siud made application to deponent
and desired to purchase on credit a bill of goods for his said
stock and store aforesaid. Thereupon, and before taking the
order of said and giving him credit therefor,
deponent, in behalf of said desired to know of
said what his financial circumstances then were,
and what property said then had, and what his
ability to pay for the goods deponent should thereafter sell
and deliver to him, said
"Whereupon, said , for the purpose of procuring
from said a bill of goods through this deponent
as agent and salesman for said , and for the pur-
pose of obtaining credit for a period of days with
said firm of , then and there stated to this depo-
nent, that he, the said then had a stock of goods,
consisting of , of the value of
dollars, and that he had on that day, to wit, paid
the last dollar he owed for his said stock, and said he had
dollars cash on hand, and did not owe one dollar
to anybody, and was out of debt.
118 ANNOTATED FORMS OP PLEADING AND PRACTICE
And deponent, believing such statement, so made to Iiiin as
aforesaid as true, did make known the same to tiie said lirm of
and there and then did sell on credit and take the
order of said and communicated the same to said
firni of , who thereupon, believing said representa-
tions, and relying upon the representations and report thereof
made by deponent, then and there did deliver to said
goods, consisting of , of the value of
dollars.
Deponent further says that said statement, so made as afore-
said by to deponent, was made for the express
purpose and with the intent to defraud said of
said bill of goods of the value of dollars as
aforesaid; that said representations, when so made, were false
in every particular, and said knew the same were
absolutely false, and knew that he did not have a stock of goods
of the value of dollars, and knew that the same
did not exceed in value dollars, juid knew that he
was not out of debt, and knew that he was indebted in a large
sum of money to divers persons, firms and corporations, and
had not paid all his indebtedness on said stock, and did owe a
large amount for said stock, and did not have on hand
dollars in money, and knew that he could never pay for said
bill of goods, and then knew that he never intended to pay for
the same, and knew that he intended to cheat and defraud said
of the same.
Deponent further says that soon after said
ordered and received said bill of goods he sold, assigned and
transferred his entire stock of goods to , the con-
sideration for which said sale and transfer was a prior indebt-
edness, and for the purpose of defrauding the said
And this deponent further says that he verily believes that
upon the aforesaid facts said have a good cause
of action against in an action of trespass on the
case, as stated in annexed writ, and claims damages in the sura
of dollars.
Subscribed, ete."''
BOND
334 Creditors
Know all men by these presents, that we
of the county of and state of Illinois, are held and
firmly bound unto of county and
state aforesaid, in the sum of dollars, to be paid
to the said ; . executors, administrators or assigns.
'5 Hatch V, Saunders, 66 Mich.
181, 183 (1887).
PROCESS 119
for which payment well and truly to be made, we bind ourselves,
jointly and severally, and our respective heirs, executors and
administrators, firmly by these presents.
Sealed with our seals, and dated this day of ,
19..
Whereas, the above bounden
has filed in the circuit court of county, and state of
Illinois, his certain affidavit for the arrest of the above named
And whereas, honorable , one of the judges of
said court, has indorsed an order under his hand on said affida-
vit, directing the clerk of said court to issue a capias ad respon-
dendum for the arrest of the said
upon the said
giving bond and security as provided by law :
Now, therefore, the condition of the above obligation is such,
that if the above bounden
shall prosecute the above mentioned capias with effect and with-
out delay, and pay, or cause to be paid to the said
his heirs, executors, administrators or assigns
all such costs and damages that may be sustained by the
wrongful suing out of such capias
then the above obligation to be void ; otherwise to be and remain
in full force and virtue.
Approved this 1
day of , 19. . }- (Signatures and seals)
Clerk.]
335 Sheriff
Know all men by these presents, that we
of the county of , and state of Illinois, are held and
firmly bound unto , sheriff of county,
in the state of Illinois, in the sura of dollars,
lawful money of the United States, for the payment of which
sum, well and truly to be made to the said sheriff
as aforesaid, or his successors in office, executors, administrators
or assigns, we hereby jointly and severally bind ourselves, our
heirs, executors and administrators.
Witness our hands and seals, this day of
19..
120 ANNOTATED FORMS OF PLEADING AND PRACTICE
The condition of this obligation is such, that whereas, ,
ha lately sued out of the court of county
a certain writ of capias ad respondendum, in a certain plea of
against
retunial)lo to tlu' next term of the said eourt, to be holden at the
court house, in the eity of , in said county, on the
Monday of next.
Now, if the said
shall be and appear at the said eourt, to be holden at
aforesaid on the said Monday of next;
and, in case the said
shall not be received as bail in the said action, shall put in good
and sufficient bail, which shall be received by the plaintiff , or
shall be adjudged sufKcient by the court, or the said
being accepted
as bail, shall pay and satisfy the costs and condemnation money,
which may be rendered against the said
in the plea aforesaid, or surrender the bod of the said
in execution, in case the said
shall pay and satisfy the siud costs and condemnation money,
or surrender in execution, when, by law, such surrender
is required, then this obligation to be void ; otherwise to remain
in full force and eft'ect.
(Signatures and seals)
WRIT
336 Service
The service of a writ of capias ad respondendum may be by
arrest and imprisonment until judgment, by arrest and taking
bail, or by arrest, reading of the writ and release without tak-
ing bail."*^
337 Form, Florida
State of Florida,
To all and singular the sheriffs of the state of Florida :
You are hereby commanded to take
if be found in your county, and safely keep,
so that you have body before the judge of our
court, for county, at the court house in
76 McNab V. Bennett, 66 HI. 157,
161 (1872) ; See. 3, Practice act 1907
(111.).
PROCESS 121
forthwith, to answer the state
of Florida for
and liave then and there this writ.
Witness the honorable judge of our said
court, and the seal of said court, this
day of ,19..
, Clerk.
338 Form, Illinois
State of Illinois,? ^g
county. f
The ptopk' of the state of Illinois, to the sheriff of
county, greeting:
Whereas, the honorable , one of the judges
of the circuit court of county, has had presented to
him a certain affidavit to hold to ])ail and the s;ud
j)idge having endorsed an order under his hand on said affidavit
din-cting the clerk to issue a n//JiV/.v ad rcsptjudindum for the
arrest of said and having fixed the amount of bail
at dollars, and bond and seeurity according to
the act in such case made and [)rovided iiaving ])een given:
You are therefore commanded, that you tiUie the bod of
if he shall be found in your county and safely
keep 80 tliat he be and appear before the circuit court of
county, on the day of tiie term thereof, to
be hoUlen at the court house, in in said
county, on the ^Monday of , 19. .,
to answer unto
in a plea of
to the damage of said plaintilV as is said in the sum of
dollars cents.
And have you then and there this writ, with an endorsement
thereon in what manner you shall have executed the same.
Witness , clerk of our .said court, and the seal
thereof, at , in said county, this day of
, 19..
, Clerk.'^
(Seal)
Return
Pd M
19 . . , rec 'd $ defendant 's board from
19 . . . to , 19 . . , inclusive.
Executed this writ by reading the same to and arresting the
body of the within named defendant, , and he giv-
"f The writ shoulrl hear the fol- the defenflant to bail in the sum
lowinp cndorsemeDt of the clerk of of dollars.
the court: "The eherifif will hold Clerk."
122 ANNOTATED FORMS OP PLEADING AND PRACTICE
ing bond for his appearance, which is hereto annexed, I have
released him from custody this day of , 19. .
, Sheriff.
By , Deputy.
339 Form, Michigan
State of Michigan, | gg
County of \
The circuit court for the county of
To the sheriff of said county, greeting:
In the name of the people of the state of Michigan, you are
commanded to take
if may be found in your bailiwick and
safely keep so that you may have bod before the circuit
court for said at the court house, in the
of on the day of , 10 . . ,
that being the first day of the next succeeding term of our circuit
court, to answer to the suit of
plaintiff , against the said
defendant , in an action of trespass on the case for
which action has been duly commenced in our said court against
said
defendant , claiming damages to the amount of
dollars, all of which shall then and there
be made to appear, and of this writ make due return.
Witness, the honorable , judge of
the circuit court for the county of , this
day of in the year of our Lord one thousand nine
hundred and ....
, Clerk.
Attorney for plaintiff.
State of Michigan, }
County of |
I, , sheriff of the county of , do
hereby certify and return that I have taken
within named defendant , whose bod I have ready as
within I am commanded,
Dated at the day of
19..
., Sheriff.
PROCESS
123
Fees
Service of capias *•
Traveling fees
Disbursements
Total fees $ •
o
o
•t: >.
:zr2 \ ^
a J3
T^TS ^ aj
CO
^
a
^
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-- 'IS
♦^
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a
^^ J -^ «" 't :
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(-3 d -^ 5 —
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Ci
9 o
BAIL
340 Arrest, nature
An arrtst upon a capiat is equivalent to service of it as a
summons where the defendant is released on common bail.^^
341 Jurisdictional defects, waiver
Jurisdictional defects in the affidavit are not waived by put-
ting in special bail and pleading in the causeJ>>
342 Bail piece, waiver
Sureties waive tht- right to have bail pieces delivered to them
at the time of giving the bail bond, by failing to call for them.^o
343 Bond, validity
A bail bond in the name of the under-sheriff will be treated
as a bond to the sheriff himself, and is valid."
TBWann v. M'Goon, 2 Soam. 74, so Wilcox v. Ismon. 34 Mich. 268,
77 (1849). 271 (1876).
T» 7n re Stephenson. 32 Mich. 60, " Wilcox v. Ismon, 34 Mich. 268,
61 (1875). 271.
124 ANNOTATED FORMS OF I'ULA^DING AND I'RACTICE
344 Bond, liability
The liability of the bail rests upon the case made by the
affidavit, and none other.*-
345 Objections
And now come the plaintiffs in the above entitled cause, by
, their attorney, and except to the sufficiency of the
bail and the bail bond heretofore «;iven by the defendant to the
sheriff of county, in order that he, the defendant,
might be released from arrest under the capias ad rcspondcndinn
issued in said cause, and for cause of exception say.
1. Said bail bond is not in conformity with the statute in
such case made and provided, in that, in the conditions thereof,
the word "not" is omitted between the words "shall" and "pay"
in the second line from the bottom, before the signatures thereto;
which omission relieves the bail from surrendering the body of
the defendant in execution in case th»^ deftMulaiit should not pay
and satisfy tlie casts and i-ondeinnation money, or surrender him-
self in execution when by law sucii surrender is required.
2. Said bail is insufficient in that the surety is a person of lit-
tle or no property beyond the real estate scheduled before said
sheriff at the time he took said bond, which said real estate is
incumbered for its full value.
3. Said bail and bail bond are in other respects uncertain and
insufficient, and afford no security to the plaintiffs in said cause.
Plaintiff's attorneys.
DEFENSES
346 Irreofularities
The mere misnaming of an action does not render a writ of
capias invalid if the form of the action is sufficiently disclosed
from the affida\nt for the writ.^a The defense that the plaintiff
is misnamed in a writ of capias ad respondendum must be raised
by plea ; not by motion.^'*
347 Motion to quash writ
And now comes the said defendant, in his own proper person
and by his attorney, and moves the court to quash
the writ of capius ad respondendum heretofore issued in this
cause, and to discharge the bail bond therein, and that the said
82 Fish V. Barbour, 43 Mich. 25. ^4 Watson v. Watson, 47 Mich.
83 Pease v. PendeU, 57 Mich. 315, 427, 429 (1882).
317 (18S5).
PROCESS 125
writ be ordered to stand as a summons, only. And for cause of
said motion the said defendant shows the following: 1. The
affidavit of , tiled in said cause, and upon which
the said capias ad rtspondendiim was issued, is irregular, imper-
fect, informal and insufficient ; 2. The facts stated in said affi-
davit are not true; 3. Said affidavit and proceedings based
thereon are, in other respects, informal, uncertain and insuf-
ficient.
Defendant's attorney.
Defendant.
JUDGMENT
348 Discontinuance
As against the defendant, the failure of the plaintiff to file
his declaration within the statutorj- period works a discontinu-
ance of a suit commenced by capias, without the entrj' of a rule
or an order declaring the discontinuance, unless the defendant
has waived the objection by pleading and going to trial; but
as airainst the bail the renewal of jurisdiction by waiver is
ineffectual, for the defendant has no p)0wer to waive the lapsed
suit for the bail.**
•* Fish T. Barbour, rupra.
PART II
PLEADING AND PHACTICE
CHAPTER XI
RULES OF COURT
IN GENER.\L COURTS
349 Power of court, nature 354 Circuit courts
350 Rules, requisites 355 County courts
351 Interpretation 356 Superior court of Detroit
352 Application, discretion 357 Supreme court. Michigan
353 Judicial notice
IN GENERAL
349 Power of court, nature
Eviry court of n-i-onl has an inherent or a statutorj' power
to preserilx- reasonable rules for the regulation of practice be-
fore it* The power to prescribe rules for the conduct of the
l.usiness of a court is judicial in its nature, and not Ic^slative.
Thus, the requirement of abbreviated forms of orders, is a
judicial act.-
350 Rules, requisites
KuUs of practiec arc like Icsrislative enactments: they must
U' reasonable; they must be in writine; they must not be retro-
active; they must b<> entered of record for a reasonable time to
become known ; ^ and they must be uniform. A rule of practice
which is inconsistent with the general law is void and of no
effect."*
351 Interpretation
The trial court's interpretation of its own rules of practice
will be followed by rexnewing courts in the absence of a clear
1 LancaMpr t. Waukepnn A- 9. W. 'Owemv. Ranstead 22 HI. 161,
By. Co.. 132 HI. 492. 493 (1890); 174 nS59): J '""'» ^ f • .S;.!'
si. 12 c. 37. Hurd's Stat. 1909, Haakins. ll^ m. •^^''' "^^^ ^Jf ?iV
p. f564; Wnllbaum v. Raskin, 49 111. « Fi.sher v. ^atlonal Bank, 73 lU.
il3, 315 (1S6S). 34. 38 (1874).
» Cliirago ▼. Coleman, 254 111. 338,
841 (1912).
129
130 ANNOTATED FORMS OF PLEADING AND PRACTICE
violation, disregard or misconception of these rules by the nisi
priiis court.^ A court which has authority to and does establish
rules of court is their best interpreter."
352 Application, discretion
A court has no discretion in the application or in the enforce-
ment of its own rules of ])ractice, except when allowed by the
rules themselves.^
353 Judicial notice
A reviewing court does not take judicial notice of tlie rules
of practice of the trial court.^
COURTS
354 Circuit courts
In Michigan tlic Circuit court rules are made by the supreme
court under statutory authority."
355 County courts
A county cuurt has power, in Illinois, to establish rules of
practice for the pui-pose of facilitating its business.'"
356 Superior court of Detroit
The superior court of Detroit, Michigan, has no power to
establish general rules of practice without the approval of the
supreme court.' ^
357 Supreme court, Michigan
In establishing rules of practice for inferior courts, the policy
of the supreme court of ^lichigan is to cover only such matters
of practice which have not been touched upon by the legisla-
ture. Except as to special and irregular proceedings, the policy
5 Stanton v. Kinsey, 151 HI. 301, » Harper v. Murphy, 155 Mich.
306 (1894). 543, 545 (1909); (205) C. L. 1897
6 Mix V. Chandler. 44 lU. 174, 175 (Mich.).
(1867); Ettinghaiisen v. Marx, 86 lo Holloway v. Freeman, 22 111.
111. 475, 476 (1877). 198, 202 (1859).
7 Illinois C. R. Co. v. Haskins, n Wyandotte Rolling Mills Co. v.
supra; Lancaster v. Waukegan & S. Robinson, 34 Mich. 428, 436 (1876).
W. Ry. Co., supra.
8 Greer v. Young, 120 111. 184, 186
(1887).
RULES OF COURT 131
of Michigan is to secure uniformity in substantial matters of
practice in all tribunals of the same class ; and in order to carry
out this policy, the supreme court alone has been given the
power to establish, modify or amend general rules of practice.
But this does not prevent a court of record from ordaining
suitable rules upon matters of practice which have not been
regulated by the legislature or the supreme court. ^^
II Wyandotte Rolling Mills Co. ▼.
Robinson, supra.
CHA I'TER XTT
PLEADING IN (JENERAL
LAW GOVERNING
§§
358 Generally
359 Illinois
RULES OF PLEADING
360 Rules of pleading defined
361 Nature and scope
362 Application
363 Clianging rules
PRINCIPLES
364 Importance of principles
365 Object of pleading
366 Burden of proof
367 Prima facie case or defense
368 Averments, nature of
369 Averments, facts and con-
clusions
370 Argumentative
371 Certainty
372 Cumulative
373 Departure
374 Duplicity
375 Evidence
376 Particularity
377 Traverse, nature and scope
378 Traverse, special
379 Traverse, special and com-
mon distinguished
380 Traverse, requisites
381 Traverse, admission
SPECIAL MATTER
382 Aggravation, new assignment
383 Demand
384 Discharge and justification
385 Forfeiture
386 Foreign laws
387 Notice
388 Ordinance, judicial notice
389 Statutes, exceptions and ex-
emptions
390 Statutes, validity, waiver
CONSTRrCTTOX OF PLEADING
391 Presumption
392 Admissions
393 Doubtful meaning
394 Defects
395 Irregularity and nullity,
waiver
396 Surplusage
397 Words and phrases, craftily
398 Words and phrases, petition
PRACTICE
399 Order of pleading
400 Negligence
401 Demurring and pleading
402 Expiration of time, leave of
court
403 Precedents, use of
404 Filing, fees
405 Rejecting pleading, motion
and order
406 Striking pleading from files
407 Withdrawing pleadings, dis-
cretion
408 Withdrawing pleadings, peti-
tion and order
409 Jury room, removal of plead-
ings to
132
PLE.VDING IN GENERAL 133
LAW GOVEBNING
358 Generally
The law of the state where a remedy is sought controls the
mode and the form of procedure,^ and the statute in force when
a cause is tried controls, and not the statute when the action is
commenced.- A vested right is not interfered with by chang-
ing an existing remedy,^
359 Illinois
Tlu' iMjiiwnon law system of pleading prevails in Illinois, ex-
cept as it has been moditied by statutes which have removed
the arbitrary and artificial distinctions of the old system of
pleading, but left unchanged the general logical arrangement,
the order, the structure and the fonus of pleadings.* By the
adoption of the common law, neither the local customs of Eng-
land, nor the ancient common law practice are included.'^ All
statutes concerning the jurisdiction, the powers, the proceed-
ings and the practice of courts of the same class or grade must
be of general and uniform operation."
RI'LKS OF PLEADING
360 Rules of pleading defined
The ordinar>' rules of pleading are mere modes prescribed
or permitted by the courts for the purpose of bringing before
them all of the facts or truth.s which ought to be considered in
determining the ultimate rights of parties.^
361 Nature and scope
Rules of pro<ee(liiigs are adopted to expedite the business
of courts, to secure certainty, accuracy, order and uniformity,
in the disposition of public justice.^
» Collins V. Manville. 170 Til. 614, Crane, 102 111. 249, 258 (1882);
617 (1897); Smith v. Whitaker, 23 Schroeder v. Merchants & Mechan-
111. 367 (1860). ics' Ins. Co.. 104 111. 71, 77 (1882).
2 Murphv V. Williamson, 85 111. « People v. Cosmopolitan Fire Ins.
149. 151 (1877). Co., 246 111. 442. 446 (1910); Sec.
3Monffer v. New Era Ass'n., 156 29, art. 6. Const. 1870 (Kurd's Stat.
Mich. 645, 651 (1909). 1909. p. 67).
♦ Pitts Sons' Mfp. Co. v. Com- t Cox v. Jordan, 86 HI. 560, 566
mercial Nat. Bank. 121 HI. .'5S2. 586 (1877).
(1887)- Bailev v. Vallov National » Wisconsin C. R. Co. v. Wieczorek,
Bank, 127 111. "332. 338 (ISsO). 151 111. 579, 586 (1894).
» Hannibal k St. J. R. Co. v.
i;{4 ANNOTATED FORMS OF PLEADING AND PRACTICE
362 Application
Well settled rules of proceeding should not be disregarded
where their applicability is plain and unquestionable.'' When
once established, rules of pleading and practice should be fol-
lowed in all like cases.^**
363 Changing rules
Courts have power to prescribe or permit new modes of plead-
ing wherever the application of the ordinary rules of pleading
and practice would produce injustice.^ ^
PRINCIPLES
364 Importance of principles
The general principles of pleading may be more safely re-
resorted to than isolated decisions of courts.'-
365 Object of pleading
The object of pleading is to produce a single issue upon some
subject matter in dispute. ^^
366 Burden of proof
It is not necessary to prove more than a party is required
to allege. ^^ Nor is it necessary to prove an immaterial aver-
ment. ^^ Whatever one of the parties must prove under his
pleadings, the other may disprove.^^ The party who holds the
affirmative of an issue has the burden of proving it by a pre-
ponderance of evidence.^" A criminal charge made in a plead-
ing of a civil suit must be proved beyond a reasonable doubt. ^®
The proof and the allegations must correspond. ^^ Every alle-
gation which is descriptive of the cause of action must be proved
9 Wisconsin C. R. Co. v. Wieczorek, is Chicago & Alton R. Co. v. Vi-
supra. pond, 212 HI. 199, 202 (1904).
10 Cox V. Jordan, 86 111. 566. le Chandler v. Lincoln, 52 111. 74.
11 Cox V. Jordan, supra. 76 (1869).
12 Ross V. Nesbit, 2 Gilm. 252, it Mitchell v. Deeds, 49 111. 420.
257 (1845). isMcInturff v. Insurance Co. of
i3Noetling v. Wright, 72 111. 390, N. A., 248 111. 92, 99 (1910)
392 (1874). 19 Chicago Citv Rv. Co. v. Bruley,
14 Richards v. JerscTville, 214 HI. 215 111. 464, 465' (1905).
67, 69 (1905).
PLEADING IN GENERAL 135
as alleged in the pleading.^o An objection on account of vari-
ance between the allegation and proof must be made at the
earliest possible moment, when the variance first appears, as it
is waived if not so made.-^ By procuring an instruction which
directs a verdict on the law applicable to the state of facts that
is disclosed by the evidence, a party waives his right to object
that the facts proved are not within the allegations of the plead-
ings.-
367 Prima facia case or defense
A pleader is required to make out only a prima facia case or
defense ; -^ and in presenting his side, he is not called upon to
state matters which come more properly from the opposite side
or which are within the adversary's own knowledge. The stat-
ing of a general riglit is sufficient without showing the existence
of an exception tlioreto raised by law. As a general rule, a
matter should not be omitted if it is so connected with a party's
case or defense that its affirmation or denial is essential to the
validity of the pk'ading, when taken in connection with all
prior pleadings upon the record."
368 Averments, nature of
The averments of a party's cause of action or defense must
be stated truly. -^
369 Averments, facts and conclusions
Facts and not conclusions must he alh'gt'd in a pleading.-"
In alleging facts, the ultimate facts alone should be averred,-^
370 Argumentative
A pleading must not be argumentative.-^
20 Wabash R. Co. v. Billings, 212 25 Read v. Walker. .12 Til. .333, 335
111. 37, 39 (1004). (1869).
21 Chicapo V. Bork, 227 HI. 60. 63 20 Fortune v. English. 226 111. 262,
(1907); Wabash Ry. Co. v. BiUiogs, 268 (1907); Waterbury Nat. Bank
supra. V. Reed. 231 111. 246, 250 (1907);
22 Dnnk Bros. Coal & Coke Co. v. Lefkovitz v. Chicago, 238 111. 23, 30
Stroetter, 229 El. 134, 138 (1907). (1909).
23 People V. Ilei'^elberg Garden 27 Cliicago & Eastern I. R. Co. v.
Co.. 2.-^3 111. 290, 296 (190S); 1 Kimmel, 221 El. 547, 551 (1906).
Chittv's PI.. 12th Am. ed.. p. 222. 28 Distill in cr & Cattle Feeding Co.
i*Ibid., 222, 224. v. People, ir,6 111. 448, 483 (1895).
136 ANNOTATED FORMS OF PLEADING AND PRACTICE
371 Certainty
The cause of action or ground of defense must be clearly and
distinctly stated so that it might be understood by the opposite
party, judge, and jury.^s An averment which is certain to a
common intent is sufScient.^^
372 Cumulative
Pleadings which contain literally or in legal effect the same
matter as do similar pleadings in the case of the same party
will be stricken out; but before striking out the cumulative
pleading a court may, in its discretion, require an election to be
made on which pleading the party desires to proceed.^i
373 Departure
The allegations of the pleader must be consistent with each
other. Thus, the replication must support the declaration; the
rejoinder, the plea. No direct affirmative or denial of a triable
issue can be attained in any other way.^^
374 Duplicity
The setting up of two or more distinct and sufficient causes
of action or defenses, either of which, if true, would necessitate
a finding for the pleader, constitutes duplicity in a pleading.33
But, a pleading will not be regarded as double, when it neces-
sarily includes statutory elements; as where the statute requires
certain distinct jurisdictional grounds to be negatived in a plea
of abatement.34 A pleading is not double by alleging mere
surplusage or facts as inducement ; ^s nor does an immaterial
averment render the pleading double.se So a count is not dou-
ble which merely joins several causes of action of the same
nature.^'^
29 Chicago City Ry. Co. v. Jen- 107 Va. 602, 610 (1907)- Wilson v
nings, 157 111. 274, 277 (1895) ; Ohio Gilbert, 161 111. 49, 52 (1896) ; State
& Mississippi Ry. Co. v. People, 149 v. Commercial Bank, 33 Miss 474
111. 663, 666 (1894); De Forrest v. 496 (1857).
Oder, 42 HI. 500, 502 (1867). 34 Deatrick v. State Life Ins. Co.
30 Eddy V. Courtright, 91 Mich. siipra.
264, 269 (1892). 35 State v. Commercial Bank, 33
31 People V. Central Union Tel. Miss. 496.
Co., 192 m. 307, 309 (1901); Parks 36 Lusk v. Cook, Breese, 84, 85
V. Holmes, 22 HI. 522, 525 (1859). (1824).
32 Wiard v. Semken, 8 Maekey 479 37 Godfrey v. Buckmaster. 1 Scam.
(D. C. 1891). 447, 450 (1838).
33 Deatrick v. State Life Ins. Co.,
PLEADING IN GENERAL 137
375 Evidence
It is not permissible to plead evidence and immaterial mat-
ter, as it is difficult from this kind of a pleading to ascertain
what portions are material and what portions are immaterial,
and to give it proper consideration. ^s A pleading should not
aver circumstances which merely tend to prove the truth of
the facts stated; it should solely confine itself to the statement
or allegation of fact.^^ Enough of the facts to be relied upon
as sustaining the cause of action or defense must be alleged to
enable the court to determine their sufficiency.'*^ The rule that
every fact which is necessary to be proved should be averred
means that the proof must find its foundation in the pleading,
but not that every distinct fact must be pleaded.^ ^ Nor is it
necessary to so plead as to foreshadow the evidence in detail
to be produced in support of the pleading.^^
376 Particularity
Particularity in the averment of time, place, number, person
and amount is required where it is essential to the right of
recovery or defense, or where a general averment would put the
opposite party at a disadvantage; and this particularity is dis-
pensed with whenever it leads to prolixity.^^ A distinct aver-
ment of time is necessary to every material fact, except where
the transaction has run through a long space of time, or there
have been repeated ^vrongful acts; in which event, it is suffi-
cient to allege that the transaction or the acts took place be-
tween specified dates.*"* The mere statement of amounts in a
pleading is not binding unless it is supported by a traversable
averment.'*^
377 Traverse, nature and scope
A traverse is a specific denial of material matter in issue and
is either common, general, or special. It refers to pleas, replica-
tions and subsequent pleadings.
38 People V. Payson, 210 HI. 82, 42Griffing Bros. Co. v. Winfield,
83 (1904). 53 Fla. 589 (1907).
39 Campbell v. Hudson, 106 Mich. *3 Kipp v. Bell, 86 111. 577, 580,
523. 526 (1895); People v. Pavey, (1877).
151 111. 101, 105 (1894). 44 Read v. Walker, 52 111. 333,
40Willard v. Zehr, 215 HI. 148, 334 (1869).
157 (1905). 45Lindley v. Miller, 67 111. 244,
4iRae v.'Hulbert, 17 111. 572, 578 248, 249 (1873).
(1856).
138 ANNOTATED FORMS OF PLEADING AND PRACTICE
378 Traverse, special
Tilt' essential parts of a special traverse are the inducement,
the denial and the verification, the only issuable part being the
denial under the absque hoc. No issue of fact can be formed
upon the inducement when the denial under the absque hoc
is sufficient.'*"
379 Traverse, special and common distinguished
A special traverse difYers from a common traverse in that
the special traverse explains or qualities the denial.^"
380 Traverse, requisites
A traverse should always be upon some affirmative matter.
A negative allejjration cannot be traversed; nor can one nega-
tive averment be traversed by another negative.^**
881 Traverse, admission
All traversable alli'gations made by the opposite party are
confessed if not traversed. This rule has no application to a
dilatory plea, to a new assignment, nor to a i)lea in estoppel.*®
SPECIAL MATTKR
382 Aggravation, new assignment
In an action of tort for an orifrinal wrong and for subsequent
consequences which are alleged as matters of aggravation, the
defendant is not required in the first instance, to answer the
matters of aggravation without a new assignment by the plain-
tiff, but must make a complete answer to the original wrongful
act ; upon the defendant pleading to the original wrongful act,
the plaintilf, if he desires to take advantage of the matters of
aggravation, must new assign for them.^*^
383 Demand
In all cases in which it is necessary- to make a demand before
instituting suit, the making of a special request or demand
must be alleged and proved. ^^
46 People V. Central Union Tel. 108 (1844); People v. Crabb, 156
CJo., 192 HI. 307. 312 (1901). ni. 15.5. 165 (1895).
*f People V. Central Union Tel. so McConnel v. Kibbe, 33 111. 180
Co., s^^pra. (1864).
♦8 Evan V. Vanlandingham, 25 111. si Minor v. Michie, Walker 24,
128 (i860). 29 (Miss. 1818).
*»Dana v. Bryant, 1 Gilm. 104,
PLEADING IX GENERAL 139
384 Discharge and justification
lu actions of tort, matters in discharge or in justification of
the action, must be specially pleaded. ''-
385 Forfeiture
Every material fact which is necessary to constitute a for
feiture must be alleged. ^^
386 Foreign laws
The law of another state must be pleaded and proved the
same as any other fact, before the full faith and credit clause
of the Federal constitution can be invoked.'^^
387 Notice
A general allegation that a "rea.sonable notice," was given
is objectionable when notice is necessary. The averment of
notice must show that it was given in due time and to the
j»n»pcr person. ■'••'•
388 Ordinance, judicial notice
A niunicijial unlinance must be specially pleaded the same
as any other matt-r '"• fact. Courts do not take judicial notice
of ordinances. ''"
389 Statutes, exceptions and exemptions
Ordinarily, a pleading' is sutlieicnt wliieh relies upon a gen-
eral provision of a statute, and unless aflirmatively shown, it
is presumed that there are no exceptions to the statute.^^ A
pleading which is based upon a statute containing an exception
must negative the exception when it is part of the cause of
action or defense, but not otherwise.*^® An exception to a stat-
ute excludes in express terms the thing excepted, leaving the
»2 Olsen V. Upsahl. 69 Til. 273, 277 ss McCormick v. Tate, 20 111. 334,
(1873); Illinois Steel Co. v. Novak, 337 (1858).
184 111. .501, .502 (1900); Hahn v. 5 e People v. Busse, 248 111. 11,
Ritter. 12 111. 80, 83 (18.50). 16 (1910).
53 Illinois Fire Ins. Co, V. Stanton, bt Armetrong v. Wilcox, 57 Fla.
57 111. 354. 358 (1870). 30. 34 (1909).
5« Lenthe v. Thomas, 218 111. 246, 58 WTjiterraft v. Vanderver, 12 111.
2.53 (1905); Smith v. Whitaker, 235,238(1850).
supra.
140 ANNOTATED FORMS OF PLEL\DING AND PR.VCTICE
Statute as before. A proviso in a statute only exempts the
tiling witliin the statute froin its optTatioii under certain cir-
cumstances, or under certain conditions.^" The thing exempted
from the operation of a statute is the exemption. No special
or technical words are necessar>' to create an exception, proviso,
or exemption. An exception is part of the cause of action or
defense, if it is mentioned in the enacting clause of the statute
upon which the action or defense is based.'*" The exception is
also part of the action of defense when it is not a separate and
distinct clause, but it is incorporated in the general clause of
the statute conferring the right of action or defense.'^^ If a
statute contains two or more exceptions, but one only of which
is covered by the enacting clause, that one alone must be nega-
tived in the pleading; the other or others are nuittcrs which
have to be set up by the opi)osite party.'-- An exemption in a
proviso to the enacting clause, or in a subsequent section of a
statute, is matter of defense to be alleged In- the opposite
party.«3 A party who relies upon an exception to a general
statute which the opponent is not bound to set forth as part of
his case, must clearly brinj? himself within the exception; «*
and this is a rule of evidence as well as one of pleading.'^'^
390 Statutes, validity, waiver
The question of the validity of an ordinance, statute, or con-
stitutional provision is waived, unless raised by the pleadings
and presented by instructions or by propositions of law and
the right is insisted upon in the trial court. '^'*
CONSTRUCTION OF PLEADING
391 Presumption
A pleading will be construed most strongly against the
pleader.**^
59 Myers v. Carr, 12 Mich. 63, 71 Rv. Co. v. La very 71 111 522 523
(1863). (1874).
60 1 Chitty's PI., 12th Am. ed., 63 Mvers v. Parr. .9Mpra
p. 223 ; ChicafTO. B. & Q. R. Co. v. 64 Wood v. Williams. 142 111 ^69
Carter, 20 111. 390. 392 (1858); Hy- 280 (1892); Armstrong v. Wilcox'
man v. Bayne. 83 111. 256, 264 57 Fla. 34. '
(1876); Myers v. Carr. supra. cs Qsborn v. Lovell, 36 Mich 246
61 Whiteeraft v. Vanderver, supra. 249 (1877). '
62 1 Chitty's PI., p. 223; Great «'• People v. Harrison, 223 111 540
W. R. Co. V. Hanks. 36 111. 281. 284 545 (1906). '
(1865); Toledo, Peoria & Warsaw 67 Consolidated Coal Co. v. Peers,
PLEADING IN GENER^VL 141
392 Admissions
A party is bound by the admissions made in his own plead-
ings, whether the admissions are expressly made, or they are
raised from necessarj' implication.*^^
393 Doubtful meaoiing
The iiu-auing that is most unfavorable to the pleader will be
adopted where an equivocal allegation is susceptible of two
meanings.^ °
394 Defects
Defects in pleading are aided by the pleadings of the oppo-
site party, or they are cured by the statute of Amendments and
Jeofails, or by intendment after pleading."^" The statute of
Amendments and Jeofails do«'S not extend to the curing of de-
fects which are clearly matters of substanceJ^ At common
law, a vertict cures any defect, imperfection or omission in
pleading, whether of substance or form, which would have been
a fatal objection upon demurrer, if the issue joined was such
that neeessarily required on the trial proof of facts so defectively
or imperfectly stated or omitted, and without which neither
judge nor jur>' could have given the verdict or judgment^- Too
general averments in pleadings are cured after verdictJ^
395 Irregularity and nullity, waiver
An irregularity is the omission to do something which is nec-
essary in the due and orderly conduct of a legal proceeding,
or the doing of something necessary in a proceeding in an un-
seasonable time or an improper manner, but which is capable of
waiver by the party affeeted by itJ* A nullity is a proceeding
which is taken without any foundation for it, or which is essen-
tially defective or made so by statute and is incapable of
166 ni. 361. .372 (1897) ; Fortune v. ti Chicago & Alton E. Co. v. Qau-
Enplish, 226 111. 269; People v. Rose, sen, supra.
2.54 111. ;{;<2, 334 (1912); Pooplc v. t 2 Chicago & Alton R. Co. v. Gau-
Union Gas & Electric Co.. 2.54 III. sen, .supra; Illinois Terra Cotta
395, 414 (1912). Lumber Co. v. Hanley, 214 111. 243
«»« State V. Commercial Bank, 33 (1905).
Miss. 495. "■■» Brunhild v. Chicago Union Trac-
«<»Halligan v. Chicago & R. I. R. tion Co.. 239 111. 621, 623 (1909).
Co. 15 111. 558. .560 (1S.54). "* Turrill v. Walker, 4 Mich. 177,
TO Chicago & Alton R. Co. v. Clau- 183 (1856).
sen, 173 111. 100, 103 (1898).
142 ANNOTATED FORMS OF PLEADING AND PRACTICE
waiverJ^ Without an opportunity to waive a right, there can
be no waiver/*^
396 Surplusage
Any averment which amounts to mere surphisape may be
entirely disreprardcil with referenoe to forming an issue upon it
or in producing evidence to substantiate it."^
397 Words and phrases, craftily
The words "craftily," " fraudidently," "falsely," and
"maliciously," are of no avail in the absence of averments of
fact to which they properly apply."*
398 Words and phrases, petition
A petition is common to law and chancery.'^^
PRACTICE
399 Order of pleading
The usual and regular order of common law pleading is as
follows: on behalf of the plaintitf, the declaration, the replica-
tion, or new assignment, the surrejoinder and surrebutter; on
behalf of the defendant, the plea, the rejoinder, the rebutter,
and puis darrein continuance. The irregular pleadings are
demurrers, bills of exception, scire facias, pleas in error.*'' It
is customary', in ^Mississippi, to read the pleadings to a jury as
tbe opening statement of the case or defense. It is, therefore,
the practice of a good pleader to draw his pleadings so that
they can be read to, and readily understood by the jury.
400 Negligence
A court will not restore a party to a legal right which he has
lost through his own negligence.**
7B Jenness v. Lapeer Circuit "« Fortune v. English, 226 111. 269.
Judge. 42 Mich. 469, 471 (1880). 79 Standidge v. Chicago Eys. Co.,
76Munn V. Haynes, 46 Mich. 140, 254 lU. 524, 531 (1912).
145 (1881). 80 1 Chitty's PL, p. 239.
T7 Pennsylvania Co. v. Conlan. 101 si Chicago, P. & S. W. R. Co. v.
Bl. 93, 102, 103 (1881). MarseUles, 107 111. 313, 316 (1883).
PLEADING IN GENERAL 143
401 Demurring and pleading
At common law a party is not permitted to demur and to
plead to the same matter, either at the same or at different
times, and thereby to present two distinct issues at one and the
same time.*^
402 Expiration of time ; leave of court
Without special Icavt.' ol" court, a party has no right to plead
after the expiration of the time to plead, and neither the oppo-
site party nor the court need recognize a paper which is placed
among the files of a case without such leave.®^
403 Precedents, use of
It is not necessary to use the precise words employed in an
approved precetlent. It is sufficient to use other equivalent
words conveying precisel>^ the same meaning.^*
404 Filing, fees
A party who has an instrument to file in an office and pre-
sents it to the proper officer has the benefit and advantage of
the act as though the document had been formally filed, and the
failure to advance and tender the fee, when not demanded, does
not deprive him of this benefit.*^
405 Rejecting pleading, motion. Maryland
88 now comes into this court and asks the court
not to receive the paper purporting to be a (replication) to the
answer of said , this day of ,
19. ., brought into this court by long after
hearing by tliis court of the case submitted by said
on his petition and the answer of said , and that
said paper be not accepted by this court or recognized as a part
of the proceedings in the said cause.
Solicitor for
»i Edbrooke v. Cooper, 79 Til. ."iRG. "s Dowie v. Chicago, Waukegan 4
683 n875). North Shore Ry. Co., 214 111. 49, 54
"3 Walter Cabinet Co. v. Russell. (1905).
250 111. 416. 419 (1911). «« See Section 211, Note 60.
X* Miller v. Blow. fiS 111. 304. 309
(1873); Read v. Walker, 52 IlL
334.
144 ANNOTATED KUKMS OF I'LtADlNG AND TRACTICE
Order
Upon reading and considering the motion of
filed on the day of , 19 . . , asking
the court not to accept the replication of filed on
the same day, after the hearing of the motion of said
filed on the day of , 19 . . , to dismiss
the petition of said filed on the day
of , 19 . . , it is ordered by the court
of county, this day of ,
19. ., that the said (replication) be not accepted and the same
is hereby rejected.
406 Striking pleading from files
A pleading which contains evidence and immaterial matter
will be stricken from the files upon motion, and the pleader will
be ruled to replead.'*'
407 Withdrawing pleadings, discretion
Neither tiic plaintilV nor the dclendant has an absolute right
to withdraw his pleading's, but the trial court may, in its dis-
cretion, permit the withdrawal of a pleading.^^ Under the
liberal Florida statute of amendments, a trial court has ample
power to permit the withdrawing of pleadings and to grant
leave to file new pleadings.®^
408 Withdrawing pleadings, petition, Maryland
To the honorable, the judge of said court :
The petition of , the defendant in the above en-
titled case, respectfully shows unto your honor:
1. That the above case was instituted in this court by the
plaintitf on the day of in the year 19 . . ,
to recover certain taxes alleged to be due to the plaintiff by the
defendant.
2. That the case was brought to the rule day
in the year 19. ., and the defendant duly appeared by its attor-
neys, and on , 19- •, filed two pleas to the declara-
tion, to wit, the general issue pleas that it never was indebted
as alleged, and that it did not promise as alleged ; on which pleas
issue was joined by the plaintitf.
3. That defendant now wishes to withdraw said general issue
87 People V. Payson, 210 ni. 82 (1865); Ayres v. KeUey, 11 111. 17
(1904). (l^'^-iP), overruled.
88 New England F. & M. Ins. Oo. 89 Hartford Fire Ins. Co. v. Red-
V. Wetmore, 32 Dl. 221, 251 (1863); ding, 47 Fla. 228, 245 (1904).
Miles V. Danforth, 37 111. 156, 163
PLEADING IN GENERAL 145
pleas, and to plead anew by filing special pleas to
the declaration and each and every count thereof, and prays leave
of the court so to do.
^Vherefore, the defendant prays the court to pass an order
granting it leave to withdraw its pleas heretofore filed in this
case, and to file anew special pleas to the declara-
tion and to each and every count tliereof.
As in duty, etc.
Attorneys for defendant.
The plaintiff consents to the passage of the order as prayed
for.
Attorney for plaintiff.
Order
On the foregoing petition and consent, it is hereby ordered
this day of , in the year 19 . . , by the
court of that leave be, and is hereby granted to
the defendant to withdraw the general issue pleas heretofore
liled by it in this ea.se. and to plead anew by filing
speeial pleas to the declarutiun and to each and every count
thereof.
Judge of the court of
409 Jury room, removal of pleadings to
Upon the request of either party in a civil action, the plead-
ings may be sent to the jury room upon the jury's retirement.®*'
Hut the practice is not commendable. Sending the pleadings
to the jury room is not, however, reversible error. Pleadings
to which demurrers have been sustained should not be per-
mitted to be taken to the jury room.®^
*o Ea-st Dubuqiie v. Burhvto, 173 »» Elgin, Aurora & Southern Trac-
111. 5r,.1, S.^fi (1898); Hanchctt v. tion Co. v. WUson, 217 111. 47, 56
Haas, 219 lU. 546, 548 (1906). (1905).
CHAPTER XIII
DECLARATION
IN GENERAL
§§
410 Declaration defined
411 Allegation and proof
412 Consistency
413 Duplicity
414 Variance, waiver
REQUISITES
415 Title
416 Parties, minors, generally
417 Parties, minors, next friend,
authority to use name as
418 Parties, receivers
419 Form of action
420 Venue
421 Jurisdiction
422 Cause of action, generally
423 Cause of action; conditions,
performance
424 Cause of action, estoppel in
pais
425 Cause of action, incorporation,
proof
426 Cause of action, interest
427 Cause of action, negativing
defense, surplusage
428 Cause of action, penalty
429 Conclusion, waiver
430 Ad damnum, practice
431 Signatures
JOINDER ANT) :\riSJOINT)ER OF
(X)UNTS
432 Several counts of same cause
of action
433 Joinder of counts of different
causes of actions
434 Misjoinder of counts, test
S§
435 Election of counts, practice
436 Election of counts, motion of
CON
COMMENCEMENT AND
CLUSION
A.S.SLMI'SIT
437 District of Columbia
438 Florida
439 Illinois
440 Maryland
441 Michigan
442 Mississippi
443 Virginia
444 West Virginia
CASE
445 District of Columbia
446 Illinois
447 Maryland
448 Michigan
449 Mississippi
450 Virginia
451 West Virginia
COVENANT
452 General commencement and
conclusion
DEPT
453 District of Columbia
454 Illinois
455 Maryland
456 Mississippi
457 Virginia
458 West Virginia
DETINUE
459 General commencement and
conclusion
146
DECLARATION
147
UECTMETTT
9S
460 Illinois
461 Michigan
462 Virginia
REPLEVIN
463 Illinois
464 Michigan
465 Mississippi
TRESPASS
466 District of Columbia
407 Illinois and West Virginia
468 Mississippi
THOVEB
469 Generally
PARTIES
470 Administrator
471 Corporations
472 Executor
473 Foreign corporations
474 HuHband and wife
476 Municipality
476 Next friend
477 Nominal plaintiff
478 Partners
479 People
480 Railroad company
481 Receivers
EXHIBITS
482 Nature and effect
483 Necessity
484 Amendment
AFFIDA\7T OF CLAIM
485 Nature and effect, presump-
tion
486 Optional
487 Persons making
488 Requisites
489 Filing
490 Amendment
491 Objections
rULE TO PLEAD
492 Practice
493 Requisites
98
494 Form
495 Entry of rule
NOTICE TO PLEAD
496 District of Columbia
497 Maryland
498 Michigan
DEMAND FOR JURY
499 Election
Sou Notice
PRAECIPE
601 Maryland
SERVICE
502 Statute of limitations
603 Service, by whom
604 Proof, requisites; presump-
tion
605 Proof, forms
606 Proof, contradicting
FILING
607 Time
608 Delivery to clerk
509 Dismissal for want of Narr.,
practice
510 DlBmissai, motion
611 Dismissal, cross-motion
AMENDMENT
512 Generally
513 Ad damnum
514 Additional count
515 Immaterial matter
516 Parties, discontinuance
517 Statute of limitations
PRACTICE
518 Stipulation
519 Notice, necessity
520 Notice, form
521 Motion and order
522 Petition and order
523 Additional count, commence-
ment
624 Amendment, commencement
148 ANNOTATED FORMS OF PLEADING AND PRACTICE
525 Notice of amendment 528 Averments, material, omission
526 Effect of amendment 529 Defects cured by verdict
530 Form of action, identity, law
CONSTRUCTION and fact
527 Averments, immaterial, sur- 531 Good and defective counts
plusage 532 Several declarations
IN GENERAL
410 Declaration defined
A declaration is a written statement of the plaintiff's cause of
action to appn5>e the defendant of the precise nature of that
cause and to limit the plaintiil's proof thereunder.'
411 Allegation and proof
Every material fact which is relied upon for a recovery must
be averred in a declaration, as no proof is admissible without an
averment of an essential fact.^ Allegations of a declaration
which are descriptive of what is material, although unnecessary,
must be proved as stated, unless the variance is waived by the
defendant or it is cured by amendment.^ A plaintiff is not
required lo plead his evidence."*
412 Consistency
A pleader will not be permitted to occupy inconsistent posi-
tions with respect to the same matter at the same time. If he
relies upon the validity of an ordinance, it is inconsistent for
him to insist that the ordinance is illegal and void for all other
purposes.-"
413 Duplicity
Duplicity in a declaration is the joining in one count of dif-
ferent grounds of action of different natures, or of the same
iCook V. Scott, 1 Gilm. 333, 340 (1907); Hatley v. Kiser, 253 111.
(1844). 288, 290, 292 (1912).
2 Toledo, W. & W. Ev. Co. v. * American Car & Foundry Co. v.
Beggs, 85 111. 80. 83 (1877). Hill. 226 111. 227. 234 (1907).
3 Wabash R. Co. v. Billings. 212 5 McEniry v. Tri-City Ey. Co., 254
111. 37 (1904); Chicago Union Trae- 111. 99, 103 (1912).
tion Co. v. Hampe, 228 111. 346, 350
DECLARATION 149
nature, to enforce a single right of recovery .« Mere matters of
inducement do not amount to duplicity."
414 Variance, waiver
A declaration must pursue the vncit in regard to the Christian
and surnames of the parties; the names must be at least the
same in sound.^ A party will not be permitted to set out one
cause of action in his declaration and to prove an entirely dif-
ferent cause of action." Variance between the declaration and
the proof is waived, unless objected to in time to afford an
opportunity to amend the declaration.^"
REQUISITES
415 Declaration, title
Although a declaration is in the nature of process, it is not
process within the meaning of the constitutional provision requir-
ing the entitling of process in a certain manner; and neither the
declaration nor the rule to plead, in suits commenced by declara-
tion, have to be entitled *In the name of the people." "
416 Parties, minors, generally
When plaintiffs are minors the declaration should state that
they appear by «;uardian or next friend ; but the omission to
thus state their character is cured by verdict. '^
417 Parties, minors, next friend, authority to use name as
»3 To the honorable, the judge of said court:
I hereby authorize and direct the use of my name in this suit,
as the next friend of
Henrv v. Ileldmaipr. 22R 111. lo2, lo Linqiiist v. Hodges, 248 111. 491,
155 (1907); Chicago West Division 497 (1911).
Ry. Co. V Ingraham, 131 111. 659, " PenfoM v. Slyfield, 110 Mich.
665 (1890). 34.-^, 345 (1896).
7 "Watson V. Watson. 49 Mich. 540, isHelmuth v. Bell, 150 lU. 263,
.'542 (1883). 260 (1894).
sSohoonhoven v. Gott. 20 111. 46, i3 See Section 211, Note 60.
47 (1858).
» Republic Iron & Steel Co. v. Lee,
227 111. 246, 257 (1907).
150 ANNOTATKl) FORMS OP PLEADING AND PRACTICE
418 Parties, receivers
In an action against a receiver, the declaration must show
the obtaining of leave of the court in which the receiver was
appointed, to bring the action. ^^ The declaration should also
describe the defendant as receiver, and not merely receiver.'^
419 Form of action
A declaration should follow the writ upon the character or
form of the action and the extent of the demand.^"
420 Venue
It is proper practice to set forth truly the place where the
contract was entered into or tiie liability incurred and to aver
under a vidclicci that such place is within the county wherein
the suit is pending; but this allegation is not traversable if
untrue in point of fact, because by a fiction of law all transitory
actions are supposed to arise in the county where the action is
brought.'^ In transitory actions, the venue is sufficiently alleged
by giving the county alone.' ^'^ The want of venue in a declara-
tion is not fatal if the cause is tried in the proper county.^®
421 Jurisdiction
Unless questioned by plea in abatement, a declaration is good
where only a portion of the cause of action set forth is within
the jurisdiction of the court.^o In transitory actions, where
summons has been or is to be issued to a foreign county, it is
not necessary to aver in the declaration that the plaintiff resides
in the county in which the action has been commenced, and that
the cause of action has accrued in such county .21
14 St. Louis, A. & S. R. Co. v. (1874); (10272), C. L. 1897,
Hamilton, 158 111. 366, 369 (1895). subdn. 11 (Mich.).
15 Wilcke V. Henrotin, 241 111. 169, 20 Diblee v. Davison, 25 HI. 486
174 (1909). (1961).
18 Weld V. Hubbard, 11 111. 573, 21 Kenney v. Greer, snpra; Gillian
575 (1850). V. Gray, 14 111. 416 (1853); Water-
17 Kenney v. Greer, 13 111. 432, man v. Tuttle. 18 111. 292, 293
447, 448 (1851). (1857); Key v. Collins, 1 Scam.
18 Read V. Walker, 52 m. 333, 335 403, 404 (1837). overruled; Clark
(1869). V. Clark, 1 Gilm. 33, 34 (1844),
i» Grand Rapids & I. R. Co. v. overruled ; Semple v. Anderson, 4
Southwick, 30 Mich. 444, 446 Gilm. 546 (1847), overruled.
DECLARATION 151
422 Cause of action, generally
A plaintiff must show a complete cause of action at the time
he brings suit, and not afterwards.-^ The declaration must
allege all of the circumstances that are necessary for the sup-
port of the action. A declaration which fails to allege a fact
without which the plaintiff is not entitled to recover, does not
state a cause of action.-^ The beginning of a suit does not stop
the running of the statute of limitations, unless the declaration,
or some count therein, states a good cause of action.-^ Like-
wise a declaration which omits an essential element of a cause
of action will not arrest the running of the statute of limita-
tions.-^ The mere restatement of a cause of action with greater
particularity is not the stating of a new cause of action justify-
ing a plea of the statute of limitations.-'^ A declaration must
not set up facts in avoidance of the statute of limitations; as
a declaration thus framed tenders a double issue.^^
423 Cause of action; conditions, performance
If any act is to he done by tiie plaintiff before the accruing of
the defendant's liability, the performance of that act must be
averred.-^ In actions ex contractu, a total denial of liability, or
refusiil to perform on other grounds, waives a party's right to
insist upon performance of conditions precedent to the pay-
ment of money or other performance on his part.^^ Perform-
ance or its equivalent, or a legal excuse for non-performance,
must be averred and proved in actions upon an entire express
contract, but not in actions upon several contracts embracing
independent obligations, nor in an action upon an implied agree-
ment arising from an entire or severable contract which was
partially performed and part performance of which was volun-
tarily accepted by the other party with knowledge of the breach.^"
424 Cause of action, estoppel in pais
Matters arising fom an estoppel in pais are no part of the
22Hovey v. Sebring, 24 Mich. 232, :t Gunton v. Hughes, 181 HI. 132,
234 (1872). 135 (1899).
23 Walters v. Ottawa, 240 111. 259, 28 Walters v. Ottawa, supra.
264 (1909) 29 Lohr Bottling Co. v. Ferguson,
24 Walters v. Ottawa, /nipra. 223 111. 88, 93 (1906).
25Bahr v National Safe Deposit so Harber Bros. Co. v. Moffat
Co.. 234 ni. 101, 104 (1908). Cycle Co., 151 111. 84 (1894).
2« Hagen v. Schleuter, 236 III. 467,
470, 471 (1908).
152 ANNOTATED FORMS OF PLEADING AND PRACTICE
cause of action and need not be specially alleged or pleaded at
law.^i
425 Cause of action, incorporation, proof
In ordinary acliuns, an aviriiunt that the plaintiff is a cor-
poration is sustained by proof that it is exercising corporate
rights and priviieges.^2
426 Cause of action, interest
Interest upon aji indebtedness is not recoverable without either
an aviTiiunl of a demand or tlie statement of facts which would
justify the allowance of interest before the coiumeueemenl of
tlie suit.^^
427 Cause of action, negativing defense, surplusage
At law, as distinguished from e(iuity, a plaintitY is not required
to negative a defense in his declanition. All that the plaintiff
must do is to state his cause of action or complaint. Any tiling
stated by him in anticipation of a possible defense is regarded
i\3 surplusage; ami generally, cannot be taken advantage of by
demurrer.^^
428 Cause of action, penalty
In eases where tlu' parties apree upon a ponalty as the measure
of damages it is not necessary that the declaration should spe-
cially declare for the penalty, because such a penalty is an inci-
dent to and follows the principal in the same manner as does
interest. But in regard to contracts upon conditions and eases
in which the law imposes a penalty, such penalty must be claimed
specifically in the declaration to authorize its recovery.^'*
429 Conclusion, waiver
The conclusion of a declaration is not a substantive fact ; it
is traversable as a proposition of law alone, Eind it is waived by
31 Dean v. Crall, 98 Mich. 591, 34 Lesher v. United States Fidelity
594 (1894). & Guaranty Co., 239 HI. 502, 508
32 Mitchell V. Deeds, 49 111. 416, (1909).
422 (1867). ■'s Smith v. Wliitaker, 23 HI. 312
33 Whittemore v. People, 227 111. (1S60).
453. 475 (1907).
DECIARATION 153
pleading instead of deiuurring.^c The averment that an act was
done contrary to the form of the statute, etc., is essential in, and
is contined to actions, upon penal statutes.^' But, in an action
upon a remedial statute, it is not necessary- that the declaration
should conclude against the form of the statute.^^
430 Ad damnum, practice
The amount laid in the declaration limits the plaintiff's recov-
er}'.3» The ad dumnum should appear at the end of tiie declara-
tion and not at the close of each count.*"
431 Signatures
A declaration signed by the surnames of a partnership of
attorneys, omitting their proprr names, is sufficient.**
JOINDER AND MISJOINDER OF COUNTS
432 Several counts of same cause of action
The same cause of action may he stated in several counts of
the declaration to meet the varying phases of the evidence,*^ and
to prevent possible variance between the declaration and proof.*'
This practice is not commendable, as it tends to cuml)er the
record and to add unnecessairy costs. The mere resorting to
different counts to cover different years for the stat^»ment of a
sinjjle cause of action, docs not wt up different causes of action.**
In statini; what is really the »ime cause of action in different
counts, each count must set forth, by apt reference or otherwise,
a distinct and complete cause of action.*^
433 Joinder of counts of different causes of actions
At common law several causes of action of the same nature,
whether accruing at the same or different times, may be joined
«« Winchwrtor v. Bounds, 55 111. *• I^ke Shore 4 M. S. Ry. Co.
451. 4')4 (1870). V. Ilessions, 150 111. 546, 557
•TSanford v. Oaddis, 13 111. 329, (1894).
840 (1851). "Glover v. Radford, 120 Mich.
••Mount V. Hunter. 58 ni. 246, 542. .544 (1899).
248 (1S71). «* \Miite River Log & Booming
" Thompson V. Turner, 22 m. 389, Co. v. Nelson, 45 Mich. 578, 580
390 (18r,9). (1881).
♦« Lake Erie 4 W. R. Co. v. Wills, ** Lake Shore & M. S. By. Co. v.
140 111. 614, 619 (1892). Heaaions, tupra.
♦> Zimmerman v. Wead, 18 IlL
304, 306 (1857).
151 ANNOTATED FORMS OP PLEADING AND PILVCTICE
in a single count, and a recovery may be had pro tauto.^''' Dif-
ferent, antagonistic and dissimilar causes of action cannot be
joined in the &nme count.^"^ And as many distinct grounds of
recovery as are deemed necessary may be set forth in a declara-
tion, provided enough be proved to make out a complete cause
of action.-**^ It is not necessary to prove all of the counts of a
declaration or to prove allegations which are not essential to the
cause of action; nor is a cause affected by disproving unneces-
sary allegations.'" Under statute, one good count sufficiently
proved sustains a judgment.-"''^ This is not so at common law.^^
434 Misjoinder of counts, test
The general and formal characteristic of a count in a particu-
lar form of action, and not the substantial elements of a cause of
action, control the question of misjoinder.'- Several counts do
not state the same cause of action if they reiiuire different evi-
dence to support them, or if a judgment on one can be pleaded
in bar to a subsequent suit upon the other.^^
435 Election of counts, practice
It is error for a court to nMiuire the plaintiff to elect under
which count his case should be submitted to the jury. But a
court may submit the issues to the jury under a count which the
plaintiff's evidence fairly tends to sustain.^^
436 Election of counts, motion of
Now comes the plaintiff, by his attorney, and,
pursuant to the rule entered on the plaintiff in this cause, on
46Knig V. Ward, 77 111. G03. 605 bo Consolidated Coal Co. v.
(1875); Godfey v. Buckmaster, 1 Schneider, 167 111. .539, 541 (1897) ;
Scam. 447, 450 (1838); Brady v. Olson v. Kelly Coal Co., 236 111. 502,
Spurck, 27 111. 477, 482 (1861). 504, 505 (1908); See. 78 Practice
<7 Southern Ey. Co. v. Bunnell, act (lU.).
36 So. 380, 382 (Ala. 1903); Illi- oi Consolidated Coal Co. v.
nois Central R. Co. v. Abrams, 84 Schneider, supra.
Miss. 456, 463 (1904); Noetling v. " Selbv v. Hutcliinson, 4 Gilm.
Wright, 72 111. 390. 392 (1874). 319, 327 '(1847).
48 Weber Wagon Co. v. Kehl, 139 53 Wabash R. Co. v. Bhymer, 214
HI. 644, 656. 657 (1892); Postal 111. 579, 586 (1905); Brady v.
Telegraph-Cable Co. v. Likes, 225 Spurck, 27 111. 482.
111. 249, 258 (1907); Scott v. Par- 04 Luken v. Lake Shore & M. S.
lin & Orendorff Co., 245 HI. 460, Ey. Co., 248 lU. 377, 384 (1911).
462 (1910).
49 Postal Telegraph-Cable Co. v.
Likes, 225 111. 262.
DECLARATION 155
the day of , 19 • • » elects to re-
tain the following counts of the declaration tiled on the
day of , 19 . . , to wit :
The count, being pages ... to . . . , inclusive,
of said declaration.
The count, being on pages ... to . . . , inclusive.
COMMENCEMENT AND CONCLUSION
ASSUMPSIT
437 District of Columbia
The plaintiff sues the defendant lor money payable by the
defendant to the plaintiff.
Conclusion
And tlie plaintiff claims the sum of dollars with
interest and costs.
Attorney for plaintiflf.
or
Wherefore, the plaintiff claims dollars and in-
terest at tlie rate of per eeiit from
besides coste.
Attorney for plaintiff.
438 Florida
, by , his attorney, sues
, defendant.
or
, copartners doing business as
, by their attorneys , sues
, a corporation organized and existing under
the laws of the state of Florida.
Subsequent counts
And plaintiff further sues the defendants.
Conclusion
To the phiintiff's damage in the sum of dollars;
and plaintiff elaims dollars.
or
Wherefore, she claims damages in the sum of
dollars.
or
WTierefore, plaintiff sues and claims dollars.
Attorney for plaintiff.
156 ANNOTATED FORMS OP PLEADING AND PKACTICE
439 Illinois
, plaintiff in this suit, by ,
h attorneys, complain of , defendant in
this suit, summoned, etc., of a plea of trespass on the case on
promises.
Conclusion
Yet, the defendant, although often requested so to do, ha
Aot paid the said several sums of money above mentioned, or any
or either of them, or any part thereof to the said plaintiff , but
CO pay the same, or any part thereof, to the said plaintiff
ha hitherto altogether refused, and still do refuse; to the
damage of the said plaintiff' of dollars, and
therefore, the plaintiff bring h suit, etc.
or
Nevertheless, the said defendant, not regarding his said prom-
.ses and undertaking's, but contriving, etc.. hath not as yet paid
ihe said several sums of money, or any or either of them, or any
part thereof, to the said plaintiff, althou<xh the said defendant,
afterwards, to wit, on the day and year last aforesaid, to wit, at
said county, was requested by the said plaintiff
so to do, but said defendant so to pay the same hath hitherto
wholly neglected and refused, and still doth neglect and refuse;
to the damage of the plaintiff of dollars, and
therefore, the said plaintiff bring h suit, etc.
Plaintiff's attorney.
440 Maryland
, by , his attorney, sues
for money payable by the defendant to the plaintiff.
Conclusion
And the plaintiff claims $
Attorney for plaintiff.
441 Michigan
, a corporation, organized and existing under
the state of , plaintiff herein, by , its
attorney, complains of , defendant herein, of
a plea of trespass upon the case upon promises, filing this
declaration as commencement of suit.
Conclusion
Yet the said defendant has disregarded its said promises and
has not, although often requested so to do. paid any of the said
DECLARATION 157
suius of money, or any part thereof; to the plaintiff's damage
of dollars, and therefore he brings suit, etc.
Attorney for plaintiff.
442 Mississippi
Comes plaintiff, , by his attorney, ,
and complains of defendant, a resident of district
of county in the state aforesaid, and for cause of
action states the following:
Conclusion
Wherefore, plaintiff sues and prays judgment for said sum
and all costs.
or
Wherefore, plaintiff brings this suit and asks judgment for
tlie sum of dollars with h-gal interest thereon from
, 19 . . , and all costs in this behalf expended.
or
The plaintiff, therefore, demands judgment, for the use afore-
said, afrainst tho dt'fcndant fi)r the sum of dollars
with interest thereon from the day of ,
11)..
Plaintiff's attorney.
443 Virginia
conii)lains of of a plea of tres-
pass on tlie case in ajs«uinpsit.
Conclusion
Wherefore, tho said plaintiff says that by reason of the prem-
ises he is injured and hath sustaini*d damages to the amount of
dollars. And. therefore, he institutes this action
of trespass on the case in assumpsit.
or
And the plaintiff avers that by reason of the premises an ac-
tion hath accrued to it to demand of the defendant and have of
it the said damages in the (several) counts of this declaration
mentioned, and which, though often demanded, the defendant
iiath hitherto wholly refused to pay; and, therefore, it brings
this suit.
p- q-
158 ANNOTATED FORMS OP PLEADING AND PRACTICE
444 West Virginia
of , a corporation, complains of
of a plea of trespass on the case on promises.
Conclusion
Nevertheless, the said defendants not regarding their said
several promises and undt-rtakings have not kt-j)!, performed, or
fulfilled the same, althouj^'h often requested so to do, but have
broken the same, as aforesaid, to the damage of said plaintitT's
dollars ; and therefore, they sue.
or
Yet, the said defendant, not regarding his several promises
and undertakings in the several counts hereinbefore mentioned,
has not paid to plaintiff, or anyone for it, the several sums of
money above mentioned, or either of them, or any part thereof,
although often requested so to do; but the same, or either of
them, or any part thereof to pay, has hitiierto wholly neglected
and refused, and still does neglect and refuse, to the damage of
the said plaintiff of dollars; and therefore, it
brings its suit.
P- q-
CASE
445 District of Columbia
The plaintiff sues the defendant
and for cause of action states as follows :
Conclusion
"Wherefore, he brings this suit and claims dol-
lars besides costs.
or
To the damage of the plaintiff of dollars, where-
fore, the plaintiti' claims of the defendant the sum of
dollars and cost of this suit.
or
And the said plaintiff claims damages of said defendant in the
sum of dollars besides costs ; and wherefore, he
brings his suit against the said defendant.
Attorney for plaintiff.
DECLARATION 159
446 Illinois
, plaintiff, by , h attorney
complains of defendant, of a plea of trespass on
the case.
Conclusion
"Wherefore, the plaintiff says that he injured and
ha sustained damage to tlie amount of dollars,
and therefore h bring h suit, etc.
or
To the damage of the plaintiff in the sum of
dollars ($ ), and therefore, he brings his suit.
or
By means of which said grievances the plaintiff has been
damaged in the sum of dollars, and lie therefore,
brings his suit, etc.
Attorney for plaintiff ,
447 Maryland
by her attorney sues
copartners trading as and the mayor and city
council of
Conclusion
And the plaintiff claims dollars damages.
Plaintiff's attorney.
448 Michigan
, plaintiff herein, by . , his attorneys,
complains of , defendant herein in a plea of tres-
pa.ss on the case, the said having been duly sum-
moned herein by writ of summons to answer the said plaintiff.
Conclusion
By reason of which and whereby the said plaintiff has suffered
damage to a large amoiuit, to wit, in the sum of
dollars, and therefore, he brings suit.
Plaintiff's attorney.
Business address.
160 ANNOTATED FORMS OF FLLADINU AND PRACTICE
449 Mississippi
brings this suit against and by
way of showing a cause of action states the following :
Conclwsion
All to his damage in the sum of dollars ; where-
fore, he brings suit and demands judgment for said sum, to-
gether with all costs.
Plaintiff's attorney.
450 Virginia
complains of incorporated under
the laws of the state of Virginia, of a plea of trespaiis on the case.
Conclusion
To the damage of the said plaintiff in the sum of
dollars, ami therefore, he Ijrings this suit.
p- q-
451 West Virginia
, plaintiff, complains of , who has
been summoned, etc., of a plea of trespass on the case.
Conclusion
"Wherefore, the said plaintiff says that he is injured and has
sustained damages to the amount of dollars, and
therefore, he brings his suit.
or
"Wherefore, and by means of the premises and of the wrongs,
grievances and injuries hereinbefore mentioned and set forth,
the said plaintiff hath sustained damages to the amount of
dollars ; and therefore he sues.
Plaintiff's attorneys.
COVENANT
452 General commencement
, plaintiff, complains of , defend-
ant, of a plea of a breach of covenant.
or
, a corporation, etc., executor, etc., of ,
, deceased, complains of , of
a plea of covenant broken.
DECLARATION 161
Conclusion
And so the said plaintiff saith that the said defendant, al-
though often requested and demanded so to do, by Sctid plaintiff,
executor as aforesaid, since the death of the said
and by the said during his life time, hath not
kept the said covenant so by her made as aforesaid, but hath
broken the same, and to keep the same with the said plaintiff,
executor as aforesaid, since the death of the said ,
and with the said during his life time, hath hitherto
wholly neglected and refused, and still dotli neglect and refuse,
to the damage of the saiil phiintiff, executor as aforesaid, of
dollars. And therefore, the said plaintiff brings
his action.
p- q-
DEBT
453 District of Columbia
The commencement and the conclusion in debt is the same as
in assumpsit.
454 Illinois
plaintiffs, who sue for the use of ,
complain of , defendants, summoned to answer the
said plaintiffs in a plea wherefore they owe to and unjustly de-
tain from the plaintiffs the sum dollars.
Conclusion
And the said plaintiffs aver, that by means of the breaches
aforesaid, an action hath accrued unto the said plaintiffs to
have and demand of the defendants the said sum of
dollars above demanded ; yet, the said defendants have not paid,
or caused to be paid, unto the plaintiffs, or either of them, the
said sum of dollars, or any part of the said sum
above demanded, but on the contrary have wholly neglected and
refused so to do, and still do neglect and refuse, to the damage
of the plaintiffs in the sum of dollars; and there-
fore, they sue for the use of the said , etc.
455 Maryland
county, 8C
by his attorney, sues
162 ANNOTATED FORMS OF PLEADING AND PRACTICE
Conclusion
And the plaintiff claims therefore the sum of ....
dollars.
Attorney for plaintiff.
456 Mississippi
, by his attorney , complains of
, of a pica that he render to plaintitf tlie sum of
dollars which he owes and unjustly detains from
him. (Conclude as in assuiiipsitj
457 Virginia
, a corporation created and doing business un-
der the laws of the I'nitcd States, coinphiins of ,
of a plea that they render unto it the sum of
dollars whicli to it they owe and from it unjustly detain.
Conclusion
Yet, the said defendants, altliouj^di often requested, have not,
nor hath either of them nor anyone of them, as yet paid to the
said plaintiff the said sum of dollars above de-
manded, nor any part thereof, or of the interest thereon as afore-
said, but the same to pay have hitherto wholly neglected and re-
fused, and still do neglect and refuse, to the damage of the said
plaintiff of dollars.
And therefore it brings its suit.
By counsel.
Counsel.
458 West Virginia
complains of , of a plea that he
render unto the said plaintiff the sum of dollars
($ ), which to him the said defendant owes, and from
him unjustly detains.
or
The town of , a municipal corporation, under
the laws of the state of West Virginia, which sues for the use
and benefit of , complains of and
• • • • ; a corporation under the laAvs of the state of West
Virginia, who have been duly summoned to answer of a plea that
they render unto the said the sum of
dollars, which to her they owe and from her unjustly detain.
DECLARATION 163
Conclusion
Yet, the said defendants, although often requested, have not,
nor has either of them, as yet paid to the said plaintiff (or the
said ^^), the said sum of dollars,
with interest or any part thereof, but the same to pay have
hitherto wholly refused and still do refuse, to the damage of the
said plaintiff of dollars and interest ; and there-
fore it brings this suit.
P- q-
DETINUE
459 General commencement
complain of , of a plea that
h render to the said plaintiff of the said plain-
tiff of great value, to wit, of the value of dollars,
which h unjustly detains from
or
complain of said of a plea that
they the said , and each of them, render unto
the said plaintiffs certain goods and chattels and personal prop-
erty of the said plaintitTs, of great value, to wit, of the value of
. . .' , dollars, which they, the said defendants, and each
of them, unjustly detain from said plaintiffs.
Conclusion
Yet, the said defendant , although he w afterwards,
to wit, on the day of , 19. ., requested
bv the said plaintiff so to do, ha not as yet re-dehvered
the said to the plaintiff , but ha hitherto
wholly neglected and refused, and still do neglect and refuse
80 to do, and still unjustly detain the same from the plaintiff
or
Yet, the said defendants, and each of them, although they
were often requested by plaintitTs to do so, have not yet deliv-
ered the said , the personal property aforesaid, or
anv part thereof, to said plaintiffs, or either of them, but have
hitherto wholly neglected and refused, and still doth neglect
and refuse to so deliver said property or any part thereof, un-
justly detaining the same from the plaintiffs, and each of them,
to the damage of plaintiffs in the sum of dollars;
and therefore, plaintiffs bring this suit.
55 Include where there is a bene-
ficial plaintiff.
164 ANNOTATED FORMS OF PLEADING AND PRACTICE
or
Nevertheless, the said defendant well knowing the said last
mentioned to be the property ol' the said plaintiff ,
and of right to belong and appertain to , ha not as
yet delivered the said last mentioned to the said
plaintiff , altliough w afterwards, to wit, on
the day of , 19 . . , re(iuested by the said
plaintiff so to do, but ha hitherto wholly refused ; and
still do refuse so to do, and ha detained, and still do
detain, the same from the said plaintiff , to the damage of the
said plaintiff in the sum of dollars. And there-
fore, h bring suit.
P- q-
EJECTMENT
460 Illinois
, plaintiff , in the above entitled cause by
, h attorney , complain of , de-
fendant , who ha been summoned according to the statute
in such case made and provided, in a plea of ejectment.
Conclusion
To the damage of the said plaintiff of (State a nominal sum)
dollars ; and therefore h bring this suit.
461 Michigan
and , trustees, plaintiffs herein,
by , their attorney, complain of , de-
fendant, herein, of a plea of ejectment, filing this declaration,
entering rule to plead, etc., as commencement of suit.
Conclusion
To the damage of said plaintiff of dollars ; and
therefore, he brings suit, etc.
Plaintiff attorney.
Business address.
462 Virginia
. . . and , plaintiffs, complain of
defendant, of a plea of trespass.
DECI^VRATION 165
Conchision
To the damage of the said plaintiffs dollars,
aud therefore they bring their suit.
p- q-
REPLEVIN
463 Illinois
, a corporation duly organized and doing busi-
ness under the laws of the state of .• ; ' ^^ '
its attorneys, complains of , sheriff of
county, Illinois, defendant, of a plea wherefore he took the
goods and chattels of plaintiff and unjustly detained the same
until the day of , 19 . .
Conclusion
"Wherefore, plaintiff says it is injured and has sustained dam-
age to the amount of dollars, and therefore, it
brings its suit, etc.
464 Michigan
Inasmuch as defendant, did unlawfully detain
certain goods and chattels, the property of plain-
tiff heroin described in the writ of replevin in this cause and
hereinafter set forth, said defendant was summoned to answer
said plaintiff, and thereupoTi the said plaintiff, by ,
his attorney, complains against the said defendant of a plea of
replevin.
Conclusion
To the damage of the said plaintiff of dollars, and
therefore he brings suit.
465 Mississippi
The plaintirt" by his attorney, complains of
, defendant, of a plea wherefore he took the goods
and chattels of plaintiff and unjustly detains the same in this,
to wit :
Conchision
"WTierefore, for the unlawful and unjust detention by the de-
fendant of said (Describe property), plaintiff was deprived of
the use thereof and damaged to the extent of dollars,
and therefore, he brings this suit and demands judgment with
costs.
Plaintiff attorney.
166 ANNOTATED FORMS OP PLEADING AND PRACTICE
TRESPASS
466 District of Columbia
The commencement and the conclusion in an action of tres-
pass are the same as in an action on the case.
467 Illinois
, plaintiff in this suit, by , h
attorney , complain of defendant in this
suit, summoned, etc., of a plea of trespass.
Conclusion
TVlierefore, the plaintiff say that he injured and
ha sustained dauiage to the amount of dollars ;
and therefore, he bring h suit, etc.
Plaintiffs' attorney.
468 Mississippi
Comes , a citizen of the county,
iMississippi, by his attorney, in an action of tres-
pass, and sues , a citizen of county,
IMississippi, and for his cause of action plaintiff alleges the fol-
lowing statement of facts:
Conclusioti
"Wlierefore, for said wrong and injury plaintiff sues and de-
mands judgment against the said defendant for the total sum
of dollars, and all costs of suit.
TROVER
469 Generally
In trover, which is an action of trespass on the case, the com-
mencement and the conclusion of a declaration are the same
as in case,
PARTIES
470 Administrator (District of Columbia)
The plaintiff, , administratrix of the estate of
, deceased, duly appointed such administratrix by
the supreme court of the District of Columbia, holding a special
term for orphan's court business who now brings her letters
of administration in that behalf, and who sues the defendant, a
corporation doing business in the District of Columbia.
DECLARATION 167
(Illinois)
For that whereas, said intestate, on, to wit, the
day of , 19 • • , died at the city of ,
iu said county, and was at the time an inhabitant of said county,
and thereafter such proceedings were taken and had in the pro-
bate court for said county that upon, to wit, the day of
19. ., plaintiff was by an order of said probate court,
duly and' lawfully appointed administratrix of the estate of said
intestate, and then and there duly qualified as such officer and
entered on the performance of the duties of said trust; and
})laintiff brings into court here letters of administration of
said probate court which give sufficient evidence to the court
here of the grant of administration to plaintiff, as aforesaid, the
day whereof is the day and year iu that behalf mentioned.
471 Corporations (Illinois)
, a (•ori)oration organized and established under
the act of Congress of the Tuited States of America, known as
the Xational Hanking act, plaintiff in this suit, by its attorney,
comi)laiiis of the , a corporation organized and es-
tal)lislud under the siiid act of Tongrcss, defendant in this suit,
and summoned to answer the plaintitf of a plea of
(Virginia)
, a corporation duly created, organized and ex-
isting under the laws of the state of , the plaintiff
in this suit, complains of the , a corporation,
created, organized and existing under the laws of the state of
, of a plea of
472 Executor (District of Columbia)
The plaintiffs, and , copartners
trading as sue defendants, and
, as executors of the estate of , de-
ceased, for that heretofore, to wit, on departed this
life and heretofore, to wit, on letters testamentary
were issued by the supreme court of the District of Columbia,
holding a probate court, to the said defendants,
and , as executors of the estate of
as shovra bv certified copies of said letters testamentary hereto
annexed and marked exhibit "A," and that the said defend-
ants had qualified as such.
(Florida)
as executor of the last will and testament of
. . . ". '. . . . . . . . , deceased, plaintiff, by , his attorney.
168 ANNOTATED FORMS OF PLEADING AND PRACTICE
alleges that the said departed this life on
day of , 19. •, that he is the duly appointed and
qualified executor of said last will and testament
and the execution thereof, and as such executor, complains of
, who has been summoned to answer the plaintiff:
473 Foreign corporations (District of Columbia)
The plaintiff, , sues the defendant, ,
a corporation, duly incorporated under the laws of ,
having an office and doing business within the District of Co-
lumbia, and empowered by law to do and transact the business
of , within the District of Columbia.
(Florida)
, by , his attorney, sues the ,
a corporation duly organized and existing under and by virtue
of the state of , doing business and having a busi-
ness office and agent in county, Florida, the de-
fendant, which has been summoned to answer him in an action
on the case, damages dollars.
(Illinois)
, plaintiff in this suit, by , h
attorney, complain of the , a corporation exist-
ing under and by virtue of the laws of the state of ,
and doing business in the state of , defendant ,
of a plea of
or
The , a body politic and corporate created by
the state of , was summoned to answer the ,
a body politic and corporate created by the King of Great Britain,
by and with the advice and consent of the senate and house of
oommons of the Dominion of Canada, of a plea of ;
and thereupon the said plaintiff by • , its attorneys,
complains.
(Maryland)
, by , her attorneys, sues ,
of , a corporation legally incorporated under the
laws of the state of , and duly authorized to do
business and doing business in the state of Maryland.
(Michigan)
, plaintiff, herein by , his attorney.
complains of (a foreign corporation), legally au-
DECLARATION 169
thorized to do a fire insurance business in the state of Michigan,
and to issue policies of insurance against loss by fire in said
state, and who is named defendant herein, of a plea of
, filing this declaration as commeneement of suit.
(Mississippi)
Comes , a citizen of county, by
his attorney, and complains of , a corporation or-
ganized and authorized under the laws of the state of ,
having its principal oftice and place of business in said
, operating and doing an insurance business with
officers and agents in the county of , in the state
of Mississippi, said agents being and ,
insurance commissioner of said state, who by virtue of law, be-
ing also its agent upon whom process can be served as defend-
ant in an action of
474 Husband and wife
, and , his wife, complain of the city
of , a corporation organized, existing and doing
business under the laws of the state of West Virginia, which
has been duly summoned, etc., of a plea of
475 Municipality (Illinois)
, by his guardian, plaintiff in this
suit, by , his attorney , complains of the city of
, a municipal corporation organized and existing
under and by virtue of the laws of the state of Illinois, defendant,
of a plea of
(Mississippi)
The plaintiff , a citizen of county,
Mississippi, by attorney, complains that the defendant, mayor
and boards of aldermen and couneilmen of the city of ,
in an action of ; and for cause of action shows the
following facts, to wit :
476 Next friend (Florida)
The plaintiff , an infant of the age of
years, by , her next friend, sues the defendant,
a corporation created and existing under and by
virtue of the laws of the state of , which has been
summoned, etc., and says :
170 ANNOTATED FORMS OF PLEADING AND PRACTICE
(Illinois)
plaintiff, by , his father and next
mend, who is admitted by the court here to prosecute for the
S''ii(l who is a minor, by , his attor-
ney, complains of the company, defendant, of a
plea of
(Michigan)
» by , who is permitted by the court
here to prosecute for the said , who is an infant
under the age of twenty-one years, as the next friend of said
» plaintitr in this suit, by , his attor-
neys, complains of , who is a resident of said
county, defendant herein, of a plea of , filing this
declaration, with a rule to plead, etc., in accordance with the
statute, as commencement of suit.
(Virginia)
> V , who is admitted by the court
here to prosecute for the said , who is an infant
under twenty-one years, as next friend of , com-
plains of , a corporation, etc., of a plea of
477 Nominal plaintiff
, who sues for the use of , plaintiff,
complains of , who was summoned, etc., as defend-
ant, in a plea of
478 Partners
• ' aii<5 , copartners doing
business under the firm name and style of , plain-
tiffs in this suit, by their attorneys, complain
of , doing business as ", defendants
herein, summoned, etc., of a plea of
Surviving partner
, sole sur\aving partner of the firm of
>, plaintiff in this suit, by , his attorney,
complains of , a corporation existing under and
by virtue of the laws of the state of , defendant,
of a plea of
DECLARATION 171
479 People (Illinois)
The people of the state of , plaintiff, by their
attorney , upon order of the board of county commissioners of
county, complain of , of a plea
of
(Maryland)
The state of ^farjiand to the use of , by .
and , its attorneys, says :
480 Railroad company
Comes the phiiiitiff, , a corporation incorporated
under the laws of the state of and domiciled in
in the state of , and in this its cause
of action against , domiciled at , in the
city of operating a line of railroad in and through
the state of Mississippi, having a regular stopping place in
and a regular agent upon whom service of proc-
ess can be had. and shows unto the court in its cause of action,
the following statement of facts, tu\N'it :
or
Comes the plaintiff , resident citizen of the ....
, county, Mississippi, by his attorney and complains of
a corporation chartered under the laws of the
state of Mississippi and owning and operating a railroad in the
district of county, Mississippi, where
it has its tracks, offices, oflScers and agents, and as cause of
action states as follows:
481 Receivers
, plaintiff in this suit, by , her attor-
ney, complains of , a corporation and
, receiver of said defendant sum-
moned herein of a plea of
or
, plaintiff in this suit, by , her attor-
neys, complains of receivers of the , a
corporation, and of the property and effects thereof, under and
by virtue of an order of the court of the United
States in and for the district of ,
and division thereof, of a plea of
172 ANNOTATED FORMS OF PLEADING AND PKACTICE
EXHIBITS
482 Nature and effect
An exhibit or an instrument sued upon whieli is appended
to the declaration is no part thereof; ••'• and it will not be noticed
upon demurrer.^' But, an iiistrunient may be made a part of
the declaration by setting out the instrument iti haec verba as
an exhibit and referring to it in the declaration.^s In Missis-
sippi, exhibits attached to a declaration and made a part thereof
by averment are as much part of the declaration as if they were
set out in haec verba in the declaration. ^'J A notice of a copy
of an instrument sued upon limits the proof to be heard upon
the trial.eo
483 Necessity
It is not necessary, in Illinois, to file a copy of an instrument
sued upon where the declaration sets forth the instrument in
haec verba.*^^
484 Amendment
It is descretionary with the trial court to permit an amend-
ment of a copy of the instrument sued upon.«2
AFFIDAVIT OF CLAIM
485 Nature and effect, presumption
An affidavit of claim is a pleading which is authorized by
statute, although it is no part of the declaration itself/^ ^ j^
the absence of a bill of exceptions a reviewing court will pre-
sume that a proper affidavit of plaintiff's claim was filed to
authorize the judgment.^ *
56 aemson v. State Bank, 1 Scam. go Humphrey v. Phillips 57 111
45, 46 (1832); Bogardiis v. Trial, 132, 136 (1870).
1 Scam. 63, 64 (1832); Eiley v. ei Phenix Ins. Co. v. Stocks, 149
Yost, 58 W. Va. 213, 214 (1905). HI. 319, 324 (1893); Benjamin v.
57 Harlow v. Boswell, 15 111. 56, Delahav, 2 Seam. 574. 575 (1840) •
58 (1853). Sec. 32, Practice act 1907. '
58 Goodyear Shoe Machinery Co. 62 Stratton v. Henderson, 26 111.
V. Selz, Schwab & Co., 157 111. 186, 68 (1861).
193 (1895). 63Healv v. Charnley, 79 111 592,
59 Keystone Lumber Yard v. Ya- 594 (1875); Sec. 55, Practice act
zoo & M. V. R. Co., 47 So. 803, 1907.
804 (Miss. 1908); Blackwell v. Reid 64 Garrity v. Lozano, 83 111. 597.
& Co., 41 Miss. 102, 103 (1866), 598 (1876).
overruled.
DECLARATION 173
486 Optional
It is optional with the plaintiff to file an affidavit of claim.^*^
487 Persons making
An affidavit of claim may be made by the plaintiff, his attor-
ney, his aisent, or any other person who knows of, and can swear
to, the facts.'^*' In suits by several plaintiffs the affidavit may
be sworn to bv one of them.°^
488 Requisites
The giving of the term of court is not essential to an affidavit
of claim, if the affidavit is entitled in the ease and it is capable
of being identified as bolonfrinof to the particular case in which
it is filed.''** The affidavit should state the exact amount due,
including interest at the time of the making of the affidavit;
or it should fully state the facts from which the correct amount
due may be determined by calculation of interest. °^ It should
state "that there is now due from the defendant to the plain-
tiff, after allowing to the defendant (not him or them) all just
credits. "70
489 Filing
An affidavit of claim should be filed %^ith the declaration,
regardless of when the suit is actually commenced.''^
490 Amendment
An affidavit of claim is subject to amendment the same &A
any pleading in the case.'^-
"5 Kern v. Strasberger. 71 111'. Bank, 91 111. 75, 76 (1878); Sec.
30."?. 305 (1874); Sec. 55, Practice 55, Practice act 1907.
act 1907. 70 New York National Exchange
•••n Honore v. Home National Bank, Bank v. Reed. 232 111. 123. 125
80 111. 489. 490 (1875); Garrity v. (1908). For forms, Bee actions of
Lozano, supra ; Wilder v. Arwedaon, assumpsit, debt, etc.
80 111. 4.35, 436 (1875); Sec. 55, ti pionore v. Home National
Practice act 1907. Bank, 80 111. 491; Sec. 55, Practice
6T Haggard v. Smith, 71 111. 226, act 1907.
227 (1874). 72Healv v. Charnley, 79 111. 592,
«8 Honore v. Home National 594 (1875); Sees. 39, 55, Practice
Bank, 80 111. 491. act 1907.
«» Gottfried v. German National
174 ANNOTATED FORMS OF PLEADING AND PRACTICE
491 Objections, practice
The only way to raise objection to an affidavit of claim is by
refusing to file an affidavit of merits with the plea; objections
or exceptions to the plaintiff's affidavit come too late after
defauUJa
EULE TO PLEAD
492 Practice
The rule to plead must either be attached to, or endorsed
upon, the declaration, and served personally on the defendant.^*
493 Requisites
In actions aprainst several defendants commenced by declara-
tion, the rule to plead must be against all of the defendants.^**
494 Form
In tlie al)ove mentioned cause, upon motion of ,
attorney for said plaintiff, it is ordered that the above named
defendant appear and plead to the declaration in said cause
within fifteen days after service upon said defendant of a copy
of said declaration and notice of this rule, in accordance with
the statute in such cases made and provided.
Dated, etc.
, Clerk.
, Plaintiff's attorney.
Business address.
495 Entry of rule
A mere irregularity in the entry of a rule to plead is not
jurisdictional w^here the notice is regular and the defendant has
been given ample time in which to plead. '^'^
NOTICE TO PLEAD
496 District of Columbia
The defendant is to plead hereto on or before the 20th day,
exclusive of Sundays and legal holidays occurring after the
day of the service hereof; otherwise judgment.
Attorney for plaintiff.
73 Knott V. Swannell, 91 111. 25, 75 Ralston v. Chapin, 49 Mich.
26 (1878); Kern v. Strasberger, 71 274, 277 (1882).
111. 303, 305 (1874). 76 Howe v. MaJtz, 35 Mich. 500
74 (9985), C. L. 1897, amended in (1877).
1905.
DECLARATION 175
497 Maryland
To defendant:
Take notice that on or before day of ,
19.., you will be required to plead to the foregoing declara-
tion, or judgment will be rendered against you by default.
or
To the defendant:
Take notice that on the day of your appearance in this
court in this action, a rule will be entered requiring you to
plead to the declaration herein within tifteen days thereafter.
Attorney for plaintiff.
498 Michigan
To th«' within named defendant:
Take notice, that on filing a declaration in this cause of which
th»' within is a true copy, as commenceinent of suit, a rule to
plead was endorsed thereon and tiled therewith (or, a rule was
entereil in the hook of eoiiimon rules, kept by the clerk of said
court in his office in the city of ), requiring you to
appear and plead to said declaration within tifteen days after
the service on you of a copy thereof and of notice of said rule,
or judgment, etc.
Dated, etc.
Attorney for plaintiflP.
DEMAND FOR JURY
499 Election
To the honorable, the judge of said court:
The plaintiff in the above entitled cause elects to have the
same tried before a jury, and begs leave of court so to do.
Attorney for plaintiff.
500 Notice
To thp defendant:
Take notice that the plaintiff in the above entitled cause
elects to have the same tried before a jury.
Attorney for plaintiff.
PRAECIPE
501 Maryland
Mr. Clerk : .
Please issue summons for the defendant, and send a copy of
176 ANNOTATED FORMS OF PLEADING AND PRACTICE
the declaration with the writ, and make the writ returnable the
Monday of , 19. .
or
Mr. Clerk:
Please issue in this ease, and send copy of the declaration and
notice with the writ, to be served on the defendant, and make
the writ returnable on the of
Attorneys for plaintiff.
SERVICE
502 Statute of limitations
An action commenced by declaration is not begun for the
purpose of preventing the running of the statute of limitations
until there is personal service upon the defendant of a copy of
the declaration and the rule to plead.'^'^
503 Service, by whom
In suits commenced by declaration, the service of a copy
thereof may be made by private persons, or by the plaintiff.
This applies to all plaintiffs, even to deputy sheriffs.'^®
504 Proof, requisites; presumption
The affidavit or return of service must show service of notice
of the rule to plead. '^^ If service is had upon more than one
defendant, the return or affidavit must specifically show that
a copy of the declaration and rule to plead were served upon
each of the defendants.*^ The affidavit need not show the
authority of the officer before whom it is made if he is one of
the officers of whose authority a court takes judicial notice.*^
The time of service is sufficiently stated in a return if the date
of service appears in the jurat of the affidavit.*^ j^ the absence
of a statement in the affidavit of service showing where the de-
fendant was served, it will be presumed that the service was
77 Detroit Free Press Co. v. Bagg, so Campbell v. Donovan, 69 N. W.
78 Mich. 650, 654 (1889). 514, 515 (Mich. 1896).
7 8 Munn V. Haynes, 46 Mich. 140, si Norvell v. McHenry, 1 Mich.
142 (1881); Penfold v. Slyfield, 110 227, 233 (1849).
Mich. 344, 345. 82 Norvell v. McHenry, supra.
79 Anderson v. Cole, 72 N. W.
615 (Mich. 1897).
DECLARATION 177
made in the proper county or place. The statute does not
require in an affidavit of service the statement of the place of
service.*^
505 Proof, forms (District of Columbia)
District of Columbia, ss.
I, having been duly sworn, do affirm and say, that I am per-
sonally acquainted with the defendant, , and that
on the day of , 19. ., I have served a
copy of the declaration, notice to plead, affidavit and bill of par-
ticulars filed in this cause upon the defendant, in
at , at about o 'clock in
noon of said day.
Subscribed, etc.
(Michigan)
being duly sworn, saj's that on the
day of , , he served a declaration of which
the within is a copy, on , the defendant named in
said declaration, by delivering to said defendant, in said county
of , a true copy thereof, together with a true copy
of the notice to appear and plead, endorsed thereon as hereon
endorsed.
Subscribed, etc.
or
I hereby certify and return, that on the day of
, 19. ., I served the declaration, of which the
within is a copy, on the township of , the defendant
named in said declaration, by delivering to said defendant's
supervisor , at the of ,
in said county of , a true copy thereof, and of the
foregoing bill of particulars, and the notice relating thereto,
together Avith a true copy of the notice to appear and plead
endorsed thereon as hereon endorsed.
Fees
Under-sheriff,
506 Proof, contradicting
A return of personal serv'iee made by a private person is not
conclusive upon the defendant, and it may be contradicted.^^
83 Norvell v. McHenry, snpra. Detroit Free Press Co. v. Bagg, 78
8* Campbell v. Donovan, supra; Mich. 650, 653.
178 ANNOTATED FORMS OF PLEADING AND PRACTICE
FILING
507 Time
In actions commenced by declaration, the actual filing of the
declaration must precede the service of a copy thereof.*^
508 Delivery to clerk
The delivery of an instrument or pleading to the proper offi-
cer, if received by him for filing and kept on file, constitutes a
filing; and the failure of the officer to place his file-mark on
the instrument so i)resented and received, and his omission to
actually keep the document on fMe do not eft'ect the validity of
the filing.««
509 Dismissal for want of Narr., practice
Upon plaintiff's failure to file a declaration within the time
required by statute and rules, it is mandatory in Virginia, upon
the clerk to enter the suit dismissed;" and if he fails to do
so, the court has authority to correct the misprision at the suc-
ceeding term ; **« bat it has no power to grant leave to the plain-
tiff to file his declaration then, except upon good cause shown.
The clerk's dismissal of a suit is in the nature of a non suit, and
no suit will be reinstated merely for the reason that the plaintiff
may suffer inconvenience or loss by reasoh of its dismissal.^*
510 Dismissal, motion
And now comes the said defendant, by its attorneys, ......
, and enters its appearance for the purposes of this motion
only and moves the court to dismiss the above entitled cause,
and for cause of such dismissal says that said suit was begun on
the day of , 19 • • , and summons issued return-
able to the term of said court ; that said summons was
returned as served on the day of , 19 . . , on
said defendant; that plaintiff has failed and neglected to file
a declaration in said cause, and for that reason the defendant
moves for a judgment in accordance with the statute in such
cases made and provided.
Dated, etc.
85 Ellis V. Fletcher, 40 Mich. 321 st Sec. 3241, Code (Va.).
(1879); South Bend Chilled Plow ss Sec. 3293, Code (Va.).
Co. V. Manahan, 62 Mich. 143 SQ Wickhara v. Green, 111 Va. 199
(1886). (1910).
seBeebe v. Morrell, 76 Mich. 114,
120 (1889).
DECLARATION 179
511 Dismissal, cross-motion
And now comes the said plaintiff by , his attor-
ney, and objects to defendant's said motion to dismiss said
cause and the plaintitt" now enters cross-motion for leave to with-
draw said declaration and to file the same as of , 19 . .
AMENDMENT
512 Generally
A declaration is subject to amendment at any time before final
judgment.®" It is competent for a court to permit an amend-
ment of a declaration, at any time before final judgment, to
conform to the proofs, and thereby to remove an objection on
the ground of variance.®* A court has power to grant leave to
amend the declaration after all of the evidence has been sub-
mitted to the jury and the case is partially argued before them.®2
Leave to amend the declaration may be granted upon a cross-
motion for the same, after a motion has l)een made to exclude the
evidence from the jury and to direct a verdict.®^
513 Ad damnum
The ad damnum is matter of form and not substance, and it is
amendable after verdict.®^
514 Additional count
A count which is stricken from the files remains a part of the
declaration and may form the basis of an additional count.®^
515 Immaterial matter
A count which sets up useless elements of recovery may be
reformed on the ground that it is calculated to embarrass a fair
trial of the case.®^
00 Copshall V. Beeslev, 7fi 111. 44-^ "^ Grimes v. Hilliary, 150 111. 141.
(1875); Sec. 39, Practice act 1907 144 (1894); Sec. 39, Practice act
(Hurd's Stat. 1009. p. 1699): Bav- 1907.
lor V. Baltimore & Ohio R. Co.. 9 "4 Tomlinpon v. Earnshaw, IIJ 111.
W. Va. 270. 279 (1S76). 311. 319 (1884).
91 Brennan v. Stran-^s, 75 Til. 234. o^ Sbaughnessy v. Holt, 236 ill.
235 (1874): Kennedy v. Swift & 485, 487 (1908). , „ ., „ ^
Co 234 Til 606 612 (1908); se Tillis v. Liverpool & L,. & Or.
Franke v. Hanlev, 215 111. 216. 218 Tns. Co., 46 Fla. 268, 276 (1903);
(1905); Sec. 39." Practice act 1907. Sec. 1043. Rev. Stat. (Fla.).
02 Chicago & P. R. Co. v. Stein,
75 111. 41. 43 (1874); Sec. 39. Prac-
tice act 1907.
180 ANNOTATED FORMS OF PLEADING AND PRACTICE
616 Parties, discontinuance
The omission from an amended declaration of a party who was
made defendant to the original declaration is a discontinuance
of the suit against the omitted defendant.'*"
517 Statute of limitations
A declaration which merely states the cause of action in a
defective manner and which has been filed within the limitation
period may be made the basis of an amendment or of an addi-
tional count after the expiration of the limitation period. But,
a declaration which states a wholly defective cause of action can-
not be made the basis of an amendment or of an additional count
after the limitation period has expired.^**
The introduction of a new cau.se of action by amendment, or
the refiling of previously withdrawn counts, amounts to the
commencement of a new suit at the time that the amendment is
made or that the counts are refiled.^^ All intendments and
inferences which may reasonably be deduced from the facts
stated in an original declaration are in its favor in determining
whether it states a cause of action.^^*^ Matter in avoidance of
the statute of limitations cannot be availed of by an amendment
to tlie declaration, but the defense must be interposed by
replication, ^•^i
PRACTICE
518 Stipulation
Insufficiency of averment in pleadings may be cured by stipu-
lation of the parties.^"-
519 Notice, necessity
In case of an amendment which changes the cause of action
from joint to that of several after one of the defendants has
9T Malleable Iron Range Co. v. Co.. 64 111. 128, 140 (1872); Eylen-
Pusey, 244 111. 184, 200 (1910). feldt v. Illinois Steel Co., 165 111.
98 North Chicago Street R. Co. 18.5, 187 (1897).
V. Aufmann, 221 111. 614, 619 99 Bradlev v. Chicago-Virden Coal
(1906); Lee v. Republic Iron & Co., 231 111. 627. 628; Walters v.
Steel Co., 241 111. 372, 378 (1909); Ottawa. 240 HI. 262.
Bradley v. Chicago-Virden Coal Co., loo Klawiter v. Jones, 219 HI. 626,
231 111. 622. 626^ (1908); Klawiter 629 (1906).
V. Jones, 219 111. 626, 629 (1906); loi Gunton v. Hughes, 181 HI. 132,
Bahr v. National Safe Deposit Co., 135 (1899).
234 111. 101, 103 (1908); Illinois 102 Lohr Bottling Co. v. Ferguson,
Central R. Co. v. Cobb, Christy & 223 111. 88, 95.
DECLARATION 181
been defaulted, the defaulted defendant should be served with
a copy of the amended declaration to afford him an opportunity
to contest the right to proceed severally. ^"^
520 Notice, form
To , attorney for defendant :
Please take notice tliat the annexed are true copies of a motion
filed in said cause for an order permitting an amendment to
said plaintiff's declaration, and of the amendment proposed to
be made in pursuance of said motion, and that said motion will
be brought on for hearing on the day of at
the court room in of , in said county at
o'clock, or as soon thereafter as counsel can be heard.
(Signatures and business address)
521 Motion (Michigan)
Now comes the said plaintiff, , by ,
his attorney, and moves the court for an order permitting the
said plaintiff to amend his declaration in the above entitled cause
by adding a further count, to stand as the count
of the .said declaration, a copy of which count is
hereto annexed.
This motion is based upon the files and records in this court
and cause.
Dated, etc.
Order
After an appeal to the supreme court from a judgment ren-
dered in favor of the phiintiff upon a former trial by which
the case was reversed and remanded to this court for a new
trial, the plaintiff" now comes into court upon a motion to amend
his declaration. The matter has been brought on for hearing in
open court and counsel for the respective parties relative to the
motion have been heard. After due consideration of the same it
is hereby ordered that said plaintiff be and hereby is allowed
to amend his declaration by adding thereto a
count, a copy of which is attached to said motion.
In view of the misfortunes and pecuniary circumstances of
the plaintiff in this cause, this motion is allowed without costs
or other conditions.
Dated, etc.
Judge.
103 Munn v. Haynes, 46 Mich. 140,
146 (1881).
182 ANNOTATED FOKMS OP PLE.U)ING AND PKACTICE
522 Petition (Maryland)
To the honorable the judges of said court.
The petition of the plaintiff in the above entitled case respect-
fully shows unto your honor:
1. That on the day of , 19. ., she sued in
this court the defendant in the above case.
2. That on account of information recently received by the
counsel of your petitioner, your petitioner is desirous to file an
amended declaration, as may be done under section 35 of article
75 of the Code of Public General Laws of the state of Maryland.
\Vh(;refore, your petitioner prays the court to pass an'onler
allowing and authorizing your petitioner to file an amended
declaration, as prayed in the premises.
Attorneys for petitioner.
Order
Upon the foregoing petition it is ordered, this day
of , 19 . . , by the circuit court for county,
that leave be and the same is hereby granted the plaintiff in
the above entitled case to file therein an amended declaration.
Judge.
523 Additional count, commencement
And the said plaintiff, , by leave of the said court
first obtained, here amend he declaration by inserting
therein the following additional counts immediately after the
first (two) counts thereof now on file, to wit:
524 Amendment, commencement
, a corporation organized and existing under
and by virtue of the laws of the state of , plain-
tiff , by , attorney , by leave of court
first had and obtained, files this amended declaration,
and herein and hereby complain of and
, defendants, having been duly summoned to answer said
plaintiff , of a plea of
525 Notice of amendment
To , attorney for defendant :
Please take notice that the annexed and foregoing is a true
copy of amendment to the declaration in the above entitled
cause and this day filed herein in pursuance of an order of
said court made and entered the day of , 19 . .
Dated, etc.
DECLARATION 183
526 Effect of amendment
An original count is abandoned and supei^eded by an amended
count which is complete in itself.^ '^•*
CONSTRUCTION
527 Averments, immaterial, surplusage
An allegation which is not material to a recovery may be
regarded as surplusage and rejected. ^"^' So, an additional count
which reciuires no new evidence to sustain it, is useless and
harmless.*"*
528 Averments, material, omission
The omission of a material averment in a declaration may
be cured by the plea.*"^ In West Virginia, unless judgment
cannot be given on account of the omission of something which
is essential to the cause of action or the defense, a court is
bound to consider a declaration as sufficient on demurrer.*"®
529 Defects cured by verdict
The want of an express averment in a declaration of any
matter which is necessary to be proved and without proof of
which the jury could not have given the verdict, is cured by
the verdict, if the declaration states a cause of action defectively
and it contains terms which are sufficiently general to include,
by fair and reasonable intendment, the facts defectively or
improperly stated or omitted. But an omission is not cured by
verdict, if the declaration, with all of the intendments in its
favor, fails to state a cause of action. io» Defects in a declara-
104 Maoperlein v. Chicago, 237 111. liff v. Rudnik. 212 111. 569, 577
159, 163 (1908). (1904); Danley v. Hibbard, 222 111.
losTillis V. Liverpool & L. & G. 88, 90 (1906); McAndrews v. Chi-
Ins Co 46 Fla 279. cago Lake Shore & Eastern Ry. Co.,
io«Mallov V. Kellv- Atkinson Con- 222 111. 232, 241 (1906); Walters
Btruotion Co., 240*111. 102, 104 v. Ottawa, 240. 259, 267 (1909);
(1909) Chicago, Rook Island & Pacific Ry.
107'Rubens V. Hill, 213 ni. 523, Co. v. People, 217 111. 164, 172
537 (1905) (1905); Chicago & Alton R. Co.
10s Baylor v. Baltimore & Ohio R. v. Clausen, 173 111. 100. 103, 104
Co., 9 \V. Va. 281; Blaine v. Chase- (1S98) ; Wright v. Bennett, 3 Scam,
peake & Ohio R. Co., 9 W. Va. 2.52, 258. 2.59 (1841); McLean County
261, 262 (1876); Sec. 29, c. 125, Coal Co. v. Lang, 91 111. 621;
Code ( W Va ) Peebles v. O 'Gara Coal Co., 239 lU.
109 Sargent Co. v. Baublis. 215 370, 374, 375 (1909).
ni. 428, 430, 431 (1905); Hinch-
184 ANNOTATED FORMS OF PLEADING AND PRACTICE
tion which would have been fatal on demurrer and to which the
general issue was pleaded are cured by the verdict. ^^'^ So, a
declaration may be considered good after default, although it
might have been subject to a special demurrer.^ ^^ Mere formal
defects are cured by the verdict.^ ^- The rule that a defective
declaration is cured after verdict, applies to cases in which the
evidence has not been preserved by a bill of exceptions; but it
is doubtful if this rule applies to cases in wliich the record pur-
ports to contain all of the evidence, and in which it appears
that there is no evidence of a fact that is essential to the right
of recovery.1^3
530 Form of action, identity, law and fact
The form of an action is determined from the technical aver-
ments of the declaration, and not from its introduction or
commencement.^^-* The identity of a cause of action contained
in different pleadings must be determined by the court, as a ques-
tion of law, from the face of the pleadings, without reference
to extrinsic facts or evidence.^^^
531 Good and defective counts
At common law one bad count in a declaration containing
several counts is sufficient ground for arrest of judgment upon
an entire or general verdict-^^*^ In Illinois, one good count
supported by the evidence is sufficient to sustain an entire
or a general verdict and judgment upon several counts, some
of which are bad.^^''' This does not mean that there must be
one or more entirely good counts, but the rule applies as well to
a count which defectively states a cause of action.^^s
no Barker v. Koozier, 80 111. 205, Ins. Co., 220 111. 514, 516, 521
207 (1875); Toledo, Peoria & War- (1906).
saw Ry. Co. v. McClannon, 41 111. h" Scott v. Parlin & Orendorff
238, 240 (1866) ; Briggs v. Milburn, Co., 245 111. 460, 464 (1910).
40 Mich. 512, 513 (1879). i it Scott v. Parlin & Orendorff
111 Lawver v. Langhans, 85 111. Co., supra; Sec. 78, Practice act
138, 142 (1877). 1907; Bennett v. Chicago City Ey.
112 Pittsburg, C. C. & S. L. Ey. Co., 243 111. 420, 434 (1910); Peoria
Co. V. Chicago, 242 111. 178, 185 Marine & Fire Ins. Co. v. Whitehill,
(1909). 25 111. 385 (1861); Anderson v.
ii3Dama v. Kaltwasser, 72 111. Semple, 2 Gilm, 455, 458 (1845);
App. 140 (1897). Eoe v. Crutehfield, 1 Hen. & Mun.
114 Toledo, Wabash & Western Ey. 361, 365 (Va. 1807).
Co. V. McLaughlin, 63 111. 389 ns Bennett v. Chicago City Ey.
(1872). Co., 243 111. 434.
115 Heffron v. Eochester German
DECLARATION 185
532 Several declaxations
The last or final declaration filed is the one which controls the
rights of the plaintifl^, where several declarations are on file in
the same caiise.^^^
iioHanFell-Eloock Foundry Co. V.
Clark, 214 HI. 399, 412 (1905).
CHAPTER XIV
APPEARANCE
IN GENEKAL CONSTRUCTIVE APPEARANCE
533 Appearance in person and by
attorney
534 Infants, practice
535 Authority, presumption; prac-
tice
GENERAL APPEARANCE
536 Nature and effect
537 Time
FORMS
538 District of Columbia
539 Florida
540 Illinois
541 Michigan
542 Generally
543 Instances
SPECIAL .VPPEARANCE
544 WalTer
545 Appearance
546 Motion to quash summons
WITHDRAWAL
547 Nature and effect
548 Forms
SUBSTITUTION
549 Necessity
550 Forms
IN GENERAL
533 Appearance in person and by attorney
A party to a civil action may appear in person or by attor-
ney ; but he cannot in Michigan, appear on the record in person
and by attorney. ^ At common law a party against whom process
has been issued, may appear without service, or before the
process is served upon him.^
534 Infants, practice
A minor must appear by guardian, and not in person or by
attorney; if there is no guardian the plaintiff should make
application, before plea, for the appointment of a guardian
ad litem.^
1 (1116). C. L. 1897 (Mich.)
2 Ralston v. Chapin, 49 Mich. 274,
276 (1882); CruU v. Keener, 18
111. 65, 66 (1856).
3 Peak V. Shasted, 21 111. 137
(1859); Herdman v. Short, 18 111.
60, 61 (1856).
186
APPEARANCE ' 187
535 Authority, presumption; practice
The appearance by an attorney is upresumed to be under
authority of the defendant; but this presumption may be re-
butted if done in apt time.^ During the term a defendant who
has not been served with process and who has not authorized
his appearance may have the proceedings taken against him
set aside where an attorney has appeared for him without
authority .5 The client alone has the right to dispute an attor-
ney's power to appear for him. It cannot be done by a third
party.^
GENERAL APPEARANCE
536 Nature and effect
A general appearance cannot confer jurisdiction upon a
court which has no jurisdiction of tiie subject matterJ But
an unlimited appearance will waive jurisdiction over the person.^
It also waives insufticieut service of process; ° and all irregulari-
ties in the process are waived whether the irregularities are
substantial or formal.'*^ So, a general appearance by a corpora-
tion waives defects in the service upon it.'' A general appear-
ance in a cause by officers or members of a private or public
corporation waives defects in a notice as to them in an individual
capacity, but does not waive defects as to the corporation.' 2 A
special appearance entered for the purpose of objecting to the
jurisdiction of the court is waived by subsequently appearing
generally. '3 A general apearance by an attorney is equivalent
to service of process.'-* The mere entry of an appearance does
not dispense with the requirement to file a declaration within
the statutor>' time before taking default,"
« Leslie V. Fischer, 62 m. 118. 119 nS36) ; Dart v. Hercules, 34 111.
(1871) nQo, 402 (1864); Reed v. Curry, 35
8 Leslie v. Fischer. »upra. 111. 53fi. 539 (1864).
"Martin v. Judd, 60 111. 78, 84 n Bills v. Stanton, 69 111. 51, 54
(1871). (1873).
T Murphy v. People, 221 HI. 127. 12 People v. Jones, 254 111. 521,
130 (1906"). 522 (1912).
8 Grand Pacific Hotel Co. v. Pink- '^ People v. Smythe, 232 111. 242
erton. 217 111. 61. 84 (1905). (1908).
»Masnn & Tazowell Special Drain- 1* Abbott v. Semple 25 111. 107
age District v. Griffin, 134 111. 330, (1860).
337 (1890). 15 Hoes v. Van Alstyne, 16 111.
loEaston v. Altum. 1 Scam. 250 384 (1855).
188 ANNOTATED FORMS OF PLEADING AND PRACTICE
537 Time
A defendant who has been sued but who has not been served
with process has a right to appear at any time before trial. i«
FORMS
538 District of Columbia
^^ The clerk of said court will enter my appearance for the
defendant herein.
Dated
Attorney for defendant.
539 Florida
To the clerk of the court :
You will please enter my appearance as attorney for the
, a corporation, , and ,
the defendants in the above styled cause on the rule day in
,19..
Attorney for defendant.
540 Illinois
I hereby enter my appearance in this cause, and request the
clerk of said court to enter the same of record.
Dated, etc.
Defendant.
or
We hereby enter the appearance of the above defendant, and
our appearance as attorneys for him.
Dated, etc.
As associate counsel
"We hereby enter our appearance in the above entitled cause as
associate counsel, with for the defendant,
Attorneys for defendant.
541 Michiifan, practice
In suits commenced by declaration the clerk is required to
enter the defendant's appearance upon the filing' of the affidavit
16 Ralston v. Chapin, supra; Pen- i7 See Section 211, Note 60.
fold V. Slyfield, 110 Mich. 343, 346
(1896).
APPEARANCE 189
or of a return of service ; and if the clerk neglects to make such,
an entry, the omission may be supplied by an order nunc pro
tunc.^^
Appointment
I hereby appoint , esquire, of ,
Michigan, my attorney in the above entitled cause, and authorize
him to appear and to take such steps in the conduct of said
cause as may, from time to time, become necessary.
Dated, etc.
Defendant.
Notice to clerk
To the clerk of the above entitled court:
You will please enter my appearance as attorney for the
defendant , in the above entitled cause.
Dated, etc.
Yours, etc.,
Attorney for defendant.
Notice to plaintiff
To ...:
Attorney for above named plaintiff.
You will please take notice that I have this day been retained
as attorney for the defendant, , in the above enti-
tled cause,^ and that I have caused my appearance to be entered
as attorney for said defendant in the above entitled cause.
Dated, etc.
Yours, etc.
Business address.
(Attach affidavit of service)
CONSTRUCTIVE APPEAEANCE
542 Generally
A person may become a party by appearing and participating
in the proceeding.^^
543 Instances
A party will be regarded as having appeared generally for
all purposes where he fails to limit his appearance for any
iRNorvell v. McHenry, 1 Mich. 1 9 Chicago v. Walker, 251 111. 629,
227, 234 (1849). 633 (1911).
190 ANNOTATED FORMS 0I<' PLEADING AND PRACTICE
specific purposc^"^ The making of a motion for a separate jury,
without limiting the appearance, amounts to a general appt*ar-
ance for all purposes.-^ So, the making of a motion to quash
service of a copy of an amended summons, without limiting the
appearance to the purpose of the motion, amounts to a general
appearance.-- In actions against several defendants the appear-
ance by an attorney for "defendants" is regarded as an
appearance for all of the defendants, although some of them
were not served with process, unless the record negatives the
presumption that the appearance was so intended.-^ But a
motion by "defendants" to set aside a default which was taken
against several defendants is not a general appearance by one
of the defendants who has not been serveil with process and
against whom no default could have been rendered.^*
SPECIAL APPEARANCE
544 Waiver
All objections that might be raised at one time must be urged
upon a special appearance, or the objections that are not raised
will be considered to have been waived.-^ A motion to dismiss
a suit on the ground of variance between the writ and the decla-
ration is not such an appearance as waives the variance.-^ A
party docs not waive his rights acquired under a special appear-
ance by merely appearing generally for the sole purpose of
insisting upon a plea to the jurisdiction, if he does not take
action in defense of the suit upon its merits.-^ An appearance
for the purpose of objecting for want of notice, does not waive
notice. It is only a general appearance which waives notice.-*'
545 Appearance
I hereby enter a limited and special appearance for the
20 Flake v. Carson, 33 El. 518, 319 (1862) ; Clemson v. State Bank,
526 (1864). 1 Scam. 45 (1832).
21 Martin v. Chicago & Milwaukee 25 Norton v. Dow, 5 Gilm. 459,
Electric E. Co., 220 111. 97, 99 461 (1849).
(1906). 26 Schoonhoven v. Gott, 20 111.
22E(idleman v. ITnion Coiintv 46,48 (1858).
Traction & Power Co., 217 111. 409, 27 Gemundt v. Shipley, 98 Md.
412 (1905). 657, 664 (1904) ; Dexter v. Lichliter,
23 Kerr v. Swallow, 33 111. 379, 24 App. D. C, 222, 228 (1904).
380 (1864). 28 People v. Jones, 254 111. 523.
24Klemm v, Dewes, 28 HI. 317,
APPEARANCE 191
defendant in the above entitled cause, for the purpose of con-
testing the sheriff's return on the summons issued in said cause.
Attorney for defendant as aforesaid.
546 Motion to quash summons
And now this day comes the above named defendant,
, by , its attorney, who appears specially
and solely for the purpose of this motion, and moves the court
to quash the writ of summons issued herein on the .
day of , in . . ; and in support thereof, begs to
refer to the following in part recited facts appearing of record
in this court, to wit :
1 , 10.., the above entitled suit was brought
against
2 , 19. ., a suit was commenced in this court by
the said against the said , general
number , for tlie Humo cause of action as declared
on in the present suit, and this defendant was duly summoned
therein.
3 , 19. ., the following plea of abatement was, by
leave of court first had and obtained, filed in the present suit,
to wit: (Insert plea.)
4. On 19. ., and some time after the said plea of
abatement had been filed in the present .suit, the said plaintiff,
without notiee to this defendant, procured the dismissal of his
said suit, general nuinl>er
5 , 19.., the siiid plea of abatement came on to
be heard before this court, and after evidence had been offered
and received, and the arguments of counsel had been heard, and
upon consideration thereof, the court .sustained the said plea
of abatement and ordered that as to the writ be
quashed, and suit dismissed at plaintiff's cost; and judgment
was thereupon entered.
6. On 19.., the said plaintiff, without notice to
this defendant, procured leave of this court to make it a party
defendant to his said suit, general number , from which
it had the previous day been dismissed; and upon the same day,
to wit 19. ., it was again summoned as a party defend-
j'Ut herein.
For which, and other reasons hereafter to be shown to the
court, the said defendant, , moves that the writ
lately isssued against it be quashed.
Attornev for
192 ANNOTATED FORMS OF rLE.U)IN(; AND I'KACTICE
WITHDRAWAL
547 Nature and effect
An attoriH-y's witlulruwal of liis appi-uranco for the dL-l'cud-
unt must be speeitic and imc'(iuivocal.-» The withdrawal of an
attorney's appearance is not the witlidrawal of his client's
appearance.^" The witiidrawing of a plea in bar does not
withdraw the appearance.-'*
548 Forms (District of Columbia)
The clerk of said court will plt-a.se enter my appearance in the
above cause withdrawn.
(Illinois)
We hereby withdraw our appearance for the defendant in
the above entitled cause.
Dated this day of , 1!> • •
I hereby enter my appearance for the defendant in the above
entitled cause and adojit the demurrer tiled in said cause to the
declaration.
Dated this day of , li^ • •
SUBSTITUTION
549 Necessity
As the law recognizes only those attorneys who appear of
record in a case, attorneys who are employed to take the place
of record counsel should have an order of substitution entered
of record immediately upon taking charge of a pending case.
Appearance and pleading without an order of substitution is
ineffectual.32
550 Forms (Illinois)
We hereby enter our appearance as attorneys for the defend-
ants in the above entitled cause, in lieu of the appearance of
, deceased.
20 Hefling v. Van Zandt, 162 111. 3i Dart v. Hercules, 34 111. 403.
Igo 166 (1896) 32 Landyskowski v. Lark, 66 N.
30 Mason v. Abbott, 83 111. 445, W. 371, 372 (Mich. 1896).
446 (1876); Bills v. Stanton, 69
111. 54.
APPEARANCE 193
(Michigan)
I here})y consent that of , Michi-
gan, be substituted in my place as attorney for the above named
defendant.
Attorney for defendant.
On reading and filinpr con.sent in writing, and on motion of
substituted attorney it is ordered that the said
be, and he is hereby, substituted in the phice of as
attorney for the above named defendant.
Dated, etc.
Attorney for defendant.
Husiness address.
en AFTER XV
ABATEMENT AND OTUEIi DlLAToKV PLEAS
IN GENERAL
s§
551 Plea in abatement defined
552 Abatement and revival
553 Nature of right
554 Waiver
555 Practice, abatement or bar
556 Practice, motion or plea
557 Requisites
558 Verification, power of attor-
ney, necessity
559 Vcrin<ation. power of attor-
ney, form
560 Verification, necessity and re-
quisites
5C1 Verification, forms
562 Amendment
563 Judgment, defendant
564 Judgment, plaintiff
jrRISDUTION or THE COI'RT
565 Practice
566 Plea, requisites
THE
JURISDICTION OF
SON
567 Plea, nature
PER
REQUISITES
568 Pleading and signing
569 Averments, generally
570 Averments, negativing ap-
pearance
571 Averments, negativing juris-
diction
572 Averments, proper court
573 Averments, traversing dec-
laration
574 Verification, necessity
575 Amendment
FOBMS
576 Commencement
elusion
and
577 Nonresidents, individuals
578 Nonrt'riidents, several dcfenu
ants
579 Railroad company
5S0 Tort actions
581 Witness' privilege
ABATEMENT OF THE WRIT
582 Nature of plea
583 Requisites of plea generally
584 False return, plea, practice
585 False return, plea, nfiuisitos
586 False return, plea, form
587 Misjoinder and nonjoinder of
parties
588 Misnomer, waiver, practice
5S9 Misnomer, plea, requisites
590 Misnomer, plea, form
591 Misnomer, replication
592 Nul tlel corporation, defend-
ant, practice
593 Variance, motion, nature
594 Variance, plea, form
COUNT OR DECLARATION
595 Law or rules governing
596 Abatement by death; nonsur-
viving action, plea
597 Abatement by statute, peti-
tion and order
598 Bankruptcy, waiver, pleading
599 Bankruptcy, motion
600 Bankruptcy, petition, order
and notice
601 Bankruptcy, plea
602 Bankruptcy; plea pins darrein
continuance, replication, re-
joinder and verdict
. 603 Extension of performance,
plea, requisites
194
ABATEMENT AND OTHER DIL.\TORY PLEAS 195
604 Further maintenance of ac- 606 Pendency of another suit, dis-
tion, plea, requisites continuance
605 Partnership, plea and replica- 607 Pendency of another suit,
tion plea, requisites
608 Plcnc administravit
IN GENERAL
551 Plea in abatement defined
A plea in ahatonu'nt is that which objects to the place, mode
or tiiiif of asserting; tlu' plaiutitV's claim, without disposing its
justn«'ss, r»M|uirinf; judfjinciit for the d«'fen<lant, and leaving it
open to renew the suit in another place, or form, or at anotlicr
time.*
552 Abatement and revival
At common law, actions of tort do not surnve the death of
the sole i)laintitV or defendant. - An action does not abate upon
the plaintiff's death under Illinois Abatement act, nor in cases
where an action sui-vives.' I'pon the i)laintifT's death, the action
must be revived in the name of all of the survivors, or repre-
sentatives.* This has no application to actions of ejectment
under Illinois statute.*
553 Nature of right
A defendant's riffht to plead in abatement is an absolute and
valuable ripht." The det'endant has a legal right to compel the
plaintiff to comply with all the forms of the law before he can
be reipiired to answer.^
554 Waiver
A plea in abatement must be filed at the earliest practicable
opportunity.** The interposition of a motion in the place of
a plea in abatement, waives the right to plead in abatement.^
» Pitts Sons' Mf(f. Co. v. Com- « Munn v. Haynes, 4G Mich. 140,
mercial National Bank, 121 111. 582, 142 (1881).
587 (1887). 7 Ka.ston v. Altum, 1 Scam. 250,
2 Jones V. Barmm, 217 111. 381, 251 (18,36).
382 (1905). « Easton v. Altiim, nupra; Hallo-
sSeMon v. Illinois Trust & Sav- way v. Freeman, 22 111. 197 (18.19).
ines Bank, 239 III. »i7, 77 (1909). » Halloway v. Freeman, 22 111.
« Funk V. StubblefieM, 62 111. 405, 197. 202; Martin v. Chicago & Mil
407 (1872). waukee Klectric R. Co., 220 111. 97,
sFunk V. Stubblefield, supra. 100 (1906).
I'JG ANNOTATED FORMS OP PLEADING AND rR.\CTICE
So the rifiht to plead in abatement is waived by filing a pl^'^ >"
bar.'" The ri^'ht to i)Kad in abatement is also waived by
demurring to iL dfdaration.'i Formal dei'eets in process are
waived by appearance, pleading to the merits and trial with-
out objection.'-' An objection to the form of the action must
be specifically urged at the first opportunity, or the objection is
waived.'^ The misjoinder of actions ex delicto in form is
waived by pk'adinir to tlie merits and going to trial without
objection. '< Thr nonjoinder of parties (h I't-ndant is waived,
unless it is pleaded in abatement. »» A variance between the
writ and the declaration, if material, must be pleaded in abate-
ment or by motion nuide in apt time.'"
555 Practice, abatement or bar
Any defect in the writ, its .service or return, which is appar-
ent from an inspection of the record, may properiy be taken
advantage of by motion, but where the objection is foumled upon
extrinsic facts 1he matter must be pleaded in abatement.'"
I^Iattcr which shows that the plaintilV cannot maintain any
action at any time must be pleaded in bar; matter which merely
defeats the present proceeding, and which does not show that
the plaintiff is forever conchuled, must be pleaded in abate-
ment. ^8 In an action upon a contract brought before the indebt-
edness is due under an extension of time, the extension must
be pleaded in abatement and not in bar.'"
556 Practice, motion or plea
Any objection or matter which is founded upon extrinsic
facts must be pleaded in abatement, so that an issue may be
formed thereon and tried, if desired, by a jurj-, like any other
10 Lamb V. Chicago, 219 111. 229, le Toledo. ^•;;b.ash & Wester Ry.
01A noofi^ Co. V. McLaughlin. b.J 111. 3»y, -jyi
Mvaker v. Walker, 14 111. 277 (1872); Weld v. Hubbard, 11 111.
/,o=^QN .573, .574 (1850); Brockman v. Mc-
^12 Knott V. Pepperdme, 63 HI. 219 Donald. 16 111. 112 (185^)
n872^ 17 Greer v. Young, 120 111. 184,
^13 Citizens' Gaslight & Heating 191 (18S7) ■ Holloway v. Freeman
Co V Granger & Co., IIS III. 266, 22 111. 197, 20.3; Mc.Nab v. Bennett,
271 (1886); Sec. 39, Practice act 66 111. 157. lo9 (18/j.j.
1907 18 Pitts Sons' Mfg. Co. v. Com-
i4Helmuth V. Bell. 150 111. 263, mercial National Bank, 121 111. 582,
268 n894)- Harlem v. Emmert, 41 587 (1887); Waterman v. Tuttle,
HI 3^9. 323 (1866); c. 7, Kurd's 18 HI. 292 293 (1857)
Stat. 1909, p. 154. ^« P tts Son.' Mfg.^«- J; ^om-
15 Porter v. Leache, 56 Mich. 40, mercial National Bank, supra.
41 (1885).
ABATEMENT AND OTHER D1L.VT0RY PLEAS 197
issue or tact ; but any defect in the writ, its service or return
which is apparent from an inspection of the record, may prop-
erly be taken advantage of by motion.-'^ A motion to dismiss
for want of jurisdiction is proper wliere the objections appear
on the face of tlie pleadings; this defense must be urged by
plea in abatement where the objections are ddiors the record.'-^
The omission to make necessary parties may be urged without
a plea in abatement when the want of these parties appears on
the face of the declaration or pleading.-- Matters dehors the
return must be raised by plea and not by motion.-"^
657 Requisites
Great accurat-y and precision are necessary in the structure
and form of pleas in abatement. -■• They must specify truly the
parties in the cause.-* They must aver enough facts to give
the plaintilT a better writ; and they must show how another
action against the defendant might be brought in case the j)lea
should prove to be true.-" A plea in abatement nuist be posi-
tive and certain, and not argumentative.-' Certainty to every
intent is es.sential.-^ That is reganled certain which may be
rendered certain.'-" The subject matter of a plea in abatement
must be matter of abatement, and not matter in bar of the
action.'** The plea in abatement must conclude by praying
judgment of the writ and that the same may be quashed ; or if
the writ abates de facto, by praying judgment if the court will
further proceed.''' All pleas in abatement mu.st conclude with
the prayer that the suit shall abate.^- A plea in abatement
must be signed by counsel. ^''
20 Willard v. Zihr. 21.'3 Til. 148, :« Amerioan Express Co. v. Hag-
155 (19U')); Halloway v. Fri'i-niun. pard. 'M III. 40.";, 472 (18G5).
supra; Greer v. Young, 120 111. 184, -' Locomotive Fireman v. Cramer,
191. 164 111. 9, 1.3 (189G).
" McNab V. Bennett, 66 IlL 157, zs Wales v. Jones, 1 Mich. 254,
159. 256 (1849); Pitts Sons' Mfg. Co.
22 Powell V. People, 214 111. 475, v. Commercial National Bank, 121
479 (19U5); Ciimmiiigs v. People, 50 111. 582, 587.
111. i:<2, 1.35 (!*«»;;'): L«'ftwich v. 2» Parsons v. Case, 45 111. 296,
Berkeley, 1 Ilfii. i Munf. Gl. 66 297 (1867).
(1806); Newell v. Wood, 1 Munf, so pjtts Sons' Mfg. Co. v. Com-
555 (1810). mercial National Bank, 121 111. 588.
23 Putnam Lumber Co. v. Ellis- 3i Ross v. Nesbit, 2 Gilm. 252, 257
Young Co.. 50 Fla. 251, 260 (1905). (1845).
2« WiUard v. Zehr. 215 III. 148, 3= Chicago & Northwestern Ry. Co.
155, 1.56. V. Jenkins, 103 111. 588, .593 (1882),
23 Halloway v. Freeman, 22 111. ■>.•! Halloway v. Freeman, 22 111.
197, 202. 197. 203.
198 ANNOTATED FORMS OF IM.EADINO AND PRACTICE
558 Verification; power of attorney, necessity
A plea iu ultatL-imnt liv a corporation verilifd by an afjent
or allonu'y must be supported by a power of attorney troni
llie corporation authori/inj: the veritieatiou; whieh power may
be tiled willi the plea or iilterwards.^*
559 Verification; power of attorney, form
Know all iiitii by these presents, that the has
made, constituted and api'ointed, ami by these pres«'nts does
make, constitute and ap|)oint of the city of
its ti-ue and lawful attorney for it and in its name
and on its behalf to iiuike, execute ami tile a plea of abatement
to the writ of attachment and the garnishee proi'ess issued out
of the court of county in the state
of in a certain suit of attachment now pendinj;
in said court wherein and are plain-
titVs and the is dcfcndimt. and to make and tile
any other pa|)er in its name he nuiy de<'m nt ssary in said
cause; hereby ratityiiif? and confirming' whatever its said attor-
ney may lawfully do in the premises.
Witness tlie by , its president and
its coi-j)orate seal bv , its the
(lav of *.. .. lit. .
Hy
its
(Corporate seal)
560 Verification, necessity and requisites
The truth of a pica in abatement, except as hereinafter noted,
or of any other dilatory plea, must be verified by affidavit or
by some other evidence.^^ An affidavit verifying a plea in
abatement must state that the plea is true in substance and in
fact, and not to the best knowledu'e and belief.^*' An unverified,
or improperly verified, plea in abatement may be rejected or
stricken from the files on motion.''" An affidavit which is on
the same paper as the plea in abatement need not restate the
title when the plea itself contains a complete title of the case.^*
■''* See Union National Bank v. «« Spencer v. Aetna Inrlemnitv Co.,
First National Bank, 90 111. 56 231 111. 82, 83, 84 (1907).
(1878). 37 Spencer v. Aetna Indemnitv
35(10070). C. L. 1897 (Mich.); Co., supra.
Eos9 V. Npsbit. f.uprn : "Rvan v. 38 Cook v. Yarwood, 41 111. 115,
Lander, 89 111. .554 (1878). " 118 (1866).
ABATEMENT AND OTHER DILATORY PLEAS 199
561 Verification, forms (District of Columbia)
"^ beiiiir duly sworn, on oath deposes and says
that she has read the foregoing motion by her subscribed and
knows the contents thereof, aiid that the matters and facts
therein set forth are true.
Subscribed and sworn to at the city of District
of Columbia, before nie, a notary public duly conuiiissioneil in
and for said District of Columbia, this ! dav of .
19.. ' •• .,
Notary Public, I). C.
(Notarial seal)
(Illinois)
tlie <lefer>dunt in this cause makes oath and
says tluit the plea hereto annexed is true in sui).stance and in fact.
Sub.seribed, etc.
(Maryland)
State of .Maryland, city of , to wit :
I hereby certify, that on this day of , 19. .,
before uie. the subscriber, a justii-e of the peace of said state
in and for said , personally appeared
and niade oath in due form of law on the Holy Kvangely of
Almighty God, that the above i>lea is true in substance and in
fact.
(Virginia)
I a notary public in ami for the said city
and county certify that personally appeared be-
fore me in .said city and made oath that he is the (president, or
vie«' |)resident ) of the railway company, the de-
fend.'iMt in the plea hereto attached in the .suit of v,
■ - and that he verily believes the .said plea to be
tru; .
Ciiven under mv h.iiid and notarial seal this day of
19. .
Notary Public.
»»Soe Section 211. Xote 60.
200 ANNOTATED FORMS OF rLKADING AND I'KACTICE
(West Virginia)
, the defendant named in the foregoinu' plf'a,
being duly sworn, says that the i'aets and allegations therein
contained are true, exeept so far as they are therein stated to Ixj
on iniorniation, and that so far as they are therein stated to bo
upon information, she believes them to be true.
Taken, sworn to and subseribed before me this day
of , 11)..
Notary i)ul)lic in anil for county, West Virginia.
(Notarial seal)
562 Amendment
A plea in abatement is not amendable,*^ except a plea in
abatement to the jurisdietion over the person.** Nor is it per-
missible to plead in abatement a second time upon the disposi-
tion of a previous similar plea.*^
563 Judgment, defendant
On an issue of faet or law, a judgment for the defendant
must be that the Nvrit shall be quashed ; or if a temporary dis-
ability or privilege is pleaded, that the plaint remain without
day until, etc.'*^ In rendering judgment for the defendant on
a plea in abatement, the trial court has no discretion.'** And
the error is not of a chai-aeter that a defendant might waive.**
At common law, no costs can be awarded a defendant on an
issue of law.*"
564 Judgment, plaintiff
On sustaining a demurrer to a plea in abatement or to a repli-
cation, and a finding for the plaintiff, the judgment should be
quod rcs:pon(Uaf ouster.'*' Upon the trial of an issue of fact
raised by a plea in abatement and finding for the plaintiff, the
judgment should be quod recuperet *^ So, should there be a
40 Cook V, Yarwood, supra; Sec. 44 McKinstry v. Pennoyer, 1 Scam.
11, c. 7, Hunl's Stat. 1909, p. 155. 320.
41 Spencer v. Aetna Indemnity Co., 45 Spaulding v. Lowe, 58 111. 96,
supra. 97 (1871).
42 Cook V. Yarwood, s^ipra. 46 McKinstry v. Pennoyer, 1 Scam.
43 McKinstry v. Pennoyer, 1 Scam. 320.
319, 320 (1836); Cushman v. Sav- 47 McKinstrv v. Pennoper. supra:
age, 20 111. 330 (1858); Scott v. Bradshaw v. Morehouse, 1 Gilm. 395.
Waller. 65 111. 181, 184 (1872); 396 (1844).
Campbell v. Hudson, 106 Mich. 523, 48 Italian-Swiss Agricultural Col-
528 (1895). ony v. Pease, 194 111. 98, 100
ABATEMENT AND OTHER DIL.\.TORY PLEAS 201
judgment quod recuperet upon a issue of fact raised by a plea
in abatement for the nonjoinder of defendants, although the
only issue joined is upon the abatement of the action.'*^
JURISDICTION OF THE COUET
565 Practice
Under Illinois practice, the want of jurisdiction of a court
of general jurisdiction can only be raised by plea in abatement,'^*'
In Michigan, it is perniissihlc to interpose an objection to the
jurisdiction of the court by motion supported by affidavits.*^
566 Plea, requisites
A plea to the jurisdietion of the court must, by averment of
facts accurately and logically stated, exclude every intendment
in favor of the jurisdiction of the court of general and unlim-
ited jurisdiction.^- The ph'ader must set up such facts as would
clearly oust the court of jurisdiction.*^ If a declaration con-
tains causes of action which are within the jurisdiction of the
court, and some of which are not, the plea inust be to the causes
of action of which the court has no jurisdiction.** A plea to
the jurisdiction shouhl conrhide by praying judgment "whether
the court ought to have further conusance of the suit."**
JTJRI.SDirTION OF THE PERSON
567 Plea, nature
A plea to the jurisdiction of the person, as distinguished from
a plea to the jurisdiction of the court, is meritorious in its
character and is foumled upon statutory right. *^ A plea claim-
ing the statutory ])rivilege of being sued in the county of one's
(1901); McKiDStrv v. Pennover, 63 Willard v. Zehr, 215 111. l.'JS,
supra: Gro.r v. Young. 120 III. iS4, 1.56; Diblee v. Davison, 2;') 111. 486
191; Mineral Point R. Co. v. Keep, (1861); Dunlap v. Turner, 64 111.
22 111. 9, 19 (1859); Brown v. 47 (1872).
Illinois Ct'ntral Mutual Ins. Co.. 42 54 Diblee v. Davison, 25 HI. 486.
111. 366.369 (1866). ss Drake v. Drake, 83 111. 526,
♦•Ciojjsrin V. O'Donnell, 62 111. 528 n876).
66, 67 (1171). seHumi-hrev v. Phillips, 57 111.
loWillanl V. Z4>hr. 215 111. 155. 135; Safford 'v. Sancramo Ins. Co.,
51 Havwoo.l V. Johnson, 41 Mich. 88 111. 296. 297 (1878); Sec. 6,
598, 605 (1879). Prartice act 1907; Drake v. Drake,
BJ Humphrey v. Phillips, 57 111. 83 111. 529.
135.
202
ANNOTATED FORMS 0*' I'll AUINQ AND PRACTICE
reaidence is not a plea to the juristlirtion of tho court.*' The
rij?ht to \h; siu-d in onen rouiily, howrvt-r, may Iw waiv.d by
thf ilfferulant if uot i)ha(l«'tl in apt tiiuc*' The objection can-
not he raised hy dciiiurrcr, or upon writ of error, after dcfault,^^^
It cannot l»i' phadcd after the jjcncral ikmuc haa U-cn inter-
posed."" The tiling of an amended dechiration which mert'ly
restates the <'ause of action with more particuhirity than it in
stated in the original dc< laration do« not give the rijjht to phad
to the jurlsdietioii of the court where the general isBue to the
original dechiration remaiuM on tih-."*
REQinsmsB
568 Pleadinjj and signing
A pieii to the jurisdiction by an iiulividual shouhl Im' in per-
son, and not by attorney.'- The ph'a shouhl J>e in the name of
the (h'ren(hint. without naiidnjf him.self as such, antl it shouhl be
si^rned by hiiii.'= Tl»e plea by corjHjratiou acL'reL'ate naist be
by ntloniey ah)ne.''*
oG9 Averments, generally
A pU-a to the jurisdiction nnist netrative every juris. ii'ti..n;il
fzround enumerated in the statute, althouirh it tliereby remhi-s
the pk»a object ional>h' on the grouiul of duplicity.'^*
570 Averments, negativing appearance
.\ ph>a denyinj; service of process niust U'-uMtive a submi.9-
sion to the jurisdiction by appearance or otherwise.'*'
!>' Humphrcv v. Phillips. HT 111.
ftt lluinj^hrov v. Phillips, supra;
Drake v. Drake, S3 111. .^)-_'S; llardr
V. Adams, 48 111. 532, 533 (1S(58);
Wallace v. Cox. 71 111. 548. 549
(1874); Sandusky v. Sidwell. 173
111. 493 (1898) ; Seo. 6. Practice act
1907; Toledo. Wabash & Western
Rv. Co. V. Williams. 77 111. 354. 356
(iS75) Mason & Tazewell Special
Drainage District v. Griffin, 134 111.
330; Humphrey v. Phillips, 57 111.
13ti; Keiinev v. Greer. 13 111. 432,
449, 450 (1851).
10 Wallace V. Cox. ntpra : Hardy v,
Adams. 4S 111. .532. 5,33 (1S6S).
«'^ Toledo. Waha.xh \ W.stcrn Rv,
Co. V. Heucs. 8.-, III. so. ^2 (1877),
«J Toledo. Wabash i Western Ry.
Co. V. Becgs. supra.
«= Min ral Point R. Co. v. Keep,
22 111. 19.
"3 Drake v. Drake. S3 111. 527.
•»♦ Nispel V. Western Union R. Co.,
64 111. 311, 313 (1872).
'••■ Deatrick v. State Life Ins, Co.,
107 Va. 602, 610 (1907),
'■'•• Waterbnrv National Bank v.
Reed, 231 111. 246, 250 (1907).
ABATEMt.NT A.NU OIlltK DU.VTOKY PLEAS 203
571 Averments, negativing jurisdiction
A plea lo ll:«- junsiliction ol" the person sliould negative the
existence of other defendants and the comnieneement of the
Huit under the attachment laws of tlie state, unless these facts
aflinuatively appear from the record."'
672 Averments, proper court
A plea to tlie jurisdiction of the person need not show what
court has juriMdieiion. proviiled the plea does show that the
court hiui no jurisdiction over the defendant or defendants, or
either of them."*
573 Averments, traversing declaration
If the ilerluraliuii • Mij.sist.s of more than one count, the plea
should ne^falive, Mpeeilically the cauiic of action set up in each
count."*
574 Verification, necessity
It in not ntvi-wuiry. under lUinoi.H practice, that a plea to the
jurisdiction of the person should Im? veriheti l>y atVidavit.""
575 Amendment
A plea to the jiiririiliction of the person may be amended in
Illinois, notwithstanding the tftatutory provision against ttie
amendment of a plea in abatement.'*
57C Commencement and conclusion
And now the said in his own proper person,
comes and siiys that this court ought not to have or take further
cognizance of the aforesaid action, iia to the sjiid supposed causes
of action, and each and every of them, mentioned in said plain-
tiff's declaration, because he siiys:
•' Humphrrr v. I'hilli[>s. 57 III. ^i SafTonl v. Saneamo Ins. Co.. 88
137. ' 111. -i»fi. -97 (1S7«>: Midlan.l I'a-
••Midlan.l Pafiflr Rt. Co. t. Mc cific Rv. Co. v. McDenni.!, 91 III.
Dermi.l. iH HI 170. 174 (1^78). 170, 172; Dnike v. Diako. B"? 111.
•• Humph ror v. Phillips. Kupra. 528; 8oc. 11, c. 7. UiirtrH Stat.
•o Howe V.' Tbaver, 24 III. 240, 1909; St-c. .IS, Practice act 1907.
248 (I860); .S«H-. 'l, p. 1. Hur.l'H
Stat. 1909; Drake v. Drake, s-'J 111.
527. 528.
204 ANNOTATKU FoUMS uK l'Lt:.\DINa ANL- I'ttACTICK
Concliuiun
Wherefore prays jiul^'rnent whether thia court
can, or will, take i'urther cut^iuziiuce ol the ut'ort'Siiid nctiou.'*
577 Nonresidents, individuals
(Commence and condud*' as in Section 576) that before and
at the tiiiu' of the toiiimt'iK't>mrnt of this suit, the sjiid dfft'iidant
was, and at all tiiiu's since the coiniuenretnfnt of this suit the
said defendant has Ik'vu, and still is, a resident of the county of
, in the state of , and diil not. at the
commeneement of the suit, nor does he now reside in said
county of ; nor has |je Iteen found nor served witli
process in said action in s^iid county of or else-
where tlian in said county of
And the ileferulant further avi-rs that tiie sjiid plaintitT was
not, at the commencement of suid action, a resident of said
county.
And this defendant is ready to verify; wherefore, etc."
(Verification as in Section TiGl)
(Maryland)
And the said in his own proper person, comes
anil defends the wronjf and injury when, &c.. and prays judjf-
mcnt of the writ aforesiiid, and also of tlie declaration of the
said j>luintilV aj^ainst the said defendant thereon founded,
because \\v says that he now doth, and on the day of the impctra-
tion and suin^ forth the said oriijinal writ of summons of the
said plaint itf iliil, and for a lonj; time before had. ami ever
since hath, inhtabited, dwelt and resided in county,
and that neither the sheritT nor the coroner of said
county, did at any time on or before the day of the impetration
and suing forth the .said writ of the plaintiff return a uon est
on a summons issued in s;iid county atrainst him,
the said nor hath the sheriff, nor the coroner of
said county since the day of the impetration and
suing forth the said writ of the plaintiff returned a non est
on a summons issued in said county against him,
the said without this, that he. the said
on the day of the impetration of the said writ as aforesaid did.
or at any time before or since hath, or now doth inhabit, dwell
and reside in the of as the said
»2 Drake v. Drake, supra.
T3 Scott V. Waller, 6.5 111. 1<?1
(1872).
ABATK-MKNr AND UTllElt DILATORY PLEAS 205
plaintiff liy his said writ and declaration do above suppose,
and without this thot the sherilT or the i-orouer of said
county did at any time on or before the day of the impe-
tration and suing forth the said writ as aforesaid, return or
hath t'Vt-r sinct* the said day of the impttration of the said writ
returned a non (st on a summons issued in said
county at,'ainst him. the said and this, he, the
Baid is ready to verify, &c., and the said ....
doth further allege that he did not at the
impetration of said writ and do<'s not now, coiTy on any rejjular
busin*"'.s.<;. nor does h habitually engage in any avocation or
employment in the said of
(Verification as in Section 561)
(West Virginia)
(Commence and coneludi' jis in ."section r)76) that before and
at the comrnt'nct-mfnt of thr said action of the said ,
she the Hi\'u\ wjis. and from thence hitherto has
b«en. and still is, residing in the county of in the
said state of West Virtjinia, and not in the said county of
; and that she the said was not
found or served with process in the said action in the said
county of , but was found and served with process
in the said action in the said <ounty of : And
this she is ready to verify; wherefore, etc.'*
(Verification as in Section r)61)
678 Nonresidents, several defendants
And the said one of the defendants in the above
entitled cau.se, for tlif .sole puri>ose of pleailing to the jurisdic-
tion of said court, comes an«l .says that this court oujjlit not to
have or take cognizance of the siiid action, l)ecause the said sup-
posed cause or caus«'s of action, and each and every one of thr-in
arose in the county of in said state of
anfl not within said county of , and that
the said action is not a local action ; and that both he and his
co-defendant at the time said suit was begun, and
at aJl times since, have resided in .said county, and
not within the .said county of ; that process was
s^Tve^l on the said in said county of
and not within the said county of and was served
on this defendant while he was on a public railroad train pass-
»« Nrtt<»r Oppenheimer ft Co. v. El-
fant, 63 W. Va. 99 (1907)
206 ANNOTATED FOKMS OF i'LtLVDlNU AND rKACTICE
ing through the .said coutity of , an«l not within
the said coimty of when' Uv rcsidrs; and thi.-j
the said dtfi-iidant is n-ady to vrrify; wh^-rrforr. i-tc.'^
(Verification as in >.Mti<>n 'tVA)
579 Railrocad company (Illinois)
(Conuiicnt'c and coniliidf ;is in S'ciion -jTGj that thf said sup-
posed eauscs of action, and rafli of them, if any smh, have
aeerued to the sai«l plainlitT out of th«' jurisdirtion of this eourt.
that is to say. in tlie county of .M. in the state of ,
and not witliin the county of II, or .dsewliere. within the juris-
diction of this court. And the defcndnnt further nversj that
the supposed contract or ct»nlracls ujion which said action was
hidu^dit. were not, nor were any of them, actually imnU' in said
county of II, and the same were not. nor any of thi-m, nor any
part thereof. ma(h' s|)e.ilically payahk- in .saiil county of II.
And tlie defeiuhmt further avers, that this defendaJit is u eor-
poration. duly e.stahlished and organizeil, operating a line of
railroatl from M. in the state of to
in the county of H. in the state of ; that its presi-
dent resides in the city of in the state of
; that its directors and other otVicers resiih- at ditTerent
points in said ami the state of and
uom' of such directors or other ollicers n'siih- in saiil II county;
that tiu' principal ot!iee and place of l)usiness of this defendant
at the time of commencing this suit, was and now is. in the said
city of in the .state of ; and that this
defendant's line of railroad vnus through or into the counties
of and and n(» other county or
counties in saiil state of : that this (h-feiidant
has olTicers ;ind agents in each and every of said tounties where
and upon whom process could have heeii serv«»d at the time of
the commencement of this suit ; that this defendant at the time
of the commenccMUMit of this suit, luul not, and now has no
line or part of line of railroad, in said II ccmnty. nor any ot?iee,
orticer. director, agent, employee, or other per.son in said H
county upon whom process should have heen. or could now be
served; that this defendant luis not heen served with process
in said H county; and that the praecipe in this action directs
the summons herein to he issued to the sheriff of C county
and such summons was so issued, and tinally served on
at and in the county of ( ', he l)eing then and there an
agent of tliis defendant.
And this the defendant is ready to verify; wherefore, etc."^"
(Verification as in Section 561)
75 Sandusky v. Sidwell, 173 111. "« Xispel v. Western Union R. Co.,
493 (1898). 64 111. 311 (1872).
ABATEMLXT AND OTHER DILATORY ri.l.A.-- 207
(Virginia) Pica
( r'onim«*nco and concludf a.s in Section i'ui) ) that it is a domes-
tic railroad forporatiun, duly incor])oratcd under the laws of
the state ol" \ ir^ijinia, and that its principal ot^ice is not located
in the city of , Virginia. I»ut is located in the city
of Virjifinia ; that its chief ofKcer does not reside
in the city of , Virj;inia, hut resides in the city of
X'irffinia; that the said supposed cause of the
said aetioii uf such there im), did not nor did any part thereof
arise in the siiid city of , hut that the said supposed
cause of action, if any such «ause there be, did arise in the state
of , or in the county of in the state
of Virjfinia or in some other state other than Virpinia ; that this
defendant is not sued with any other person or persons
re.sultnt iu the siii<l city of ; and that jdaintilf's
caus«' of action, if any lie has, is co|?niwihle in tln'
court of the city of , in the state of Virginia, and
not here in this court And this the defendtint is ready to
verify.
Wherefore, etc.
(Verification as in Section 561)
ReplUation
And the snid plaintiff, by his attorney comes and says that
notwithstanding anything by the said defenchmts in their said
pleas alleged, this court ought not to be precluded from taking
further cogni/jince of this action, because, he says, a part of
the cause of aetion aforesaid an»se and accrued to the said plain-
titT within the jurisdiction of this court, to wit. within the city
of aforesiiid. And this the said plaintifl* prays
itjay bf inquired of by the country.
, P- <l
580 Tort actions
- ( 'oinmencf and conclude as in Section oTfi'i that the said sup-
posed causes of action and ea'*h and every one of them (if any
such have accnied to the said i)laintiff^ accrued to the said
plaintiff out of the jurisdiction of this court, that is to say, at
the county of in the state of ., and
not within the county of or elsewhere within the
jurisdiction of this court: that the said suppo.sed injuries upon
which sai<l cause was broutrht were not. nor were any of them,
actiially received or dont- in said county of ; that
this defendant is a corporation, duly established and organized,
operating a coal mine in said county of ; that its
president and all its officers reside in , in said
208 ANNOTATED FORMS OP PLEADING AND PIL\CTICE
county of ; that the principal office and place of busi-
ness of this deft-ndant at the time of the coninieneenient of this
suit was, and it now is in said city of ; that this de-
fenchmt's property is situated, and its business is wholly trans-
acteii in said eomily (d" and in no other county or
counties in tlie said stiite of ; that this defendant
has oflieers and airents in said county of upon
whom process could have been served jii the time of the com-
mencement of this suit; that this defendant at the time of the
commencement of this suit had not, nor has it now, any office,
officer, director, apent, employee or other person in said
county upon whom process eould thtn have been
or can now be served, but defendant further sjiys that one of its
officers, one , who is its vicf-prrsidt-nt and secre-
tary and who resides in in said county of
, while casually in the county of in the pur-
suit of his own i)rivate affairs and not erifjaged in any business
of the defendant, nor by it authorized to jiccept service in this
or any other suit that mi^'ht be brouf,'ht against it, was served
in said county of on the day of ,
19. ., by llie sheriff of siiid county; that there was at the time of
the cotumencement of this suit, and now is, a circuit court within
and for said county of which said court had and
now has .jurisdietion of the defendant, and which said court
might lawfully have and take cognizance of the said supposed
causes of action mentioned in said plaintilT's di-claratiou ; and
this the defendant is ready to verify. Wherefore, etc.
(Verification)
III plication
And now comes the plaintiff and as to the plea of the said
defendant says that he, the i)laintitr, by reason of anything in
said plea alleged ought not to be barred from having his afore-
said action because he says that at the time of the commence-
ment of this suit the .said defendant's property was not
wholly situated or its business wholly tran.sacted in the said
county of state of
And because the plaintilV further says that at the time of the
commencement of this suit the said defendant did have prop-
erty situated in said county of and did by its
oflficers, agents and servants transact business in said county of
and did then have an officer, agent and employee
in said county of upon whom process could be
legally served, to wit, one M. (Conclude to the country)
581 Witness' privilege
To the honorable, the judges of said court.
The motion of , named as the defendant in the
above entitled cause, and appearing specially in this case by
ABATEMENT AND OTHER D1L.\.T011Y PLEAS 20'J
, solely for the purpose of this motion and for no
other i)urpuse whatsoever, and reserving her riglit to exemption
from appearing and answering tliis case and all other rights
whatsoever, resi)eetfully shows:
1. That she is now and has been for the past
years a resident of the District of Columbia, and is not a resi-
dent of the state of Maryland.
2. That on , the day of , 19. .,
there was on trial in tlie circuit court of county,
in the state of Maryhinti, a case of assumpsit, in which
, executor ol tlie estate of , deccaseil, was
pUiintiff, and the said was defendant, which suit
liad been instituted in this honorable court and had been trans-
ferred hence to county, and tlience to the said
circuit court of county.
:i. Tliat on .said day of , 19 . . , .said
left her home in the l)istrict of Columbia and went
directly therefrom to the court house at eity,
county, Maryhind, for the sole purpo.se of attend-
ing at that «'0urt as party defendant and testifying as a witness
at the trial of .said cause.
4. That on the day of 1!).., at about
o'clock, p. m., of tliat chiy wliiK- tlie said circuit court
of county was actually in the trial of the sail I
cause and while she, the said , was iu the actual
presence of the Siiitl court as such party defendant and witnes.s,
and while she was sitting within a few feet of her attorneys
who Were eni:age«l in the conduct on her behalf of the trial of
Riiid case, and waiting to Ik* ealled and swoni to testify as a
witness in such cause, and within minutes of the
time when she actually did take the stand and testified as a
witness in said cause, and while within the state of Maryland,
and in attendance upon said court for this and for no other
|)ur|)Ose, the summons in this case was illegally served upon
lier, the mud in violation of her riehts and privi-
leges JUS a party defendant and a witness in said cause.
5. Said was present in the .state of Maryland
and in the saitl circuit court, at the time and in the place where
it was attempted to serve said summons in this case upon her,
for the fuirpose of testifying iu the said cause then and there on
trial and for no other purpose whatsoever.
6. That said is partially di'af and that she did
not know the sheriff of county, and that because
court was aefually in session in the room where said summons
was .so illecrally served uj>on her. .said sheriff' adilressed her in a
whisper and said was compelled to call the atten-
tion of her coumsel to the fact that she was being so addressed;
that said counsel wns actively engaged in connection with the
trial of said cause and having answered said sheriff that the
210 ANNOTATKD FORMS OF I'LtADlNG AND I'KACTICE
woman he was addressing? was pave no more atten-
tion at the time to said shoritf 's mission, ami said
did not l^now tliat siie had hci-n so illegally served with a sum-
mons to appear in this court at , as a party defend-
ant in a suit whieh sjiid was in this manner
endeavoring to institute against licr until her said attorney
returned to the District of Columbia late in the afternoon of
, the i\i\y of , VJ. ., this defendant
having left said court and liaving left city and
the state of .Maryland before the jury in the cause, the trial
of which she had attended, had returned to the court room
with its verdict.
Wherefore, the premises considered, the said
asserts that as such service was illegally made upon her in vio-
lation of her rights and privileges as a witness, and as a party
del'endant, attending the trial of the case above mentioned,
the same is null and void, and she moves this honorable court
to quash said summons and the return of the sheriff thereon,
and to order the plaintilY to j^ay the ccxsts in this ease.
Attorney appearing si)ecially as above set forth. "^
(Verification as in Section 501)
A US ire r
To the honorable judges of said court.
This answer of , executor, to the motion of the
defendant, to quash the summons and return
in this case respectfully siiows:
1. In answer to the first paragraj^h of said motion, the i>lain-
tiff admits the allegations of the s;ime.
2. The plaintitt' admits the allegations of the second para-
graph of the same.
3. The plaintiff neither admits nor denies the allegations of
the third paragraph of the same, except that the plaintiff denies
that said defendant was at said trial on , 1!). .,
for the purpose of testifying as a witness.
4. That the plaintiff admits that on the day of
19. ., at about o'clock, p. m. of that day, while said
court of county was actually in the trial of the said
cause and while she the said , was in the actual
presence of said court as party defendant the said summons in
this case was served on her, but the plaintiff denies all the other
allegations of paragraph four and especially that the said
was attending said court as a witness.
5. The plaintiff again denies the allegations of the fifth
TTljons: V. Hawken, 79 All. 190
(Md. 1911).
ABATEMENT AND OTHER DILATORY PLEAS 211
paragraph and says that the defendant was not present at the
said trial for the purpose of testifying in said cause and for no
other purpose whatever.
6. The plaintiff denies all the allegations of paragraph six
of said motion, and in further answer to said paragraph says
that on , rJ . . , , the sheriff of
county, ^laryland, served the summons in this
case on the defendant; that when said slierift" proceeded to
serve said suinmoriS lie approached said dcft-ndant and tokl her
who he was and read to her in full the contents of said sum-
mons; that when he approached her to serve said summons
she was sitting on a chair and he came up hehind her and leaned
over to her and spoke to her when she turned partly around on
her chair, and tlicn that the relative positions tlius occupied l\v
Kind defendant and tlie said slieriff. brought the slieriff's mouth
near to the ear of the defendant and juit the summons as nearly
to her eyes as to the eyes of the sheriff, and tliat tlie slieriff" so
held the summons while he read it to the defendant, and that
while he was rea<ling it to her she was also looking at tlie sum-
mons; that he read it to her in a voice considerably above a
whisper and that she a[)peared to him to be both hearinir what
he was readinir and reading the summons herself; that sIk^ did
not tell him, nor in any other way indicate to him, that she did
not hear or umierstand what he was reading but on the contrary,
she listened attentively until he had fully completed reading the
Kununons, when she, the defendant, called one , her
attorney, and the said then and there while in the
j)resence of siiid took tin; summons in his own
hand and read it and then handed it back to tlu; said sheriff of
county ; that in about a from the time
he so Served said summons on said 19. ., the said
went over to where the said sheriff' was sitting
at his desk in the court room and said, sheriff let me see that
summons again, and that the sheriff again gave it to the said
wh'» ii-j'd'm looked at it, and that the said
did not thereafter at any time ask the sheriff to see said
summons.
7. An<l in further answer to said motion the plaintiff says,
that said ease on trial at siiid time in said county
court was brought to recover the identical sum of money sought
to be recovered in the present case, as well as a certain other
sum sued for and recovered in said case so tried in
court ; that the sum souf;ht to be recovered in this case and
which was. as above stated, sought to be recovered in said trial
in said case tried in county, is upon a paper writ-
ing, which paper writing was in the possession of the defendant,
and which she refused at the time said suit tried in
county was instituted to deliver up to the plaintiff or to tell the
plaintiff whether said paper writing was a simple promissory
212 ANNOTATED FORMS OP PLEADING AND PRACTICE
note or a writing obligatory; that the plaintiff, at the time said
suit tried in county wan instituted, did not know
wiiether sai<l paper writing was under sral and tln-refore sued
in assumpsit; that at s;iiti trial when s<iid pai)er writing was
produced it was diseovend tiuit it was under wal and tlu-refore
the recovery of siiid sum due on said pa{)er writing in saul trial
in the county court aforesaid was abandoned
and this pending suit is an action in debt to recover said sum of
money; that tiiis suit is to recover the same sum of money
sought to be recovered in said suit in county, in
which the (hdiiidant ditrs not deny that she was legally sum-
moned, and as the suit in county had to be aban-
doned as to that stun of nu)ney now sought to be recovered in
this suit because of knowh-tlge in the defendant's possession,
which knowledge she wrongfully refused to impart to the plain-
tilT and wlii<h p.iprr writrnir she wron^'fully withheld from the
j)lairititT, she oii^hl not to be heard to complain in the premises,
and the plaint ilT asks that her said motion be dismissed.
Kespeclfully sulniiitft-d.
Attorneys for plaintiflf.
State of ^laryland,
<'ouiily. to wit :
I hereb\' certify that on this day of ,
10. ., before me. the subscril>er, a notary pui)lic of the state of
Maryland, in and for county, personally appeared
exeiMitor. plaiTitifT in the above entitled cause,
and made oath in due form of law that the matters and facts
set forth in the aforegoing writing and answer are true as
therein set forth to the best of his knowledge, information and
belief.
In testimony whereof 1 hiwc hereunto sot my hand aiul affixed
my notarial seal this day of , 19. .
Notary Public.
Order
Upon the application of attorney for
, named as defendant in the above entitled cause, it is
ordered this day of , 19, ., by the
court for county, that the motion filed in said
cause by to quash the summons therein and the
return thereon be and the same is hereby set down for hearing
on the day of 19 . . , at o 'clock
. . m. with leave to both parties to take such testimony at the
hearing as they may desire ; provided that a copy of this order
be served on the said or his attorney, on or be-
fore the day of , 19 . .
ABATEMENT AND OTHER DILATOKY PLEAS 213
ABATEMENT OF THE WRIT
582 Nature of plea
A plea in abatement of the writ is meritorious, and is not
regarded with the same strictness as is a plea to the jurisdic-
tion of the court.^*
583 Requisites of plea generally
A ph*a in abatement must give a better writ or declaration^®
Rut this rt'Muirt'iiu'nt has no application to a plea which shows
a condition of farts under whieh no court in the state has
jurisdiction.*" A pica in abatement to the writ by a corpora-
tion must be signed by its attorney.*^
584 False return, waiver, plea, practice
At common law tho remedy for a false return is by an action
against the officer who made the return.'*- In Illinois the retni-n
of an oftlcrr, on original process, is merely itiima facie evidence
of matters therein stated, and it may be put in issue, before
judgment, by plea in abatement.*^ A default which lias been
entered upon a false return may be set aside on motion promptly
made.*'* After judgment, except in cases of default, a false
return is not impeachable.** The defen.se of false return of
process is waivable by a domestic or a foreign cori)oration ; *^
and if the «Iefense is sought to be interpo.sed, it should be done
by plea in abatement, and not by motion.*^
585 False return, plea, requisites
I'nder the present statute of Illinois, a plea in abatement
which raises an issue on the right to serve any other person than
7» Ilumphr.-v v. I'hiI!i|.H. ."7 111. «2 Sibert v. Thorp, 77 111. 43,
13.5; (.'nmpholi v. Ilii.hon. lOfi Mich. 44 (187.'*); Ryan v. Lander, 89 111.
523. ."Sli? (l**l».">); Italian Swiss Ag- 554 (1878).
ricultural Colony v. IVa-se. 11'4 III. m Sibert v. Thorp, 77 111. 40;
9S 100 (1901).' Watcrbury National Bank v. Reed,
7» Chicago & Pacific R. Co. v. 231111.240,250(1907).
MunRcr. 78 111. 300. 301 (1875); «* Waterbury National Bank v.
Locomotive Fireincn v. Cramer, 60 Reed. 231 III. 251.
Ill App. 212; anirTnod 104 III. 9. hs Watcrbury National Bank v.
«o Deatri.k v. State Life Ins. Co., Reed, 231 111. 2.50.
107 Va. 611, 612. ""Mineral Point R. Co. v. Keep,
•> locomotive Firemen v. Cramer. 22 III. 16.
164 111. 14. "^ Mineral Point R. (3o. v. Keep,
1514 ANNOTATED FORMS OK PLEADING AND I'KACTICE
the presidt'nt of the dcfi'iidant company, sliould merely con-
tradict, by proper avenueiits, the return that the president
could not be found in the county at the time ol' service.^"* Prior
to this statute, it was necessary to show that the president of
the company did not reside in the county, or that he waa
absent. *♦" A plea in abatement which attempts to raise the
question of service upon a corjionition is defective if the pica
merely states that the president was in the county at the time
the pretended service was nuide upon another oHicer of the
corporation witiiout showinfj where the sherilT could have found
the president in the county."" The averment in a plea of abate-
ment to the writ liv a corporation that summons was not served
ui)on it, is material. °'
586 False return, plea, form
Now comes attorney in fact for the
and limiting his appearance for the sole purpose of filing this
plea to the writ or summons herein and return of tiie sheriff
thereon, and for no otiier purpose whatever, and defends, when,
etc., and says that the writ or summons herein was never served
on the ; and furtlier tliat the return on the back of
said writ or summons of tiie i)retcnded and alleged service pur-
porting to liave been made on the said , on the
day of , in. ., is wholly untriic and
false; that the siiid upon whom such pretended
and alleged service of said writ or summons was had was not
at the time of said alleged and jirctcnded service on the
Jay of 1ft. .. and has not since that time been
and is not now the agent of the said for the pur-
pose of accepting service of summons or for any other purpo.se
as is set forth in the return of the sheriff on the back of said
writ or summons; and this the said as attorney
in fact for said is ready to verify; wherefore he
prays judgment of the said writ or summons and the return
thereon by the sheritf. and that the same may be quashed, etc.
Attorney in fact for the company.
22 111. 17; Union National Bank R. Co. v. Dorsey, 47 HI. 288, 289
V. First National Bank. 90 111. 5G (1868).
Q878) y<> Chicago Sectional Electric Un-
as Chicago Sectional Electric Un- derjrround Co. v. Congdon Brake
derground Co. v. Congdon Brake Shoe Mfg. Co., Ill 111. 314, 315.
Shoe Mfg. Co., 111. 111. 309. 314 f>i Locomotive Firemen v. Cramer,
(1884) ; Sec. 8, Practice act 1907. 164 111. 14.
89 St. Louis, Alton & Terre Haute
ABATEMENT AND OTllElt DlLATUKY I'LEAS 215
(Venue)
, being first duly sworn upon his oath, deposes
and says that he is the duly authorized attorney in fact of the
company for the purpose of filing the plea hereto
annexed; that as such attorney he is authorized and empow-
ered to enter and file the same ; and that the plea hereto annexed
is true in substance and in fact.
Subscribed, etc.
587 Misjoinder and nonjoinder of parties
Tlie ijii.sjoinder or nonjoinder oi' i)roper plaintiffs in ex con-
tractu actions may be pleaded in abatement, or the objection
may be raised under the general issue."- The nonjoinder of
publicly known partners is pleailable in abatement, unless the
nonjoinder appears on the face of the declaration."^ The non-
joinder of dormant or secret partners cannot be pleaded in
abatement where the plaintitT has no notice of their existence."*
In IX delicto actions brouj^'ht for the recovery of damages as
distinguished from the recovery of specific property, the non-
joinder of one or more joint owners of the property lost or
destroyed can be taken advantage of only by plea in abatement."^
Hut the nonjoinder or misjoinder of parties defendant is not
available as matter of abatement in actions ex delicto, nor can
advantage be taken in any other way, except where the liability
of a dt-feiidant ^'rows out of ownership of real estate held
jointly or in common with others, and where the nature of the
\\rong is such as that it cannot be committed by more than one
person and two or more are charged with the offense."'^
588 Misnomer, waiver, practice
The misnomer of a plaintitT or of a defendant who is the
real party in interest and the person intended to be sued, whether
he be an individual or a corporation, must be pleaded in abate-
ment : the defense is waived if not so pleaded."^ This rule
•JSnell V DeLand, 4.1 111. 323, (18.56) ; Sinsheimer v. Skinner Mfg.
32.5, 326 riSfiT): So<'. 53. Practice Co., 165 111. 116. 123 (1897).
a«-t (1911 Hurd'8 Stat., y. 1775); »* Goggin v. O'Donnell, 62 111.
Piischel V. Hoover, 16. 111. 340 67.
(1854) overruled: f'miiminsrs v. os Johnson v. Richardson. 1/ 111.
People. .50 111. 132. 134 ri869) ; 302, .304 (1855).
Brooks V. Mclntrre, 4 Mich. .'516, »« Tandrup v. Sampsell, 234 111.
318 (1856). ' 526, .530 (1908V
•3 Page V Brant, 18 111. 37. 38 »' Hermann v. Biitlrr. 59 111. 225,
21 G ANNOTATED FORMS OP PLEADING AND PRACTICE
applies to adults and infants, and also to ex delicto actions.""
The want of capacity to sue is not the same as misnomer, it is
not waived by a i'uilure to plead in ahatement, and it may be
shown under a plea of nul tiil corporation."" A mistake in the
plaintiff's or the defendant's Christian name must also be
pleaded in abatement.*'*'^ A misnomer of the plaintitT cannot
be taken advantapre of by motion.^*^'
589 Misnomer, plea, requisites
A i)lea in abatement for misnomer must not use the word
"defendant" or "said," or any otlier word or words that would
amount to an admission that the person pleading is the person
who is being sued.'"-
590 Misnomer, plea, form (District of Columbia)
Now comes the saiil , by his attorneys ,
against whom the siiid hath tiled the declaration
by the name of and says that he is named and
called by the name of and l)y that name and sur-
name hath always been hitherto called and known; without this,
that he, the said now is, or ever was, named or
called, or known by the name of a-s in the said
declaration supposed. And this he. the said is
ready to verify. Wherefore, he prays judgment of the siiid
declaration and that the same may be (juasiied.
By
his attorney.
(Venue)
, being duly swoni upon oath deposes and says
that he is the attorney for , sued as ,
and that the plea annexed hereto is true in substance and in
fact.
Subscribed, etc.
227 (1871); African M. E. Cliurch 09 Marsh v. Astoria Lodge, 27 111.
V. McGriuler, 73 111. 516 (1874); 421,425 (1862).
Pennsylvania Co. v. Sloan, 125 111. loo Salisbury v. Gillett, 2 Scam.
72. 77 (1888); People v. O'Connor, 290. 291 (1840); Davis v. Taylor,
239 111. 272, 277 (1909). 41 111. 405, 408 (1866)
98 Pond V. Ennis. 69 111. 341, 344 loi Watson v. Watson, 47 Mich.
(1873); Guinard v. Heysinger. 15 427,429 (1882).
Ill 288 289 (1853); First National 102 Feasler v. Schriever, 68 III.
Bank V. Jaggers, 31 Md. 38, 47 322, 323 (1873).
(1869); Chicago & Alton R. Co. v.
Heinrich, 157 111. 388, 393 (1895).
ABATEMENT AND OTHEK DILATORY PLEAS 217
591 Misnomer, replication
It is appropriate to reply to a plea of misnomer that the
party is known as well by one name as by another, even where
thi' Christian or given name is made up of initials alone.i"^
592 Nul tiel corporation, defendant, practice
A pWa denying that the plaintiff is now or ever has been a
corporation is a plea in bar, as the sustaining of such a plea
defeats the action; but a plea denying that the defendant is
now or ever has bet-'U a corporation is a plea in abatement,
because it must give the plaintiff a better writ by pointing out
to him the defendant's true character.!'^* A plea in abatement
is therefore appropriate to raise the question whether the defend-
ant is a corimration.'"^' A plea nul tiil corporation defendant
must be pleaded separately and before pleading to the merits.
Such a plea cannot be pleaded with the general issue.'"« This
class of pleas must give the plaintitV a better writ by pointing
out to him its true character.'*^'
593 Variance, motion, nature
A motion to dismiss the suit on account of variance between
the writ and the declaration is in the nature of a plea in abate-
ment,'"* and is appropriate if the defect appears on the face
of the pap«'rs.>*'"
594 Variance, plea, form
The defendant, by its attorneys, comes and craves oyer of the
writ in this cause, and it is read to him in these words, to wit:
(Set forth writ) ; which being read and heard, the said defend-
ant prays judgment of the said writ and declaration, and says
that there is a variance between the said writ and the declara-
tion, herein in this particular, that is to say, in the said writ, it is
said that the sheriff of county is commanded to sum-
mon , a director of of Vir<,Mnia, to
answer and , partners, trading as
los Lucas V. Farrin^on, 21 111. '"^ Keokuk & Hamilton Bridge Co.
31, 32 (1S.")8). '^■- ^Vctzcl. supra.
10* Kpokuk & Ilamilton Bridge Co. '"« Schoonhoven v. Gott, 20 111.
V. Wetzel. 2-:s 111. 253. 2r).'5 (1907). 48.
105 Ameriran Kxpresa Co. v. Hag- io» Windett v. HamUton, 52 lU.
gard. 37 111. 40.-. 470 (1HH.=3). 180, 183 (1869).
»o« Keokuk & Hamilton Bridge Co.
V. Wetzel, 228 HI. 2.5.5.
«««««««.««.«» fur tlu» t ....««., of A pit** of trx'w-
pMtt on th<f f«sx\ ui iuv-.. . 'I iiii.ii'.vH vK>Utir«.
Aiui ui the sAivl vl«vl{»r«Uo« ton >» saiii writ, it ui v'om-
' ! Ou» ^'i * ••, H wr|H»rtttuni. tho
•ti •MontHMU'*^ in *Hit< \l 1, hics not krpt with
Uu - '*'".
uf ^ - thorx' »s H m»uiU'«t
variaiuv ,v .*v .., »4»ul iitvl«r«tioa. in
tho jvirtiovilar . l^nt prdNs juvl|:iuont of
tho writ ami vuw.uav.ou ;i-,>rvNi :. anvl that tho Siuuo U*
Wv^ LcvNv ;\ud rules grovernin^
tjii; . l»v vlivlura-
596 Ab.^toiv.out by death, uou ;iurvmag action, plea
Ami administratrix ot" tho I'Stato of do«
cw^s^hI. vH>nuvs and dofo»»dsk etc.. whoiu eto.. and prays jndijinent
ofthowrU • ■ ■ . • ' . ' -^ ys that sub-
s^Hiuont to ^ - dovlaration
montionevi. to wu, ou li>. ,, tiio said
departed this UlV at in said oounty and state;
and he further says that the alle>r\\l eaus»^ of action in said
dtvUratkui mentiontsl do not survive the dts»th of the said . . . .
; and tills the said adininisiratri!. is n»ady to verify ;
wherx^forx* he prays • ^ I writ and dtvlara-
tion therx\>u fouudt\l ai - > U> iiuacshod. eto.»>*
AdministnUrix of the estate of , dtveas^'d.
^Veritieation'^
t8T Abatement by statute, petition
The defendants, and exeeutors of
dewaset!. movtf the eourt that the aK>ve entitled
suit be deelarevl to K» al^ttnl and disniisstxl. and that judgment
be entered foar defeiulants for the following rt\Hsous:
»w$^mitk J^ Msrsb v, Xortb^rn »»i HsW v. Kent r.rv • t Jiul^,
N*^k Mut. Kiw AssV 70 S. E, 99 Mkh. iU5, 2 IT OSiH>.
4>;i ^Va. 1911). »»*Joiwsv. Baruiiu. 217 111. 3S1.
AHArK14y,:i; MiU t/tttkU hU.Alfrt('t M,K.AM 21^
"J!
4t
A
Hi
A
.A
Or>Ur
I in h^:r<.i/^ Ai,^lf.fi an/1 diHmtmf'i
6M Bankmptef, waiver, pleading:
The 'l<'f»'n«*r of ^/ftriknj; aM*r,"« and if a rliacharf^e
in h«f»knjpt/ry i#t ly
lA»'inif>l ' •'• A fi . -re
of a itlfh in ahat«'m«;rit antJ muat coni^lud^: a« »uf:h,"*
609 Bankruptcy, motion
V'»w z'orr)'^ th*- a^l'/Vf• nam^d (Ifff-wls^nt . . . . arnl
f 'Or y.ii orrU-T »Utylni( th*; prfM'.f.f,(imffn in the
;i ■ ,v.
'Ihm rnotjofi u bait/-fl ufKiri an hff. of C'onjfn**, frntitl^-d "An
nM ht »-ntaK!i4h a uniform Kyut'-m of f - i- • • '"^ - , ijrhont the
f ftjt. M St,i(.^," fUHi-tt'i\ July Int. 1- and alao
ij[>'*n a ' • ' ■' jj/ i\if.
ait'tv*' n;t rna/Je
upon fh»r , . liay of , ]'.f.., in a rnattfrr
p'-n'linjf in th*» fli^trir-t fourt of ffi«r T'nit/v] Sfat^ru for thf:
. diatrirrt of MichittHn diviaif/n in hank-
n» p^t^florf AiUi Ot. v. Fi^-M, ttr.hjrfrn v. Virnt N'ational hank,
IM Vf f l«^7 M!*!!). ^ir^ ril 42.1.
"♦Tn^^r ». f>«/novan, 1.V5 Mi^b. "'«nii<>a(fO & .Vorthw«it./^m ky.
«'' '•'- I'VK*, ^^ ■' ' -kian, idZ III. 5^3.
220 ANNOTATED FORMS OF PLELVDING AND I'RACTICE
ruptcy, cntitleil " In the matter of the petition of
to be adjiulged a i)anknipt," htifto annexi'd ; arui upon the
tiles and records in this cause.
Dated, etc.
(Attach certified copy of order of adjudieation and reference;
also notice of the motion and atlidavit of service.)
600 Bankruptcy, petition
To the circuit court for the county of
Your petitioner, respectfully represents:
1. Tiuit he is the defendant in the above entitled cause.
2. That on the day of , 11> . . , he filed a
petition in bankruptcy in the I'nited States district court, for the
district of Miehi^'an, division, and
on the day of , ID. ., he was adjudicated
bankrupt by said court.
13. That the claim set uj) by the plaintiff in this cause, is one
from which he is entitled to a release in bankruptcy if a final dis-
charge be granted him i)y the i'nited States district court.
lie therefore prays tliat an order Im- entered by this court
staying all proceedings in this cause until the final determination
of the bankruptcy proceedings in «iid United States district
court.
This motion is based on the files and records of this court,
and of the aiiidavit of hereto attached.
By
his attorney,
(Venue)
. , being duly sworn, says that he is attorney for
the defendant in the above entitled cause, that on the .... day
of , 19. .. he filed for said defendant, a petition
in bankruptcy in the United States district court for the
district of Michigan division. That
among the claims listed by saiil bankrupt, for which he asked
a discharge in bankruptcy, was the claim of the plaintilT in this
cause. That on the day of , 19- •, the said de-
fendant was adjudicated a bankrupt.
Subscribed, etc.
Order
In the above cause it appearing from the petition filed by said
defendant that he has filed a petition in bankruptcy in the
United States district court for the district of
Michigan division, and that the claim of the
said plaintiii in this suit is listed in the claims from which the
ABATEMENT AND OTHER DILATORY PLEAS 221
said defendant asks a discharge in }>ankrnptcy, and the said
proceedings in bankruptcy being still pending;
It is therefore ordered that all proceedings in this cause be
and they are hereby stayed until the linal determination of the
bankruptcy proceedings in the said L'nited .States district court.
Circuit Judge.
Notice
To attorney for plaintiff.
Please take notice that the said defendant will, on the trial of
this eau.s«* insist ui)on and give in evidence, under the plea of the
general issue by him heretofore pleaded in this cause, that after
tile said plea was by him pleaded, and before this day, to wit,
on the day of , 19, ., a petition in
bankruptcy was Hied in the United States district court for the
district of Michigan division, by
the said defendant, and that the claim of the plaintiff in this
ca.se. was one of the debts li.sted by the said defendant in said
petition, and from which he asked a di.scharge in bankruptcy.
That on the day of , 10. ., a final
order was entered in said bankruptcy proceeding, discharging
the .said petitioner, the defendant in this ca.se, from all debts
provable under the Bankruptcy acts, including the claim of the
plaiutitT in this suit: all of which the said defendant will give
in evidence on the trial of this cause, as aforesaid, and insist
upon in his «lefeiLse; wherefore the wild plaintiff ought not
further to maintain his said action against the said defendant.
Dated, etc.
601 Bankruptcy, plea
And for a further plea in this behalf, the defendant says
that after making the several supposed promi.ses in the said
amended declaration and each count thereof mentioned, and
before the commencement of this suit, to wit, on the
day of , 19- •, the district court of the United States
of America for the district of ,
granted to the defendant a certain discharge in these words
and figures, to wit: (Insert certified copy of discharge.)
And the defendant further says that the said supposed causes
of action in said declaration mentioned are in respect of debts
and claims, and each of them is in respect of a debt and claim
by the said aet of Congress made provable against the estate of
the defendant, which existed on the .siiid day of ....
, 19. ., and that the said supposed causes of action
are not, nor is any one of them in respect of any .such debts
or debt, as are or is by the said act excepted from the operation
of a discharge in bankruptcy.
Wherefore, etc.
222 ANNOTATED FORMS OP 1'LE.VDINO AND PRACTICE
602 Bankruptcy; plea puis darrein continuance
And now this day, to wit, the day of ,
19.., until whieli ilay tliis said cause was continued, comes
the defendant, hy his attorney, hy leave of court (irst had and
olitiiint d in this behalf, and fur a further phii herein says: that
the plaintilTs ou},'ht not further to have or maintain tlieir aforc-
8iiid action a^^'ainst him, the ilefeiulant, heeau.se he says that
after tiie last pleading' in tids cans*-, to wit, on the day
of , I'J. ., ami bi'fore this day, to wit, on the
day of , !!>.., this defendant was, and
had been continuously during the six months next immediately
preceding; .said day of , llL ., a natural
person anil an actual resident of the county of ,
and state of in the district of
, division tiiereof ; that on the h.st day and
date mentioneil aforesaid this defendant was, under the acts of
Conjjress of 18l>8 rclatint? to bankruptcy and as amendi'd I'ebru-
ary 5, I'JO'.i, duly adjudicated a voluntary bankrupt by
and in the district c«)urt of the Cnitecl States of America for
the district of ,
division ; that afterwards, to wit, on the day of
, 11). ., the said tlistrict court of the liuted States
of America for the district of ,
division thereof, ;;rantcd to this defendant a cer-
tain discharge in these wonls and figures, to wit: (Insert copy
of discharge.)
And the defendant fuither says th:it tiie several supposed
pronnst's, undcrtakiinrs and cau.sj's of aetion in saiil declaration
mentioned arc in respect of de})ts and claims, and each of tlu'ui
is in res]icct of a debt and claim by the said acts of Congress
as amended made provable against the estate of this defendant,
and which existed on the sjud day of
ID.., and the said sui)f)osed causes of action are not, nor
are any. nor is any one or I'ither of them in respect of any su<h
debt or debts as are or is by the said acts exempt from the opera-
tions of and discharge in bankruptey. AVherefore, etc.
(Verification)
Replication
Prccludi )wn, because they say that the debt upon which the
cause of action in said declaration mentioned is based was
created by fraud, misrepresentation and false pretenses of the
defendant in that the defendant tlid, on or about tlie
day of , 10. ., falsely and fraudulently repre-
sent in writing to the plaintiffs that he was the owner of. and ha:l
in his possession on his farm in township. ....
county, , (Describe property) and that they
were of sufficient value to secure an indebtedness of $. . . . ; that
ABATEMENT AND OTHER DIL-VTOKY PLEAS 223
the plaintilTs then and there, relying upon his said represen-
tations, {i;ave him credit for said sum and then and there released
and parted with the lien of a certain chattel mortgage securing
the payment to the plaintiffs of $ , and took for security
for the debt herein sued upon a certain other chattel mortgage
ujion the same (Describe property) above described; that the
saiil representations so matle in writing as aforesiiid by the
defendant were false and fraudulent and then and there known
to the defendant to be so, and at that time said defendant was
not the owner of (Describe property), or any part thereof,
and did not possess the same at the place aforesaid; that the
defenilant, well knowing that his siiid representations were
false and fraudulent, executed then and there a certain chat-
tel mortgage conveying to the plaintilfs the said supposed (De-
Bcribe property) aforesaid, for the purpose of securing the pay-
ment of a certain note by him then and there execiUe.l, in the
sum of $ und he then and there delivered siiiil ehattel
mortgage and wiid note to these plaintitTs and thereby obtained
from them a credit of the sum of $ , and also procured
the release' liy the plaintitTs of a certain other ehattel mortgage
on certain cattle se-uring to the plaintiff's the i)ayment of
$ : and that the defendant then aiid there, at the time
of making said false and fratidiilent representations and
executing sai<l chattel mortgage and n(»te. well knew that he
did not own (Describe prop.rty), or any part thereof, and he
nmde said false and fraudiilent repp'sentations then and there
with the intent to defrau«l the plaintitTs of the said debt and sum
of $ with interest thereon, which sn'ul debt is the same
debt declared upon in the declaration herein; and this, etc.
Ilcjoindcr
And the defendant as to the replication of the plaintitTs to
the special plea of the (lelendant says that the i)laintitVs ought
not by reason of anything by them in that replication alh'ged,
to further have or maintain their aforesaid action thereof
against him, the defendant, because he siiys that the debt upon
which the cause of action in (and declaration mentioned is
based was not created by fraud. niisrei)resentation and false
pretenses of the defendant; nor did the defendant on or about
the day of , If). .. falsely and fraudu-
lently represent in writing to the plaintiffs that he was the
owner of, and had in his j)ossession on his farm in
township, county, , (Describe
property) and that they were of sufficient value to secure an in-
debtedness of $ ; nor did said i)laintiffs on said date rely
upon defendant's representations and give him credit for said
sum. and then and there release an<l part with the lien of a cer-
tain chattel morfga^re securing the payment to plaintiffs of
$ and take for security for the debt herein sued upon a
224 ANNOTATED FOKMS OF I'LILVDINO AND 1'R.VCTICE
certain other chattel mortgage upon the (Describe property)
above desfribetl ; nor were the represeiitationH lutule in writiut?
by ciefendant liereinahove nientiuned by plaintitTii laUe and
liaiidulent and i<no\vn to be ho by the delendaut, because he, tlie
defeiuhmt, was the owner ot (Describe property) at the time
and place mentioned in phiintitTs' replication herein; nor did
defendant execute and lieliver to phiintitTs a chattel mortgage
conveying to i)hiintilVs .saiii ( Descrilie prctperty ) lor the purpoHc
of securing: tlie pnyinent of a certain not*-, well knowing that liis
representations were false and framlulent, thereby oi)taining
from said plaintitVs credit in the sum of $ and pn)curing
a release by phiintitTs of a certain other chattel mortgage on
certain cattle, securing to phiintitTs the payment of $ nor
did defendaid make false and fraudulent representations with
the intent to defraud the phiintitTs of sjiid debt and the sum
of $ with interest thereon; an<l tlu* defi'iidant denies all
and every of the allegations in phiintitTs' sjiid replication as to
fraud, misrepresentations ami false pretenses: and of this the
defendant puts himself uiion the country, etc.
Attorney for defendant.
Verdict
We. the jury, find the defendant not guilty on the i.ssue of
fraud.
603 Extension of performance, plea, requisites
A plea which relies upon the plaintiff's postponement of per-
formance of a contract must aver the defendant's consent to
the same.^^'
604 Further maintenance of the action, plea, requisites
Any matter that arises after the commencement of a suit
and before plea, must be pleaded to the further maintenance
of the action ; any matter that arises after plea, and before
replication, or after issue joined, whether of law or of fact,
must be pleaded puis darrein confinuafwc.'^'^^ A judgment
recovered in another state on the same cause of action between
the same parties may be set up in bar of the further main-
tenance of another suit retrardless of which suit was first com-
menced, provided the judgment has been paid; but not other-
iiTHoereth v. Franklin Mill Co., us Mount v. Scholes, 120 111. 301.
30 111. 151, 158 (1863). 399 (1887).
ABATEMENT AND uTIlt-H DILATOKV PLEAd 225
wise."® Great strictness is re<iiiired in framing pleas to the
further maintenance of the action by reason of their tendency
to dehiy the i)ro(eedings. They should be veritied by ai!idavit.^-<^
G05 Partnership, plea
And the said , in his own proper person, comes
and defends, etc., and says that before and at the time of the
eommenceinent of the said action of saiti against
him. the Siiid and the siiid were.
and for the purpost^" of settling up and di.s.solving their copart-
nersliip busine.ss still are, copartners aiul as such were, and still
for siiiil purpose are, enf^aged in the hotel business in the city
of ; that the said cause of action above specified
aros»' out of and rehites to siiid copartnership business and that
.said indebtedness, if any exists between Siiid parties, is solely
ami only relateil to said eopartnersliip busine.ss; and that the
siiid is not indebted to siiid on any
other account whatever, and that the Siiiil items of indebtedness,
if any exist In-tween said parti»'S, are involved in the partner-
ship accounts of .said parties ami are of smh a nature as can
oidy In- fairly adjudicated upon a full acc<tunting between said
parties ami by a court of ecpiity ; an<l that no such accounting
luiH never been had betwe»'n said copartners; and that s<ud
copartnership busine.ss is still unsettled and siiid copartnership
for said purpose is undissolved ; antl this the said
is ready to verify.
Wherefore, the sai«l prays judgment of said writ
and that tlie same may be quashed, etc.'-'
Replication
And the plaintiff says that the .said writ, by reason of any-
thim: by the defendant in his saiti plea above allet;ed. ought
not to be quashed. Ix'cau.se he .says that at the time of the com-
mencement of said action, the said and the
said were not, and are not now, for the purpose
of settling up and dissolving their copartnership bu.sinoss, or for
any other purpose, copartners, and are not now, as such copart-
ners, for said purpose, engjigcd in the business
in the city of ; and that the said indebtedness is
a separate and distinct debt, separate and apart from any part-
nership relations between the said and the said
; that the said indebtedness is not involved in
the partnership accounts of the siiid parties, and is not of such
J>» T>anca.««hire Ins. Co. v. Cramer, 120 Mount v. Scholes, supra.
Ifi.T 111. fiOO; Bowno v. Jov, 9 Johns, 121 Hartzell v. Murray, 224 111.
221 (N. Y. 1812) ; Gallagher v. Dur- 377.
kin, 12 Johns 99, 101 (1815).
226 ANNOTATED FOKMS OF PLE.VD1NG AND PRACTICE
a nature as pould only ho fairly adjudicated upon a full account-
ing between sjiid parties and by a court of ecpiity ; that such
accounting between said copartners lias been bad and that said
copartnership business is i'uUy settled and said coi)artiirrship ig
dissolved. (Conclude to the country)
606 Pendency of another suit, pleading discontinuance
The commencement of two suits at the same time, for the
same cause of action is deemed to be vexatious, oppressive and
a palpable abuse of process, and to mutually abate each otlier,
unless good faith is shown in the coininencement of the second
suit by discontinuing the first before the defendant is called
upon to plead in tlu* second, so that he is not unnecessarily
harassed by the defense of the two suits at the same time.'--
In ordinary actions, a suit pending in one state is not pleadable
in abatement of another suit brought in a different state be-
tween the same parties on the same cause of action,'-^ The
defense that another suit is pending in the state between the
same parties on the same cause of action must be specially
pleaded in abatement by verified plea; it is not available under
the general issue and notice.*-^ This rule is ai)plieabl»' to the
pendency of a garnishment suit under a statutory prohibition
against the bringing of another action during such pendeney.'-'*
A plea of a pending action is a plea in abatement and must be
pleaded before any other pleadings, motions or steps taken in
the proceeding.' '^^ An abatement of a second suit or pro-
ceeding may be defeated by replying a discontinuance or a dis-
missal of the first suit or proceeding after the commencement
of the second.^-^
607 Pendency of another suit, plea, requisites
A plea in abatement of another suit pending should set forth
the declaration of the first action, or it should refer to it in
appropriate manner.i^s The continued pendency of the first
122 Wales V. Jones, 1 Mich. 254, Near v. Mitchell, 23 Mich. 382, 383
256 (1849). (1871).
123 Lancashire Ins. Co. v. Cor- 125 Near v. Mitchell. supra •
betts, 165 111. .592, 600. 605 (1897); (4796). C. L. 1857 (Mich.).
Allen V. Watt, 69 111. 655, 658 120 Lamb v. Chicago, 219 111. 229.
(1873). 234 (1906).
124 Muir V. Kalamazoo Corset Co., 127 Lamb v. Chicago s^upra
155 Mich. 624, 628 (1909); Wilcox 128 Wales v. Jones, 1 Mich. 256.
V. Kassick, 2 Mich. 165, 178 (1851) ;
ABATEMENT AND OTHER DILATORY PLEAS 227
suit must be averred in the plea to show that the second suit
is vexatious.*-''
608 Plena administravit
And the said defendants, by , their attorneys,
coiue and detend the wrong and injury, when, etc., and pray
judgment ot the said writ and declaration, because they say
that the defendants fully complied with all the requirements
of law in the premises, paid off and siitisfied all just and legal
(•laims against the defendants' intestate which were duly fifed
and {)resented and passed l)y the court of
Y ^'ounty, and that they had no notice or knowledge of
the alleged elaim, and that they have no assets out of which
the same could be paid. (Conclude to the country)
'2» Wales V. Jones, tupra.
Cn A I'T K K X VI
GROUNDS IN r.KNFlHAL H
({ 63C
609 Avprnirnts. omlttod or wronj?
610 DoN'ctH, naturo 637
611 Departure, naturo 638
612 Duplicity, practice 63&
613 Kstoppel. practice 640
614 Form of plt-adlnK 641
615 MlHstatenient of facts, prac-
tice
616 Uncertainty, waiver, practice g^o
WAIVER AND ABANDONMENT 643
617 Waiver, presumption ^^*
618 IMeadluK over, allowance
619 Admission ^^^
f.46
617
648
649
650
6.'.1
652
PRACTirE
620 Defective pleading
621 DemurrlnK and pleadlnR
622 Time to demur
623 Leave of court
624 Several demurrtrs unneces-
sary
625 Wlthdrawinp donuirrer. effect
626 Frivolous demurrer, motion
for judgment
DEMl'RRER TO DECLARATION ggg
627 Grounds generally 654
628 General averments 655
629 Good and bad counts
630 Insufficient declaration
631 Measure of damages
632 Misjoinder of plaintiffs
633 Statute of limitations
634 Useless elements
GENERAL DEMURRER
635 Illinois, single count
228
656
657
658
659
660
661
lillnolB, Joint and noveral
counts
IlllnolH. affidavit of merits
IlllnoiH, crrtlllcate of rauM'
IlllnoiH, affidavit nf irood f:ilth
Maryland
West Virginia
SPK* lAL nEMl'RRER
Florida
IlllnoiH, duplicity
Illinois, mlsJolnd(^r of parties
and causes
Illinois, nonjoinder
Illinois, uncertainty
Michigan, demurrer
Michigan, certificate of good
fallh
Mississippi demurrer
Mississippi. certificate of
counsel
Virginia, demurrer
Virginia, grounds of demurrer
OYER
Craving oyer
Craving oyer and demurrer
Craving oyer, order
DEMITRRER TO PLEA
Discontinuance
Grounds generally
General issue, plea amounting
Immaterial issue
Insufficient traverse
Same defense, practice
DEMURRER
229
99
662 District of Columbia
663 Florida, demurrer
6CI Florida, affidavit of good faith
665 Florida, ceriitlcate of counsel
666 IIUdoIh; conclusioa and
prayer, want of
667 Illinois; general grounds
668 Illinois; general issue.
amounting
669 lillnolH; InsufHoient traverse
670 Maryland; demurrers
671 Maryland; Betting hearing
672 Withdrawing pk-a
DEMURRER TO REPLICATION
673 District of Columbia
674 IlllnolB; general demurrer
675 IlllnolB; Hpeclal. departure
£76 Illinois; special, genera!
causes
JOINDER
677 Florida, form
678 IlllnolH. form
679 MlrhlKun, necessity of Joinder
680 Michigan, form
681 Virginia, form
CONSTRUCTION
99
682 Nature and effect
683 Admissions
684 Inferences
CARRYING BACK DEMURRER
685 Rule
686 Application to declaration
687 Application to information
688 Application to plea
689 Motion, necessity
JUDGMENT
690 Necessity of judgment
691 Confefsing and sustaining
demurrer, order
692 Sustaining demurrer, gener-
ally, appeal
693 Sustaining demurrer, judg-
nu'nts
694 Overruling demurrer to dec-
laration, practice
695 Overruling demurrer to dec-
laration. Judgments
696 Overruling demurrer to plea,
nature and effect
697 Withdrawing demurrer, costs
GROUNDS IN GENERAL
609 Averments, omitted or wrong
The omission or the wronf? averment of some fact which is
material to the cause of action or defense can be taken advan-
tage of only by demurrer.^ Thus a declaration in assumpsit
which shows on its face a want of consideration for the contract
constituting the cause of action is subject to a general demurrer.^
610 Defects, nature
A ilif.tt is subject to demurrer although it is not assignable
as error in a reviewing court.'
1 Home Ins. Co. v. Favorite, 46
III. 263. 2fi7 (1867).
JSchwerdt v. Schwerdt. 23.'3 111.
386 (1908).
s Beaubien v. Hamilton, 3 Scam.
213. 315 (1841).
230
ANNOTATKD FORMS OP PIEADINd AND PR-VCTICE
611 Departure, nature
A departurt- in pleadinK is a matter of subutaiiee aiul ground
for general demurrer.*
612 Duplicity, practice
A dtiiiurnr for duplicity must 1h? special, not general;* and
the demurrt-r must .sp«rilieully .state in what the duplicity con-
sists." A party waives the ri^ht to ohjeet on aceounl of ilu-
plicity in a pleading by failing to demur specially.'
613 Estoppel, practice
Matter whi.h op.nites n» an estoppel may hv taken ailvnn-
tuge of by ilemurrer if the matter appeai-s on th.' face of thi'
pleading." If the nuitter of estoppel tloes not so appear, the
proper coui-se is to plea«l the mutter Hpecially."
614 Form of pleading
In Illinois, but not in Florida, a party has a right to interpo.se
a denuirrer to (juestion the form ui a pleatling.'" .\ defect in
form can be reached only by special demurrer." Thus, an
improper conclusion to the declaration is reachable by special
demurrer.*-
615 Misstatement of facts, practice
The misstatement of material facts in a pleading cannot be
reached by demurrer. Tlie proper practice is to show the true
facts by plea.'^
* Tillis V. Livprpool & Lomlon &
Globe Ins. Co., 4G Fla. 2G8. 1277
(1903).
6 FraneT v. Triio. 20 TU. 1S4. ISfi
(1861); Sims v. Kloin, Breese. :W'2
(1829); Annstronp v. Welch, 30 111.
333 337 (1S63); Wilson v, Gilbert.
16l' 111. 49, 53 (1S91?); Cbieafio
West Division Ry. Co. v. Ingraham,
131 111. 659, 665 (1890).
oKipp V. Bell, 86 111. 577, 578
(1S77).
7 Wilson V. Gilbert. 161 111. 52.
R McCarthy v. Alphons L'ustodis
Chimney Construction Co., 219 111.
616, 623 (1906).
• Smith V. Whitakcr, 11 lU. 417
(1849); Mct'arthy v. Alphons ('.s
totli.s Chimney Construction Co., 219
111. 622.
10 Miller V. Blow, 68 111. 304. 308
(1873); Camp & Bros. v. Hall, 39
Fla. .53.'). .568 (1897).
Ji People V. Monroe. 227 111. 604,
612 (1807).
12 Winchester v. Rounds, 55 111.
451. 454 (1870).
13 People V. Harrison, 253 111. 625,
630 (1912).
DEMURRER
231
616 Uncertainty, waiver, practice
Uncertainty in a i)lt'acling must be challenged by special
demurrer;** and it is cured by verdict if not so challenged.**
WAIVER AND ABANDONMENT
617 Waiver, presumption
In Illinois, t-rror in overruling a demurrer is waived by plead-
ing over,'" or by going to trial of a cause upon the merits, by
consent, without joinder in demurrer, and without calling it up
for disfHwition,*^ although no plea be tiled in the case.*** In
Virginia, error in overruling a demurrer is not waived by the
Bubse«|uent pleading of the general issue and going to trial
thereon.*" Rejoining to a replication after a demurrer to it
has iHfn overruled waives the detnurrer and admits the suffi-
ciency of the rt-plication.-" Krror in overruling a demurrer,
which is waived by pleading over, may be saved for review by
a motion for judmneut wn nhsdintt vi ridictu.-^ Substantial
defects in a pUailing which reiid»r it insunicient to sustain a
judgment an- not waived by pleading over.-- It is, therefore,
not necessary to abide by a demurrer to a declaration which
States a defective cause of action to avail of the defect on appeal
or error. Pleading the general issue to such a tleclaration does
not waive the defect. ==* Pleading to the merits after a demurrer
to a plea in abatement has been sustained does not waive the
demurrer.2* The mere tiling of a plea after a demurrer has
»« Brunhild v. Chicajjo Union
Trmrtion Co., 239 III. 021, 623
(1909).
isllinchlifr T. Rudnik. 212 III.
569. 575 (1904).
»«Dickhut V. Durrell. 11 III. 72.
85 (IS49); NoriIn"« v Vrm-Ialia R.
Co.. 242 III. lf.»«. ! . iVoi.le
T. Walkor ()}-tii 1 . 249 III.
106, 109 (1911); < rirni. v. Small.
44 III. 37. 39 (1867): Solhy v.
Hufrhinwn. 4 C.ilm. 319, 328 ( 1847) ;
MrFa.i.l.'n v. Fortior, 20 111. r,u9,
515 (1S5S); Finch & Co. v. Zenith
Furnafe Co., 245 III. 586, 591
(1910); Cirier v. Oil.Bon. 36 111. .'21
(1864); HoimbcrRpr v. Elliot Frojf
* Switch Co., 245 111. 448, 4.-2
(1910).
«^ Hopkins V. Woodward, 7.' III.
62. 64 (1874); Williama v. Baker,
67 III. 238, 240 (1873)
I" Di'vino V. (njii-njTO City Ky. Co.,
237 111. 278, 283 (1908).
»» Huek V. Vame, 112 Va. 28
(1911).
2o lu.tr V. Philips, Brecse, 44
(1822); Wann v. McGoon, 2 Scam.
74, 77 (1839).
3» Amhler v. ^^^lipplc, 139 III. 311,
r.22 (1891); Wood.s v. Hynea, 1
Scam. 103, 105 (18.33).
2iChicairo & .\lton H. Co. v. Clau-
sen, 173 111. 100, 102, 103 (1H98).
23 Chicago. Rock Island & Pacific
Rv. Co. V. People, 217 111. 164, 172
(i905).
2« Wold V. n«M)ard. 11 111. 574
(1850); Locomotive Firemen v.
Cramer. Ifi4 111. 9, 13 (1896); Ban-
gor F\irnace Co. v. Magill, 108 111.
656 (1S84), overruled.
232 ANNOTATED FOKMS OF I'LJ-LVDINO AND PRACTICE
been interposed to the same matter does not constitute u waiver
of the demurrer by the detVudant ; nor is there a waiver of the
demurrer by phiintitV until he joins issue on the pU-a.-* A
demurrer is not waived if there is a joindir in it. Nor will the
waiver of a demurrer be presumed from the mere allegation in
the reeord that issue was joined and parties proeeedeti to trial
before a jury.-*'
618 Pleading over, allowance
A paity may pltad ovn- without first witiulrawin^? a dt'nuir-
rer.-^ A court has no jmwer to pn-vcnt an express waiver of
a demurrer to a deelaration.-'* I'nder Miehi^an praetiee, it is
diseretionary with the trial court to permit or to refuse a party
to plcjitl over after the overrulinj; of his detinirrer. The motion
or application for leave to plead over must be maile promptly
and it should be supported by a showin^f of merits.-"
G19 Admission
The suflicieney of a pleading; is admitted by pleading: over
after a demurrer to it has been overniled.'"' This admission
will not prevent a party from nuikin^; an issue of fact upon
some of the allegations of the demurred pleadinjf.^* Upon the
abandonnu'nt of a denuirrer to a declaration the plaintitT is
put upon proof of the material alle«?atious in it.^*
PRACTICE
620 Defective pleading-
A defective pleadiiiLT caimot be reached by a motion to ex-
elude evidence.''-' A pleadinir which is defective in part, must
be taken advantage of by motion to strike out the irrellevant
and foreign matter.^*
25Edbrooke v. Cooper. 70 111. .".<!•:. 0. 1.1 (1009); Indianapolis & St. L.
583 (1875). R. Co. v. Morgenstern, 106 111. 21H.
26 Nye V. Wright, 2 Scam. 222 221 (1883).
(1840). 31 poople V. Karr, 244 111. 374,
2TNordhau9 v. Vandalia R. Co., 383 (1910); People v. Gary, 196 111.
242 111. 166, 169 (1909). 310, 319 (1902).
28 Hull V. Johnston, 90 HI. 604, ••'2 Russell v. Whiteside, 4 Scam.
(1878). 7 (1842).
20 WvckofF, Seamans & Benedict V. ••?3 Rothschild v. Bruscke, 131 111.
Bishop! 98 Mich. 352. 355 (1S94). 265, 271 (1890).
•■'o Hepler v. People. 226 111. 275, ^* Griffing Bios. Co. v. Winfield,
278 (1907) ; Wolf v. Flowers, 241 lib 53 Fla. 589 (1907).
DEMURRER
233
621 Demurring and plea4ing
In actions at law, it is not permissible to plead and demur
to the san.e malt.r at the same time.=*^ A defendant may demur
to one count and plead to another, because separate counts are
regarded as several declarations.^^ A statute which gives the
rit,'ht to a defendant to plead as many several matters, whether
of law or fact, as he siiall deem necessary, is limited to him
alone, and does not extend to subsequent pleadings or to the
plaint itT. To overcome this inconvenience, the practice has
been established to tirst demur, and upon the overruling of the
de.nurrer, to withdraw it and then to plead or answer. The
omission to withdraw a demurrer to a plea precludes the plain-
tiff from answering and entitles the defendant to judgment,
unless the parties aiul the court have treated the demurrer as
having been wilhdrawn.=*^
622 Time to demur
No demurrer i.s pleadable after pleading a matter of fact,^^
except in Illinois, in a case of a release of errors.^« Nor can a
demurrer »>e interposed after an issue of fact has been made
up; and if a demurrer is thus tiled, it need not be noticed. »
623 Leave of court
Proceeding to trial without a demurrer waives the right to
file it without special leave of court ; and if a demurrer is ira-
properiy tiled, it may be stricken out.-'i
624 Several demurrers unnecessary
It is ^'.,od pra.-tiee, to avoid encumbering the record, to file
a general .lemurrer. where general demurrers are permissible,
and to make it several to each of the counts.^
..Pooplo V. Central I'nion Tel. no Schaeffer v. Ardery, 238 111. 557,
'^^.Z'^: ?':;.^ti;.:^r\le. . ;^oKV. Blane... 10 in. .1.
""^^^.^ i^Oh!:'?^. CO V. Vc^5 V. Norwooa, 106 111. 558,
3» Austin V. Baintor, 40 111. 82, 83
(1866); obviate*! 1>7 Sec. 109, c. ^
110 Rev. Stat. (lU.).
234 ANNOTATED FORMS OK I'LEADINO AND PRACTICE
625 Withdrawing demurrer, efifect
The granting or the refusing of a motion for loavo to with-
draw a deniiirrer and to ph'ad rests in the trial court's disort-
tion.^3 ^ plaintiff may he permitted to withdraw his demurrer
to a plea in abatement and to take issue thereon.** The with-
drawal of the pleading demurred to, under leave of court, also
withdraws the demurrer, even after it has been sustained.*'
626 Frivolous demurrer, motion for judgment
*" And now comes the said plaintiff , by ....
, its attorney, and moves the court that judgment be
entered for the plaintitT on the demurrer of the def»iulant to
said plaintiff's declaration. hasin<,' this motion upon tlie follow-
ing' gi-()iiii(ls, viz.: that the defendant's deiiuirrer is frivolous;
that said demurrer is not l)as<'d upon any grouml that is api)ar-
ent uj>on the face of tlie ileclaration in said cause; and that it is
in i)urpose and effect for delay merely. This motion is also
founded upon the declaration in said cause.
Dated, etc.
Plaintiff's attorney.
DEMURRER TO DECLARATION
627 Grounds generally
A special denuirrcr should present every ground that is ex-
pected to be relied upon appeal in case the demurrer is over-
ruled ; as a reviewing tribunal, in fairness to the trial court,
will not pass upon points which were not urged in that court. *^
All of the objections that are sought to be urged by the special
demurrer must be specifically set forth.*^
628 General averments
An objection to a declaration based upon a generality of
averment can only be made available on demurrer; such an
objection cannot be raised after verdict.^^
*3 Harrington v. Stevens, 26 111. ♦t Keyston Lumber Yard v.
298, 300 (1861). Yazoo & M. V. R. Co., 94 Miss. 192
44Heslep V. Peters. 3 Scam. 45, (1908).
56 (1841), 48 Read v. Walker, 52 111. 333,
<5 George v. Bischoff, 68 111. 236, 335 (1869).
238 (1873). 49Chenoweth v. Burr, 242 111. 312,
46 See Section 211, Note 60. 316 (1909).
DEMURRER 235
629 Good and bad counts
A i^t'uerfil demurrer is improper to a declaration which con-
tains good and had counts; ^" nor to a count which states a dis-
tinct good cause of action and also one that is imperfect.^^ Nor
is a general demurrer good to an entire count which contains
one good assignment of a breach although some of the other
counts or assignment of hreaclies are defective.^- Neither is a
general demurrer good to a declaration which contains common
and special counts.'^^
630 InsufiQcient declaration
TnsufTieiency of n declaration must be urged by demurrer.^*
G31 Measure of damages
TIh' (lUfstion of the measure of damages or the extent of
recovery claimed in a declaration cannot be urged on a general
demurrer.^'^
632 Misjoinder of plaintiffs
A misjoinder of plaintiffs, if it appears on the face of the
record, must be raised by demurrer.^*'
633 Statute of limitations
The defense of the statute of limitations cannot be made
available by demurrer, even where the defense is disclosed by
the declaration itself.*'
634 Useless elements
Useless elements of recover}- contained in a count may be
reached by motion to strike, but not by demurrer.^*
BO Bills V. Stanton, 69 111. 51, 53 R. Co. v. Harwood, 90 111. 425, 427
fl873) (1878).
61 Lu«k V Cook, Breese, 84 (1824). »» Beidler v. Sanitary District, 211
82Gov..rnor v. Ridjrwav. 12 111. 14, 111. 628. 640 (1904) ; Tillis v. Liver-
15 (1850) ; Stout v. \Miitncy, 12 111. pool & London Glol.o 1"^. to., supra
218 "31 nSoO)- Bradv v. Spurck. so Galena v. Galena Water Co., ^-iy
27 ilK 478, 482 (1861).- 111. 128, 132 (1907)^
"Barber v. ^^^litnev. 29 111. 439 "Peterson v. Manhat an Life Tub.
(186": Knapp. Stout & Co. v. Ross, Co.. 244 111. 329. 334 (1910).
181 111 39" (1899) ssTillia v. Liverpool & London &
"Chicago, Burlington & Quincy Globe Ins. Co., 46 Fla. 268, 276.
236 ANNOTATED FORMS OK I'LEADINU AND I'KACTICE
GENER.VL DEMURRER
635 Illinois, single count
And the said defendant , by , h attorney ,
come and defend , etc., when, etc., and say
that the count of said dechiration and the mat-
ters therein contained, in manner and form as tlie same are
above set forth, are not suflicicnt in huv for tiie i)huntilY to
maintain his aforesaid action, and that he , the defend-
ant , (is or are) not bound by hiw to answer the same; and
this he .... ready to verify: Wherefore, for want of a
sufKcient count in said dechiration in this beiialf. the
defendant pray jud^'ment and that the plaintilf nuiy be
barred from maintaining his aforesaid action, etc.
Attorney for defendant
636 Illinois, joint and several counts
And the said defendant comes and defends the wrong and
injury, wiien, etc., and says tiiat the said several counts of the
said declaration, and the matters and things therein contained,
in manner and form as the same are above pleaded and set
forth, are not sufficient in law, nor are either of said counts of
said declaration sufticient in law for the said plaintiff to have
and maintain his aforesaid action thereof against him the said
defendant, and that he is not bound l)y law to answer the same;
and this he is ready to verify; wherefore, ete.^^ (Conclude as
in preceding form)
637 Illinois, affidavit of merits
In ordinary civil actions, no affidavit of merits is necessary to
be filed in Illinois with the demurrer.**" In attachments of
water-craft an affidavit of merits is an essential part of the
demurrer.^^
638 Illinois, certificate of cause
hereby certifies that he is the attorney for the
plaintiff (or defendant or respondent) herein and that in his
opinion the foregoing demurrer to the plea (declaration or peti-
tion for, etc.) of the defendant (or plaintiff) filed herein, is well
founded in law.
59 Sanford V. Gaddls, 13 111. 330. 105 111. 462, 467; affirmed 119 U.
60 Sec. 55, Practice act 1907. S. 388 (1882-1886); Sec. 19, c. 12,
61 Johnson v. Chicago & P. E. Co., Hurd 's Stat. 1909.
DEMURRER 237
639 Illinois, affidavit of good faith
, being first duly sworn, deposes and says that
he is the agent and attorney in this behalf of the plaintiff (or de-
fendant) herein and that he is duly authorized to make this
affidavit on behalf of said plaintiff' (or defendant) and that the
foregoing demurrer to the plea (or declaration) of the defend-
ant (or plaintiff) filed herein is not interposed for delay. Fur-
ther affiant says not.
Subscribed, etc.
640 Maryland
The defendant , a body corporate, by
its attorney, demurs to the declaration filed in the above
entitled ease, and for reason says:
1. That it is bad in substance.
2. That it is insufficient in law.
Attorney for defendant.
641 West Virginia
Thi- demurrer of , guardian ad litem for the
above named infant defendants,
The said , guardiim ad litem, as aforesaid, for
and on i)ehalf of the said , says that the said ....
of said , filed in this cause, is not suffi-
cient in law.
Wherefore, ho prays judgment of the court whether he, as
guardian ad litem, or the said infants, or either
of them, shall be required to make any further or other answer
to said petition.
Guardian ad litem for
By ;•
their guardian ad litem.
SPECIAL DEMURRER
642 Florida
Special demurrers are not permissible in Florida.^^
643 Illinois, duplicity
(Precede this bv general demurrer, then add:)
And the said defendant according to the form of the statute
in such case made and provided states and shows to the court
62 Camp & Bros. v. Hall. 39 Fla.
5.35, 568 (1897); Sec. 1430, Genl.
Stats. 1906 (Fla.).
238 ANNOTATED FORMS OF PLEADING AND PRACTICE
here the followinrr causes of demurrer to the said
count of the siiid dechiration, tliat is to say, that the said
....... .count of the said declaration is double and multifari-
ous in this that it alleges and states two or more distinct cau.scs
of action against the said defendant and presents and otVcrs two
or more separate and distinct is.sues to be decided in this, that
it states that the said defendant by its servants failed to ring a
bell or blow a whistle thereby causing the injury complained of.
and that the said defendant by its servants carelessly, negli-
gently and wilfully drove its engine thereby causing the' injury
complained of; and the .said count is in various other respects
repugnant, multifarious, insutiHcient and immaterial. (Add to
this and subse(|uent demurrers, certificate of cause and atlidavit
of good faith, or non-delay, as under Sections (J.'JS and G.iO.)
644 Illinois, misjoinder of parties and causes
(Precede this by general demurrer, then add:) And the
said and according to the form of the statute in such
case made and provided, state and show to the court here the
following causes of demurrer to the said declaration, that is to
say, for that the .said plaintiff h declared against the said
defendants in action of as.su mpsit for suppo.sed breaches of ex-
press promises to pay the plaintiff the sum of dol-
lars ($....), with interest in accordance with the terms of a
certain writing obligatoiy, which the said defendant,
was not a party to, or bound or obligated by, and has also
declared against the .said defendant, \ in an action of
assumpsit for supposed breaches of express promises to pay the
plaintiff certain sums of money in accordance with the terms
of a certain instrument in writing, to which the said defendant
'^n(^ were not parties to, or bound by; and also,
for that there are in the said declaration different pretended
causes of action founded upon different supposed obligations
and promises which are incompatible, and ought not to be joined
in the same declaration.
Wherefore, etc.
or
For that in and by said declaration, and each and every
count thereof, the said plaintiff hath declared and complained
against the defendant, , and the defendant
• , as joint tort feasors ; but as is shown by said
declaration, there are pretended causes of action different in
their nature, mode of proof and degree of liability compre-
hended and included in each and every count thereof; to wit,
a pretended cause of action against the defendant,
• -^ arising out of contractual relations between it and the
said plaintiff, its servant; and a pretended cause of action
against the defendant, with which said defend-
DEilURREU 239
ant, the plaintiff, never had contractual or other relations
whatsoever; which said pretended causes of action are incom-
patible with each other, and ought not to be joined in the same
declaration against the said two defendants; and also for that,
in and by said declaration, and each and every count thereof,
conclusions of law are alleged without statements of fact upon
which such conclusions are predicted; and also that the said
declaration, and each count thereof, is in other respects uncer-
tain, informal and insufficient, etc.
Wherefore, etc.
645 Illinois, nonjoinder
And the said defendant, by his attorney, says
that the declaration in this cause is not sufficient in law, and
the said defendant shows and specifies the following causes of
demurrer thereto, that is to say: Under the allegations of said
declaration is jointly entitled with the plaintiff
to any damages which might be recovered in said suit, and the
plaintiff is not, as alleged in said declaration, solely entitled
thereto; and also that the said declaration is in other respects
uncertain, informal, and insufficient, etc.
646 Illinois, uncertainty
And the said defendant , by h attorney
say that the declaration is not sufficient in law. And the
defendant show to the court here the following new
cause of drmurrer to the said declaration and each count thereof
that is to say :
The plaintiff ha filed with h said declaration in
obedience to the order of court herein an itemized statement oi"
account and made the same a part of h said declaration
which being read and heard the defendant say that said
statement shows an account of the said plaintiff with one
but not with these defendants: whereby the said
declaration and each count thereof is rendered uncertain, in-
formal and insufficient, etc.
647 Michig-an, demurrer
Now comes the said defendant by , his attorney,
and says that the said declaration is not sufficient in law for
the reason that (Add briefly and plainly the special reasons in
matter of substance, as well as of law.) ^^
Defendant's attorney.
«' Circuit court rule 5 (a) ;
(10068), (10069), C. L. 1897
(Mich.).
240 ANNOTATED FORMS OF TLEADING AND PRACTICE
648 Michigan, certificate of g-ood faith
I hereby certify that 1 am the eounsel, having proper charge
of the above eiititk^d cause, in behalf of the above named defend-
ant; that the foregoing demurrer is not interposed fur delay;
and that in my opinion the same is well founded.
Dated, etc.
Defendant's attorney.
649 Mississippi, demurrer
Comes the defendant herein, , by attorney ....
, and demurs to the declaration herein tiled against him
by the plaintitf, , and for cause of demurrer, says
as follows: 1. The declaration is insufficient in law. 2. The
declaration does not set out a cause of action. 3. It is not
shown that there was any promise on the part of the defendant
to pay any sum. 4. It is not alleged that the defendant im-
pliedly promised to pay any stated sum. 5. It is not alleged
that the defendant expressly or impliedly promised to pay the
amount alleged to be due, or any amount. 6. It is not shown
that the charge was usual or reasonable or that it was assented
to by the defendant. 7. For other causes to be shown at
the hearing. Wherefore, defendant prays judgment.*'^^
Defendant's attorney.
650 Mississippi, certificate of counsel
I, do hereby certify that I believe that the
grounds on which the above demurrer is based are well founded,
and that the demurrer should be sustained.
attorney.
651 Virginia, demurrer
The defendant comes and says that the declaration is not
sufficient in law for the following reasons and others to be
assigned at the bar of the court.
1. (State grounds in numerical order) ^^
P- d.
652 Virginia, grounds of demurrer
1. The negligence, if any, was the negligence of an inde-
pendent contractor, to wit, , for whose acts the de-
fendant in this suit was not and is not responsible.
•* Sec. 754, Miss. Code 1909. es Sec. 3271 Va. Code Ann.
DEMURRER 241
2. Defendant denies all allegations of negligence in the dec-
laration and each count thereof.
3. The defendant denies that it was negligent in failing to
supply suitable appliances and instrumentalities, and on the
contrary says that the same were in safe and proper condition.
4. The defendant denies that it failed to perform any legal
duty as to inspecting or keeping in safe condition and repair
its appliances and instrumentalities.
'5. The plaintiff assumed the risk.
6. The plaintiff was guilty of negligence on his own behalf,
which caused or contributed to his injury.
7. The negligence, if any, was that of a fellow-servant.
OYER
653 Craving oyer
At common law oyer cannot be had of an instrument which
is not under seal and of which no profert is made.^*^ The right
to oyer, in Ijlinoi.s. has been extended to all written instru-
ments, whether under seal or not, and it is not made dependable
upon profert; but, this right is limited to instruments in writ-
ing declared upon and constituting the cause of action or de-
fense; it does not apply to instruments constituting mere induce-
ment.«7 A variance between a pleading and the instrument
sued upon, set up as a defense, may be raised by craving oyer
and demurring, provided the instrument is of a proper charac-
ter. ''^ If the nature and effect of a contract is misstated in a
declaration the defendant should crave oyer and demur to it.*^^^
654 Craving oyer and demurrer
And the said defendant , by , his
attorney, comes and defends the wrong and injury, when, etc.,
ami craves oyer of the supposed writing obligatory in said
declaration mentioned, and it is read to him, in these words:
(Insert copy of instrument sued on).
Which being read and heard, the defendant says that the said
declaration and the matters and things therein contained, in
manner and form as the same are above pleaded, are not suffi-
ciont in law for the plaintiff to maintain his aforesaid action and
•^nOatton V. Dimniitt. 27 111. 400 417 (1S94); Sec. 34, Practice act
nSfi2): Riloy v. Yost. 58 \V. Va. 1907 (111.).
21.T (190.5); Commercial In?. Co. v. coRiJev v. Yost, 58 W. Va. 214.
Mehlman, 48 111. .31.3, 315 (1868). co HarW v. Boswell, 15 III. 58
6T Lester v. People, 150 111. 408, (1853).
242 ANNOTATED FORMS OF PLEADING AND PRACTICE
that the defendant is not bound by law to answer the same, and
this he is ready to verify; wherefore the defendant prays
judgment of the said declaration whether he, the defeuiiant,
should be required to reply thereto.
And the defendant further demurs specially to said declara-
tion, and for causes of demurrer says that it does not appear
from the said declaration that the notice alle^'cd as haying l)cen
served by plaintiff upon said , which said declara-
tion alle^'es was in accordance with the terms of said alleged
contract, was a written notice, as was required by said alleged
contract.
2. That said declaration does not allege that notice was given
defendant by plaintiff of the service of the notice required by the
language of the said alleged contract.
(Add certificate and affidavit disclaiming delay)
h
And the defendant by , and , his
attorneys, comes and defends the wrong and injury, when, etc.,
and craves oyer of the supposed writing obligatory or promis-
sory note in said declaration mentioned, which is granted l)y
the court, and the same is read to him in words and figures as
follows: (Set forth promissory note in hncc verba).
And also craves oyer of the endorsement on said note in said
declaration mentioned, which is grranted by the court, and the
said endorsement is thereupon read to him in words and figures
as follows : (Insert endorsement).
Both of which being read and heard, the defendant says that
the said declaration and the matters therein contained in man-
ner and form as the same are above pleaded and set forth, are
not sufficient in law for the plaintiff to maintain his aforesaid
action, and that he, the defendant, is not bound in law to answer
the same ; and tliis he is ready to verify.
Wherefore for want of sufficient declaration in this behalf the
defendant prays judgment, and that he, the plaintiff', may be
barred from maintaining his action, etc."^
655 Craving oyer, order
Now comes the plaintiff by and ,
her attorneys, and also now on this day comes the defendant by
and , his attorneys, and craves oyer
of the promissory note mentioned in the plaintiff's declaration,
and also craves oyer of the endorsement on said promissory note.
And thereupon the court grants oyer of both said promis-
sory note and the endorsement thereon, which said note and
endorsement thereon are then read to the defendant in these
ToKister v. Peters, 223 111. 607
(1906).
DEMURRER
243
words and figures: (Set forth note and endorsement in haec
verba) .
And after oyer was demanded and granted the defendant
demurs to the plaintiff's declaration.
DEMUEBEE TO PLEA
656 Discontinuance
An action is discontinued by demurring or replying to a plea
which purports to, and in fact does, answer a part of the declara-
tion, unless, during the term at which the plea is filed, the plain-
tiff takes judgment, as by nil dicit, on the unanswered part of
the declaration."! A plaintiff does not discontinue his action
by demurring to a pica which professes to answer the whole of
the declaration but which in fact answers a part alone.'^^ ^^
discontinuance of an action can take place where there are pleas
answering the whole cause of actionJ^
657 Grounds generally
All objections to pleas in abatement or to the jurisdiction,
whether of form or substance, can be raised by general de-
murrerJ"*
658 General issue, plea amounting
A special plea which alleges matter that can be proved under
the general issue or a plea which traverses a portion of the facts
the plaintiff is bound to prove to estal)lish a prima facie case,
amounts to the general issue and is bad on special, but not on
general demurrer.^*
659 Immaterial issue
A plea which presents an immaterial issue is demurrableJ^
71 Warren v. Xexsen, 3 Scam. .38, 31.3 (186-1); Oeden v. Lucas, 48 111
40 (1841); Safford v. Vail. C2 111. 492, 493 (1868); Manny v Rixford'
327, 330 (18.-)9): Dickerson v. Hen- 44 111. 129. 130 (1867); Wadhams
dryx. 88 111. 66. 69 (1878). Swan. 139 III. 46, 54 (1884); Cush-
72 Snyder v. Gaither. 3 Scam. 91, man v. Hayes, 46 111. 145, 155
^- ^],^4^>- (1867); Finch Co. v. Zenith Fur-
7» Snyder v. Gaither, svpra. noce Co., 245 111. 5^6, 591 (1910)
7«Willard v. Zohr, 215 111. 148, ?« Consolidated Coal Co. v. Peers,
157 (1905). 166 III. 361, 365 (1897).
TsKnoebel v. Kircher, 33 111. 308
244 ANNOTATED FORMS OF PLEADING AND PRACTICE
660 Insufficient traverse
A plea whic-h professes to answer the whole cause of action
but which in fact only answers a part, is bad on demurrer."
661 Same defense, practice
A plea which substantially presents the same defense as is
presented by a previous plea, is not demurrable, but it consti-
tutes ground for striking:: it from the tiles.'"
662 District of Columbia
Now come the plaiutitis by their attorney,
and , say that the pleas of the de-
fendant to the count of tlu- plaiutilY's deelaratiun
are i)ad in substance.
Plaintiff's attorney.
Marginal Note:
The matters of law intended to be argued at the hearing of
these denuirrers are that all of said pleas are equivalent to the
general issue.
663 Florida, demurrer
«
Now comes the plaintiff in the above entitled cause by
his attorney, and says that the defendant's (second)
plea filed in said cause is bad in substance, and in the margin
hereof assigns as substantial matters of law intended to be
argued thereon.
Plaintiff's attorney.
For substantial matters of law intended to be argued and
insisted upon before the court upon the foregoing demurrer, the
plaintiff assigns the following: 1. That the defendant's plea
neither sets forth nor avers matter which would constitute a
defense to the plaintiff's declaration (Proceed with all other
assignments in a similar way).
Plaintiff's attorney.
664 Florida, affidavit of good faith
Before me, the undersigned authority, personally appeared
, who being by me first duly sworn deposes and
77 Snyder v. Gaither, 3 Scam. 91 ^s Eingrhouse v. Keener, 63 111. 230,
(1841). 235 (1872).
DEMURRER 245
says that he is the plaintiff in the above entitled cause, and
that the foregoing deiuurrer is nut interposed for the purpose
of delaying said cause or any proceeding therein.
, , ., Plaintiff,
bubscnbed, etc.
665 Florida, certificate of counsel
I > the undersigned, of counsel for the plaintiff,
in tile above entitled cause, do hereby certify that in my opinion
the foregoing demurrer is well founded in point of law.
Of counsel for plaintiff.
666 Illinois; conclusion and prayer, want of
(Precede by general demurrer and add:) And the plaintiff. .
sliow.. to the court here the following cause of demurrer to
^^^^ said pleas and eaeh of them, that is to say,
tliat said pleas do not nor does either of them conclude with a
verifieation, and they do not, nor does either of them, conclude
with a prayer for judgment : and they, and each of them, are in
other respects uncertain, informal and insulheient. (Add cer-
titicate of cause and aftidavit of good faith, Sections 638 and
639)
667 Illinois; general grounds
(Precede by general demurrer) And the plaintiffs show
to tlie court here the following causes of demurrer to the said
plea of the defendants by them thirdly above pleaded, that is
to say, that: 1. The said plea does not tender any 'issue of
fact. 2. The said plea is not a complete defense. 3. The
said plea traverses an issue of law. 4. The said plea, though
in a form a plea in l)ar, sets up matter in abatement and is too
late atter the general issue. 5. The said plea does not traverse
any fact alleged in said count of plaintiff's declaration. 6.
The said plea though in form a special plea in bar does not con-
fess and avoid and does not give color. And also that the said
plea is in other respects uncertain, informal and insufficient, etc,
(Add certificate of cause and affidavit of good faith)
668 Illinois; general issue, plea amounting
(Demur generally and then add the following ground)
And for a special ground of demurrer, the plaintiff., say..
that said plea of the defendant. . amounts to the general issue.
(Add certificate of cause and affidavit of good faith)
246 ANNOTATED KOBMS Of FUNDING AND 1'K-\CT1CE
CC9 Illinois; insufficient traverse
(Precetlf by ^jeaerul deniurnT. and add:) And the plaintuT
shows to tile (.'ouri litre the follow iug causes of dfiuurrer to the
said plea of the defendant by hiui above pleadeu,
that 18 to say, that the said plea jussunies to answer the whole
of the plaintiff's amended declaration, while in law it fails to
answer a part thereof, to wit : the third and fourth counts there-
of ; and also that the said plea is in other respects uncertain,
informal and insufficient.
That the said plea does not answer the first and second counts
of the declaration in that said counts and each of them set forth
a contract fully executed by the plaintitl within a year.
That the said plea does not juiswer the tirst and second counts
of the declaration in that said counts and each of them si't forth
a contract which was capable of being performed within one
year. (Conclude as in preceding form)
670 Miiryland, demurrer
The plaintitT , by her attorneys ,
demurs to the plea of the defendant's pleas tiled by
the defendant in the above entitled case on ,
I'J. ., and siiys that said plea is insufficient in law.
Attornevs for plaintiff.
b
, the plaintiff in the above
entitled cjise, by and , its attorneys,
demurs to the first, second and third pleas, and each of them,
filed to the tlcclaration in this ease, and waiving; all objections
that might be made to said pleas on the ground that they, or
any of them, are equivalent to the general issue, for demurrer
says: that said pleas and each of them are bad in substance.
Attorneys for plaintiff.
671 Maryland, setting hearing
Ordered by the circuit court for county this
.... day of , 19. ., that the above demurrer be set
down for hearing on the day of 19 . . , pro-
vided a copy of this order be served on the defendant or its
attorneys of record on or before the day of ,
19..
672 Withdrawing plea
Upon the filing of a demurrer to a bad plea the defendant may
obtain leave to withdraw the plea and to plead dc novo. A
DEMURRER 247
failure to withdraw a bad plea amounts to an election to abide
by its validity and precludes the right to object to the rendi-
tion of tiuai juugiuent."'-'
DEMITiREIl TO REPLICATION
673 District of Colujnbia
Now comes the defendant and says that the plaintiff's replica-
tions to the defendant's plea are bad in substance.
Attorney for defendant.
Note : The principal point of law to be argued at the hearing
of the above denmrrfr is that tlie alk'galions of the replications
are inconsistent with those of the declaration. (Add notice to
call up demurrer, and service)
674 Illinois; general demurrer
And aa to the tirst replication of said plaintiff to said
and pleas of this defendant, he says that said replica-
tion is not sulhcient in law as to either of said pleas, and that
tiiis defendant is not bound to answer the same. Wherefore, for
want of a sutticieut replication in this behalf said defendant
prays judgment, etc.
Attorney for said defendant.
675 Illinois; special, departure
(Demur generally and then aver as follows:)
Aiid the defendant shows to the court here the following
cause of demurrer to said and repli-
cations and each of them in that said replications and each of
them constitute a departure, that is to say, that the plaintiff
has allet^'ed in the and additional
counts of its declaration, and each of them, that it contracted
with the to sell and deliver certain pictures to said
, and that the defendant, , guaran-
teed the performance, of said contract for said ;
and in said and replications and
each of them, the plaintiff alleges that the defendant was doing
business under the name of the and that the
defendant was said And also said
and replications and each of them, are in other
respects uncertain, informal and insufficient, etc.
T» CTemson ▼. State Bank of Illi-
noiB. 1 Scam. 45 (1832); Conradi
▼. Evans, 2 Scam. 185, 186 (1839).
248 ANNOTATED FORMS OF PLEADING AND PRACTICE
676 Illinois; special, geireral causes
And the said defendant, by , his attorney, says
that the replication of the said plaintiff to the said second, third,
fourth and fifth [)k'as of tiic said defendant, and the matters
therein contained, in manner anti form as the same are above
ph'ach'd and set forth, are nut sufficient in law for the said plain-
tiff to have or maintain his aforesaid action thereof apainst the
said defendant, and that it, the siiid defendant, is not lx)und by
law to answer the Siime; and this tlie said defendant is ready to
verify; wlierefore, by reason of the insuttieiency of said replica-
tion in this beiialf, tht' saiil defenthint i)rays judf?ment if tho
said phiintitr ought to have and maintain his aforesaid action
against him. eti*.
And the said defendant, according to the form of the statute
in such case made and provided, states and sliows to the court
for special causes of demurrer the following:
1. That said r/?plieations, ami each of them, are double; i. o.,
set up two distinct replies to the allegations to the defeiulaiit 's
pleas.
2. That the allegations contained in said replications, and
each of them, are not res[)onsive to the allegations of said de-
fendant's pleas.
3. That said replications, and each of them, are double.
4. And also for that the said replications are in other respects
uncertain, informal and insuflicieiit, etc.
Attorney for said defendant.
JOINDER
677 Florida, form
Now comes the i)laintilY in the above entitled action at law
and says that the declaration is good in sul)stance.
Plaintiff s attorney.
Notice
To
Defendant 's attorney.
Take notice that I will call up for hearing ,
19. ., before the honorable , judge at
, Florida, or wherever else he may then be, the
demurrer interposed in said cause to the plaintiff's declaration.
Dated, etc.
Plaintiff's attorney.
Notice of the above received by me this day of . .
,19..
Defendant's attorney.
DEMURRER 249
678 Illinois, form
And the plaintili' says, that the said declaration and the mat-
ters therein contained, in manner and form as the same are
above set forth, are sufficient in law for him to maintain liis
aforesaid action; and he is ready to verify the same, as the
court shall direct ; wherefore, inasnuu-h as the defendant lias
not dcnit'd the said declaration tlic plaintitf prays judgment,
and liis damat^'es, etc., to be adjudged to him, etc.
Attorney for plaint it¥.
679 Michigan, necessity of joinder
A judgiiK-nt on demurrer may be rendered without a joinder
therein.**" Under former Michigan practice, joinder in a de-
murrer within the time fixed by rule was essential whether the
demurrer was frivolous or not. And })y .so joining it was not
an admission that the demurrer was frivolous.**! But now, no
joinder in a demurrer is necessary.**-
680 Michigan, form
And the said by its attorney says
that the said declai'ation is sufficient in law.
Plaintiff's attorney.
681 Virginia, form
The defendant (or plaintiff) says that the (Name pleading)
is not (or is,) sufficient in law.^''
CONSTRUCTION
682 Nature and effect
A demurrer questions the sufficiency of only such matters as
appear upon the record itself, or of such matters as are neces-
sarily implied by law.** In its effect, a demurrer reaches back
through the whole record and attaches to the first substantial
defect in the pleadings.^^
80 Mix V. rhandler, 44 Til. 174 84 Xorf oik v. People, 43 HI. 9, 11
(1JJ67). (1867).
«i WvckofT, S,amans & Benedict v. ss People v. Central Union Tel.
Bishon". OS Mi.'h. :^r,2. ^^55 n894). Co., 232 111. 260, 275 (1908).
"2 Circuit court rule 5 (d).
"Sec. 3271, Ann. Code 1904
(Va.).
250 ANNOTATED FORMS OP PLEADING AND PRACTICE
683 Admissions
Facts well pleaded are admitted by a demurrer. Conclusions
of law stated by tbe pleader, and the construction placed by
him upon statutes are not admitted by demurrer.'*" A demurrer
admits the facts to be true as pleaded.^^ It does not admit facts
which are improperly pleaded.^^ A party admits the proper
filing of a plea by demurring to it instead of moving to strike
it out.89
684 Inferences
On demurrer the intendments are against the pleader, and
mere inferences, or implications from facts, stated cannot be
indulged in his favor,"^
CARRYING BACK DEMURRER
685 Rule
In the absence of a plea of the general issue, a demurrer opens
the entire record and may be carried and sustained to the first
defective pleading' in matter of sul)st<ince, but not in matter
of mere form, even where the pleading demurred to is also de-
fective.oi A demurrer will not be carried back to a pleading
which does not profess to answer another pleading and with
which it has no connection, as pleas in abatement and pleadings
involving different and unconnected matter of defense ;»2 nor
to a pleading which has been held good on a previous demurrer
and the party has pleaded over, because pleading and demurring
to the same matter is not permissible."^ The trial court may,
80 McPhail v. People, 160 111. 77, Co. v. Carson. 1R9 111. 247 255
83 (1896); Cerveny v. Chicago (1897); Illinois Fire Ins. Co. v.
Daily News Co., 139 111. 345, 353 Stanton, 57 111. 354, 359 (1870);
(1891); People v. Busse, 248 111, Chestnut v. Chestnut, 77 111. 346,
11, 17 (1910). 348 (1875); People v. Crabb, 156
S7 Bailey v. Cowles, 86 111. 333, 111. 155, 1(6 (1895).
335 (1877). »2Ryan v. May, 14 111. 49. 51
ssLindley v. Miller, 67 111. 244, (1852); Hunter v. Bilyeu, 39 111.
249 (1873). 367. 370 (1866).
89juilliard & Co. v. May, 130 111. o"! Bills v. Stanton. 69 111. 51. 53
87, 96 (1889). (1873); Scott (Town) v. Artman,
90 Fairbank Co. V. Bahre, 213 111. 237 111. 394. 399 (1908); Heim-
636. 638 (1905). berger v. Elliot Fro? & Switch Co.,
91 Peoria & Oquawka R. Co. v. 245 111. 448. 452 (1910); Culver v.
Neill. 16 111. 269. 270 (1855); Hed- Third National Bank, 64 111. 528,
rick V. People, 221 111. 374, 377 532 (1871).
(1906); Louisville, N. A. & C. Ry.
DEMURRER
251
however, dismiss the suit, and thereby, in effect, reverse its
former ruling, where a pleading to which a demurrer has been
overruled is so defective that a motion in arrest of judgment
would be sustained, or the defect is such that it could be taken
advantage of on error.^^ A defendant is not precluded from
interposing the defense of the statute of limitations by the over-
ruling of a general demurrer to a declaration which improperly
sets up matter in avoidance of the statute.®'^
686 Application to declaration
A dt-murrtT sliould hf <-arried back to a declaration which is
so defective that a judgment would be arrested."*' A demurrer
to a plea will not be carried back to a declaration after a de-
murrer to it has been overruled and the general issue has been
pleaded.07 Nor will a demurrer filed at any subsequent stage
of the proceeding be carried back over the general issue and
sustained to the declaration, on the principle that a party will
not 1)0 permitted to demur and to plead at the same time to the
same matter."" But a demurrer may be carried back over the
general issue to a declaration which discloses on its face that
the plaintiff has no cause of action; the })lea, in such case is
regarded as no plea at all.»o As a demurrer to a plea will not,
in some instances, be carried back and sustained to a declara-
tion over the general issue, it is the practice to request leave to
withdraw the general issue at the same time that a motion is
made to have the demurrer carried back to the declaration. If
the declaration is good, the motion to withdraw the general issue
should be denied; if the declaration is bad the motion should
be granted. Withdrawing a plea also withdraws a demurrer
to it and prevents the carrying back of the demurrer to the
declaration. ^^•^
»* People V. Sprinfj Valley (City), 319 (1861); Compton v. People, 86
129 111.169,178(1889). 111. 176. 178 (1877); Mount v.
»5 Lesher V. United States Fidelity Hunter, 58 111. 246 248 (1871);
& Guaranty Co., 239 111. .502, 508 Schofield v. Settley, 31 111. 515, 517
(1909). (1863).
9«McFadden v. Fortier, 20 111. »» Haynes v. Lucas, 50 111. 436,
509, 515 (1858). 439 (1869).
»T Brnwner v. Lomax, 23 111. 496 loo George v. Bischoff, 68 111. 236,
(ISfi*^). 238 (1873).
88 Reeves v. Fomian, 26 111. 313,
252 ANNOTATED FORMS OF PLEADING AND PRACTICE
687 Application to information
A demurrer to a plea may reach defects in an information in
the nature of a quo ivarranto.^^^
688 Application to plea
A demurrer to a defective replication will be carried back
to a defective plea. But it will not be carried back to a plea
which has been held good on demurrer, because by pleading
over the sufficiency of the plea is admitted. ^"-
689 Motion, necessity
A demurrer will not be carried back to a pleading without a
motion made for that purpose.^ "^
JUDGMENT
690 Necessity of judgment
Questions raised by demurrer should be disposed of before
trial on issues of fact and final judgment.^""*
691 Confessing and sustaining demurrer, order
This day comes the defendant to this suit by its attorney and
confesses the plaintiff's demurrer filed herein to the defend-
ant's plea filed herein, and on motion of the defendant's at-
torney it is ordered that leave be and is hereby given the
defendant to file an amended plea herein instanter and that
the plaintiff's demurrer to the defendant's original plea
stand as demurrer to said amended plea as aforesaid; and
the said cause coming on to be heard upon the said demurrer
to the defendant's amended plea filed herein, after argument
of counsel and due deliberation by the court, said demurrer
is sustained and it is ordered that leave be and is hereby given
the defendant to file amended pleas herein within
days from this date.
101 Distilling & Cattle Feeding Co. los Heimberger v. Elliot Frog &
V. People, 156 111. 448, 485 (1895). Switch Co., 245 111. 452; Scott
102 Schalucky v. Field, 124 111. 617, (Town) v. Artman, 237 111. 394, 399
620 (1888; ; Illinois Fire Ins. Co. v. (1908).
Stanton, 57 111. 359; Eyan v. Van- loi Waterbury v. MeMiUan, 46
landingham, 25 111. 128, 131 (1860) ; Miss. 635, 639 (1872).
Fish V. Farwell, 160 111. 236, 241
(1896).
DEMURRER 253
692 Sustaining demurrer, generally, appeal
An order sustaining a demurrer is not final and appealable
although it recites that the plaintiff or petitioner elects to abide
by his declaration or petition and he declines to plead further
and a judgment for costs should be entered against him, when
there is nothing in the order that is in the nature of a deter-
mination of the rights of the parties.^^^ A judgment sustain-
ing a general demurrer to a declaration and awarding a defend-
ant execution for costs and charges expended "in this behalf"
is not final and appealable, because such a judgment neither
adjudges that the plaintiff take nothing by the writ, or that
the defendant go hence without day.^"^
Upon sustaining a demurrer to a declaration, in whole or in
part, there should be an order allowing the plaintiff time to
amend his declaration, if he so chooses.^*^^ The mere omission
to enter a formal judgment of respondeat ouster is not preju-
dicial to a party who has had an opportunity to plead over.^*^^
A final judgment may be rendered for the plaintiff upon over-
ruling a demurrer to a declaration or upon sustaining a demur-
rer to a plea where the defendant fails to withdraw the de-
murrer or to apply for leave to answer over.^*^^ The failure
of a defendant to ask leave to withdraw his demurrer after it
has been- overruled and to plead is equivalent to an election
to abide by it, and authorizes a final judgment against him, or
an inquest to a jury to assess the damages when they do not rest
in computation.^^*'
On a demurrer to a bad plea the judgment may be inter-
locutory or final, according to the nature of the action. The
judgment may be final where the defendant elects to stand by a
bad plea by failing to move for its withdrawal and for leave to
plead de novo}^^ Final judgment against the defendant may
be rendered on a demurrer to a plea in bar which pleads matter
in abatement, where the defendant elects to stand by the plea.^^^
105 People V. Board of Education, Scam. 447, 451 (1838); Bradshaw
236 111. 154, 155, 156 (1908). v. Morehouse, 1 Gilm. 396.
100 Chicago Portrait Co. v. Chicago no Weatherford v. Fishback, 3
Crayon Co., 217 111. 200, 201, 202 Scam. 170, 174 (1841); Bates v.
(1905). Williams, 43 111. 494 (1867).
107 Baylor v. Baltimore & Ohio R. m Clemson v. State Bank of Illi-
Co., 9 W. Va. 270, 279 (1876). nois, 1 Scam. 46; Conradi v. Evans,
108 Bradshaw V. Morehouse, 1 Gilm. 2 Scam. 185, 186 (1839).
396; Haldeman v. Starrett, 23 111. 112 Pitts Sons' Mfg. Co. v. Com-
393 (1860). mercial National Bank, 121 111. 582,
109 Godfrey v. Buckmaster, 1 588 (1887).
254 ANNOTATED FORMS OF PLEADING AND PRACTICE
693 Sustaining demurrer, judgment (Illinois)
On this day came on for hearing the demurrers filed herein
by and by , ext'cutors, etc., to the
amended petition tiled herein, and, after hearing counsel, it is
ordered that said dt'murrcrs be sustained. And thereupon peti-
tioner elected to al)ide by its petition and on respondents' motion
said petition was ordered dismissed; to wiiich orders petitioner
then and there duly excepted. Thereupon petitioner prayed
an appeal, which was allowed. On motion of petitioner, it was
allowed days from this date in wiiich to prepare and
present a bill of exceptions.
Dated, etc.
Enter ,
Judge.
(Michigan)
In this cause, the demurrer of tlie said defendant ,
to the (h'ehiratit)n of the said plaintitT, having Iteen duly brou^lit
on for ar;,Miment, and all and sinj^ular being sei-n and fully
understood by the court here, and it appearing, after mature
deliberation thereon, tiiat the said declaration and the matters
therein contained are not sufTicient by law for the said plaint itf
to have and maint^iin his saiil action against the said
.... and that the siiid plaintiff ought not to recover against the
said his allc/ed damages; tiieret'ore, it is con-
sidered that the said plaintiff take notiiing by his suit; ami
tiuit the said defendant, do go thereof without
day; and it is further considered that the said defendant ....
do recover against the said plaintiff its costs and
charges by it about its defense in this behalf expended, to be
taxed, and that the said defendant have execu-
tion tiierefor. It is further ordered that the plaintiff' have until
(lay of , to move for a new trial or to
settle a bill of exceptions.
Judge.
(West Virginia)
This day came again the said , guardian as afore-
said, and presented to the court his petition verified by his affi'la-
vit thereo appended, together with all of the papers and exhibits
mentioned in, filed with, and made part of said petition on a
former day of the present term of this court; and it appearing to
the satisfaction of the court that said and
.... and each of them are infants, under the age of twenty-one
years, on motion of the parties in interest in said proceeding, .said
, who is an adult, and the mother of said three
infants, was by the court appointed as guardian ad UJrm for
said , and , and for
DEMURRER 255
each of them. Whereupon, said accepted said
appointment as such guardian ad litem for said infants and
tendered her demurrer to the said petition; which demurrer,
on her motion, was tiled in said cause, and in which demurrer
the said , guardian as aforesaid, joined, and the
same was set down for argument. And the said cause now
coming on to be heard upon the notice in writing by said ....
, guardian, to the said defendants, docketed on the first
day of the present term ; upon the petition and the several and
separate exhibits and papers, mentioned therein, and filed there-
with, as part thereof; upon the said demurrer, and joinder
therein as aforesaid ; and upon the said former orders made in
Siiid cause, was argued by counsel: on mature consideration of
all of which, the court is of the opinion that said demurrer is
well taken.
It is therefore adjudged, ordered and decreed that the said
demurrer to said petition be, and the same is hereby sustained,
and the said , guardian as aforesaid, not desiring
to amend his said petition, although lie was granted leave by
the court to do so, if he so desired; it is therefore further
adjudged, ordered and decreed that the said petition and pro-
ceeding aforesaid be. and the same is hereby dismissed and
stricken from the docket.
Petition for appeal
To the honorable judges of the Supreme Court of Appeals of
the state of West Virginia:
The petition of the , a corporation of said state,
respectfully shows that it is aggrieved by a judgment or order
entered by the circuit court of county on the
day of , 19. ., in the above entitled proceed-
ing then therein pending, sustaining a demurrer of the defend-
ants to your petitioner's petition in said proceeding, and dismiss-
ing the same ; and to the end that it may be relieved of such
grievance it presents to this honorable court this, its petition, for
a writ of error and supersedeas to the judgment or order com-
plained of, accompanied by a transcript of the record of the said
condemnation proceedings.
Petitioner respectfully submits that the said circuit court of
county erred in sustaining said demurrer to said
petition because, under the laws of said state of West Vir-
ginia, the averments of the said petition present a proper case
for the exercise of the right of eminent domain, and the con-
demnation for the petitioner's use set forth in said petition, of
the strips of land therein described.
Your petitioner therefore prays that a writ of error and
supersedeas to the judorment or order complained of may be
256 ANNOTATED FORMS or PLEADING AND PKACTICE
awarded, and that it may be reviewed and reversed. And as in
duty bound, your petitioner will ever pray, etc.
By';:;;;;::::;:::::::::::::
Attorneys.
T, , an attorney practicing in the Supreme
Court of Appeals of West \'irginia, am of opinion that the mat-
ters set forth in the foregoing petition and accompanying
record are proper to be revieweil.
Dated
Writ of error and supersedeas allowfil in court
.., 19..
Bond $
694 Overruling demurrer to declaration, practice
After a demurrer to thi- dt^'hii-alion ii;is been ovorrul(>d a
court may refuse, in its dLscrelion, to permit the defendant to
plead, unless he shall show a meritorious defense, where the
plaintiff has filed an alTidavit of amount due with his declara-
tion.113
695 Overruling demurrer to declaration, judgments (Florida)
This caus(> was submitted upon demurrer to the declaration
and upon consideration thereof it is adjudged that the demurrer
be overruled and that the defendant i)lead to said declaration
on or before the rule day in next.
Done and ordered in vacation at , Florida,
this day of , 19 . .
(Michigan)
Judge.
In this cause, the demurrer of the said, ,
to the declaration of the said having been duly
brought on for argument, and all and singular the premises
being seen and understood, and it appearing to the court now
here, after mature deliberation thereon, that the said declaratiou
and the matters therein contained are sufficient in law for the
said to have and maintain his aforesaid action
against the said,
Therefore, on motion of , attorneys for the
said , it is ordered and adjudged by the said court
113 McCord V. Crooker, 83 111. .556,
560 (1876); Sec. 55, Practice act
1907 (111.).
DEMURRER 257
that the said demurrer he and the same hereby is overruled, with
costs in favor of said plaintiff to be taxed.
It is further ordered that the said defendant have
days from this date in which to plead to said declaration.
696 Overruling demurrer to plea, nature and effect
An order overruling a demurrer to a plea, where the plaintiff
abides by his demurrer, amounts to a judgment in bar of the
cause of action set up in the count to which the plea is an
answer, and it disposes of all of the issues that are raised by
the count and the plea in so far as the trial court is concerned. i^-*
No final judgment in bar of the entire action can be rendered
upon overruling a demurrer to a special plea which answers a
part of the declaration alone, where there are other pleas to
the rest of the declaration. ^^^
697 Withdrawing demurrer, costs
Upon the withdrawal of the demurrer to a plea and the fail-
ure to reply, a defendant is entitled to judgment for costs
against the plaintiff. ^^*^
luMcCormick v. Tate, 20 111. 334, no Hunter v. Bilyeu, 39 111. 370.
337 (1858).
115 Armstrong v. Welch, 30 111.
337.
CHAPTER XVII
DEFENSES AND PLEAS IN UAR
IN GENERAL
§§
698 Pleas, classes and naming
699 Plea in bar dolined
700 Special plea, defined
701 Special plea, scope
702 Special pleas amounting to
general issue, test
703 Traverse, nature and scope;
admission
704 Traverse, conclusions of law
705 Traverse, Immaterial matter
706 Traverse, varying written in-
strument
707 Judgment, estoppel
DEFENSES
708 Accord and satisfaction de-
fined
709 Accord and satisfaction, when
710 Accord and satisfaction;
pleading, proof
711 Accord and satisfaction; plea,
requisites
712 Adverse possession, proof
713 Agreement to dismiss, prac-
tice
714 Alteration, pleading
715 Appropriations, constitutional
power
716 Attorney's fees, motion
717 Carrier's liability; limitation,
proof
718 Cause of action, practice
719 Conditions precedent; prac-
tice, proof
720 Conditions subsequent, plead-
ing
721 Consideration, failure of
722 Copy of instrument sued
upon
258
723 Corporate existence; general
issue, admission
724 Cumbering record, motion
and order
725 Defective return, notice
726 Defendpnt's capacity, admis-
sion
727 Estoppel, pleading
728 Foreign corporations' con-
tracts
729 Foreign corporations' non-
compliance; plea, requisites
730 Foreign corporations' non-
complians; plea and repli-
cation
731 Foreign judgment
732 Foreign statute
733 Fraud, burden of proof
734 Fraud, pleading
735 Fraud; plea, nature
736 Fraud; plea, requisites
737 Fraud; notice, proof
738 Improper matter In declara-
tion, motion to strike
739 Indebtedness not due, oyer
740 Jury, right
741 Jury; empaneling, notice
742 Misnomer of defendant
743 Mutuality, want of
744 Xon est factum, nature and
effect
745 Non est factum, proof
746 Non est factum, pleas
747 Nul tiel corporation, plaintiff,
nature and scope
748 Niil tiel corporation, plaintiff,
proof
749 Xul tiel corporation, plea
750 Nul tiel record, nature
DEFENSES AND PLEAS IN BAR
259
8f
751 Kul tiel record; evidence, cov-
erture
752 Nul tiel record, plea and rep-
lication
753 Nul tiel record, judgment,
nature
754 Ordinance; collateral attack,
burden of proof
755 Ordinance; validity, reason-
ableness, burden of proof
756 Ordinance, pleading
757 Organization, collateral at-
tack
758 Oyer, motions and order
759 Partnership, plea
760 Payment, nature and scope
761 Payment, pleading
762 Payment, pleaa
763 Performance, estoppel
764 Puis darrein continuance;
pleading, time
765 Puis darrein continuance,
pica; requisites
766 Puis darrein continuance,
practice
767 Recoupment defined
768 Recoupment distingulsiied
769 Recoupment; claims, nature
770 Recoupment, pleading
771 Recoupment, judgment
772 Release and discharge, prac-
tice
773 Release of surety, pleading
774 Hcs judicata, doctrine and ap-
plication
775 Res judicata, burden of proof
776 Res judicata; pleading, waiver
777 Res judicata; estoppel by
judgment, generally
778 Res judicata; estoppel by
judgment, affirmance and
reversal
779 Res judicata; estoppel by
judgment, default judgment
780 Res judicata; estoppel by
judgment, dismissal of for-
mer proceeding
781 Res judicata; estoppel by
judgment, erroneous judg-
ment
782 Res judicata; estoppel by
judgment, judgment against
partner
783 Res judicata; estoppel by
judgment, tax judgment
784 Res judicata; estoppel by
judgment, test case
785 Res judicata; estoppel by
judgment, pleading
786 Res judicata; estoppel by
judgment, plea, requisites
787 Res judicata; estoppel by
judgment, pleas
788 Res judicata; estoppel by
judgment, proof
789 Res judicata; estoppel by
verdict
790 Res judicata; estoppel against
estoppel
791 Set-off defined
792 Set-off, law governing
793 Set-off; demands, nature
794 Set-off: demands, judgments,
appeal
795 Set-off; demands, judgments,
domestic and foreign
796 Set-off; demands, unliqui-
dated damages
797 Set-off, nominal plaintiff
798 Set-off, pendency of action or
appeal
799 Set-off, pleading and practice
800 Set-off; plea, requisites
801 Set-off; replication, requisites
802 Set-off, withdrawal
803 Set-off, proof
804 Set-off, judgment
805 l^tare decisis
806 Stated accounts, taxing dis-
tricts
807 Statute of limitations, waiver
808 Statute of limitations, bur-
den of proof
260
ANNOTATED FORMS OF PLEADING AND PRACTICE
809 Statute of limitations; plead-
ing, time
810 Statute of limitations; plead-
ing, generally
811 Statute of limitations; plead-
ing, municipal corporations
812 Statute of limitations; plead-
ing, amended and addition-
al counts
813 Statute of limitations; plea,
requisites, traverse
814 Statute of limitations; plea
requisites, period of limita-
tion
815 Statute of limitations; plea,
requisites, statute, excep-
tion
816 Statute of limitations; plea,
requisites, rejection of
claim, notice
817 Statute of limitations; plea
requisites, foreign judg-
ment, residence
818 Statute of limitations; plea,
requisites, amended decla-
ration
819 Statute of limitations, repli-
cation
820 Statutes, persons objecting
821 Statutes; objections, class leg-
islation
822 Statutes; objections, consti-
tutionality, practice
823 Statutes; objections, common
law rights and powers, con-
tinuation
824 Statutes; objections, direct-
ory or mandatory, test
825 Statutes; objections, legisla-
tive power
826 Statutes; objections, title
827 Statutes; objections, title,
plea
828 Statutes; construction, court's
duty, scope
829 Statutes; construction, pre-
sumption
830 Statutes; construction, con-
temporaneous
831 Statutes; construction, for-
eign laws
832 Statutes; construction, single
and plural
833 Tender, unliquidated damages
834 Tender, amount
835 Tender; counting money,
waiver
836 Tender; admission, scope
837 Tender, pleading
838 Tender, plea
839 Tender; replication, twn est
factum
810 Tender; replication, payment
841 Tender; replication, payment
of taxes
842 Tender; replication, incum-
brance
843 Tender, replication
844 Tender; notice with general
issue
845 Tender; acceptance and waiv-
er
846 Title, landlord and tenant
847 Title; vendor and vendee,
pleading
848 Title; plea, requisites
849 Ultra vires
850 Unproved counts, practice
851 Usury, generally
852 Usury, burden of proof
853 Usury; plea, requisites
854 Usury, notice with general is-
sue
855 Validity of contract, pleading
856 Voluntary assignment; dis-
continuance, replication
GENEKAL ISSUE
857 General issue defined
858 General issue, constructive
859 General issue, waiver
860 General issue; nature and
scope, generally
861 Estoppel in pais
862 Fraud
863 Letters of administration
864 Misjoinder and nonjoinder of
plaintiffs
bEFENSES AND PLEAS IN BAR
261
865 Plaintiff's character and ca-
pacity
866 Statute of frauds
867 Pleading and demurring
868 Plea of general issue
NOTICE UNDER GENERAL
ISSUE
869 Notice, nature and effect
870 Notice, scope, Michigan
871 Notice, admission
872 Notice; general form
BILL OF PARTICULARS
873 Nature and scope
874 Application, demand or mo-
tion, nature
875 Requisites
876 Amendment
GROUNDS OF DEFENSE
877 Defenses; limitation, waiver
PRACTICE
878 Pleading, time
879 Extension of time, motion
880 Several pleas
881 Additional pleas
882 Abandonment of pleas
883 Striking pleas
884 Repleader
COMMENCEMENT AND
CONCLUSION
885 Commencement (common
law), additional plea
886 Commencement, admitting
part of claim
887 Commencement, entire decla-
ration.
888 Commencement, oyer
889 Commencement, several pleas
890 Conclusion, nature and effect
891 Conclusion, country
892 Conclusion, verification
893 Conclusion; verification, rec-
ord
894 Conclusion; verification, set-
off
895 District of Columbia (statu-
tory commencement and
conclusion)
896 Florida
897 Maryland
898 Virginia
VERIFICATION
899 District of Columbia
900 Florida
AFFIDAVIT OF MERITS
901 Object
902 Nature and effect
903 Necessity of affidavit
904 Additional affidavit
905 Requisites
906 Forms
DEMAND FOR JURY
907 District of Columbia
AMENDMENT
i.'08 Requisites
IN GENERAL
698 Pleas; classes, naming
Pleas are either dilatory or in abatement, and peremptory or
in bar.^ The kind of pleas to be interposed to an action is gov-
erned by the dignity of the insti-ument on which the suit is
founded; thus, if the action is on a record, conclusive between
the parties, it can only be denied by plea of nul tiel record.- A
1 Pitts Sons ' Mfg. Co. v. Commer- 2 Mills v. Duryee, 7 Cr. 481, 484
cial National Bank, 121 111. 582, 586 (U. S. 1813).
(1887).
262 ANNOTATED FORMS OF PLEADING AND PR.VCTICE
defendant does not lose his defense by merely misnaming his
plea.^
699 Plea in bar defined
A plea in bar shows some ground to bar or defeat the action.*
700 Special plea, defined
A special plea sets up a defense by way of confession and
avoidance without denying the plaintiff's cause of action.**
701 Special plea, scope
Any fact which constitutes a bar to the action must be pleaded."
All matters in confession and avoidance must be specially
pleaded. This applies to matters by way of discharge; to mat-
ters which show tlie transaction to be either voiil or voidal)le in
point of law ;' and to matters of defense which arise after an
issue or issues have been joined.^ An issue of law cannot be
made directly by special plea.'' A defendant must make a com-
plete defense, as a judgment upon the merits is conclusive of
all defenses which are made, or which might be made.^^
702 Special pleas amounting to general issue, test
A defendant has a right at any time to traverse any material
allegation in a declaration, or to plead the general issue. He has
no right to plead both pleas in the same action. If the defendant
pleads matter which amounts to the general issue and also the
general issue, the former plea may be stricken from the files as
unnecessarily incumbering the record.^ ^ A special plea which
amounts to the general issue is bad upon special demurrer,^^
and may, on motion, be stricken from the files.^^ a special plea
3Kenyon v. Sutherland, 3 Gilm. » Wolf v. Powers, 241 111. 9, 13
99 (1846). (1909).
4 Pitts Sons' Mfg. Co. v. Com- lo Neff v. Smith, 111 111. 100, 110
mercial National Bank, 121 111. 5S7. (1884).
5 Bailey v. Vallev National Bank, n Curtiss v. Martin, 20 111. 557,
127 111. 332, 338 (1889). 571 (1858); Wadhams v. Swan, 109
e Consolidated Coal Co. v. Peers, 111. 46, 54 (1884); Knoebel v.
150 111. 344, 354 (1894). Kircher, 33 111. 308, 313 (1864).
T Circuit court rule 66 (Mich.); 12 Cook v. Scott, 1 Gilm. 333. 338
Tedder v. Fraleigh-Lines-Smith Co., (1844) ; Wiggins Ferrv Co. v. Blake-
55 Fla. 496, 498 (1908). man, 54 111. 201, 202 '(1870); Moss
8 Mount V. Scholes, 120 111. 394, v. Johnson, 22 111. 633, 643 (1859).
400 (1887). "Wadhams v. Swan, 109 111. 54.
DEFENSES AND PLEAS IN BAR 263
amounts to the general issue if it puts in issue a fact which the
plaintiff is bound to prove under the general issue.^^
703 Traverse, nature and scope ; admission
Every fact which is essential to a cause of action is issuable.is
It is not permissible to traverse and to confess and avoid at the
same time;i« nor to tender an evasive or immaterial issue.^^
The denial must not be argumentative.^s ^ pjg^ ^^^^ ^^ ^^_
sponsive to the count or the declaration to which it is pleaded.i^
It should not set forth repugnant and inconsistent defenses.20
The plea is double if it attempts to raise a variety of issues, some
of which are material and some not.^i A plea is demurrable for
duplicity if it contains two distinct matters, either of which
would bar the action and each of which would require a sepa-
rate answer.22 A plea which fails to traverse the gravamen of
the plaintiff's cause of action is bad on demurrer.23
A plea must contain a good answer to all that it professes
to answer.-^ It should answer the whole of the declaration,
and each count thereof.2= The traverse should be as broad as
the allegation it purports to answer.-^ A plea is bad as a whole,
if it professes, in its commencement, to answer the whole cause of
action but, in fact, answers only a part,-" and it is obnoxious to
a demurrer.28 A plea which purports to answer the whole of a
declaration containing several counts and answers only a special
count, or omits to answer any or all of the remaining counts, or
a material portion of them, is bad on general demurrer.29 Un-
less there are other pleas to the unanswered portions of the decla-
" Wadhams v. Swan, supra. 24 Hatfield v. Cheanev, 76 111. 488,
15 Quincy Coal Co. V. Hood, 77 ni. 489 (1975); Snyder v. Gaither, 3
08, 72 (1875). Scam. 91. 92 (1841).
10 Priest V. Dodsworth, 235 111. 25 Humphrey v. Phillips. 57 111
013,619(1908). 132,135(1870).
1- Distilling & Cattle Feeding Co. 20 Wadhams v. Swan, 109 111 54.
V. People, 156 111. 448, 485 (1895). 27 Gebbie v. Mooney. 121 111. 255,
18 Wadhams v. Swan. 109 111. 54. 257 (1887) ; People v. Weber, 92 111.
10 School Trustees v. Cowden, 240 288, 291 (1879).
111. 39, 42 (1909). 28 Warren v. Nexsen, 3 Scam. 38,
20 Distilling & Cattle Feeding Co. 40 (1841) ; Dickerson v. Hendryx, 88
V. People, 156 111. 483. 111. 66, 08 (1878).
21 Distilling & Cattle Feeding Co. 20 Gebbie v. Mooney, 121 111. 255,
V. People, 150 HI. 484. 257 (1887); People v. MeCormack,
22 Louisville, N. A. & C. Ey. Co. 68 111. 226, 230 (1873); People v.
V. Carson, 169 111. 247, 255 (1897). Weber, 92 HI. 288, 291 (1879).
23 Palestine v. Siler, 225 111. 630,
637, 638 (1907).
264 ANNOTATED FORMS OF PLEADING AND PRACTICE
ration, a plea which professes to and does answer a part of the
declaration, admits the parts tliat are unanswered.^"
Any material fact which is alleged in the declaration and
which is not denied by the plea, is admitted and need not be
proved by the plaintiff. "^i
704 Traverse; conclusion of law
Conclusions of law are not traversable.^^ fi^e allegation that
a party was lawfully in possession of premises, and the mere
averment in a declaration tiiat it was the duty of the defendant
to do certain thinizs, are conclusions of law and are not
traversable.
705 Traverse, immaterial matter
An averment in a declaration which is not material to the cause
of action is not traversable; and if traversed it will be treated
as surplusage.'*^
706 Traverse, varying written instrument
In an action upon a written instruiinnt, the plea should not
attempt to vary the terms of the instrument by parol declara-
tions of the parties made at the time of its execution.^* A plea
is demurrable if it attempts to lay the foundation for the intro-
duction of oral testimony to vary the terms of a written instru-
ment in a suit where the declaration sets out the instrument //(
luicc verba, but the plea is not demurrable where the declaration
is not so drawn. In the latter case the ol).iection is availal)le for
the purpose of barring the evidence.^^ In Illinois, the consid-
eration for which negotiable instniments are given may be im-
peached by parol evidence at the instance of the defendant, but
not at that of the plaintiff.^*^
30Dickerson v. Hendryx, 88 111. (1853); Jones v. Albee, 70 111. 34,
69. 37 (1873); Mason v. Burton, 54 111.
31 Hughes V. Eichter, 161 111. 409, 349, 355 (1870).
411 (1896); Fish v. Farwell, 160 35 Solary v. Stultz. 22 Fla. 263,
111. 236. 242 (1895). 268 (1886) ; Booske v. Gulf Ice Co.,
32 Chicap:o & Alton R. Co. V. Clau- 24 Fla. 550, 557 (1888); Griffin^
sen, 173 111. 100, 105 (1898); Saf- Bros. Co. v. Winfield, 53 Fla. 589
ford V. Miller, 59 111. 205, 209 (1907).
(1871). 36 Schneider v. Turner, 130 111. 28,
33 Waterman v. Tuttle, 18 HI. 292 38 (1889); Chicago Sash, Door k
(1857) ; Knoebel v. Kircher, 33 111. Blind Mfg. Co. v. Haven. 195 111.
308, 313 (1864). 474, 482 (1902); Sec. 9, Negotiable
34 Harlow v. Boswell, 15 111. 56 Instrument act (111.).
DEFENSES A^D l^LEAS IN BAR 265
707 Judgement, estoppel
A defendant is entitled to a judgment in bar of the action if he
succeeds on any one of his pleas which is a complete answer to
the declaration ; a plea in estoppel is no such plea.^^
DEFENSES
708 Accord and satisfaction, defined
An accord is a satisfaction agreed upon between the parties,
which, when performed, operates as a bar to all actions upon that
account. ^^
709 Accord and satisfaction, when
A creditor's aceeptaiicc of k-ss than is due him will not operate
as a satisfaction of the demand where the amount due is certain
and not disputed; but a creditor's acceptance of an amount
claimed by the debtor to be due, paid in full settlement, is a sat-
isfaction of the claim, where the amount due is unliquidated, or
where there is a bona fide dispute as to how much is due, although
the creditor protests at the time that it is not all there is due
him, or that he does not accept it in full satisfaction of his
claim.39
710 Accord and satisfaction; pleading, proof
An accord and satisfaction may be proved under the general
issue or under a plea of payment.*^
711 Accord and satisfaction; plea, requisites
A plea of accord and satisfaction must allege facts from which
it appears that the defendant owes the plaintiff nothing, or that
he owes less than the plaintiff claims.^^ It is not necessarj^ to
allege that the release and quit claim are under seal.'*^
87 Dana v. Bryant, 1 Gilm. 104, ♦<> Bailev v. Cowles, supra; Wall-
107 (1844). ' ner v. Chicago Consolidated Trac-
88 Bailey v, Cowles, 86 111, 333, 335 tion Co., snpra.
(1877). <i Farmers & Mechanics' Life
39 Snow V. Griesheimer. 220 Dl. Assn. v. Caine, 224 111. 599, 607
106, 109 (1906) ; Wallner v. Chicago (1907).
Consolidated Traction Co., 245 111. *2 Bailey v. Cowles, supra,
148, 151 (1910).
2€6 ANNOTATED FORMS OF PLEADING AND PRACTICE
712 Adverse possession, proof
To constitute adverse possession a bar to a land owner's asser-
tion of his legal title, the posst^'ssion must have been hostile or
adverse, actual, visible, notorious and exclusive, continuous, and
under claim or color of title. The claim of title may be proved
by acts which clearly indicate it. In determinin<,' whether the
possession was adverse, all of the facts am,! circumstances attend-
ing the possession and the use of the land may be considered. "•*
713 Agreement to dismiss, practice
A plaintitl's promise to dismiss a suit is not pleadable in bar.
The agreement should be presented by motion to dismiss and
affidavit s.-«<
714 Alteration, pleading
The alteration of an instrument sued upon must be specially
pleaded; it cannot be proved under a j^eneral plea which simply
denies the execution, the making and the delivery of the
instrument.*^
715 Appropriations, constitutional power
The appropriation of certain sums of money for certain pur-
poses merely confers authority to use the money appropriated
for the designated purjioses, but it is inelVectual to confer con-
stitutional rights upon the oflicer for whose benefit the appropri-
ation was made.""^
716 Attorney's fees, motion
Comes now the defendant in the above stated cause, by his
attorney and moves the court to strike out of the
(second) count of plaintiff's declaration so much thereof as
alleges as special damages the expense of retaining counsel to
prosecute this suit to recover possession of the (goods or other
property) alleged in plaintiff's declaration, amounting to the
sum of dollars, for the reason that such attorney's
fees is not a proper and legal element of damage.*'
43 Rich V. Naffziger, 248 111. 455, -te People v. McCullough, 254 111.
459 (1911). 9, 24 (1912).
** Christopher v. Ballinger, 47 111. *' Gregory v. Woodbery, 53 Fla.
107, 108 (1868). 566 (1907).
+5 Tedder v. Fraleigh-Lines-Smith
Co., 55 Fla. 496, 499 (1908).
DEFENSES AXD PLEAS IX BAR 267
717 Carrier's liability, limitation, proof
The limitation upon the common law liability of the carrier is
invalid without proof of the shipper's assent to the restriction;
and when the assent is that of the consignor in behalf of a con-
signee, it must be made to appear that the consignor had author-
ity to bind the consignee.'**
718 Cause of action, practice
The plaintiff's failure to have a cause of action at the time
suit was commenced, is a good defense to the action. ^^ The
failure to state a cause of action may be raised by motion for a
directed verdict. ^"^
719 Conditions precedent ; practice, proof
A defendant cannot rely upon a plaintiff's unperformed cove-
nant as a condition precedent where the covenant goes only to a
part of the consideration, but he must .show a performance of the
covenant on his part and then rely upon his claim for damages
for any breach of covenant by the other party, either by way of
recoupment, or in a .separate action. ^^ The noncompliance with
any of the conditions of a contract sued upon which will defeat
the recovery, may be shown under the general issue.^-
720 Conditions subsequent; pleading, waiver
A defendant who dtsires to rely upon the nonperformance of
a condition subsequent, must plead it.^^ Replying the waiver of
a condition subsequent does not constitute a departure in a ma-
terial matter.^^
721 Consideration, failure of
The verification of a plea of failure of consideration is essen-
tial to its validity.^^ Under Illinois practice, an affidavit of
<8 PlaflF V. Pacific Express Co.. & Globe Ins. Co., 85 Mich. 210, 217
251 111. 243. 248 (1911). (1891).
<» Hovey v. Sebring, 24 Mich. 232 'a Carner v. Ionia Transportation
(1872). Co., 157 Mich. .54, 59 (1909).
50 Wallner v. Chicacrn Consolidated s* Tillis v. Liverpool & London &
Traction Co., 245 111. 148, 151 Globe Ins. Co., 46 Fla. 268, 279
(1910). (1903).
51 Rubens v. Hill, 213 111. 523. .536 « National Valley Bank v. Hous-
(1905). ton, 66 W. Va. 336, 344 (1909);
62Morle7 v. Liverpool & London Sec. 3891, Code 1906 (W. Va,),
268 ANNOTATED FORMS OP PLEADING AND PRACTICE
merits stands in place of a verified plea, whenever the plaintiff
files with his declaration an affidavit of his claim or demand.^*
722 Copy of instrument sued upon
The want of a copy of an instrument sued upon is ground for
a continuance, but not for tlie dismissal of the suit.^^ Objec-
tion to the sufficiency of a copy sui'd upon must be made before
trial, or it is waived.^^
723 Corporate existence ; general issue, admission
The plaintiff's existence as a corporation cannot be questioned
under the general issue, but it must be put in issue by plea of nul
iiel corporation."'^ The general issue, if pleaded alone, admits
the corporate existence of the plaintiff corporation.'^*'
724 Cumbering record, motion
Now comes the defendant in the above styled cause, by its
undersigned attorneys, and not waiving the general demurrer
filed to the plaintiff's declaration in said cause, but insisting and
relying upon the same, and moves the court to strike out the
declaration, or to require the plaintiff to amend the same, because
in its present form it is so framed as to prejudice, embarrass, and
delay the fair trial of said action, and in support of said motion
the defendant makes the following specifications:
To require the plaintiff to state specifically wherein the de-
fendant did not exercise all reasonable care and diligence in
running its locomotive engine and cars, and wherein the said
defendant did not exercise reasonable care and diligence required
by law, the general allegation in plaintiff's declaration being
insufficient to advise the defendant of all the particular acts of
negligence which plaintiff may rely upon for recovery.
Wherefore, the defendant, in the event the court should over-
rule the general demurrer filed to plaintiff's declaration, moves
the court to strike the said declaration, or to compel the amend-
ments thereto according to the specifications as above. ^'^
5« Sec. 55, Practice act 1907 59 Mclntire v. Preston, 5 Gilm. 48,
(Hurd's Stat. 1911, p. 1776). See 59 (1848).
Section 706. go Bailev v. Yallev National Bank,
57 Hopkins V. Woodward, 75 111. 127 111. 3.32, 341 (1889).
62, 65 (1874); Stratton v. Render- ei Atlantic Coast Line R. Co. v.
son. 26 111. 68, 75 (1861); Sec. 32, Crosby, 53 Fla. 400 (1907).
Practice act 1907 (111.).
58 Chiimasero v. Gilbert, 26 111. 39,
40 (1861).
DEFENSES AND PLEAS IN BAR 269
Order
This cause came on to be heard upon the motion of the defend-
ant to strike the declaration, or to require the plaintiff to amend
the same ; and after argument of counsel for the respective par-
ties, and the court being advised in the premises, it is ordered
that the said motion be, and the same is, hereby overruled, the
court holding that the said declaration is not so framed as to
prejudice, embarrass and delay a fair trial of the cause, and that
the plaintiff is limited in the trial of said cause to the several
specific acts of negligence set forth and alleged in said declara-
tion, and that the same are properly set forth in one count; to
which order of the court overruling the defendant's motion, the
defendant did then and there except.
It is further ordered that the said defendant be, and it is hereby
required, to plead to said declaration on or before
day of ,19..
725 Defective return, notice
A defendant is charged with knowledge that an insufficient
return of an otherwise legal service of process is amendable. The
defective return can be taken advantage of only when no amend-
ment according to the actual fact can ever show a valid service
of process."^
726 Defendant's capacity, admission
Unless the defendant's representative capacity is denied it
stands admitted on the record.*^^
727 Estoppel, pleading
Long delay and acquiescence in the performance of duty on
the part of officers of the state is not imputable to the state
when acting in its character of sovereign and when the applica-
tion of the doctrine of estoppel is not necessary to prevent serious
injury to individuals.*''* Matter of estoppel should be set up by
replication only when the matter does not appear on the face of
the declaration.^'^
728 Foreign corporations' contracts
A contract entered into by a foreign corporation prior to its
admission to do business in Illinois is absolutely void and cannot
«2 Spencer v Rickard, 69 W. Va. 64 People v. Whittemore, 253, 378,
322 (1911). 382, 383 (1912).
63McNulta V. Ensch, 134 111. 46, es Smith v. Whitaker, 11 HI. 417
64 (1890). (1849).
270 ANNOTATED FORMS OF PLEADING AND PRACTICE
be made the basis of an action.«« But the plaintiff's failure
to qualify to do business in Illinois as a foreign corporation can-
not be interposed in defense of an action involving interstate
commerce or matter which has not arisen out of an illegal trans-
action of business in the state.«7 Foreign corporations which
have qualified to do business in Illinois previous to 1905, are not
required to re-qualify under the act of 1905.«8
729 Foreigrn corporations' noncompliance; plea, requisites
A plea of foreign corporation must allege noncompliance with
the statute up to and at the time of the commencement of the
suit.e»
730 Foreign corporation's noncompliance; plea (Illinois)
(Precede by general issue) And for a further plea in this
behalf, the defendants say that the plaintiff, at the time of the
supposed transactions in said declaration mentioned and at the
time of the execution of tiic said boml, was a corporation organ-
ized and existing under the laws of the state of •
and doing business for {)rofit in said state; that the said plain-
tiff is not a railroad or telegraph company, nor is it engaged in
the insurance, banking or money loaning business ; that the said
writing in said declaration mentioned was executed in the state
of Illinois ami was for the purpose of securing the plaintiff for
the purchase price of goods sold the defendant ,
and that the said goods were sold and delivered in this state,
and all of said transactions were had in this state since the first
day of July, 1905.
Defendants further aver that the said plamtiff had not prior
to said transactions or prior to bringing this suit made applica-
tion to the secretary of state, signed and sworn to by its presi-
dent and secretary, stating what business it proposed to pursue
under its charter, the amount of its capital stock, the proportion
of its business to be carried on in this state, the amount paid
in on its capital stock, the value of its property to be employed
in this state, the names of its president, secretary, and directors
and their residence, and the name and address of some attorney
in fact upon whom service could be had in this state ; nor had
66 United Lead Co. v. Eeedy Ele- es white Sewing Machine Co. v.
vator Mfff Co., 222 111. 199, 202 Harris. 252 HI. 361, 367 (1911);
(1906) 1905 Laws, p. 118.
67 Lehigh Portland Cement Co. v. go McCarthy v. Alphons Custodis
McLean, 245 111. 326, 333 (1910); Chimney Construction Co., 219 111.
Alpena Portland Cement Co. v. Jen- 616, 625 (1906).
kins & Eeynolds Co., 244 111. 354,
361 (1910); Sec. 6, c. 32, Kurd's
Stat. 1909 (111.)-
DEFENSES AND PLEAS IN BAR 271
it prior to said times filed with the secretary of state a copy of
Its charter or articles of incorporation ; nor had it complied with
all the provisions of an act entitled, ''An Act to regulate the
admission of foreign corporations for profit, to do business in
the state of Illinois," in force July 11, 1905; nor had it com-
plied M-ith all other regulations, limitations and restrictions ap-
plicable to domestic corporations of like character; nor had the
secretary of state prior to said time issued a certificate entitling
plaintiff to do business in Illinois as is provided by statute; nor
had plaintiff prior to the commencement of this suit been licensed
to do business in this state, as is by said statute provided.
Wherefore, by force of the statute in such case made and pro-
vided, the plaintiff' cannot maintain its aforesaid action ; and this
the defendants are ready to verity : therefore they pray judgment
if plaintiff" ought to have its aforesaid action against them the
said defendants.
Replication
And the plaintiff, as to the plea of the defendants
above pleaded, says that it, the plaintiff, by reason
of anything in that plea alleged, ought not to be barred from
having its aforesaid action, because it says, that on the
f^^y of , it made application to the sec-
retary of state of the state of Illinois for a license to do busi-
ness in said state ; that it filed in the office of the said secretary
of state duly authenticated evidence of its incorporation, as is
provided by law, and did, in all respects, comply with all the
requirements of the laws of Illinois governing foreign corpora-
tions doing business in the state of Illinois; that said secretary
of state, on the day of , issued
to the plaintiff a certificate entitling it, the plaintiff, to do
business in the state of Illinois for a period of ninety-nine years ;
and that the plaintiff has since said day of
... , been legally qualified to do bu.siness in the state of Illi-
nois; and this the plaintiff prays may be inquired of by the
country, etc.^*'
731 Foreign judgment
In an action on a foreign judgment or decree, all defenses
which could have been urged to an action thereon in the state
where the judgment or the decree was rendered, are available in
a similar action in Illinois.'^ ^
70 Wliite Sewing Machine Co. v. 7i Britton v. Chamberlain, 234 HI.
Harris, 252 111. 361. 246, 249 (1908).
272 ANNOTATED FORMS CF PLEADING AND PRACTICE
732 Foreign statute
The statute of another state, if relied upon as a defense, must
be pleaded as set out, or in substance.' -
733 Fraud, burden of proof
The eU'ect of interposing the defense of fraud in an action
at law is merely to shift the burden of proof.'^
734 Fraud, pleading
Fraud and misrepresentation relatinjjr to the consideration of
the instrument must be specially pleaded or noticedJ*
735 Fraud ; plea, nature
A plea of fraud is a defense to the whole action."^ A plea
charging fraud in procuring the acceptance of a draft, is a plea
at law and it is not available as an equitable defense."*^
736 Fraud ; plea, requisites
A plea of fraud and circumvention must aver the facts which
constitute the fraud,"" or the means whereby the fraud was ac-
eomplishedjs The plea must charge the plaintiff with knowledge
or notice of the alleged fraud,""' and it must aver reliance upon
the representations claimed to be fraudulent.^'^ A general charge
that a party acted fraudulently or that he was guilty of fraud, is
a conclusion and is insufficient. ^^ A plea of fraud and circum-
vention, under Illinois statute, must show fraud and circumven-
tion in obtaining the execution of the instrument and not in the
consideration.^- In West Virginia, a plea which alleges fraud in
the procurement of the contract sued upon, must be verified by
Eiffidavit.^^
72 Donovan v. Purtell, 216 111. 629, 62. 65 (1874) ; Sims v. Klein, Breese,
641 (1905). 303; Sees. 9, 10, c. 98, Kurd's Stat.
73 Zeigler v. Illinois Trust & Sav- 1909.
ings Bank, 245 111. 180, 196 (1910). 79 stouflfer v. Alford, supra.
74 Miller v. Finley, 26 Mich. 248, so Wisdom v. Becker, 52 111. 342,
250 (1872). 345 (1869).
75 Sims V. Klein, Breese, 302 si People v. Henry, 236 111. 124,
(1829). 128 (1908).
7c Stoiiffer V. Alford, 114 Md. 110, 82 Elliott v. Levings, 54 111. 213,
116 (1910). 214 (1870); Latham v. Smith, 45
77 Cole V. Joliet Opera House Co., 111. 25, 27 (1867).
79 111. 96, 97, 98 (1875); Jones v. 83 National Valley Bank v. Hous-
Albee, 70 111. 34, 36 (1873). ton, 66 W. Va. 336, 344 (1909);
78 Hopkins v. Woodward, 75 lU. Sec. 3891, Code 1906.
DEFENSES AND PLEAS IN BAB 273
737 Fraud; notice, proof
A notice which sets up fraud as a special defense limits the
defendant to the specific fraud therein alleged.s-i
738 Improper matter in declaration, motion to strike
Now comes the defendant in the above stated cause by his
attorney , and moves the court to strike out of the
• • .• count of plaintiff's declaration so much thereof as
alleges special damages, the expenses of retainmg counsel to
prosecute this suit to recover possession of the
alleged in plaintiff's declaration amounting to the sum" of*'*'
., for the reason that such attorney's fees are not a
proper and legal element of damage.
Dated, etc.
Defendant's attorney.
739 Indebtedness not due, oyer
In an action upon an indebtedness which is not due but which
IS described as due in the declaration, the defendant may either
set out the evidence of the indebtedness on oyer and demurrer
to the declaration, or he may present the defense by an objection
to the plaintiff's evidence on the ground of variance.s^
740 Jury, right
The constitutional right to trial by jury is limited to rights
which existed at common law at the time of the adoption of the
constitution. It does not include new rights which were unknown
to the common law. An attorney's lien was unkno^vn to the
common law and its enforcement may be authorized without
a trial by jury.^s
741 Jury; empaneling, notice
At common law the parties to a proceeding in which a jury
is to be impaneled must have notice of when the jurors are to
be selected, to give them an opportunity to be present and to
interpose any legal objections to the qualifications of any person
to sit as a juror in the cause.^'''
84 Pangboni v. Continental Ins. 87 Vandalia Drainage Distrift v /
Co 62 Mich. 638. 640 (1886). Vandalia R. Ca,T47^IIl 114 119
85_ Harlow v. Boswell, 15 111. 56 (1910). '
( loOo).
seStandidge v. Chicago Rys. Co.,
254 III. 524, 532 (1912).
274 ANNOTATED FORMS OF PLEADINQ AM' lii\< iKK
742 Misnomer of defendant, waiver
Hy jik'ailin^' in l»ar of iiii ex dilicht action hy tlio ri^'ht name, a
defendant waives his right to raise an objection on account of
his misnomer.**
743 Mutuality, want of
A contract wliioh is not mutual is void for want of consid-
eration.®"
744 Non est factum, nature and eflfect
At common law a pica of non est factum in actions upon spe-
cialties and the general issue in actions upon simi)le contracts
put in issue the execution of an instnnnent."" A [)lea of non est
fuel inn merely denies the execution of tin- deed or instrument; it
is not a pica ol" the general issue."' The denial of the execution
or assignment of an instrument includes the denial of its
delivery. "-
The plea of mm rst factum is appropriate in Florida for the
purpose of denying the execution of a sealed instrument.''"* If
an instrument is made a part of the declaration, the execution of
the instrument, if not denied by plea, is admitted."*
In Illinois the execution or assignment of all written instru-
ments, whether sealed or not, which form the basis of an action
or a defense must be put in issue by verified plea of the general
issue, by verified plea of 7i{>n est factum, or by any verified plea
which amounts to a denial of the plaintiff's cause of action. It
cannot be done by verified notice filed with the general i.ssue."'^
The execution or the assignment of an instrument is admitted if
not denied by afTidavit.-"'
In ^Michigan the execution of an instrument" sued upon is ad-
mitted, unless an affidavit denying the execution is filed with the
88 Chicago & Alton R. Co. V. Hein- o* Griffin g Bros. Co. v. Winficld,
rich. 157 111. 388, 393 (1895). 53 Fla. 589 (1907).
so Higbie v. Bust, 211 111. 333, os Bailov v. Vallev National Bank,
337 (1904). 127 111. 338, 340; Gadfly v. Mc-
00 Bailev V. Valley National Bank, Cleave, 59 111. 182, 184 (1871);
127 111. 332, 339 (1889). McDonald v. Peoide, 222 111. 325,
•n Reeves v. Forman, 26 HI. 313, 328 (190fi); Sec. 52, Practice act
319 (1861). 1907 (111.).
92 Bailey v. Valley National Bank, soMcIntire v. Preston, 5 Gilm. 48,
127 111. 340. 63, 64 (1848).
93 Tillis v. Liverpool & London &
Globe Ins. Co., 46 Fla. 268. 277
(1903); Circuit Court Rule 67.
DEFENSES AND PLEAS IN BAR 275
plea.°^ Notice of special defense does not take the place of this
affidavit.88 In the absence of a denial, under oath, of the execu-
tion of the instrument sued upon, no contradictory evidence of
the writing is admissible.''*^
A plea of non est factum must be verified by affidavit, in West
Virginia, or the plea will be rejected.^o^
745 Non est factum, proof
Accord and satisfaction cannot be shown under a plea of non
est factum.^'^'^ A married woman's incapacity to contract may
be proved under this plea,i'*- and this rule is not changed by the
Married Woman's act of 1861.^03 Fraud which relates to the
giving of a deed or instrument and not to its consideration, as
that it was misread to the maker or that the signature was ob-
tained to an instrument which he did not intend to sign, may be
shown under a plea of non est facfum.^^* A plea of non est
factum merely denies the execution of the deed or instrument in
point of fact.i"*^ It will not authorize proof of the alteration of
the deed or the instrument.""'
746 Non est factum; pleas (District of Columbia)
*"' Now comes the defendant, the and
says that the writing obligatory is not its writing obligatory in
manner and form as is alleged in said deelaration.
(Illinois) I'Ira
And the defendant, by , his attorney, comes and
defends the wrong and injury, when, etc., and says, that the said
deed (or policy, a.s the ease may be) as in .said declaration stated
is not his deed ; and of this the said defendant puts himself upon
the country, etc.
8T Miller V. Prussian Nat T Ins. loa Streoter v. Streeter, supra.
Co., ir)S Mich. 402. 404 (1909). J04 Dorr v. Munsell, 13 Johns. 430
9« Simon v. Home Ins. Co., 58 (N. Y. 1816) ; Taylor v. Kin}?, 6
Mirh. 278 (1885). Miinf. 358, 366 (Va. 1819); Fran-
99 I'nion Central Life Ins. Co. v. chot v. Leach, 5 Cow. 506 (X. Y.
Howell, 101 Mich. 332. 334 (1894); 1826); Cole v. Joliet Opera House
Miller v. Prussian Nat '1 Ins. Co., Co., 79 111. 96, 97 (1875); See Sec-
rupra. lion 706.
100 National Valley Bank v. IIous- los Circuit Court Rule 67.
ton, 66 W. Va. 336, 344 (1909); loo Tedder v. Fraleigh-Lines-Smith
Sec. 38.59, Code 1906. Co.. .55 Fla. 496, 498 (1908).
>oi Bailey v. Cowles, 86 111. 333, iot See Section 211, Note GO.
335 (1H77).
101 Streeter v. Streeter, 43 111. 155,
164 (1867).
276 ANNOTATED FORMS OF PLE-IDINO AND PRACTICE
Plea b
That he never, on any occasion, time or place, made the said
promissory note in the said plaintitTs dct laration mentioned,
"J. W. T. & Co." nor did lie promise, jointly and si-vi-rally, by
the name, style and description of " ," to pay the
sum of money mentioned in said promissory note, to ; • • '.
nor dill he ever, dirrttly or indirectly, authorize the making of
any such note as ther«'iu dt'scrihed, ami the said drfciulant fur-
ther avers, that, on no occasion was he ever a copartner of the
said and that no relationship of the kind what-
ever ever subsisted between them, the said defendant, and said
,. expressly or by implication, and that he had no
knowledi^e of the existence of siiid note until this action was
brou^'ht, nor has be any knowledj;e of the consideration thereof,
and positively denies the execution of the same in manner and
form as in said plaintitT's declaration is alle|^e<l ; and this the said
defendant is ready to verify. Wlierefore, etc.
fiC plication
And the said plaintilT, by bis attorneys , as to
the said plea of the said defendant impleaded, etc.,
by him secondly al)ove pleaded, says, that he. the said plaintifT,
by reason of anythini; by tiie said <lefendant in that plea alleged,
oiifiht not to be" barred from having and maintaining his afore-
said action thereof against him, the said defendant implca<led,
etc., because, he says, that the defendant did, on the occasion,
time and place in said declaration mentioned, make the said
promissory note in the said i)laintitV's said declaration men-
tioned, in manner and form as therein alleged, and did
promise, then and there, jointly and severally, by the name,
style and description of , to pay the sum of
money mentioned in said promissory note to the said ,
and did authorize the n.aking of the said note in said declara-
tion described. And the said plaintiff further replying, avers,
that the said defendant , was a copartner of the
said and that a relationship of that kind did sub-
sist between the said defendant and said
, and that said well knew the exist-
ence of said note at the time of the making thereof, and long
before and up to and until the bringing of this action, and that
the said defendant , did execute the said promissory
note in said declaration mentioned, in manner and forr.! as in
said plaintilf' s declaration is alleged. And of this the plaintiff
puts himself upon the country, etc.^*^^
108 Fuller v. Eobb, 26 111. 246, 247
(1861).
DEFENSES AND PLEAS IN BAR 277
(Maryland)
For a plea to the plaintiff's declaration, the defendant by its
attorney says that the deed as described in said declaration is
not the deed of this defendant.
Attorney for defendant.
Affirmed as to the plea of 7ion est factum this
day of , by , secretary of the defendant
company.
(Mississippi)
Personally appeared liefore me clerk of the
court of said county and state, , who
on oath says that he is not liable and not indebted in manner
and form alleged to pay, or either of them, any of the alleged
acceptances sued upon, because he says that he did not si^^n and
execute .s^iid acceptances, or either of them ; that said acceptances
did not have any of them at the time his name was signed to
them, the sum of dollars either in writing or fig-
ures, nor any promise to pay said sum, nor any sum ; that de-
fendant positively refused to sign any note or contract whatever
to the , or anyone ; that a person representing him-
self as agent of the , made a verbal contract with
defendant whereby it was agreed that should ship
defi-ndant an a-ssortnient of jewelry, the amount and price of
Avhich was not then tieterniined or agreed upon, which said jew-
elry was to remain in the store of defendant at for
months on consignment, that defendant should
sell what he could for any price he pleased and account from
time to time to the company for what he actually
sold, at the invoice price, that the defendant should never pay
anything nor l)e liable lor any jewelry not sold, and at the end
of the year either j)arty could have the jev.elry unsold removed
by the that any profit (uade on the jewelry sold
should belong to defendant, and that should fur-
nish a case for the jewelry free of charge to defendant, which
should belong to defendant at the end of the year; that the con-
tract was made ai)Out and that the jewelry was
delivered about ; that defendant refused to sign
any note for the jewelry at all ; tiiat the agent of plaintiff re-
quested defendant to sign the instrument sued on simply to sig-
nify his acceptance of the jewelry and not as a note, on the rep-
resentation that when defendant should report from time to time
what jewelry was sold as was contemplated should be done every
days and remit therefor
would fill in the blanks the amount of the remittance and receipt
the paper and return it ; that he signed the blank acceptance
only on such representation and understanding; that he would
not have signed otherwise ; that he did not authorize anyone to
278 ANNOTATED FORMS OF PLEADING AND PRACTICE
fill in said blank acceptance the sum of dollars
and treat and use the same as commercial paper, nor as a note,
nor as any promise to pay money ; that said acceptance was so
filled in and used without his knowledge, consent or authority;
that he would not have si^'Ucil said acceptance had it been rep-
resented to him iis an a^i-ccment to pay anything whatever; that
he did not, by sij^ning the same in on said repre-
sentations of company's agent, intend thereby, and
did not thereby, bind himself to pay anything;
that said acceptance was not signed by him, and is wholly void
and inoperative and was fraudulently obtained anil fraudu-
lently altered and tilled in and fraudulently used contrary to the
distinct understanding and agret-ment when signed; that he has
remitted for all the jewelry that he has sold ; that
the renmining jewelry unsoUl is tarnished in the cases and is
of no value, ami that said acceptance is not signed and executed
by defendant: all of which he is ready to verify.
Defendant.
Sworn, etc.
747 Nul tiel corporation, plaintiff, nature and scope
A plea which lienies that the plaintiff is a corporation, being
in bar of the action, operates as a special traverse of the aver-
ment that the plaintilf is a corporation and puts it upon proof of
that fact.'"'* The defense of nul tiel plaintitV corporation can
only be interposed by plea ; it is not available under the general
issue and notice."^ A plea of nul t'ul corporation is good where
there is no corporation at all, as distinguished from a dc facto
corporation.^^* A party who has contracted with an association
as a corporation and who has received benefits under the con-
tract, is estopped from questioning the legality of the incorpora-
tion in an action upon such contract.* *-
748 Nul tiel corporation, plaintiff, proof
All that is necessary for the plaintiff to prove under this plea
is an organization in fact and a user of corporate franchises.**'
The want of capacity to sue as a corporation may be shown
109 Lewiston v. Proctor, 27 111. 414, cago Opera Board of Trade, 238
416 (1862); Hoereth v. Franklin 111. 100 (1909).
Mill Co.. 30 111. 151. 157 (1863). 112 Booske v. Gulf Ice Co., 24 Fla.
iioBailev v. Valley National 550,559(1888).
Bank, 127 Dl. 332. 340 (1889). ii3 Mitchell v. Deeds, 49 111. 416,
"1 Imperial Building Co. v. Chi- 420, 422 (1867).
DEFENSES AND PLEAS IN BAR 279
where the plea of mil tiel plaintiff corporation specifically de-
nies the right to sue in the name used.^^*
749 Nul tiel corporation, plea
(Precede by general issue) And for further plea in this
behalt, the defendant say actio non because -he say that
there is not and was not at the time of the commencement of
this suit, any such corporation as the as by the
said declaration is above supposed. And of this he put
sel. . . . upon the country.
750 Nul tiel record, nature
A plea of nul tiel record is a plea in estoppel and does not pre-
clude a party from insisting upon other defenses after the plea
or replication is disposed of."^
751 Nul tiel record; evidence, coverture
Kvidt'iice of coverture is admissible under plea of nul tiel
record.''"
752 Nul tiel record, plea
(Commence as in Section 889) That there is not any such
record in the court of county (or
ever made) in the state of Illinois as plaintiff has above in its
declaration alleged; and this the defendant is ready to verify
wherefore, he prays judgment, etc.
Replication
(Commence as in Section 928) That there is such a record
remaining in the said court of
county, as the plaintiff hath in its said declaration alleged ; and
this the said plaintiff is ready to verify by the said record,' and
therefore puts itself upon the court here for trial.
Plea h
That there is not any record of the said supposed order of
dismissal of the &ind action of replevin, and order for the return
of the property taken, in the said declaration mentioned, remain-
m Marsh v. Astoria Lodge, 27 "• Forsyth v. Barnes, 228 111. 326,
111. 421. 425 (1862). .3.31 (1907).
115 Dana v. Bryant, 1 Gilm. 104,
108 (1844).
28U ANNOTATED FORMS OP PLEADING AND PRACTICE
ing of record in the said court of
county, in manner and form as the plaintiff ha in said decla-
ration alk'j^ed ; and this the defenilant ready to
verify; wherefore he pray judtrinent.
753 Nul tiel record; judgment, nature
A plea in estoppel requires a court's preliminary decision
when there are other questions of fact to be tried; and a jud^j-
ment thereon is merely interlocutory.^*'
754 Ordinance ; collateral attack, burden of proof
The determination by an ollieial boily or tribunal, as a city
council, upon any question within its authority to hear and de-
termine, is, in effect, a judgment having all the properties of a
judfrnicnt pronounced by a legally created court of limited juris-
diction ami may be attacked eollaterally oidy for want of juris-
diction. The l>unleii of proving the want of jurisdiction for the
pur]iose of eollatenil attack, is upon the party attacking the judg-
ment or proceding.****
755 Ordinance ; validity, reasonableness, burden of proof
An ordinance will be sustained which is fairly susceptible of
a construction that would make it valid, and also of one that
would make it invalid."-' An ordinance is regarded as prima
facie reasonable ; the burden of proving its unreasonableness is
upon those who assail it.*-*^
756 Ordinance, pleading
A municipal ordinjuice must be specially pleaded and in plead-
ing the ordinance it is only necessary to set out the substantial
parts of the ordinance so that its requirements may be seen and
known. ^-1
757 Organisation, collateral attack
In a collateral proceeding involving the enforcement of an
ordinance or the liability to a penalty or a tax, the validity of the
117 Dana v. Bryant, 1 Gilm. 108. 120 Springfield v. Postal Tele-
118 People V. ElUs, 253 111. 369, graph-Cable Co., 253 111. 346, 354
374 (1912). (1912).
119 Park Ridge v. Wisner. 253 111. 121 People v. Heidelberg Garden
360, 363, »64 (1912). Co., 233 111. 290, 297 (1908).
DEFENSES AND PLEAS IN BAR 281
proceeding: by which the municipal corporation was created can-
not be attacked or called in question in any respect by either
party. 1-- And this rule extends to the territorial annexation or
disconnection proceedings of a city council. ^23
758 Oyer, motions (District of Columbia)
Now comes the defendant , by its attorney and
craves oyer of the bond dated , alleged to have been
given the plaintiff company by , since deceased,
and the application therefor by the said dated
, as referred to in plaintiff's declaration and affi-
davit filed herein.
Attorneys for defendant.
(Illinois)
And now comes the said defindant by , its attor-
ney, and craves oyer of the policies of insurance sued on, and
moves for a rule upon the said plaintiff that he produce in court
for the inspection of this defendant the original policies of
insurance referred to and mentioned in his declaration filed
herein, tmd each of them, and the conditions thereof; and that
until such policies are produced the said cause stand continued
without day.
Defendant's attorney.
Order
And afterwards, to wit, on the day of , and
of the term, , of the said court, the
said motion and prayer for oyer came on to be heard before
the honorable , one of the judges of said court,
both parties being then and there present by their attorneys.
And thereupon the said attorneys of the said defendant made
said demand and prayer for oyer in open court and asked that
said motion and prayer be granted as asked, but the court
then and there in session denied said motion and decided that
oyer of said policies of insurance could not be had or craved
by the defendant; to which decisions and each of them the said
defendant by its said counsel did then and there duly except.
769 Partnership, plea
(Commence as in Section 885) That the plaintiff ought not
to have his aforesaid action against him the defendant
122 People V. Ellis, supra. 123 People v. Ellis, supra.
282 A.NNOIAIIP »ouM.- Ml JM.F.AniNO AND IMIACTICE
because he says, he is not uor t-wv was a partiuT with thi' siiid
in respi'ct to th»' said si-vt-ral supposed »aus»'s of
action in said declaration mt'ntionrd, or any or either of them in
rnminer and form as the phiintitY has al)Ove in that behalf
averred (Conclude to the eountry and aild verilication).
760 Payment ; nature and scope
Tlie payment of a part of a debt, or of li<|uidated damaui's. is
no satisfaetion of the whole debt, even when the j-reilitor ajfrees
to receive a part for the whole and pives a receipt for the whole
demand. Hut if a smaller sum is taken by way of eompn)mise
of a controverted claim, or from a debtor in failinj; eireum-
stances, in full disi'liar^e of tin- debt, the partial payment is bind-
ing; on the partic'S.*-'* A plea of part i)ayment op«'rates as an
extinguishment pro lantu anil is not available as a set otT.'-*
761 Payment, pleading
A plea of payment nuiy be pleaded orally, under West Vir^nnia
praetiee, with the bill of particulars which is re(|uireil by
statute.'-"
762 Payment, plea (Maryland)
(Precede by ^feneral issue i An<l for tluMr pb'a,
the defemlants say that before this action they riill\- satislicd
and discharged the plaintitY's claim by payment.
(Virginia)
That before this action the plaintifT's claim was satisfied and
discharged by payment.
763 Performance, estoppel
A refusal to perform a contract on one ground estops a party
from basing his refusal upon another ground.'-^
764 Puis darrein continuance ; pleading, time
A plea puis darrein continuance may be filed at any time be-
i24Curtiss V. Martin, 20 111. 5.57, 1=8 National Yallev Bank v. Hous-
557 (1858). ton, 66 W. Va. 342."
i25Solary v. Stultz, 22 Fla. 263, i^" Osgood v. Skimier, 211 111. 229,
269 (1886). 237 (1904).
DEFENSES AND PLEAS IN BAR 283
fore trial; ^-» but it should be interposed as soon as the occasion
therefor has arisen.^-" *
765 Puis darrein continuance; plea, requisites
The plea must show facts that have happened after the last con-
tinuance, and not before it; i^o jt must also give the day of con-
tinuance, and the time and place where the matter of defense
arose.^^i Althoujirh in bar of the action this plea requires a veri-
fication. "i: In Illinois, more than one plea puis darrein continu-
ance is permittt'd in the same cause.*^^ When properly pleaded
this plea waives and supersedes all previous pleas and confesses
the matter in disi)ute between the parties in so far as pleaded.134
A plea of puis (larnin continuance does not admit the truthful-
ness of an aflidavit fur a capias ad rtspondendum.^'-^^
766 Puis darrein continuance, practice
At (•oniiuun hiw a new issue imisl be formed on a plea of puis
darrein continuance by replication or otherwise, and this is true
in Michigan notwithstanding the provision which abolishes spe-
cie pK'as and the jn-ovision which reciuircs notice of special mat-
ter of defense.'^"
767 Recoupment defined
The right of a dernuliint to show that the plaintiff did not sus-
tain damages to the extent alleged, and thereby to reduce, abate,
or altogether defeat his recovery, when the subject matter of the
reduction springs immediately from the claim relied upon by the
plaintilY, is denominated recoupment at common law.^^T i^
Michigan the right of recoupment has been extended to permit a
recovery of a judgment the same as in case of set off.^^s
i2«Rohin3on v. Burkell. 2 Scam. "s Sec. 50, Practice act 1907, ob-
278 (l»4i»); East St. Louis v. Ren- viating, on this point East St.
shaw. ir.3 111. 491, 499 (1894); Louis v. Renshaw, l.J3 111. 491, 498,
Ross V. Nesbit, 2 Gilm. 252 (1845); 499 (1894) and other cases.
Kenyon v. Sutherland, 3 Gilm. 99 i34 East St. Louis v. Renshaw, 153
(l»46). 111. 491, 498; Mount v. Scholes, 120
»:»Souvais v. Leavitt, 53 Mich. 111. 394, 399.
577. 580 (1884). las Van Norman v. Young, 228 111.
130 Kenyon v. Southerland, 3 Gilm. 425, 428 (1907).
99, 103 (1846). 13.J Johnson v. Kibbee, 36 Mich.
« 31 Ross V. Nesbit, 2 Gilm. 252, 269, 270 (1877).
357 (1845). 137 Ward v. Fellers, 3 Mich. 281,
i3i Mount V. Scholes. 120 111. 394, 286 (1854); M 'Hardy v. Wads-
399 n887); overruling Robinson v. worth, 8 Mich. 349, 354 (1860).
Burkel, 2 Scam. 278.
284 ANNOTATED FORMS OP PLEADING AND PRACTICE
768 Recoupment disting^shed
The common law recoupnient differs from set off in that re-
coupment is oontined to matters arisini; out of, and connected
with, the transaction or euutraot upon which the suit is brought,
in that it includes liquidated and unliquidated damaffcs, in that
the judgment for the defendant is not for an access of dam-
ages, 13" and in that the delenst- may be availed of under the gen-
eral issue. 1*^
769 Recoupment; claims, nature
In recoupment, tlie opposing,' elaims may be different in char-
acter, provided they arise out of the same subject matter and are
susceptible of adjustment in one action. '*> A claim ori^Muating
in contract may be recouped a^^ainst one founded in tort, and
damages growing out of a lort may be recouped in a suit upon
contraet.'*2
It is not necessary, in recoupment, as in set off, that the mat-
ter to be recouped shall arise between the same parties to the
record provided the counter claims prow out of the same subject
matter and are susceptible of adjustment in one action. '^^
Damages which arise from a breach of an express or implied
warranty in a contract forming the subject matter of the suit, are
recoupable.*"*^ Danuiges which result from a breach of an im-
plied warranty of quality are not recoupable in an action for
the purchase price of an article, under a general agreement that
the acceptance of the article shall be in full discharge of the
contract, and there is a constructive acceptance of the article;
as the acceptance waives the damages of such a breach.^*^
Damages resulting from the wrongful prevention of the
performance of a contract are not recoupable.^"*®
A party may set up by way of recoupment whatever he might
have declared upon at the time of the pleading and he is not
confined to the time of the commencement of the action.' <^
138 (10082), C. L. 1897 (Mich.). 428. 430 (1875); Walker v. Chovin,
139 Ward V. Fellers, 3 Mich. 281, 16 HI. 489, 491 (1855).
287 295 (1854). 144 Commercial Bealty & Constnic-
lio Stow V. Yarwood, 14 111. 424, tion Co. v. Dorsey, 114 Md. 172, 177
425 (1853). (1910). , t> * •
141 Streeter v. Streeter, 43 111. 155, i« Wolf Co. v. Monarch Refrig-
161 (1867)- Stow V. Yarwood, 14 eratingr Co.. 252 HI. 491. 508 (1911).
Ill 426. ' i*c Stahelin v. Sowle, 87 Mich. 124,
142 Streeter v. Streeter, supra; 134 (1891).
Stow V. Yarwood, supra. 1^" Piatt v. Brand, 26 Mich. 173,
1*3 Waterman v. Clark, 76 111. 175 (1872).
DEFENSES AND PLEAS IN BAR 285
This is a safe rule in recoupment, but not in set off, for the rea-
son that in recoupment a counter claim must arise out of, or
must be connected with, the subject matter of the suit and there
is, therefore, no possibility of buying up claims that are uncon-
nected with the subject matter of the litigation for the purpose
of recouping them in a pending action and thereby avoiding a
judgment for costs, as it is possible in set off if the foregoing rule
would prevail there.
770 Recoupment, pleading
At common law it is not necessary to plead recoupment spe-
cially, but it may be availed of under the general issue.^^* In
Illinois actions upon promissory notes, bonds, bills or other in-
struments in writing, a claim of recoupment must be specially
pleaded.i<3
A recoupment plea must be in bar of the entire cause of action
and may be pleaded when the defendant's damages are equal
to or greater than that claimed, but not when it is less than
that which is demanded.^^''
A plea or notice of recoupment must specify the breach of
the contract or the violation of the duty complained of giv-
ing instances or acts, and it must show the damages sustained
in consequence thereof. ^^^^ Generally, the recoupment plea or
notice should allege every material fact that is necessary to make
out a cause of action against the plaintiff. It should be as spe-
cific as a declaration.^52 if damages are claimed for an improper
performance of a contract, or for a failure to perform the con-
tract within a time limit, all the facts and circumstances showing
such damages must be fully and definitely stated.^^^ A defend-
ant is limited to the damages which are claimed by him.^^*
KsStow V. Yarwood, 14 111. 425; iso Wadhams v. Swan, 109 111. 62,
Streeter v. Streeter. 43 111. 163; isi Watkins v. Ford, 69 Mich. 357,
Babcock v. Trice, 18 111. 420, 421 359 (1888).
(1857); Addems v. Suver, 89 111. i" Delaware & Hudson Canal Co.
482, 483 (1878); Wadhams v. Swan, v. Roberts, 72 Mich. 49, 50 (1888).
109 111. 46, 62 (1884); Commercial iss Darrah v. Gow, 77 Mich. 16,
Realty & Construction Co. v. Dorsev, 25 (1889); Maltbv v. Plummer, 71
114 Md. 172 (1910); Franklin v. Mich. 578, 588 (1888).
Lilly Lumber Co., 66 W. Va. 164, i54 Taylor v. Butters & Peters
166' (1909). Salt & Lumber Co., 103 Mich. 1,
M9 Waterman v. Clark, 76 111. 428, 3 (1894).
431 (1875); Sec. 9, c. 98, Kurd's
Stat. 1909, p. 1531.
286 ANNOTATKl) FOKMS OF I'LEADlNd AND PR-\CTICB
771 Recoupment, judgment
At (•oiniiioii law a .l.lriHlant who avails himsolf of the rik'ht
of recoupiiu'iit is not entitliil to jiulK'nu'iit for an excess of dam-
ages found in his favor.'^^* A judK'tiient for defendant for an
♦•xccss of danuiRfS in his favor is permissible untler Miehi^'an
j)nn'tice.'**'
772 Release and discharge, practice
A nl.Jisr which luis l..rri ohtain.-d by duress of property is
invalid and inrtTectual as a defense.'" A ph-a of release may
therefon' br dcf.-ated by a n-plieation that the n-li-jtso was oh-
taiiu'd by dun-ss of property.'^'* A release and dis.-har^'e oh-
tainrd after joinder of issue is ina<lmissible under the general
issue, hut must he shown und»r a pha of /)i//.< darrein continu-
ance or a notice in the nature of such a plea.**"
773 Release of surety, pleading
The allowance aiul tli.- ac.-. ptanc*' of a discount for the si'ttle-
mcnt of ditVcrcnccs arising' in a ^nuirantccd credit a«*count, (h)es
not release the tjuarantor of the account."'" Facts which consti-
tute a release of surety must be spe«ially pleaded.*'" The release
of a co-surety must be specially pleaded. '*•-'
774 Res judicata, doctrine and application
Anv fiiet or (|uestion which was actually or directly in issue
and which was passed upon and determined by a court having
jurisdiction to decide the controvercy is forever s«'ttled between
the i^arties to the suit and persons in privity with them in any
sul)sc<iuent collateral litigation, reijardlc.ss of the form of the
action.'""^ The fundamental i>rinciple underlying the defense of
res judicafn is one of justice and public policy. '«<
iBsWfira V. Pollors, 3 ^fich. 2S1, v. Mnllors. 2.?: Til. 110. 121 (190S).
"95 (1S54)- MHar.lv v. Wa.ls- ioJ Rawlings v. Cole, 67 Mich. 431,
worth. 8 Mich. :u;). :>o4 (ISGO); 432 (I^.h;).
Stow V Yarwood, 14 111. 424, 426 i" Chicago Terminal Transfer R.
ns\s) Co. V. Barrett. 2.-^2 111. 8(5, 93
150 (10082), C. L. 1S97 (Mich.). (19in ; Chicago v. Partri.lgp. 248
i57Spai.ls V. Barrett, 57 111. 289, 111. 442. 446 (1911); Hanna v.
•->93 (1870). Rt-a^J. 1'^- I"- '^96, 603 (1882) ; Peo-
"issSnaiils V. Barrett, supra. pie v. Amos. 246 111. 299, 303
i59Sonvais v. Leavitt, 53 Mich. (1910); Gray v. Gillilan, 15 111.
577 579(1884). 453. 4.55 (1*<54); Vanlan.lingham
K'o Malleable Iron Range Co. v. v. Ryan. 17 111. 25, 29 (18.55).
Pusev. 244 111. 184. 197 (1910). ifi< Hanna v. Read, 102 111. 596,
161 Commercial Loan & Trust Co. 603 (1882).
DEFENSES AND PLEAS IN BAR 287
The doctrine of res judicata is applicable to every matter which
was actually determined in a former suit, and also to every other
matter which necessarily might have been raised and deter-
mined in it.i''^ It is limited to matters necessarily involved in
the litigation, whether the ultimate vital or only incidental point
was deeided.i"" It has no application to matters of mere direc-
tion that have no effect upon the substantial rights of the
parties.'"^ It has no application against or in favor of anyone
who is not a party or privy to the record.i^s The county clerk
is in no jiroper sense a representative of the tax payer whose
rights are not derived from him or dependent upon his acts.^°»
The people are regarded as the real party to a proceeding which
has the enfonviii.-nt of public riglits.!'*^ The doctrine of res
judicata is alike applicable to law and equity.' ' ^ The defense of
former adjudication may arise in three different ways: as an
estoi)|)cl by judgment, as an estoi)pel by verdict, and as an es-
toppel against an estoppel. >'-
775 Res judicata, burden of proof
Tlie party who insist up(»n a foniicr adjudication must bring
himself within all of the elements tliat enter into the rule or
doi'trine of ;«.v judicata, before lie can claim its benefit.'"-' The
similarity of the <|Ucstions involved in the two proceedings may
be shown by the record of the first suit or by extrinsic evidence,
if that fact does not appear from the record.'"*
776 Res judicata; pleading, waiver
Matter which constitutes ris judicata must be specially
pleaded or noticed, whether it be in a declaration, plea, or
replication. ^^^
• •IS South Park Commissioner: v, ki People v. Harrison, 253 111.
MnntRonirry Ward A: Co., 248 111. 628.
299, 310, 312 (1911). i'-' Chicago Theological Seminary
i«'i Attorney General v. Chicago & v. People, 189 111. 439, 443 446
Evanston R. Co., 112 111. 520, 539 (1901); Wright v. GrifiFey, 147 111.
(1884). 496. 498 (1893); Hanna v. Read,
»«7 Mariner v. Ingraham, 255 111. 102 111. 602.
108, 114 (1912). 1-1 Chicago v. Partridge, 248 111.
i«8 People V. Amos, 246 111. 299, 442. 447, 448 (1911).
303 (1910). 174 Chicago Terminal Transfer R.
100 People V. Chicago. Burlington Co. v. Barrett, 252 111. 86, 92
& Quincy R. Co., 247 111. 340, 345 (1911).
(1910). 1-5 Consolidated Coal Co. v. Peers,
I'O People V. Harrison, 253 111. 166 111. 361, 368 (1897); Bryant v.
625, 629 0912). Kenyon, 123 Mich. 151, 154 (1900) j
288 ANNOTATED FORMS OK IM.KADING AND PRACTICE
777 Res judicata; estoppel by judgement, generally
An estoppt'l by ju<lKinfnt is limit.-d to jud^^iMt-nts whii-h in-
volve a decision upon the merits of tlie eontrovirsy, whether the
issue raised was by demurrer or plea,''" A juil^'ineut upon u
demurrer for defect in the phnidinjjs as upon special demurrer,
is no bar to another action for the same cause; but a decision
upon the merits of a cause of action or defense, as upon general
demurrer is a bar to a subse<iuent proceeding upon the same
facts. '^^ A former recover*' is a good defense to a 8ul)sequent
action notwithstan<lin^r the pendency of an appeal from the judg-
ment or decree.*'" In an estoppel by judgment there must be,
as between the actions, indentity of parties, of subject nuitter,
and of cause of action. '••• It is not th.- recitals of a judgment,
but it is its effect which makes it res judicata.^'^^
778 Res judicata; estoppel by judgment, aflfirmance and rever-
sal
A judgment of affirmance finally and conclusively puts an end
to the controversy as to all objections actually made or which
might have been made and as to the merits whether considered
or not in the reviewing court. »"» A judgment of reversal may
constitute a bar or an estoppel to a subscfiuent proceeding if it
is shown that it directly affirms or denies some distinct fact in
issue; although as a general thing, a reven^al simply nullifies a
former judgment or decree, declaring that it shall henceforth
be void.***2 \ reversal judirmont is con<lusive only of questions
which were actually decided.'" A jud^nnent of an Illinois ap-
pellate court reversing a judgment of the trial court without
remanding and containing a finding of facts, which is not ap-
pealed from, is a bar to a second suit upon the same cause of
Bateman v. Gran.l Rapids & Tn.liaria i'" Chir&zo Thpological Seminary
R Ci, 96 Mich. 441, 44.-^ (1S93); v. Ppoj.Ip. ISO 111. 443; Chicago y.
Chicago Theological Seminary v. Partri-lge. 248 111 442 446 (1911)
People 189 111. 4.^9, 447 (1901); i*o People v. WTiittaker, 254 111.
Hahn y. Ritter, 12 111. 80, 83 (IS.'^O). 537, .541 (1912).
IT.-, Vanlandingham v. Rvan, 17 111. i" People v. Waite, 243 111. l.>6,
25 29 (1855). 161 (1909). .
177 People V. Harrison, 253 111. 18= Chicago Theological Seminary
629; People v. Chicago. Burlington v. People, 189 111- 'l-^^-
& t^iincy Co., 247 111. 340. .^44 i^ People v. Waite. 243 111. 156,
(1910); Smalley v. Edey. 19 111. 162 (1909).
207, 211 (1857).
178 Moore v. "Williams, 132 111.
589, 590 (1890).
DEFENSES AND PLEAS IX BAR 289
action, although the appellate court judgment fails to recite that
the appellant go hence without day, or that the appellee take
nothing by his suit, or other words of like import showing a final
disposition of the subject matter of litigation, which, by the com-
mon law, are necessary to a final judgment in a court of original
jurisdiction.18^ In setting up a judgment of reversal and re-
mandment as res judicata, the plea must specifically and not
generally, allege the particular question upon which the benefit
of the former decision is claimed. ^^^
779 Res judicata; estoppel by judgment, default judgment
A judgment recovered in a former action for want of a plea
is res judicata upon all causes of action wiiich were known to
the judgment creditor at the time of the bringing of the action
and which might have been included therein. ^*^
780 Res judicata; estoppel by judgment, dismissal of former
proceeding
An order or judgment dismissing a proceeding for want of
juris^lietion is not ns judicata of a proceeding that is afterwards
properly brought.'*'
781 Res judicata; estoppel by judgment, erroneous judgment
The judgineiit is ;t.s' judicata altii()ui:li it migiit be so errone-
ous that it would have been reversed on appeal or error.'**
782 Res judicata; estoppel by judgment, judgment against
partner
A judgment recovered against one member of a partnership
upon a partnership debt is a bar to a subsequent action against
the other members of the firm, regardless of whether such mem-
bers were out of the county at the time that the first suit was
brought and the judgment was rendered. The Illinois provision
of the statute which makes all joint obligations joint and sev-
eral, has no application to partnerships.'*^ Members of a firm
iMLarkins v. Terminal R. Asa'n., 'st Liisk v. Chicago, 211 111. 183,
221 HI. 428. 4.34 (1906). 100 (1904).
"•5 Chicaco Theological Seminary >"" People v. Chicago, Burlington
V. People. 189 111. 453. " & Quincy R. Co., 247 El. 344.
»««Gaddi8 v. Leeeon, 55 111. 522, i-'n Fleming v. Ross, 225 111. 149
525 (1870). (1907).
290 ANNOTATED FORMS OF I'LEADING AND 1 i
who had htM-n sued in an actiou in \vhi<'h one of them was served
and judgment rendered, may he made partit'S to the jmli/m. nt
under Hpeeial Htatutory provision.*"*"
783 Res judicata; estoppel by judgment, tax judgment
A jud^fuient for tuAis hust-d upon an aj)pearanee and defense
on the merits, has the same conclusive effect as any other
judgment.'"'
784 Res judicata; estoppel by judgment, test case
A jud^rnient in a suit or proceeding which was devised for the
sole purpose of havinjf a certain jud^Muent entered, binds the
parties to the scheme alone, and no one else.*''^
785 Res judicata; estoppel by judgment, pleading
A former jud^'inent has«Ml upon the wime subject matter is
inadmissible under the general issue and must be specially
pleaded or noticed. •'**
786 Res judicata; estoppel by judgment, plea, requisites
A plea of former rfeuvt-ry which seeks an absolute bar to a
subsequent action must rest upon the sameness of the caus<» of
action in both proceedings by showing identity of parties, of sub-
ject matter, and of cause of action; '"* it must aver the entry of
a final judgment ; '"^ and it must state either the term of the
court at which the judgment was recovered, or the exact date of
its reiulition; and when taken in vacation, the time of the entry
of judgment by tiie clerk should be stated.'-"'
787 Res judicata; estoppel by judgment, pleas
(Commence as in Section 881>) That heretofore the plaintiff
and the said , in the said declaration mentioned,
100 Sherburne v. Hvdo. 1S5 111. i9« Wright v. Griffey. 147 111. 496,
580 (1900). ' 498 (1893); Hanna v. Read, 102 111.
181 Neff V, Smyth, 111 111. 100, 602; Grand Pacific Hotel Co. v.
Ill (1884). Pinkerton. 217 111. 61, 80 (190.5).
102 People V. Chicago, Burlington i"^ Collins v. Metropolitan Life
& Quincy R. Co., 247 111. 344. Ins. Co., 232 111. 37, 48 (1908).
183 Porter v. Leache, 56 Mich. 40 lo" Mount v. Scholes, 120 111. 394,
(1885) ; Briggs v. Milburn. 40 Mich. 398, 399.
512, 514 (1879); Tabor v. Van
Vranken, 39 Mich. 793, 794 (1878) ;
Gray v. Gillilan, supra.
DEFENSES AND PLEAS IN BAB 291
impleaded him, the defendant, in the court of
county, in said state, to the term of
said court, 19. ., in a certain bill of complaint on the chan-
cery side of said court, for not performing the very same
promises in said declaration mentioned ; and such proceedings
were thereupon had in said bill, that afterwards, at the
terra of said court, 19.., by the consideration and decree
of said court, the defendant was decreed to be indebted to the
complainants in said bill for such non-performance of said
promises, and said cause was thereupon referred to a master in
chancery of said court for an accounting to ascertain the amount
of such indebtedness. And such master, upon such accounting,
found that the defendant was indebted to said complainants on
account of the premises in the sum of $ , damages;
and thereupon, upon tho report of such finding to said court,
said court confirmed siiid report, and by the consideration and
judgment of the same court, a decree was entered, orderiutr, ad-
judging and decreeing that the defendant should pay comi)lain-
ants said sunj, $ , and the costs of complainants in
that behalf, as by the record thereof still remaining in said court,
more fully appears. Which said judgment and decree still re-
mains in full force and effect. And after the impleading of
this defendant by said coriii)lainants in «iid court,
and while an appeal from mnd judgment was pending in the
appellate court in and for the district of said state, the
death of the said complainant was suggested of record in the
appellate court, and said cause thereupon proceeded in the name
of said A. 15., plaintiff in this suit, as survivor, and such proceed-
ings were thereupon had in said appellate court, that such judg-
ment and decree was at the term, 19. ., affirmed,
which said order of affirmance still remains in full force and
effect. And this defendant thereupon paid and satisfied said
judgment or decree of said court. (Conclude as
in Section 892)
Estoppel by way of replication
(Commence as in Section 928) That on the day
of , 19 . . , filed in the
court of county, in the state of , their
certain declaration against the said defendant in the action then
pending in said court upon the law side thereof, and in which
action the defendant was duly served with summons and ap-
peared by counsel and filed its pleas to said declaration, and of
which cause the court had full and complete jurisdiction of the
persons of the plaintiffs and defendant and the subject matter;
that said action was number in said
court : that in and by the declaration and suit the said plaintiffs
and set up the execution of the same
lease upon which this suit is founded and therein sought to
202 ANN(3TATEI) FORMS OP" I'I.EADINU AND I'KAmCE
ret'over rtTit diir and owinp from this (Icfciuluiit as ttnunt, to
tht'iM as landlords l>y tlif tfiins of saiil Ifast* for tin* p«riod of
tinif from to induHive, whifh rent
was due ai'cordin^ to tin* trrnis of said Iraso and was un|>aid.
'I'liat in said cause ninnlx-r tin* piaintilTs til*>d additional count.H
to tin- declaration hy leave of the court u{M>n the same lease to
recover for tlie same rent due ami owin^: hy the <lefendant to
the plaintilVs as was claimed in the original deelarati«»n, hut l»y
the atiditional counts the plaintitTs Kou^dit to 8<'l out more fully
the execution of said lease hy the lessors siiid and
as landlords on the one part and this defendant
as lessee and ti-nant on the other.
That in course of the proceetlinj^' in said cause, and pcndinir a
liearinjf thereof tieparted this life and hy his lust
will duly prohated in the court of
county on , his wife, and
his dau^'hter, were made exeeutrixes of his estate and duly quali-
tied as such, and pending said suit, also departed
this life and hy his last will and testament duly probated in the
court of county, his wift> was nuide
sole executrix of his estate and she duly i|ualilied in the
court of county as such exi'cutrix, and still is the
sole executrix of said last will and testament.
That the facts of the deaths of and
were didy suu'^'ested in the court in said cause and the court
<luly entered an order suhstitutini: .said executrix in place of the
said anil respectively as parties
plaintitTs who are the .same persons who are plaintilTs in this
action and against the same defendant who is defendant in this
action.
That the said defendant in said cause filed pleas to the original
declaration: first, the general issue; secondly, a sjtecial plea, hy
the terms of which it pleaded that at the time of the making of
the supposed lease, to wit, on the day of
, , the said one of the plain-
tiffs was the vice-president and general manager of the de-
fendant ; that the lease in said declaration mentioned was signed
on behalf of defendant by the said as vice-presi-
dent and general manager thereof , without the
knowledge and consent or approval of the board of directors of
the defendant; that the signing and execution of said lease on
behalf of the defendant by the said witli and for
himself and the other plaintiffs therein, was unlawful and void
and against public policy ; that the same was in no manner ever
ratified or confirmed by the board of directors or proper officials
of said defendant or by any other persons thereto by the defend-
ant lawfully authorized ; that after the signing of said lease as
aforesaid, and before the same was ever ratified or confirmed by
the board of directors or other proper officers of said defendant,
it, the defendant, on the day of ,
DEFENSES AND PLEAS IN BAR 293
19.., vacated and removed from said premises and delivered
up the possession which they, plaintift"s, have ever since and
still hold : all of wliich the defendant was ready to verify and
prayed judgment whether the plaintiffs ought to have their said
action against it.
That upon the filing of the additional counts to the original
declaration tiled in s<iid cause the defendant obtained leave of
the court and rc-tilcd said pleading and special plea to the said
declaration as picas to the additional counts filed b}' the plain-
tiffs, whereby the said special plea was pleaded to aJl of the
plaintiffs cau.se of action.
That in saiil cause the [)laintiffs filed their replication to the
said pleas of the defendant as re-filed aforesaid, whereby the
plaintiffs pleaded in rej)ly to the general issue by the defendant,
and they als<j tiled their si)ecial n-plication to the special plea of
the defendant aforesaid ; and by the said special replication
pleaded that by rea.son of anything in that plea alleged they
ought not to be barred from having their aforesaid action be-
cause the said b'ase in said declaration described and mentioned
was signed on behalf of said defendant by the said
as vice-[)resident and general manager thereof with the full
knowledge and consi-nt and ai)i)roval of the board of directors
of said defendant ; that the signing and execution of sjiid lease
on behalf of said defi-ndant by was lawful, valid
and binding on .said defendant, and was not signed on behalf of
said defendant by the as aforesaid, without the
knowledge and con.sent or approval of the board of directors of
said defendant, and that the signing and execution of lease as
afore.sai<l, was not unlawful and void and against public policy
in manner and form as the defendant pleaded in s^iid pica.
Replying further, .said plaintitfs, in said special replication
pleaded that the said lease was duly ratified by the proper offi-
cials of said defendant thereto properly authorized by the defend-
ant and that the defendant did not deliver up the possession of
said premises to the plaintiffs after the signing of said lease as
aforesaid and Ijcfore the same was ever ratified by the board of
directors or other officials for the said defendant in manner and
form as the defendant pleaded in said special plea; and that
the plaintiff's never accepted the surrender of .said premises, or
of said lease. And further replying, they pleaded in said repli-
cation, that the said defendant by its acts of its
duly authorized officials recognized, ratified and
confirmed said lease and occupied said premises under the terms
and conditi(jns of said lease and paid rent to the plaintiffs under
the terms ami conditions of said lease long after the said
ceased to be manager or an official of the defendant company;
that the premises were held by the defendant under said lease
ever since the first day of the term in said lease mentioned until
the end thereof; and that it paid rent for said premises in
accordance with and under the terms and conditions of the said
294 ANNOTATKD FuKMS OK I'LEADING AND PKACTICE
lease mentioned until the tirst day of All of
which the plaintiffs were ready to verify and prayed judgment
for the damages set forth in the declaration.
This plaintiff says that the said eaus«* came on to be tried in
said court before the honorable , one
of the judges thereof, at the term of said court
, ID. . ; that a trial by jury was iluly waived
by the resj)cctive parties; that teMtimony was offereil upon the
issues presented by the plaintiffs; anil that the court duly ren-
dered a judgment in favor of the plaintitTs and against said
defendant for the total sum of dollars for the rent
accruing under the terms of said lease up to the time of the
commencement of said aetion, with interest on the several instal-
ments from the dates at which they severally beeame due to the
day of the judgment rendereil.
That in said cause the ilefendant in due season tiled its motion
for a new trial, and upon the same IxMng overruled and denied
by the court it presented and tiled its bill of exceptions duly
signed and sealed eontaining all of tlu' evidence otTered by either
party and all of the proceedings in said trial, and it also tiled
its appeal bond, as is retpiired by law and the court's order, and
appealed the said cause to the appellate court for the
district of Illinois; that the said appeal was duly perfected in
said court as case number ; that said appellate
court had full jurisdiction of saiil cause on appeal and duly con-
sidered the said aj»peal; and that at its term,
19.., it found and adjudged that there was no error in said
judgment and reeonl in said court hereinbe-
fore recited, and atVirnu'd the said judgment of said court.
That thereupon, the said defendant appealed said cause from
said decision ami judgment of the said appellate court to the
supreme court of Illinois and filed the necessary and proper
bond and records, briefs and notice to give sixid court full juris-
diction of s;iid appt'al ; that the said supreme court aciiuirt^d and
had jurisdiction of said cause at its term, 19. ..
case number ; and, that said court duly considered
said appeal and found and adjudged that there was no error
in said record and judgment, and affirmed the said judg-
ment of the court and the said judgment of said
appellate court, so that the said judgment of the said
court was and is final and conclusive of all matter of law and fact
therein adjudicated, and has never been reversed or in any way
impaired or modified : a copy of which said judgment is filed
herewith.
That the said action was upon the same lease upon which the
present suit is brought and was to recover rent due under
the terms thereof from up to , being the
amount of rent accrued and due under said lease at the time of
the commencement of that suit.
That the present action is to recover the rent due under said
DEFENSES AND PLEAS IN BAR 295
lease from to ; that the questions as
to the execution of said lease by the corporation, its consideration,
the adoption and ratification of the same by the said corporation
defendant, and as to its being the lease of the defendant and
binding upon it were necessarily involved in said cause under the
issue as made therein and were considered and determined by
said court on the trial of said cause, and in the
appellate and in the supreme courts respectively ; that it was
considered adjudged and determined by said court
at its term, 19. ., and said court did at said
term determine and adjudge in said cause that the lease set up
in said cause was the lease of the defendant duly executed by
it, the said company, and ratified and adopted by it; that it was
bound !)y the terms and conditions thereof and indebted to the
plaintiffs for the rent accruing and accrued under the terms of
said lease; and that it was in law hound to pay the same.
The (|uestions as to the right of tlie i)laintifYs to recover from
said defendants of said lease for the rent accrued and to accrue
and the acceptance of siiid lease and the occupancy of said
premi.ses by the defendant under the same were necessarily in-
volved and decided in said action and the court did determine
said questions }iii<l i.ssues in favor of the plaintiffs and against the
defendant, so that the defendant in this action is estopped from
disputing the execution and validity of .s^iid lease as well as from
disputing all right of the plaintitf.s to recover the rent sued for
in this action by reason of the invalidity of said lease.
Wherefore, they, the plaintiffs, plead said judgment and pro-
ceedings as an estoppel against the defendant, and pray that
their damages as set forth in their declaration may be adjudged
to them, etc.'"^
Plaintiff's attorney.
Judgment against partner
(Commence as in Section 887) That the notes declared and
suetl upon in said cause of action were each given for a partner-
ship indcbtedntss of the firm of F. S. & R., and that said part-
nei-shij) was composed of the defendants herein, D. F., A. S. and
this defendant. II. R., and that said notes and each of them were
signed in the firm name of F. S. & R., and not in the individual
names of the members of said firm ; and that after the giving of
said notes, one J. S.. who was the husband of the said plaintiff,
was the owner of said notes, and while he, the said J. S., was the
owner of said notes, he, the said J. S., heretofore impleaded
this defendant. II. R.. in the court of
county, in the state of at, to wit, the ,
"T Louisville, N. A & C. Ry. Oo.
V. Carson. 169 111. 247 ri897).
29G ANNOTATED FORMS OP PLEADING AND PfLVCTICE
19, ., term of saiil court in a plea of trespass on
the case on promises, to the daina^'f of the phiintifT of, to wit,
$ , for not perforniinj; the very same promises in
said dechiration mentionecl; and that 8Uch proeet-din^js were
thereupon luid in tliat pl»a, that afterwards and in to wit, said
, I'J. ., term of said court of saul
county, in the statt- of hy the consid-
eration and judgement of said rourl. the saitl i)hiintifT, J. S.,
recovered against tiiis defendant, II. U., the sum of. to wit,
$ (hima^'S, as well as the costs of the phiintifT in
that hehalf. whereof this defenchmt, 11. K.. was convicted, as hy
tlie reeord th«'reof still remainini; in siiitl court
more fully ai)pears; wliirh said judirment remains in full force
and etTret.''"* (Conehnle as in Srction Sl>:{)
788 Res judicata; estoppel by judgment, proof
Parol eviiltnee is inadinissihie to contradict a record which
shows, on its face, the cause of action, the (ground of defense, or
other matter in question ; such evidence is admissihlc, however, to
identify the parties, the cause of action, the defense, or other
liti^Mtcd matter when these do not appear upon the record.'®*
So, the presumption that an item of evidence formed a i)urt of
a general judgment may he overcome hy parol proof.-"**
789 Res judicata ; estoppel by verdict
An estoppel hy verdict is where a second action is between the
same parties or privies concerning the same subject matter but
upon a dilTcrent claim or cause of action, in which case the
estoppel is conclusive only as to the matters in issue or upon
controverted points settled by the finding of the verdict rendered
in the original action irrespective of the (juestion whether the
cause of action is the same in both suits or not.
Upon such an estoppel the precise question adjudicated must
clearly he shown, either by the record or by extrinsic evidence,
the inquiry being not what might have been, but what was actu-
ally litigated and determined in the original suit. In case of
doubt, as when a general verdict covering several issues was ren-
dered, the whole subject matter of the action is at large and
open for any new contention.^oi No estoppel by verdict exists
198 Fleming v. Ross, 225 111. 149 200 People v. Becker, 253 111. If,].
(1907). 134 (1912).
199 Grav V. Gillilan, 15 111. 455; 201 Chicago Theological Seminary
Rubel V.' Title Guarantee & Trust v. People, 189 111. 443 et seq. ; Chi-
Co., 199 111. 110, 114 (1902). cago Title & Trust Co. v. Moody,
DEFENSES AND PLEAS IN BAR 297
where the subject matter of the two proceedings is not the same,
where tlie parties are different, and where the former case was
decided under a materially different law. 202
A general verdict and judgment based upon several distinct
and separate defenses is prima facie evidence that all of the
issues presented by the pleadings were found in the party's
favor for whom the verdict was rendered, when the evidence was
heard upon all of the issues thus presented ; and the burden of
proving that the verdict was rendered upon an issue which pre-
sented only a temporary bar, and that such a bar has since been
removed, or has ceased to operate, devolves upon the opposite
party.2'^3 In Michigan the foregoing rule was rejected in a
ease which did not warrant its application, and this case should
not, therefore, be considered as authority, or as decisive of the
qucstion.2'**
790 Res judicata; estoppel against estoppel
An estoppel against an estoppel is equivalent to no estoppel,
as where a defendant sets up one judgment as an estoppel and
the plaintiff replies with a later judgment as an estoppel against
the defendant's judgment, the one estoppel neutralizes the other,
and the whole (juestion is left to be tried over.-"^ But this rule
has no application to an estoppel of a judgment of an inferior
court by an estoppel of a later judgment of a superior court. In
estoppels of this kind the last judgment controls.-®*'
791 Set-off defined
Set-off is a statutory remedy in the nature of a cross action,
which permits a debt or demand to be set off against another ajid
the recovery of a judgment by the party in whose favor a bal-
ance exists.^*^^ A plea or notice of set-off is allowed for the pur-
pose of setting up. by way of counterclaim, independent causes of
action against the plaintiff.-'^''* The items of set-off are regarded
233 ni. 634. 636 (1908); Chicago v. People, 189 111. 447; Bateman v.
V. Partrulpp, 248 III. 446. Grand Rapirls & Indiana R. Co., 96
202 Park Ridtjo v. Wisncr, 2.13 111. Mich. 41. 443 (1893).
434, 437 (1912). -'ot Ward v. Fellers, 3 Mich. 281,
203Rhoads V. Metropolis, 144 111. 286 (18.54); M 'Hardv v. Wa.ls
580, .')S7 (1S91). worth, 8 Mich. 349, 3.53 (1860);
204 Hoffman v. Silverthorn, 137 Pettis v. Westlake, 3 Scam. 535, 55S
Mich. 60, 65 (1904). (1842); Peacock v. Haven, 22 Til.
206 Chicago Theological Seminary 23 (1859).
V. People, 189 111. 446. 208 Brennan v. Tietsort, 49 Mich.
208 Chicago Theological Seminary 397,398 (1882).
298
ANN'O'iAii.i' .. -KM.S UK rLKADINQ AND PRACTICE
as counts in a declaration,-'"" The object of a set-ufT in to inform
the opposite party of the claim maiie therein aiiJ to limit Ihe
evidence thereto.'-*"
792 Set-off, law goveming
At common law no sit-utT iiKain.st a plaintiff's claim was jx'r-
miasible.'-'" The rijfht to plead a s«'t-otT is governeii by the law
of the state where the action is brought.''"
793 Set-off; demand, nature
The demantl.H subject to set-off are only such aji are existing
causes of action in the defendant's favor at the time the suit is
commenced.-'^ A claim which is not a subsisting caum- of action
in a party's own favor cannot be set off.-'* A <lebt or demand
which has accrued, or a judgim-nt which has been recovered
after the bringing of the suit cannot Ik* set off.-"' A demand
which has grown out of a contract cannot Ih» wt off in an action
upon a tort.-'" A ch inand, to Ik- subject to s.t-otT, must Ihj
mutual between the parlies to the record, or the partitas in in-
terest, and in their own riu'ht.-'' An individual d»'iiiand. there-
fore, cannot be set otT against a joint dcnmnd of the plaintiff.-'*
Nor can a joint indebtedness 1h? set off against a s«'parate de-
mand.-"* A partner's individual indebtedness cannot be set ofT
against an action baiknl upon an intlcbtedness to the partnership
of which the partner is a member.^-" An individual indebted-
ness of an executor or lui administrator cannot be set off against
a debt ihie the estate.--' A debt due from an intestate in his
•'^^ Minoral Point R. Co. v. Keep,
22 111. 9, 19 (18.59).
21" Walter Cabinet Co. v. Russell,
250 111. 41«, 420 (1911).
2n Morton v. Bailev, 1 Scam. 213
(IS.-^S).
212 Leathe v. Thomas, 218 111. 246,
252 (1905).
213 Pettis V. Westlake. 3 Scam.
535. 538 (1842) ; Kellv v. Garrett, 1
Gilm. 649. 652 (1844).
21* Avres v. McConnell, 15 111. 230,
232 (1853).
215 Irvin V. Wright, 1 Scam. 135
(1834); Sec. 47, Practice act 1907
(111.).
210 Stow V. Yarwood, 14 111. 424,
426 (1853).
21T Peoria & Oquawka R. Co. v.
Neill, 16 111. 269. 271 (1'55); Sec.
47. Pr.ictire act 1907 (III.); Orepjf
V. Philij.s. Hreose. 143 (1825); Hiirk;
win V. Rabcock. 11 111. 28 (1849).
2i« Priest V. Do.lsworth. 235 111.
613. 615, 616; Heckenkemper v.
Din^wehrs. 32 111. 538. 540 (1863);
Sec. 47, Practice act 1907 (111.).
2i»Hiniard v. Walker, 11 111. 644
(1850).
220 Gregg V. James, Breese, 143
(1825).
221 Wisdom V. Becker, 52 111. 342,
346 (1869).
DEFENSES AND PLE.\S IN BAR 299
life time cannot be set off in an action upon a demand accruing
to au administrator after the death of an intestate, as the alluw-
ance of the set-oti would interfere with the pro rata distribution
of the intestate estate in case of its insolvency.^22 i^ ^n action
by or on belialt* of an insolvent creditor, the defendant may set
off a demand against the plaintiff sui)sisting at the time of the
bringing of the suit, and thereby avoid the taking of a pro rata
dividend upon such demand.--^
794 Set-off; demands, judgments, appeal
A judgment whieh has been appealeil from and stayed by
supersedios cannot Ik* pleaded as a set-off, but the damages for
whieh the judgiia-nt was obtained may l)e thus i)leaded.---«
795 Set-off; dema.nd5, judgment, domestic and foreign
Demands upon domestic or foreign judgments may be set off,
under Illinois statute, against demands upon simple contracts.-:^*
796 Set-off ; demands, unliquidated damages
Unli(iuidated damages growing out of the same transaction
are subjeet to 8«'t-off.22<J Unliquidated damages which do not
arise from, or whieh an' not eonneeted with, a covenant, contract,
or tort sueil upon, cannot be set off.--' This is so notwithstand-
ing the present Illinois statute.-* Danuiges growing out of a
breaeh of contract which are too remote and uncertain cannot
be made the basis of a set-otT.'--» In actions upon a contract no
set-off can be claimed for unliquidated damages resulting from
a violation of an entirely distinct and independent contract in
nowise connected with the contract sued upon.^^o A claim for
damages growing out of a breach of contract between third par-
ties cannot be set off under au assignment from one of them, for
»s» Newhall V. Turnev. 14 111. 338, 500 (1867); Hawkg v. Lands, 3
341 (ISM). Gilm. 227, 232 1846).
523 Kelly V. Garrett, 1 Gilm. 649, 2:8 Clause v. Bullock Printing
653 (1844). Press Co., 118 111. 612. 617 (1886);
22« King V. Bradley, 44 111. 342, Ewen v. Wilbor, 208 111 492, 507
344 (1867). n904) ; Higbie v. Rust. 211 El. 333,
2:* Leathe v. Thomas, 218 HI. 252. 338 (1904); Sec. 47, c. 110. Prac-
«« Sanger v. Fincher. 27 111. 346, tice act 1907 (111.).
348 (1862); Sec. 47, Practice act 220 Williams v. Case, 79 111. 356.
1907 (111.). 358 (1875).
«»TDe Forrest v. Oder, 42 111. "» Higbie v. Rust, 211 111. 338.
;iOO ANNOTATED FORMS OF PLEADING AND PRACTICE
the reason that the claim can be enforced only in the name of
the assignor who cannot be a party to the record.-^^
797 Set-off, nominal plaintiff
In actions which are prosecuted solely for another's benefit,
a demand existing against the real party in interest, wlielher he
is use plaintiff, or the party whom the plaintiff represents, may
be set off.-^-
798 Set-off, pendency of action or appeal
The right of set-off is not affected by tlie pendency of an action
for the claim to be set off" or an appeal from a judgment
thereon. -^^
799 Set-off, pleading* and practice
In courts of record, including the probate court, a defendant
is not bound to plead a set-off", the statute of set-off being merely
permissive.2-'5-* But if pleaded, a set-off must be specially pleaded,
or notice in writing of set-off must be given under the general
issue.235 A notice of set-off is inappropriate without a plea of
the general issue or that of payment in ex contractu actions.
The notice and the plea must be filed together.^sc The defense
of set-off is pleadable orally, in AVest Virginia, provided a bill
of particulars is filed under the statute to show the character
and the amount of the set off.-^'''
800 Set-off ; plea, requisites
A plea of set-off' must aver that th? amount sought to be set
off is still due and unpaid.-^s A plea based upon unliquidated
damages must, under Illinois statute, aver that the damages grcAv
out of and were a part of the contract sued iipon.239
231 Zuckermann v. Solomon, 73 111. 236 Bailev v. Valley National
130, 131 (1874). Bank, 127 III. 332, 336 (1889); See.
232 Eothschild v. Bruseke, 131 111. 47. Practice act 1907 (111.).
265 ^^70 -^^ National Valley Bank v. Hous-
233Gaddis v. Leeson, 55 111. 522 ton, 66 W. Va. 336.' 342 (1909).
(1870). 238 De Forrest v. Oder, 42 111. 502 ;
234 Morton v. Bailey, 1 Scam. 213 MeCord v. Crooker, 83 111. 556, 561
(1835); See. 47, Practice act 1907 (1876).
(Ill ) ' 239 DeForrePt v. Oder, 42 111. 502;
235 Cox V. Jordan, 86 111. 560, Sec. 47, Practice act 1907) (111.);
562 (1877). McCord v. Crooker, 83 111. 561.
DEFENSES AND PLEAS IN BAR 301
801 Set-off; replication, requisites
A plaintiff has a right to reply a set-off against the defend-
ant's set-off for the sole purpose of defeating that set-off, the
latter set-off being considered as a cross action in which the
plaintiff stands in the position of a defendant.-^'' A replication
to a plea of set-off setting up matter of counter claim against the
set-off must pray judgment as claimed in the declaration to
avoid a departure.-^ ^
802 Set-off, withdrawal
A court may, in its discretion, permit or refuse the with-
drawal of a plea of set-off.-^^
803 Set-off, proof
A defendant is bound to prove his set-off to the same extent
as he would have to prove the demand had he instituted an action
upon it.-^"^ He is also bound to prove the genuineness of his
demand and that it was due and unpaid at the time of the com-
mencement of the suit.-^*
804 Set-off, judgment
A defendant is entitled to judgment for whatever sum is
found to be due him over and above the plaintiff's demand. -•*^
Upon the plaintiff's set-off against a defendant's set-off, a plain-
tiff is not entitled to a judgment for the excess of his set-off over
that of the defendant, for this would be a departure from the
declaration.-^®
805 Stare decisis
The doctrine of stare decisis has no application to cases which
have been w^rongly decided and the parties are entirely differ-
ent.247
240 Cox V. Jordan, 86 111. 560, 565 244 Pettis v. Westlake, 3 Scam,
(1877); Sec. 47, Practice act 1907 .535, 538 (1842).
(111.). 245 Sec. 47, Practice act 1907
241 Cox V. Jordan, supra. (Ill-)-
242 Mineral Point R. Co. v. Keep, 246 Cox v. Jordan, 86 111. 565.
22 111. 9. 19 (1859). 247 Bay Island Drainage District
243 Kelly V. Garrett, 1 Gilm. 649, v. Union Drainage District, 255 111.
652 (1844). 194, 202 (1912).
302 ANNOTATED FORMS OF I'LEADINQ AND PRACTICE
806 Stated accounts, taxing districts
Settlements with taxing districts and reports to the governor
are not stated accounts and final settlements between the state
and the taxing disiricts, and will not preclude their examination
and investigation, in the absence of contract or statute which
expressly or impliedly requires the statement of accounts and
their actual investigation and approval before settlement.-"*
807 Statute of limitations, waiver
A defendant waives his right to plead the statute of limitations
by pleading to the merits without attaching a plea or notice
claiming a bar of the action under the statute; and a court's
denial of leave to interpose such a defense after a general issue
alone has been pleaded is final and is not reviewable on appeal
or error under Michigan practice.-"*"
808 Statute of limitations, burden of proof
The statute of limitations is an allirmative defense and the
burden of proving it is on the party pleading it.-^'' In ^Michigan
the reverse is the rule. There, the plaintiflt' and not the defend-
ant has the l)urden of proving that his action was commenced
within the statutoiy period under a plea or notice of the statute
of limitations.-^^
809 Statute of limitations ; pleading, time
• A plea of the statute of limitations must be interposed at the
earliest stage of the pleading which discloses its applicability.-^^
810 Statute of limitations ; pleading, generally
The statute of limitations must be specially pleaded at com-
mon law or noticed.253 The defense of limitations cannot be
raised by demurrer to a pleading even where it shows on its
248 People V. Whittemore, 253 111. 163 (1907): Goodell v. Gibbons, 91
378, 383 (1912); Sees. 20, 21. art. Va. 608, 610 (1895).
5, Const. 1870 (111.); Chapter 130, 251 Ayres v. Langdon, 71 Mich.
Rev. Stat. (Hurd's Stat. 1911, p. 594, 599 (1888).
2265) 252Wiard v. Semken, 8 Mackey,
249 Ripley V. Davis, 15 Mich. 75, 475, 480 (D. C. 1891).
78 (1866); Shank v. Woodworth, 253 Shank v. Woodworth, 111 Mich.
Ill Mich. 642, 643 (1897). 642 (1897); Whitworth v. Pelton,
260Schell V. Weaver, 225 lU. 159, 81 Mich. 98, 101 (1890).
DEFENSES AND PLEAS IN BAR 303
face that the action is barred; -^^ nor can it be interposed by
motion to dismiss.-55
811 Statute of limitations; pleading", municipal corporations
The defense of the statute of limitations is available to munici-
pal corporations.256
812 Statute of limitations; pleadingf, amended and additional
counts
The statute of limitations is a good defense to a new cause of
action which is stated for the first time in an amended or addi-
tional count and the period fixed by the statute of limitations
has expired at the time such count has been filed, because as to
such cause of action, the suit is regarded as having been com-
menced at the time of the filing of the amended or additional
count : the statute of limitations is no defense to a re-statement
of the cause of action which was previously stated in counts that
were filed within the period of limitation. -^^ The omission from
an additional or amended count of unessential matter does not
constitute the statement of a new cause of action.^^s An amended
count or declaration does not state a new cause of action if it
requires the same evidence to sustain it as it would have to be
interposed under the original count or declaration.^s^ A de-
fendant has a right to plead the statute of limitations without
obtaining leave of court, to an amended count or declaration
which presents a new cause of action.^eo The allowance to
254 Heimberger v. Elliot Frog & (1906); Illinois Central E. Co. v.
Switch Co., 245 HI. 448, 450 (1910) ; Cobb, Christy & Co., 64 III. 128, 140,
Peterson v. Manhattan Life Ins. Co., 141 (1872) ; Fish v. Far^ '1, 160 111
244 111. 329, 333, 334 (1910) ; Gun- 236, 247 (1896) ; Gorman V. Neway-
ton V. Hughes, 181 111. 132, 135 go Circuit Judge, 27 Mich. 138, 140
(1899); Lesher v. United States (1873) ; Eichter v. Michigan Mutual
Fidelity & Guaranty Co., 239 111. Life Ins. Co., 66 111. App. 606
502, 508 (1909) ; Wall v. Chesapeake (1896) ; Gorman v. Newavgo Circuit
& Ohio E. Co., 200 111. 63, 67 (1902). Judge, supra; Muren Coal & Ice Co.
255Houghland v, Avery Coal & v. Howell, 217 111. 190, 196 (1905);
Mining Co., 246 111. 609, 619 Cicero v. Bartelme, 212 111. 256,
(1910). 260 (1904); St. Louis Merchants'
256 Leroy V. Springfield, 81 lU. 114 Bridge Terminal Ey. Ass'n. v.
(1876). Schultz, 226 111. 409, 413 (1907).
257 Devaney v. Otis Elevator Co., 258 Devaney v. Otis Elevator Co.,
251 111. 28, 33 (1911) ; Swift Co. v. 251 111. 28, 34.
Gaylord, 229 111. 330, 332 (1907); 259 gwift Co. v. Gaylord, 229 111.
Kenneally v. Chicago, 220 111. 485, 330, 335 (1907).
506 (1906); Hefifron v. Eochester 260 Maegerlein v. Chicago, 237 111.
German Ins. Co., 220 HI. 514, 518 159, 164 (1908).
304 ANNOTATED FORMS OF PLEADING AND PRACTICE
amend a declaration and the defendant 's failure to object to the
same will not preclude the defendant from afterward pleading
the statute of limitations to the declaration.-^^
813 Statute of limitations ; plea, requisites, traverse
A plea of tlic statute of limitations merely asserts the statutory-
bar of limitations, without traversing or confessing and avoid-
ing the cause of action.-''- As many pleas of the statute of limi-
tations are necessary as there are counts in a declaration which
allege separate and distinct causes of action that are barred.^®^
The plea is demurrable if it is interposed to all of the counts
of a declaration and is a defense only to some of them.-^^*
814 Statute of limitations; plea, requisites, period of limita-
tions
A plea or notice of the statute of limitations must refer to
the date or the time of the commencement of the suit and not
to the time of the filing of the declaration or amended declara-
tion. ^ss
815 Statute of limitations ; plea, requisites, statute, exception
A defendant who claims under a statute of limitations which
is subject to an exception may rely upon the general provision
of the statute, without also bringing himself within the excep-
tion.266
816 Statute of limitations; plea, requisites, rejection of claim,
notice
A plea of limitations relying on the failure to bring suit within
a certain period of the rejection of a claim must allege the giving
of notice to the plaintiff of such rejection. -•'^^
817 Statute of limitations; plea, requisites, foreign judgment,
residence
In ;Mississippi, a plea of the statute of limitations of three
years against an action upon a foreign judgment must aver the
261 Heffron v Rochester German 265 "Wilcox v. Kassick, 2 Mich.
Ins. Co., 220 111. 514, 518 (1906). 16.5, 178 (1851).
262Wiard v, Semken, 8 Mackey, 26g Armstrong v. Wilcox, 57 Fla.
480. 30, 34 (1909) ; Hyman v. Bayne, 83
263 Pennsylvania Co. v. Sloan, 125 111. 256, 264 (1876).
111. 72 81 (1888). 2G7 Switchmen 's C^nion v. Cole-
264 Illinois Central E. Co. v. Swift, house, 227 111. 561 (1907).
213 111. 307, 317 (1904).
DEFENSES .VXD PLEAS IN BAR
305
residence of the defendant at the time of the institution of the
suit. -"^8
818 Statute of limitations; plea, requisites, amended declara-
tion
A plea of thd statute of limitations to an amended declara-
tion need not expressly state that the original declaration failed
to set forth a cause of action.-'"^
819 Statute of limitations, replication
A plaintiif must reply to a plea of the statute of limitations
by showing that the cause of action is within some of the excep-
tions to the statute, or by setting up matter which prevents a
bar from attaching; he cannot avoid the statute by amending
his declaration.-''0 A replication to a plea of the statute of
limitations which is based upon fraud must set out clearly the
facts and circumstances which amount, in law, to fraud • and
if the replication fails to set out these facts, it is bad on demur-
rer.
820 Statutes, person objecting
The constitutionality of an act cannot be questioned by those
whose rights the act does not affect. 2-2
821 Statutes ; objections, class legislation
A law which is general in its nature and uniform in its opera-
tion upon all persons coming within its scope is a general law.273
Laws may be passed which would be applicable only to members
of a class, where the classification rests upon some disability,
attribute or classification marking them as proper objects for
the operation of such special legislation, unless expressly for-
bidden by the constitution.274 The legal profession constitutes
90^'nsq7^ %^''^^f;./V^f'''Vn^2^' 2" People v. Whittemore, 253 111.
"dlf V \ 3104 Code 1906. 378. 385 (1912) ; Tarantina v. Louis-
^wl / v'^T' 'i ^^A'^So, Lake ville & Nashville R. Co., 254 111.
~7or?.J % r. ,0, T„ n =^" Tarantina V. Louisville & Nash-
1-?^ n8QQ\ 7- ?"S^^«' 1«1 I"- 132, ville R. Co.. 2.54 111. 624, 630
t-5 .i^^7 ; I^esher v. United States 2-4 Standidge v. Chicago Rvs Co
S' 50^9 mST'^*^ ^'•' ''' '"• 1'^ "^- -^-4' ^34 (1912)^ Rogers v!
:-, -S /^^^^^- X. V . ^^- L""is-Carterville Coal Co, 254
262 2^8 (T907T English, 226 111. 111. 104, 109 (1912).
306 ANNOTATED FORMS OF TLEADING AND PRACTICE
a special class for purposes of legislation.-^^ For the prevention
of intoxication and disorderly or riotous conduct growing out of
intoxication on railroad trains, it is reasonable to discriminate
between passengers who ride in smoking, parlor, interurban or
caboose cars and day coaches and those who ride in sleeping,
dining and buffet cars.-'^*'
822 Statutes; objections, constitutionality, practice
The constitutionality of a statute may he raised by demurrer
to a declaration founded upon a statute, or by an objection to
evidence offered in support of such a declaration, or by an excep-
tion to an instruction based upon tlie unconstitutionality of the
statute, and by motion for a new trial.-"' The constitutionality
of a statute must be first raised in the trial court ; as it will be
considered to have been waived, if not so raised.-^®
823 Statutes ; objections, common law rights and powers, con-
tinuation
The constitutional recognition of the continuation of com-
mon law powers are operative until changed by the legislature.-''*
824 Statutes; objections, directory or mandatory, test
A provision of a statute is directory where no right of anyone
interested is lost or prejudiced by the failure to perform the
act or by the time when it is to be performed.^so
825 Statutes; objections, legislative power
The legislature may pass any law and do any legislative act
that is not prohibited by state or federal constitutions. An act
of the legislature is regarded as -within legislative power, unless
there is reasonable doubt that it is beyond such power.^^i
275 Standidge V. Chicago Rys. Co., Cummings v. People, 211 111. 392,
supra. 402 (1904).
2T6 Tarantina v. Louisville & Nash- 279 People v. McCullough, 254 111.
ville R. Co., 254 111. 629; Laws 1911, 9, 23 (1912).
p. 462. 280 People v. Ellis, 253 111. 369,
277Christv V. Elliott, 216 111. 31, 377 (1912).
36, 39 (1905). 281 People v. McCullough, 254 111.
278 Vermilion Drainace District v. 15, 16.
Shockey, 238 111. 237, 239 (1909);
DEFENSES .VND PLEAS IN BAR 307
826 Statutes ; objections, title
The object of the title of an act is to give such a general state-
ment of the subject matter of the act that would include all pro-
visions having a reasonable connection with the subject matter
mentioned and a reasonable tendency to accomplish the purpose
of the act, and not to state the reasons for the passage of the
act or to give an index of its contents. Nor should the title
cover every part of the subject which might come within the
title.282
827 Statutes; objections, title, plea
(Commence as in Section 889) That the statute set forth in
said count is unconstitutional and void, because it is in violation
of that part of section thirteen, article four of the constitution
of the state of Illinois which provides: (Insert constitutional
provision), in that the subject of section , set forth in said
count is not expressed in the title of the act of which it is a part,
said title being, "An Act, etc., in the state of Illinois, and to
provide for the enforcement thereof." (Conclude as in Section
892)
828 Statutes; construction, court's duty, scope
It is the duty of courts to sustain statutes which are susceptible
of a construction that would render them valid, although another
construction would render them invalid. -^'^ Courts have no
authority to inquire into the wisdom of legislative enactments.284
829 Statutes; construction, presumption
All presumptions are in favor of the validity of legislation.2«5
830 Statutes; construction, contemporaneous
No legislative or administrative contemporaneous construction
can be claimed in defense of a provision of which the meaning
is clear and unambiguous.^^s
282 Tarantina v. Louisville & Nash- 284 People v. McCulliugh, 254 HI.
ville R. Co. 2.54 111. 628. 15.
283 Rogers V. St. Louis-Carterville 2^5 People v. McCullough, supra.
Cosl Co., 254 lU. 104, 110, 111 280 People v. Whittemore, 253 IlL
(1912). 378, 384 (1912).
308 ANNOTATED FORMS OF PLEAOIN'O AND PRACTICE
831 Statutes ; construction, foreign laws
The decisions of the highest courts of foreign states upon simi-
lar i)i-ovisions of the constitution and statutes are persuasive,
but not conclusive.-*'^
832 Statutes ; construction, single and plural
\Vorcls wliii'h import the siti^aUar nuinher may he extended or
applied to several persons or thin;>'s unless sueli eonstruetion is
inconsistent with the manifest intention of the legislature or it
is repupnant to the context of the same statute.-**
833 Tender, unliquidated damages
rnli(iuidatetl damajxes cannot be made the subject of a tender
at common law.-**" A tender of a reasonable amount of money
in i)aym^nt of unliquidated damag^es is permitted by Illinois
statute of 189 1.-""
834 Tender, amount
A tender nuist cover the entire indebtedness,-"^ A tender
made after suit ])rouc:ht must include a sutlicient sum to cover
all that the plaintiff has then a right to recover in debt, interest
and costs.-^-
835 Tender ; counting money, waiver
The actual counting of money is waived by making no request
therefor.-""^
836 Tender; admission, scope
A defendant is concluded by the amount he tenders; which
amount, neither a jury nor a judge can alter.-''-*
28T First Congregational Church v. 201 Cillev v. Hawkins, 4S 111. 308,
Board of Review, 254 111. 220, 225 312 (1SC8).
(1910) 202 Sweetland v. Tuthill, 54 111.
sss'chicago & W. I. E. Co. v. 215, 216 aS'O).
Heidenreich. 254 111. 231, 235 293 Conway v. Case, 22 111. 127,
(1912). 138 (1859).
289 Cillev V. Hawkins, 48 111. 308, 294 Monroe v. Chaldeek, 78 111.
310 (1868) 429. 432 (1875); Cillev v. Hawkins,
290 Sec. 6, c. 135, Hurd's Stat. 48 111. 308, 312 (1868).
1911 (HI.).
DEFENSES AND PLEAS IN BAR 309
837 Tender, pleading
To relieve a party from costs a tender must be pleaded and
the plea must be accompanied by a deposit in court of the amount
admitted to be due.^^^ In ^lichigan a tender after the com-
mencement of suit can only be made by tendering to the plain-
tiff or his attorney a sum of money claimed by the defendant
to be due to the plaintiff; which tender does not bar the further
prosecution of the suit, but has merely the effect of stopping
interest and costs, and of subjectijig the plaintiff to subsequent
costs.2^^
838 Tender, plea
(Commence as in Section 889) That before the making and
delivery of the saitl promissory note in the said declaration men-
tioned, to wit, on the day of ,
19. ., at the eounty of aforesaid, the said plaintiff,
in consideration of the payment to him, by the Siiid defendant,
of the sum of dollars, by his certain bond or writ-
ing obligatory, bearing date the day and year aforesaid, and
which is now here brought into court, sealed with the seal of
the said plaintiff, acknowledged himself to be held and firmly
bound unto the said defendant, in the penal sum of
dollars, for the payment of which well and truly to be made he
thoroughly bound himself, his heirs, executors and administra-
tors, and every of them, to which said bond or writing obli-
gatory there was and is annexed a recital and condition whereby
it was recited that the said plaintiff' had that day agreed to sell to
the said defendant the following described lot or tract of land
situated in the city of and county of and state of
Illinois, known as lot in block in the
original or old town of (now city of .• • ; )
on condition that the said defendant should pay to said plaintiff
the sum of dollars, on or before the
day of , 19 . . , at the bank in
the city of aforesaid, for which the said defendant
had given his promissory note ; and it was provided that if the
said defendant should pay said not* at maturity without any
delay or defalcation, and should, in the meantime, pay all taxes
on said land, and the plaintiff should upon the completion of said
payment, make, execute and deliver to the said defendant, a
good and sufficient deed, with full and proper covenants of war-
ranty, free and clear of all incumbrance, then the said bond or
writing obligatory should be void, otherwise it should remain in
295Warth V. Loewenstein. 219 111. 211, 212 (1881); (10405), (10406),
222.228 (1906). C. L. 1897 (Mich.).
290 Snyder v. Quarton, 47 Mich.
310 ANNOTATED FORMS OP PLEADING AND I'RACTICE
full force aud virtue ; and that time should be deemed material
and of the esseuce of the contract in said bond sot forth. And
the said dcfcmlant avers that he then and there paid to the said
piainlitl" the siiid sum of dollars and nuide and
delivered to the said plainlift his promissory note for the said
sum of ilollare, payable on or before the
day of , 11'. ., which was the same note men-
tioned in the said bond or writing' oblif^atory, aud in the said
phiintitT's declaration herein, and was made and given for the
consideration aforesaid, and none other.
And the said ilefendant furtlier avei-s, that he paid, and was
willing' and liable to pay. all taxes on said land, between the day
of the date of the said bond or writing? obliu'atory and the
day of , 1*J. ., and on the saiil last mentioned
ilay, was ready and willing, and otTered to pay to said plaintifY
at the said bank, in the siiid city and county of
, tlie said sum of dollars, and then
and there tendered the said last mentioned sum of money to
the said i)laintirt', but the sjiid plaintitT then and tliere ne-^'leeted
and refused, and hath ever since neglected antl refused, to nuike,
execute and deliver to the said plaintitT a good and sufticient
deed of said lot or tract of land, with full and proper covenants
of warranty, and free and dear of all incumbrance; but on the
contrary thereof, the s<iid defendant avers tiiat at tlu* time and
place last aforesaid, tlie s^iid lot or tract of land was, and for
a long space of time before iuul l)een, subject to the in('uml)rance
of a certain mortgage made and executed by the said plaintill*
and his wife, to , bearing date the
day of 11*.., to secure the payment to the
said by the said plaintitT. in years
from the date of sjiid mortga;,'e. the sum of dol-
lars, with interest at the rate of percentum per
annum, which s;iid mortgage was duly filed for record in the
recorder's ofWce of said county of on the
day of lit . . . and recorded in said otlice in
book of mortgages, at page , and on
the said day of , ID. ., was
not canceled, released or discharged of record, but there re-
mained, and was a subsisting and valid lien upon said lot or
tract of land, to wit, at the county aforesaid.-"'^ (Conclude as in
Section 892)
839 Tender; replication, non est factum
2»8 That the said writing obligatory in said plea mentioned,
was not nor is the deed of said plaintiff.
297 Conway v. Case, 22 111. 127 298 Commence and conclude as in
(1859). Section 928.
DEFENSES AND PLEAS IN BAIC 31X
840 Tender; replication, pajrment
208 That at the said tinu- wh(>n, etc., whore, etc., the said de-
fendant did not pay to said phiintill" the said sum of
doUars, as said defendant hath in his said plea
alleged.
841 Tender ; replication, payment of taxes
208 That the said delenchmt did not pay all taxes on said land
between the day of the date of said bond or writing obligatory
and the day of , TJ . . , as by
the said plea is alle{2:ed.
842 Tender; replication, incumbrance
2"8 That said mortgage made mid executed by sjiid plaintiff
and his wife to at the said time when, etc., where,
etc., was not a subsisting and valid lien upon the lot or tract of
land in said plea mentioned, as in said plea is alleged.
843 Tender; replication
2"8 That at tiie same time when, etc., and at the place when,
etc., as in said plea iiuMitioiicd. the said defendant did not ten-
der to the sjiid plaiiitilf the said sum of dollara,
as in and ])y his said plea the siiid defendant hath alleged.
844 Tender ; notice with general issue
(Precede this by plea of general issue)
To plaintiff:
You will please take notice that on the trial of this cause, the
said defendant will give in evidence and insist, in his defense,
that before the eommeneement of this suit, to wit, on the
day of , 19 . . , at , and again on,
to wit, the day of , 1 J) . . , at
, , the said defendant was ready and
willing and then and there tendered and offered to pay to said
plaintilf the sum of dollars, lawful money, as to
the claim alle^'ed in said plaintiff's declaration in this cause;
to receive which of said det'cndanf, the said i>laintifT" flien and
there wholly refused and always, from tlie time of tlu; accruing
of said claim to the said plaintiff, the said defendant has be(;n
ready and willing, and still is ready and willing, to pay the said
sum of money to the said plaintiff, and now brings the same with
interest thereon into court, ready to pay to the said plaintiff if
he will accept the same.
Dated, etc.
298 Commence and conclude as in
Section 928.
312 ANNOTATED FORMS OF PLEADING AND PRACTICE
845 Tender ; acceptance and waiver
The plaintiff now, in open court, waives and releases any other
damaj?es claimed in the dcchiration than as to the sum of
aUef^ed by the defcncUmt, in his plea to be tendered
and brought into court ; l)ut as to said sum of the
plaintitr accepts, and asks judgment for said amount.
846 Title, landlord and tenant
In actions based upon the rchition of landlord and tenant
in undisturl)ed possession, the landlord's title cannot be con-
troverted l)y the tenant."'-'"
847 Title; vendor and vendee, pleading
A substantial defect in a title nui.st be specially pleaded or
noticed and proved in an action for the purchase price brought
by the vendor of real property .^^^^
848 Title ; plea, requisites
A plea of failure of title must aver specifically the manner
in which the title has failed, and why.^"^
849 Ultra vires
An agreement of a corporation wiiieh is beyond its corporate
l^owers is absolutely void and cannot be ratified, nor can it
become valid l)y aeijuiescence of either party. ''"^
850 Unproved counts, practice
It is proper practice for the trial court, when requested so
to do, to withdraw defective or unsupported counts from the
consideration of the jury, where a declaration consists of more
than one count and some of them fail to state a cause of
action, or they are unsupported by any evidence which would
fairly tend to prove them ; but a refusal of the court to grant
the request is no reason for a reversal of the judgment when
there are other proved counts in the declaration w^hich are
299 Griffing Bros. Co. v. Winfield, 3oi Wisdom v. Becker, 52 111. 342,
53 Fla. 589 (1907). 344 (1869).
300 Dwight V. Cutler, 3 Mich. 566, 302 Converse v. Emerson, Talcott
577 (1855). & Co., 242 111. 619, 627 (1909).
DEFENSES AND PLEAS IN BAR 313
suflficient to sustain the verdict.^°^ The absence of evidence
which would fairly tend to prove a count or counts and to
sustain a judgment thereon, authorizes the giving of an instruc-
tion to disregard the unproved count or counts; but the court
has no power to dismiss such counts from the declaration.^^*
851 Usury, generally
To constitute usury, there must be a borrowing and lending
of money or the forbearance of a pre-existing debt.^^^ A surety
on a usurious note has a right to interpose the defense of
usury.3^^ By special statutory provision in Illinois the de-
fense of usury must be specially pleaded.^"'^
852 Usury, burden of proof
The burden of proving usury is upon the party who urges
it as a defense.^'^8
853 Usury; plea, requisites
The deiVnst' of usury is in the nature of a penal action, re-
quiring strictness in pleading it. The plea should show clearly
that the defense comes within the statute.^*^** Facts wherein
the usury consists must be stated in the plea.^^^ A plea of
usury setting forth a forbearance of a pre-existing indebted-
ness, should state specifically the amount forborne, the time of
forbearance, and how much was paid, or agreed to be paid, by
way of interest for the forbearance, so that the court could
determine, from the face of the plea, whether there is usury
in the transaction.^^^ In Illinois a plea of usury must not
profess to answer the whole cause of action, because the defense
303 Klofski V. Kailroad Supply Co., The Illinois decisions on the neces-
235 111. 146, 149 (1908). sity of pleading usury apparently
304 Pittman v. Chicago & Eastern are conflicting because some of them
Illinois R. Co., 2.31 111. .581, 585 were based upon laws requiring the
(1908) ; Kennedy v. Aetna Life Ins. pleading of usury and others were
Co., 242 111. 396," 400 (1909). decided under laws which did not
305 Hancock v. Hodgson, 3 Scam. require pleading.
329, 333 (1841). 308 Walker v. Lovitt, 250 111. 543,
3ocSafford v. Vail, 22 HI. 326 550 (1911).
(1859). 309 Hancock v. Hodgson, 3 Scam.
307 Sec. 7, c. 74, Eev. Stat. 329, 333.
(Kurd's Stat. 1911, p. 1406); Part- 3io Durham v. Tucker, 40 111. 519,
low V. Williams, 19 111. 132 (1857); 522 (1866).
Smith V. Whitaker, 23 111. 367 3ii Hancock v. Hodgson, supra.
(1860).
314 ANNOTATED FORMS OF PLEiVDlNQ AND PRACTICE
ol' usury is given only to the extent of the usurious portion of
the indebtedness.^^-
854 Usury; notice with general issue (Mich.)
313 To
Attorney for said plaintiff:
You will please take notice that on the trial of this cause, the
said defendant will give in evidence and insist in his defense
that a greater rate of interest than is allowed by law was re-
served in the contract and promises alleged in plaintiff's declara-
tion and that said contract and promises are tainted with usurj-
and are unenforceable as to that part thereof, which represents
the usurious interest, and as to any interest at the option of
this defendant, and this defendant elects to so treat and consider
the same because of the usur>' therein countenanced, permitted
and practised, and will insist that no interest be allowed said
plaintiff, and that the $ or $ men-
tioned in section of the contract set up in plain-
tiff's declaration cannot be recovered being usurious interest
under the laws of the state of ^lichigan.
Dated, etc.^i^
855 Validity of contract, pleading
The validity of a contract cannot be insisted upon under the
general issue, but must be specially noticed.^^'^
856 Voluntary assignment; discontinuance, replication
(Commence as in Section 928) That he never at any time
received from said , assignee, or from any other
source on behalf of said pretended any portion of
the said sums so due to him as aforesaid, and that after the said
filing with said , assignee of said pretended ,
of the said verified claim of said plaintiff, to wit, on the
day of , 19 , . , , a final order or
judgment vras duly, legally and in accordance with the statute
in such case, entered by the county court of county
in the matter of the voluntary assignment of said pretended
, then pending in said court, by which said order
or judgment all proceedings in the matter of said assignment
were discontinued upon the assent in writing of the said pre-
tended and a majority of its creditors in num-
312 Moir V. Harrinffton. 22 111. 40 3i4 Rosen v. Rosen, 159 Mich. 72
(1859); Nichols v. Stewart, 21 HI. (1909).
106 (1859). 315 Hermann & Co. v. People's
313 Precede this by plea of general Department Store, 160 Mich. 224
issue. (1910); Circuit Court Rule 7e.
DEFENSES AND PLEAS IN BAR 315
ber and amount, and all parties were, thereby and by force of
the statute in such cases made and provided, remitted to the
same rights and duties as existed at the date of the said assign-
ment, except in so far as said estate of said insolvent had then
already been administered upon and disposed of, as by the
record and proceedings in said matter of the voluntary assign-
ment of said pretended now remaining in the said
county court of county, more fully
appears ; which said order or judgment still remains in full force
and effect, not reversed, appealed from, vacated or modified.
And this the said plaintiff is ready to verify by the said record
when, where and in such manner as the court shall direct, and
he prays that said record may be seen and inspected by the
court.
Attorney for plaintiff.
GENERAL ISSUE
857 General issue defined
Any plea which puts in issue the entire count or record sued
upon is the general issue.^^''
858 General issue, constructive
A plaintiff will be considered to have consented to try a
case the same as if a general issue had been filed if he waives
the right to take default or to rule the defendant to plead.^i^
859 General issue, waiver
The sufficiency, in law, of the declaration is admitted by plead-
ing the general issue, or by pleading the general issue after the
overruling of a demurrer, unless the declaration states a defec-
tive cause of action.-'*^^ Duplicity in a declaration is waived
by pleading the general issue.^i^
310 Compton V. People, 86 111. 176, 111. 146, 150 (1908); Quincy Coal
178 (1877) Co. V. Hood, 77 111. 68. 70 (1875);
317 First National Bank v. Miller, American Express Co. v. Pinekney,
235 111 135 139 (1908). 29 111. 392. 405 (1862); Fuller v.
318 Wenona Coal Co. V. Holmquist, Jackson (City), 82 Mich. 480, 482
15'> 111 581 591 (1894); Chicago (1890); Grand Eapids & Indiana
Cit"y Ry Co v. Jennings. 157 R. Co. v. Southwick, 30 Mich. 444,
111 274, 282 (1895); Chicago, 446(1874).
Rock Island & Pacific Ry. Co. v. '" ^t^^° ^f V.V^^'^rfiSf ' Si
People, 217 HI. 164. 172 (1905); v. Ingraham, 131 111. 659, 665, 66b
Klofsk'i V. Railroad Supply Co., 235 (1890).
316 ANNOTATED FORMS OF PLF.ADING AND PRACTICE
860 General issue ; nature and scope, generally
Tlu" filing of the general issue to the entire ileclaration trav-
erses every material alle^'atioii contaiiu-d in evt-ry eount ; it
puts the plaintitT upon proof of his cause of action; and it
prevents him from taking default or judgment upon any count
of his deehiration until the entin- issue is trieil.''-'" Any matter
whieh tends to show that thf ])laiiitirt' nevt-r had a cause of
action may he introduced under the general issue.^*-' As a
general nde, the defeiulant may deny or prove, under the gen-
eral issue, whatever a i)laintifT is ohliged to prove as an essen-
tial part of his own case.-'-- If any material allegation re(|uires
a decision ujwn a (|uestion of law, jui issue or (picstion of law
can thus he raisr.l iudin-ctly hy the pica of the general issue. •''^^
861 Estoppel in pais
Acts iiinl tl.MJiiratioiis of which the injurious consequences
might, and ought to have heen foreseen, and upon whieh others
may act to their prejudice, cainiot he restricted hy those who
made them if the persons to whom, or for whose benelit the
dedamtions are made acted upon them in good faith and
thereby changed their sitiuition so that injury would result
were a retraction permitted. Neither the plaintiff nor the
defendant, is therefore, permitted to insist upon that which is
inconsistent with what he has said or di>ne, and which affects
the rights of others.-'-'* An estoppel in pais as a defen.se to an
action at law need not he specially pleaded or noticed.^-'*
862 Fraud
In actions upon simple contracts, evidence of fraud in their
procurement is admissible under the general issue,^-" but such
evidence is inadmissible in actions uinui sealed instruments.'*-'^
Under the general issue and an attidavit denying the execu-
820 Van Dusen v. Pomerov, 24 111. 316 (1864); Illinois Fire Ins. Co.
289, 290. 291 (1860). ' v. Stanton. 57 111. 3.54. 362 (1870).
321 Curtiss V. Martin. 20 111. 557. 3 2 r. Dean v. Crall, 98 Mich. 591,
571 (1858); Wolf V. Powers. 241 594 (1894).
Ill 9, 13 (1909); Biedernian v. 32r. Dillon Beeb 's Son v. Eakle. 43
O 'Conner. 117 Til. 493, 497 (1886). W. Va. 502. 512 (1897).
322 Edwards v. Chandler. 14 Mich. 32? National Valley Bank v. Hous-
471,475 (1866). ton. 66 W. Va. 336. 347 (1909);
323 Wolf V. Powers. 241 HI. 13. Columbia Accident Ass 'n v. Rockey,
S24Knoebel v. Kircher, 33 111. 308, 93 Va. 678, 684 (1896).
DEFENSES AND PLEAS IN BAR 317
tion of the instrument sued upon, fraud may be sho\\Ti in ob-
taining tlie signature to the instrument.^-^
863 Letters of administration
The failure to obtain letters testamentary or that of an ad-
ministrator may be shown under the general issue.^-^
864 Misjoinder and nonjoinder of plaintiffs
At common law a defendant may show under the general
issue in actions ex contractu that too few or too many persons
are joined as plaintiffs.^^o r^\^i^ y^\q holds good in Illinois
notwithstanding the statutory provision which dispenses with
proof, under the general issue, of the joint rights as copart-
ners, payees, or obligees; as this provision is restricted to a
phiintiir's proof and not to that of a defendant^^i In actions in
form ex delicto for the recovery of damages as distinguished
from actions for the recovery of the specific property, the non-
joinder of plaintiffs is availalile only to lessen the plaintiff's dam-
ages, for the reason that the defendant is still liable to a sec-
ond action by tiie parties who are not joined in the action for
a recovt-ry (.f their portion of the loss.^-'-
865 Plaintiff's character and capacity-
Pleading the geiu-ral issue admits the character in which a
plaintitT sues.'^^^ The plaintiff's capacity to sue as an indi-
vidual cannot be questioned under the general issue.^^i
866 Statute of frauds
A verbal or oral acceptance of a written order on a third per-
son and the payment of a portion of the amount called for by
the order, do not take the promise to pay the balance out of the
statute of frauds.335 On the principle that the general issue
places the plaintiff upon proof of a valid contract, or of a
328SoTier V Peck, 51 Mich. 563, 332 Johnson v. Richardson, 17 111.
5G6 (ISS.-^). ■ 302, 304 (1855).
328 McLean Countv Coal Co. v. 333 McKinley v. Braden, 1 Scam.
Long. 91 111. 617. 621 (1879). 64, 67 (1832).
330Snell V DeLand, 43 111. 323, 334 Mclntire v. Preston, 5 Gilm.
326 (1867). 48, 58 (1848) . ^ ^ ^ ^
M31 Snell V. DeLand, 43 111. 325; 335 Chicago Heights Lumber Co. v.
Lasher v. Cotton, 225 111. 234, 236 Miller, 219 111. 79, 82 (1905).
(1907).
318 ANNOTATED FORMS OF PLEADING AND PRACTICE
transaction which renders the defendant liable, the defense of
the statute of frauds is open luider the general issue.^^** A rule
of court re(iuiring notice of fraud to be given with the general
issue has no application to pleading or noticing the defense of
the statute of frauds, which defense may be interposed without
special pleading or any notice to the general issue. ^^^
867 Pleading and demurring
It is not jxTiiiissible to plead the general issue to the entire
declaration and afterwards to demur to a part or count
thereof.^^®
868 Plea of general issue (Michigan)
And now coiiit's the defendant above named by
, liis attorney, and demands a trial of the matter
set forth in the plaintiff's declaration.
Dated, etc.»^»
Attorney for defendant.
(West Virginia)
It is customary, in "West Virginia, to plead orally the general
issue, such as not guilty, nan assumpsit, and conditions per-
formed, and to note its filing alone upon the docket or record.^*"
NOTICE UNDER GENEEAL ISSUE
869 Notice, nature and effect
A distinction is recognized between a special plea and a notice
given with the general issue in their objects and tests of suffi-
ciency. The objects of a special plea are to apprise the plaintiff
of the nature of the defense relied upon in order to prevent his
surprise on the trial and to form a distinct issue of law or fact ;
the test of its sufficiency is whether the facts stated in the plea
33G and 337 Third National Bank v. tice has been properly signed. The
Steel, 129 Mich. 434, 4.38 (1902); business address of the defendant's
Circuit Court Rule 7b, c. (Mich.). attorney is required by Circuit Court
338 Hawks V. Lands, 3 Gilm. 227, Rule 7a, unless the address has been
230 (1846). previously given in a notice of re-
889 This form is applicable to all tainer.
civil actions. It is not necessary 34o National Valley Bank v. Hous-
to sign a plea where a notice has ton, 66 W. Va. 336, 341 (1909).
been added to the plea and the no-
DEFENSES AXD PLEAS IN BAR 319
are sufficient to support a judgment without resorting to intend-
ments except those which necessarily arise from the facts admit-
ted by a general demurrer. Whereas the object and test of the
sufficiency of a notice under the general issue are not always the
same and depend upon the statute in each particular case.^^^
Thus, under JMichigan practice and since the revision of 1846,
the sole object of a notice required to be filed with the general
issue is to apprise the plaintiff of the nature of the defense that
he might be prepared to meet it, and to avoid surprise on the
trial, but no issue can be made under it other than that raised by
the general issue.
A notice is not a pleading; it is not to be tested by the rules
that are applicable to pleas ; and no issue of fact or law can be
founded upon it.^^^ ^ notice which is tiled with the general
issue, not being a pleading, it cannot be traversed or answered
as such. 3^3 The test of the sufficiency of such a notice in Mich-
igan is not whether the facts that are alleged therein are suf-
ficient upon general demurrer, as it is in Illinois, but whether
the plaintiff could with reasonable certainty anticipate the mat-
ter of the defense which is sought to be interposed by the notice ;
and its effectiveness is determined upon the trial by the admis-
sion or the rejection of evidence under it.*^^* The accuracy of
a special plea is not required of a notice of special defense.^*^
This test is applicable to all forms of actions.^^^ A notice which
may be given under the general issue cannot be made to take
the place of special pleas of non est factum nor that of nul tiel
corporation. 347
870 Notice, scope, Michigan
By the revision of 1846 special pleading is absolutely forbid-
den, and instead a notice should be added to the general issue
wherever a special plea would have been necessary under the
former practice.^"*^ All affirmative defenses in avoidance of the
3*1 Rosenbury v. Angell, 6 Mich. 345 Farmers' Mutual Fire Ins. Co.
508. 514 (1859). v. Crampton, 43 Mich. 421 (1880).
3-«2M'Hardv v. Wadsworth, 8 346 Cresinger v. Eeed, 25 Mich.
Mich. .349, .361 (1860). 450, 454 (1872).
343 Burgwin v. Babcock, 11 111. 28, 347 Bailev v. Valley National
30 (1849). Bank, 127 "ill. 332 (1889); Sec. 46,
344Rosenbury v. Angell, 6 Mich. Practice act 1907 (111.).
508, 514 (1859); Briesenmeister v. 348 Cresinger v. Eeed, 25 Mich.
Knights of Pvthias, 81 Mich. 525, 450, 454 (1872).
533 (1890).
320 ANNOTATED FORMS OF PLEADING AND PRACTICE
cause of action, such as payment, release, satisfaction and dis-
charge, non-delivery, statute of limitations, fraud, partial or en-
tire failure of consideration, all matters which are in no way
connected with the plaintiff's affirmative case, and all defenses
which are specially pleadable at common law, must be set forth
in a notice added to tlie general issue under Michigan practice.^*"
871 Notice, admission
All facts that are set fortii in a notice of special defense filed
with the general issue are admitted by the defendant and require
no proof by the plaintiff.^^*^
872 Notice, general form (Michigan)
To ,
Attorney of record, or the plaintiff in the above
cause :
You will please take notice that on the trial of this cause, the
defendant under plea of general issue will introduce affirmative
evidence to show that (Set forth special matter of defense).
By
Defendant's attorney.
BILL OF PARTICULARS
873 Nature and scope
The object of a bill of particulars is to inform the defendant
of the claim he is called upon to defend, and its effect is to limit
and restrain the plaintiff on the trial to the proof of the par-
ticular cause or causes of action therein mentioned. ^^^ The proof
must correspond with the allegations and the bill of par-
ticulars.2^- A party will not be permitted to recover a greater
amount than that claimed in his bill of particulars.^^^
874 Application, demand or motion, nature
A motion for a bill of particulars is in the nature of a dilatory
motion and must be made at the first opportunity. It should be
349 Circuit Court Rule 7b, c. — ; ssi McKinnie v. Lane, 230 111. 544,
Bryant v. Kenyon, 123 Mich. 151, 548 (1907).
154 (1900); Rosenbury v. Angell, 352 Lovington v. Adkins, 232 111.
6 Mich. 513. 510, 516 (1908).
350 Buckeye Brewing Co. v. Eymer, 353 Morton v. McClure, 22 111. 257
157 Mich. 518. 521 (1909); Circuit (1859); Sec. 32, Practice act 1907.
Court Rule 7e; Comstock v. Tag-
gart, 156 Mich. 47, 53 (1909).
DEFENSES AND PLEAS IN BAR 321
made before pleading in bar to the action. A motion for a rule
to make a count more specific, however, may be made at any-
time before trial.^^*
875 Requisites
A bill of particulars of a sale need not state the purchaser's
name nor that the name of the purchaser is unknown.^^^
876 Amendment
A bill of particulars is amendable.^^^
GKOUNDS OF DEFENSE
877 Defenses, limitation, waiver
The limitation to the grounds of defense filed is removed and
waived by a plaintiff who offers evidence Vv'hich bears upon an-
other and distinct ground of defense from that which has been
filed.2"
PRACTICE
878 Pleading, time
In all suits commenced by declaration a defendant, in Michi-
gan, may plead wdthin fifteen days after personal service upon
him of a copy of the declaration and the notice of rule to plead.^^^
The defendant has full fifteen days within which to plead any
plea he deems advisable, notwithstanding the existence of a gen-
eral rule of court giving a shorter period of time to plead certain
pleas.^^^
879 Extension of time, motion
And now come the defendant by attorney ,
, and move the court for an order herein granting
an extension of time to the said defendant of
days in which to plead or demur to the plaintiff declaration.
And for the reasons for this the defendant motion, by
said attorney , it says :
354McCarthey v. Mooney, 41 111. 358(9985), C. L. 1897, amended
300 (1866). 1905 acts, p. 103; Wyandotte Rolling
355 People V. Zito, 237 111. 434, Mills Co. v. Robinson, 34 Mich. 428,
440 (1909). 431 (1876).
356 McKinnie v. Lane, 230 111. 544, 359 Hake v. Kent Circuit Judge,
548 (1907). 99 Mich. 216 (1894).
35T Metropolitan Life Ins. Co. v.
Hayslett, 111 Va. 107 (1910).
322 ANNOTATED FORMS OF PLEADING AND PRACTICE
1. That it is a foreign corporation, resident at
in the portion of the state of
2. That service herein was had on a person not intimately-
connected with the defendant corporation.
3. Tliat by reason of the fore^^oin^', defendant attorney
was not able to be notified of the pendency of this suit until
the instant Jind has yet been unable to comnnini-
cate with the defendant or to learn any of the facts necessary
to enable him to make a proper defense for the defendant
herein.
4. That so far as defendant said attorney is informed,
the defendant ha a meritorious defense to the whole of tlie
plaintiff's demand; but that owing to the complicated nature
of the same, and the delays attendant upon eomnuniication with
defendant , at a distant and inaeeessibk^ part of the country,
said attorney is not sufficiently informed of the
same to make a proper defense herein and cannot safely pro-
ceed to make such defense without further information.
5. That, by reiison of the premises, days is a
reasonable time to be allowed defendant within which to form
a proper defense, as herein moved.
Defendant s attorney.
880 Several pleas
A defendant may plead specially and separately to each cause
of action which has been properly joined in one count.^^o A party
may plead as many inconsistent pleas or replications as he
chooses, but each pleading must be complete and consistent with
itself and it must answer the pleading for which it is intended.^*''!
Each plea must be complete in itself and form a distinct issue.^'^^
In Illinois, where a party may plead as many pleas as he deems
necessary for his defense, each plea stands by itself and forms a
distinct issue, and does not operate as an admission of another.^^^
The statutory permission to plead simultaneously as many de-
fenses as a defendant deems necessary does not extend to pleas
which are inconsistent with one another; as a plea to the juris-
diction of the person and a plea to the merits.^s*
360 Brady v. Spurck, 27 111. 478, 362 priest v. Dodsworth, 235 111.
482 (1861); Godfrey v. Buckmaster, 613, 616 (1908).
1 Scam. 447, 450 (1838). 3C3 Farman v. Childs, 66 111. 544,
361 Priest V. Dodsworth, 235 111. 547 (1873).
613 619 (1908); West Chicago 364 Putuani Lumber Co. v. Ellis-
Street R Co. V. Morrison, Adams Young Co., 50 Fla. 251, 261 (1905).
& Allen Co., 160 111. 288, 295
(1896); Corbley v. Wilson, 71 111.
209, 213 (1874).
DEFENSES AND PLEAS IN BAB 323
881 Additional pleas
After a defendant has availed himself of the right to plead, he
cannot plead specially without leave of court. Whenever the
defendant has exhausted his right to plead by filing the general
issue, and he desires to interpose defenses which are not avail-
able thereunder, a court is bound to grant to him leave to plead
these defenses if he makes reasonable application therefor. 36 s
An application for leave should be made at the earliest day to
avoid the plaintiff's surprise and not to delay the business of
the court.3«6 Leave to file additional pleas should be granted to
a defendant when it appears that he is not guilty of culpable
negligence in not making application at an earlier date and when
the additional pleas are indispensable to the making of a legal
defense.367 Upon the allowance and the making of a material
amendment to the declaration, a defendant is entitled to plead
to it as amended ; and if he applies for leave to so plead, the leave
should be granted to him. 3^8
882 Abandonment of pleas
A party will be restricted to a single issue if he abandons at
the trial all other issues that are raised by the pleas except the
one relied upon.^'J^
883 Striking pleas
A plea which is improperly filed may be stricken from the
files.370 The mere failure to plead within the time provided by
special or general rule, is no ground for striking out a plea which
is filed before the defendant is put in default.^'^i A defendant
has no right to present the same defense by different pleas. All
pleas but one which, in all respects, present the same defense,
may be stricken from the files as encumbering the record. 3"2 A
plea should not be stricken from the files merely because it is
365 Bemis v. Homer, 145 HI. 567, 369 Franks v. Matson, 211 111. 338,
571 (1893); Millikin v. Jones, 77 345 (1904).
111. 372, 375 (1875); People v. Mc- 3-o Honore v. Home National
Hatton, 2 Gilm. 731, 734 (1845). Bank, 80 111. 489, 492 (1875).
366 Fisher v. Greene, 95 111. 94, 97 37i Castle v. Judson, 17 111. 381,
(1880). 384 (1856); Corbin v. Turrill, 20
367Misch V. McAlpine, 78 111. 507, 111. 517, 518 (1858).
508 (1875); Bemis v. Homer, 145 372 Parks v. Holmes, 22 111. 522
111. 567, 571 (1893). (1859).
368Griswold v. Shaw, 79 111. 449,
450 (1875).
324 ANNOTATED FORMS OF PLEADING AND PRACTICE
defective.^'^^ On a inotion to strike pleas from the files the issue
of whether or not a defendant has a vaJid defense, cannot be
raised or tried.^'*
884 Repleader
After an issue of fact has been actually joined upon a plea
presenting a wholly immaterial issue, before verdict, the issue
may be stricken from the files, and the court may award a re-
l)leader or render judgment by ml elicit; after a verdict, a judg-
ment iwn obstante veredicto (notwithstanding the verdict) may
be given in a veiy clear case.^^^ The judgment may be arrested
and a repleader awarded if the finding is not decisive upon the
merits. If the finding is decisive, the verdict cures the defect.
If no issue of fact is joined upon an iimnaterial plea, the issue
tliereby presented can be eliminated only by demurrer.^"" An
immaterial issue will not be set aside upon the court's own
motion.3^^
COMMENCEMENT AND CONCLUSION
885 Commencement (common law), additional plea
And now come the said defendant , defendant in the
above entitled cause, by , h attorney , and by
leave of court first had and obtained file the following addi-
tional pleas to tile said declaration of the said plaintiff , as
follows :
886 Commencement, admitting part of claim
And for a further plea in this behalf the defendant says that
the several supposed causes of action in the , and
counts of the plaintiff's declaration, and each of
them, are one and the same cause of action, to wit, the supposed
cause of action set forth in said count, and as to
that cause of action, the defendant says the plaintiff ought not
to have his aforesaid action against him, the defendant, for the
sum in excess, to wit, the sum of dollars, parcel
of the several sums of money in said counts mentioned, because
he says:
373 Bemis V. Homer, 145 111. 572. supra; Eothschild v. Bruscke, 131
374 Bemis V. Homer, swpra. HI. 265, 271 (1890); Woods v.
375 Consolidated Coal Co. v. Peers, Hynes, 1 Scam. 103 (1833).
166 111. 361, 365 (1897). 377 Burlingarae v. Turner, 1 Scam.
376 Consolidated Coal Co. v. Peers, 588, 589 (1839).
DEFENSES AND PLEAS IN BAR 325
887 Commencement, entire declaration
And for a further plea in this behalf, the said defendant says
that the said plaintiff ought not to have or maintain his afore-
said action against him, the said defendant, because lie says that
the several supposed causes of action in said declaration men-
tioned are one and the same, to wit, the supposed cause of action
in the (first) count of said declaration mentioned and not other
or different causes of action, and as to that cause of action, the
defendant says:
888 Commencement, oyer
And for a ,. . . . plea in this behalf the said
comes and defends, etc, and craves oyer of the said supposed
writings obligatory in the declaration mentioned, and they are
read to him, etc., and he also craves oyer of the said conditions
of the said supposed writings obligatory, and they are read in
these words, etc., and says, actio non, because he says:
889 Commencement, several pleas
A first plea is commenced thus:
And the defendant, by , his attor-
ney, comes and defends the wrong and injury, when, etc., and
says:
Additional pleas are begun as follows:
And for a further plea in this behalf the said defendant comes
and defends the wrong and injury, when, etc., and says ; or
And for a further plea in this behalf the said defendant says
actio non because he says; or
And the said defendant for a further plea in this behalf says
that the said plaintiff ought not to have or maintain his afore-
said action thereof against it because it says :
890 Conclusion, nature and effect
The character of a plea, whether it is in bar or in abatement is
determined by its conclusion.^^s A plea which begins in bar and
which ends in abatement is, therefore, in abatement. So a plea
which commences in abatement and which concludes in bar, is
in bar. Likewise, a plea which begins and ends in abatement
is in abatement, although its subject matter is in bar; and a plea
which commences and concludes in bar is in bar notwithstand-
378 Pitts Sons' Mfg. Co. V. Com-
mercial National Bank, 121 111. 582,
587 (1887).
326 ANNOTATED FOKMS UF I'LEADINU AND PRACTICE
iiig that its subject matter is in abatement.^"" The mistake to
properly conclude a plea is fatal to it.^*''
891 Conclusion to the country
And of this the said di-fendant puts himself upon the coun-
try, etc.
892 Conclusion with verification
And tills the said (h'fendaiit is ready to verify. Wherefore
he prays jud^Mtifiit if the said plaintitT oui,dit to have or main-
tain iiis aforesaid action, cte.
893 Conclusion with verification by record
And tins the defendant is ready to verify by the record, when,
where and in such manner as the court shall direct, and he prays
thai the said I'ecoi-d he seen and inspected by the court.
894 Conclusion with verification in set-off
And this the saiil defendant , ready to verify,
wherefore he pray judgment for the balance of said
to wit, the sum of $ , and also
whether the said plaintitf ought furtiier to have and maintain
h aforesaid action.
895 District of Columbia (statutory commencement and con-
clusion)
The commencement of a plea is:
1. For a plea to the plaintitT 's declaration the defendant
says:
There is no conclusion to the country or verifieation of a plea.
896 Florida
Now comes the defendant, by his attorney, and for a (in case
of an amended plea add, amended plea) plea in this behalf says:
1. That (set forth the special matter of defense, and continue
with all other defense in the same way).
h
Now comes the defendant in the above styled cause, and for
pleas to the plaintiff's declaration filed herein, says:
1. (State matter of defense)
In Florida no conclusion is used. The plea is merely signed
by the defendant's attorney.
379 Pitts Sons' Mf^. Co. V. Com- aso Pitts Pons' Mfp;. Co. v. Com-
mercial National Bank, supra. mercial National Bank, supra.
DEFENSES AND PLEAS IN BAR 327
897 Maryland
, the defendant in the above entitled cause by
, his attorney, for plea to each and every count
of the plaintiff's declaration says:
The defendant by , its attorneys for a first plea
to the declaration in this cause, says (State special matter).
And for a second plea says:
898 Virgfinia
The first plea commences with "The defendant says that."
Second and su])sequent pleas may omit the statement that they
are pleaded by leave of court, or according to the form of the
statute."''®^
VERIFICATION
899 District of Columbia
District of Columbia, ss. :
I, being first duly sworn, on oath depose and
say that I am the for named as
defendant in the above entitled cause; that I have read over the
foregoing pk*as numbered from to
inclusive, to' which this affidavit is attached; and that the matters
and facts therein set forth are true to the best of my knowledge
and belief ; and this I am ready to verify.
Subscribed, etc.
Attorney for defendant.
900 Florida
Before me personally appeared , who being first
duly sworn, says that he is the duly authorized agent for the
defendant in this cause, and that the above and foregoing plea
is true.
Subscribed, etc.
h
Before me on this day personally came and who
being by me first duly sworn, says that he has read the fore-
S81 Sees. 3269, 3270, Va. Ann.
Code 1904.
328 ANNOTATED FORMS OF PLEADING AND PRACTICE
going pleas numbered , and lliat the same are true
and correct.
Defendant.
Subscribed, etc.
AFFIDAVIT OF MERITS
901 Object
The purpose of an affidavit of merits is to inform and satisfy
the court of the existence of a bona fide defense according to the
facts that are admissible under the plea, and to thereby avoid
frivolous pleading.^^-
902 Nature and effect
An aftidavit which denies the execution of a promissory note
that, under the pleadings, may or may not constitute the basis
of a recovery or a defense, is not an affidavit of merits within the
meaning of Illinois statute.^^^ An affidvait of merits, if filed
Avith a plea of the general issue, is a part of the plea and a part
of the record.^^^"* If, however, the plea is stricken from the files
on motion, a bill of exceptions is necessary to make the entire
proceeding on the motion a part of the record. -"^^^ An affidavit
of merits in the nature of a plea of set off is regarded with the
same strictness in matters of substance as a pleading.^^s
903 Necessity of affidavit
Swearing to the pleadings is required by statute as a condition
precedent to the right to file them.^®" A defendant has no right
to plead without an affidavit of merits where the plaintiff has a
right to and does file an affidavit of his claim. ^^^ The making of
a motion at the same time that a plea to the merits is filed, does
not dispense with the necessity of filing an affidavit of merits
with the plea. 2^^ The affidavit of merits filed wuth the general
382 Castle V. Judson, 17 111. 381, 386 McCord v. Crooker, S3 111. 556,
385 (1856); Chicago, Danville & 561 (1876).
Vincennes E. Co. v. Bank, 82 111. 387 Honors v. Home National Bank,
493, 496 (1876). 80 111. 492; Sec. 55, Practice act
383 Chicago, Danville & Vincennes 1907 (111.).
E. Co. V. Bank, 82 111. 496, 497. 388 Honore v. Home National
384 Whiting V. Fuller, 22 111. 33 Bank, supra; Sec. 55, Practice act
(1859); Williams v. Eeynolds, 86 1907 (HI.).
111. 263, 265 (1877). 389 Kassing v. Griffith, 86 111. 265,
385 Gaynor v. Hibernia Savings 267 (1876); Sec. 55, Practice act
Bank, 166 111. 577, 579 (1897). 1907 (111.).
DEFENSES AND PLEAS IN BAR 329
issue in an action against defendants who are sued jointly may
be sworn to by one of the defendants.^^*^ A foreign corporation
which is doing business in Illinois is within the statute requiring
an affidavit of merits.^^i This is based upon the construction of
the word "resident" in the phrase "if the defendant is a resident
of the county in which suit is brought," contained in section 36
of a former act. This phrase has been eliminated from section 55
of the present Practice act. But it is not unlikely that the pres-
ent section will be construed to include foreign corporations,
under the rule that they are amenable to the same rules and regu-
lations as domestic corporations.
904 Additional affidavit
An affidavit of merits which presents a defense only to a por-
tion of the plaintiff's demand, ceases to be operative upon the
plaintiff's limitation of his demand to the amount admitted, and
the defendant may be required to make an additional affidavit.^^^
905 Requisites
It is not necessary that an affidavit of merits should use the
exact words of the statute, provided words of equal import are
employed and the statute is substantially complied with.^^^
906 Forms (Illinois)
, being first duly sworn says that he is one of
the defendants in the above entitled cause and that he verily
believes that he has a good defense to this suit upon the merits
to the whole of plaintiff's claim.
Subscribed, etc.
DEMAND FOE JURY
907 District of Columbia
To the honorable, the judge of said court :
The defendant, , elects to have this ease tried
before a jur>', and prays the court for leave so to do.
Attorneys for defendant.
3»o Whitinff v. Fuller, 22 111. 33 392 Haggard v. Smith, 71 HI. 226,
(1859); Smith v. Batement, 79 111. 228 (1874).
.531 532 (1875); Sec. 55, Practice 393 Castle v. Judson, 17 111. 381,
act 1907 (HI.) * ^85 (1856); Sec. 55, Practice act
391 Chicago, Danville & Vincennes 1907 (111.).
R. Co. V. Bank, 82 111. 493, 496
(1876); Sec. 36, Practice act 1872,
as amended.
330 ANNOTATED FORMS OF PLEADING AND PRACTICE
To the plaintiff:
Take notice that the defendant, the , elects to
have this case tried before a jury.
Attorneys for defendant.
AMENDMENT
908 Requisites
An amendment to a plea must r('seni})le the plea which il pur-
ports to amend in the character of the defense proposed.''"*
304 People V. McHatton, 2 Gilm-
731, 734 (1845).
CHAPTER XVIII
SIMILITER
IN GENERAL FORMS
§§ §^
909 Similiter defined 912 District of Columbia
910 Waiver 913 Florida
911 Practice 914 Illinois
915 Maryland
IN GENERAL
909 Similiter defined
The word similiter is an abbreviation of et proedictus similiter
and means "and he does the like." It is no part of the
pleadings. 1
910 Waiver
A formal joinder of issue is waived in Illinois by proceeding to
trial upon the merits without objection.- Proceeding to trial
without objection upon a part of the issues joined is a waiver of
the issues that are not joined ; especially when a party has had
full benefit of the unjoined issues.^ In Virginia the mere omis-
sion to reply or to join issue is waived by proceeding to trial with-
out a formal joinder in a manner and to the extent as though a
formal pleading had been filed.^
911 Practice
A court may allow the filing of a joinder in issue at the time
the case is called for trial.^ Either party, the plaintiff or the de-
fendant, may add the similiter to a plea which concludes to the
country.^
1 Anderson 's Law Die. * Deatrick v. State Life Ins. Co.,
2 Armstrong v. Mock, 17 111. 166 107 Va. 602, 606 (1907).
(1855); Voltz v. Harris. 40 111. 155, 5 Peterson v. Pusey, 237 111. 204,
158 (1866) ; Hazen & Lundv v. Pier- 206 (1908).
son & Co., 83 111. 241, 242 (1876). e Stumps v. Kelley, 22 111. 140,
3 Strohm v. Hayes, 70 111. 41, 43 142 (1859) ; Gillespie v. Smith, 29
(1873). 111. 473, 476 (1863).
331
332 ANNOTATED FORMS OP PLEADING AND PRACTICE
FORMS
912 District of Columbia (joinder in sue)
■^ The plaintiff joins issue on deiVndant's plea.
Attorney for plaintiff.
Notice of trial
Take notice that the issue joined in this cause will be tried at
the next term of this court.
Attorney for plaintiff.
To
Attorney for defendant.
Note of issue
Attorney for plaintiff.
Attorney for defendant.
Last pleading was
(date)
The clerk will calender this cause to the next term of court'.
913 Florida
The plaintiff joins issue upon the plea of the defendant and
puts himself upon the country. ^
914 Illinois
And the plaintiff. ., as to the plea of said defendant. ., a cor-
poration, etc., by . .h. . firstly above pleaded and whereof . .he. .
ha. . put sel. . . . upon the country, does the like.
Attorney for plaintiff. .
915 Maryland
The plaintiff by , his attorneys, for
a replication to the pleas of the defendant says :
That he joins issue on the same.
Attorneys for plaintiff.
h
The plaintiffs, by , their attorney, join issue on
defendants and pleas.
7 See Section 211. Note 60.
8 Green v. Sansom, 41 Fla. 94
(1899) ; Sec. 1055, Rev. Stat.
CHAPTER XIX
REPLICATION
IN GENEEAL
916 Replication defined
917 Nature and scope
918 General replication — de in-
juria, nature
919 Special replication
PKACTICE
920 Several replications
921 Several replications; leave,
motion
922 Filing
923 Superfluous matter, motion to
strike
REQUISITES
924 Title
925 Traverse
926 Sufficiency
COMMENCEMENT AND
CONCLUSION
927 Florida
928 Illinois
929 Maryland
930 Mississippi
IN GENERAL
916 Replication defined
Replications are general or special. At law, a general replica-
tion merely states that the plaintiff joins issue upon the plea. A
special replication is one which alleges new matter.^
917 Nature and scope
In Illinois, upon the filing of a plea, the plaintiff may reply
by taking issue or by setting up new matter in avoidance.^ The
necessity for replying specially to a plea is not removed by sec-
tion 1055 of the Revised Statutes of Florida. A general replica-
tion, under the statute, is sufficient when the plea is the general
issue or not guilty, or the matter pleaded amounts to such plea.^
All material facts set out in the plea and not specifically traversed
by a replication are admitted and do not require proof to sup-
port them."* An unanswered plea is not admitted during the
pendency of a demurrer to another plea, until the court has been
1 Green v. Sansom, 41 Fla. 94, 100
(1899).
2 Clemson v. State Bank, 1 Scam.
45 (1832).
3 Green v. Sansom, 41 Fla. 101.
*Hepler v. People, 226 111. 275,
278 (1907); Home Ing. Co. v. Fa-
vorite, 46 lU. 263, 267 (1867).
333
334 ANNO'J'ATED FORMS OF PLEADING AND PRACTICE
moved to take some specific action upon the plea by a rule to
plead or by giving a ionnal judgment lor want of a replication.*^
918 General replication — de injuria; nature, pleading
A replication de injuria is a general traverse of the whole plea,
permitting the plaintiff to adduce any proof that tends to dis-
prove any of the facts alleged in the plea." A general replication
to a special plea is permissible and puts in issue the material
matters thereof.^
919 Special replication, pleading
At common law special replications are permissible and neces-
sary whenever a plea sets up a special defense by matter in con-
fession and avoidance.^ This rule prevails in Illinois under the
statute.®
PRACTICE
920 Several replications
The making and the filing of more than one replication to the
same plea is permissible under Florida practice.^" Replications
which are, in legal effect, the same as others that are presented
in the cause, may be stricken from the files.^^
921 Several replications ; leave, motion
12 And now comes the plaintiff by , its attorney,
and asks leave of court to reply specially and double to the pleas
of the defendants by them pleaded and
in the above styled action, to wit, to the plea of
and to the plea of license.
922 Filing
A court may permit the filing of a replication at the time a
cause is called for trial.i^
5 People V. Weber, 92 111. 288, w Hart Fire Ins. Co. v. Kedding,
29'> (1879) 47 Fla. 228, 247 (1904); Sec. 1059,
^>Ayre9 v. Kelley, 11 HI. 17 Eev. Stat. 1892 (Fla.).
(1849) 11 People v. Central Union Tel.
7 National Vallev Bank v. Hous- Co., 192 111. 307, 309 (1901).
ton, 66 W. Va. 344, 345 (1909). 12 See Section 211, Note 60.
8 Gunton v. Hughes, 181 111. 132 i3 Peterson v. Pusey, 237 111. 204,
(1899). 206 (1908).
»S€C. 51, Practice act 1907 (111.).
REPLICATION 335
923 Superfluous matter, motion to strike
And now comes the defendant, , by ,
its attorney, and shows to the court here that in the plaintiff's
replication the following portions are superfluous: that is to
say, the words ' ' and she was also prevented by the fraud, crime
and concealment of the defendant from obtaining any knowledge
of the said alleged by-law, ' ' and moves that the same be stricken
out.
And the said defendant further shows to the court that the
following words are superfluous, to wit : ,
and moves the court here to strike out said words.
And the defendant also shows that the following words are
superfluous, to wit : ^ and moves
the court here to strike out said words.
Defendant's attorney.
REQUISITES
924 Title
It is not necessary to entitle a replication of any term, it being
presumed that all pleadings, except pleas in abatement, were
filed at the same term.^*
925 Traverse
A replication should not deny matters of inducement in the
plea.i^
926 Sufficiency
A bad replication is considered sufficient if interposed to a
bad plea.^*^
COMMENCEMENT AND CONCLUSION
927 Florida
Now comes the plaintiff in the above entitled cause by his
attorney, , and for replication to the defendant's
plea, says : 1. That (Set forth matter of replica-
tion, numerically under separate paragraphs to all pleas).
All of which the plaintiff is ready to verify.
Attorney for plaintiff.
14 Miller v. Blow, 68 111. 304, is People v. Central Union Tel.
309 (1873). Co., supra.
15 People V. Central Union Tel.
Co., 232 111. 260, 276 (1908).
336 ANNOTATED FORMS OF PLEADING AND PRACTICE
928 Illinois
And the plaintiffs as to the plea of the defendant by it above
pleaded, say that they, the plaintiffs, by reason of anything in
that plea alleged, ought not to be barred from having their afore-
said action, because they say :
Portion of indebtedness admitted by plea
And the plaintiff, as to the plea of the defendant by it (sec-
ondly or thirdly, etc.) above ph'aded, says that he, the plaintiff',
by reason of anything in that plea alleged, ought not to be barred
from having his aforesaid action, exce])t as to the sum of to wit:
$ , because he says :
Conclusion
And this said plaintiff prays may be inquired of by the coun-
try, etc.
b
And this the said plaintiff is ready to verify ; wherefore the
said plaintiff prays judgment and his damages by him sustained,
by reason of the committing of said trespasses to be adjudged
to him, etc.
929 Maryland
and , plaintiffs, by ,
their attorney for replication to defendant's plea, say:
(Conclude with attorney's signature).
930 Mississippi
Comes the plaintiff by , his attorney, and by way
of replication to plea filed by the defendant in this
cause says that he ought to be allowed to recover in this cause,
because (Allege particular matter).
And this the plaintiff is ready to verify.
CHAPTER XX
REJOINDER AND SUBSEQUENT PLEADINGS
REJOINDER §§
§§ 936 Forms
931 Practice
932 Requisites REBUTTER
933 Commencement and conclu- 937 Illinois
sion 938 Mississippi
934 Forms SURREBUTTER
SURREJOINDER 939 Form
935 Commencement and conclu-
sion
REJOINDER
931 Practice
Special application must be made by the defendant for leave
to file several rejoinders.^ The court's entertaining of a de-
nnirrer to a rejoinder which was improperly filed, is equivalent
to the granting of leave to file the rejoinder.^
932 Requisites
A rejoinder must be responsive to the allegations of the repli-
cation and must fully answer them.^ The rejoinder admits the
sufficiency of the replication ansvrered.^
933 Commencement and conclusion (Illinois)
^And the said defendant, as to the said plaintiff's replication
to the said defendant's plea says actio non, because
he says ^ (Conclude to the country or wnth a verification as in
case of pleas).
h
And the defendant, as to the said replication of the plaintiffs
to the plea of the defendant, says, that the plaintiffs
1 Sec. 51, Practice act 1907 (HI.). ■* Heimberger v. Elliot Frog &
2 Ryan v. Yanlandingham, 25 111. Switch Co., 245 111. 448. 452 (1910).
128, 131 (1860). 5 See Section 211, Note 60.
3 Ryan v. Yanlandingham, supra. e 3 Chitty 's PI., p. 1232.
337
338 ANNOTATED FORMS OF PLEADING AND I'KACTICE
ought not, by reason of anything by them in that replication
alleged, to have or maintain their aforesaid action against it, the
defendant, because it says :
(Mississippi)
Comes llie defendant by attorney and for re-
joinder to plaintiff's replication to the plea of ,
says: (Set forth special matter and conclude with verification,
or to the country).
b
And for a rejoinder herein to plaintiff's replication, defendant
says that the plaintiff ought not to be allowed to recover in this
action, because Iil' says: (Set up special matter).
934 Forms (Illinois)
And the said defendant, as to the said plaintiff's replication to
the said defendant's (second; plea, whereof the said plaintiff
hath put himself upon the country, doth the like.
(Maryland)
Now comes the defendant, by its attorney, , and
says :
1, That it joins issue on the replication of the plaintiff to the
defendant's plea marked 1, and that it joins issue on the plain-
titt''s replication to a further plea marked 2 of the defendant's.
Attorney for defendant.
SUEEEJOIXDEE
935 Commencement and conclusion (Illinois)
And the plaintilf as to the rejoinder of the defendants to the
replication of the plaintiff saith that it by reason of anything
in that rejoinder above alleged ought not to be barred from hav-
ing or maintaining its aforesaid action thereof against the de-
fendants, because he says: (Conclude as in replication).
(Mississippi)
And for a surrejoinder of the plaintiff to defendant's rejoinder
to plaintiff's replication herein, the plaintiff says that he ought
to be allowed to recover in this action because (Set forth special
matter and conclude as in replication).
REJOINDER AND SUBSEQUENT PLEADINS 339
936 Forms (Illinois)
And the said plaintiff as to the and rejoinders
of the said defendant , and which the said defend-
ant hath prayed may be inquired of by the country, doth the like.
Attorney for plaintiflf.
And the plaintifiP as to the rejoinder of the defendants to the
replication of the plaintiff, whereof they put themselves on the
country, doth the like.
(Maryland)
And the plaintiff, the said , by ,
her attorneys, for a surrejoinder to the defendant's rejoinder to
the plaintiff's replications to the defendant's
plea says that the said plaintiff joins issue thereon.
Attorney for plaintiff.
Service admitted.
EEBUTTER
937 Illinois
And the said defendant, as to the said surrejoinder of the said
plaintiff (secondly) above pleaded (or to the said rejoinder of
the said defendant to the said replication to the said (second)
plea of the said defendant), saith, that the said plaintiff ought
not, by reason of anything by him in that surrejoinder alleged,
to have or maintain his aforesaid action against him in respect
of tlie said supposed (promise or trespass) in the introductory
part of the said (second) plea mentioned, because he saith, that
the said defendant did not (state special matter) in manner and
form as the said plaintiff hath above in his said surrejoinder in
that behalf alleged. And of this the said defendant puts himself
upon the country, etc
938 Mississippi
Now comes the defendant herein and by way of rebutter to the
surrejoinder of the defendant herein filed, says that the plaintiff
ought not to be allowed to recover in this action by reason of
anything alleged in said surrejoinder, and for cause says: (Set
up the particular matter and conclude as in plea).
SUEREBUTTEE
939 Form
And the said plaintiff, as to the said defendant's rebutter,
whereof he hath put himself upon the country, doth the like.'
7.3 Chitty's PL, p. 1236.
PART III
COJVIMON LAW ACTIONS
CHAPTER XXI
ASSUMPSIT
DECLARATION REQUISITES
§§
940 Generally
941 Consideration ; defect not
cured
942 Promise, use of word
943 Promise; several defendants,
doubt as to liability
944 Conditions, precedent and sub-
sequent
945 Conditions; waiver or estop-
pel, proof
946 Breach
CAUSES OF ACTION AND
SPECIAL DECLARATIONS
947 Accceptance of order, Narr.
948 Account, credits
949 Account, open ; Narr.
950 Account stated, promise
951 Account stated, Narr.
952 Account stated and seizure,
Narr.
953 Account stated and seizure,
affidavit of amount due
954 Account stated and seizure,
affidavit describing property
955 Account stated and seizure,
writ and return
956 Accounting, action
957 Alimony, Narr.
958 Assignment of claim for use
and occupation, Narr.
959 Assignment of partnership ac-
count or note, Narr.
960 Automobile insurance, Narr.
961 Bailment, action
962 Bank deposit, Narr.
963 Bill of exchange; acceptance,
liability
§§
964
965
966
967
968
969
970
971
972
973
974
975
976
977
978
979
980
981
982
983
Bill of exchange ; declaration,
requisites
Bill of exchange; drawee v.
drawer, Narr.
Bill of exchange; indorsee v.
acceptor, Narr.
Building contract; architect's
certificate
Building contract ; apartment,
Narr.
contract ;
Building contract ; building,
Narr.
Building contract ; church,
Narr.
Building contract, factory,
Narr.
Checks ; drawee v. collecting
bank (forged maker and
payee), Narr.
Cheeks ; indorsee v. drawee,
Narr.
Checks; indorsee v. maker,
Narr.
Commission ; insurance ad-
juster, Narr,
Commission ; real estate bro-
ker, loan, Narr.
Commission ; real estate bro-
ker, sale, authority
Commission ; real estate bro-
ker, sale, Narr.
Commission ; stock broker de-
fined
Contracts, law governing
Contracts, generally
Contracts; performance, ten-
der
Contracts ; third person's
benefit, action
343
344
ANNOTATED FORMS OF PLEADING AND PRACTICE
984 Contracts; third person's
benetit, dcx-hiration, r(>-
quisites
985 I)e facto cori>oration, Nair.
986 Delinquent U\x, drainage
9S7 Draft, forjied endorsement
988 Draft, indorsee v. acceptor,
Narr.
989 Drainage benefits, liabiiity
900 Drainage benefits; declara-
tion, rtHjuisites
91)1 ICniploynieut ; civil service,
new eliargcs
902 Employment ; constnictlve
service, election of renietlii's
903 Employment ; cutter and Jitter.
Narr.
901 Employment; general occuia-
tion, Narr.
995 Employment. housekeeper,
Narr.
99G Employment; municipal em-
ployee, extra work
907 Employment ; public ollicer,
action
998 Employment; police officer,
Narr.
999 Employment; superintendent
gas plant, Narr.
1000 Emitloyment; theatrical man-
agex'. Narr.
1001 Fees of officers, constables
PIKE INSUKANCE
1002 Proof of loss
1003 Arbitration
1004 Parties
1005 Bridge destroyed, etc., Nan-.
1006 Chattels on farm, Narr.
1007 Dwellings, Narr.
1008 Furniture, Narr.
1009 Furniture and fixtures, Narr.
1010 Saw-mill and plant, Narr.
1011 Stock in trade and furniture,
Narr.
1012 Stock of goods or merchan-
dise, Narr.
§§
1013 Forfeiture of contract, wrong-
ful, Narr.
1014 Gaming, action
lOlTi (Jrain transfer contract, Narr.
1016 (Juaranty of acct)unt, Narr.
1017 (Uiaranty of cmtrac-t. Narr.
1015 (iuaranty of notes, Narr.
1019 Ciuaranty of shares of stock.
Narr.
1020 Heirs and devisees; declara-
tion, re^iulsltes
1021 Indemnity bond as salesman,
Narr.
1022 Indemnity bond to sberifT,
Narr.
1023 Insurance contract, ambiguity
1024 Insurance, form of action
102.") Insurance, parties
1026 Insurance; declaration, reii-
ulsltes, proof
1027 Instalments
1025 Interest, foreign laws, Narr.
1020 Judgment; merger of judg-
ment debtor, Narr.
1030 Lease, Narr.
LIFE INSURANCE
1031 Warranties and representa-
tions
1032 Accident. Narr.
1033 Benefit, agency
1034 Benefit ; warranties, waiver
1035 Benefit ; liability, law and fact
1036 Benefit; liability, commence-
ment, interest
1037 Benefit, beneficiary
1038 Benefit, Narr.
1030 Employers' liability, Narr.
1040 Endowment, Narr.
1041 Life and accident, Narr.
1042 Ordinary ; premium, payment
1043 Ordinary; delivery of policy,
liability
1044 Ordinary, general, Narr.
1045 Ordinary ; non-contestable
policy, Narr.
1046 Ordinary; payment of premi-
um extended, Narr.
ASSUMPSIT
345
1047 Sick benefit, Xarr.
1048 Suicide, liability
](>19
1050
1051
1052
1053
1054
1055
1050
1057
1058
1059
lOGO
lOGl
ior.2
1003
10G4
10G5
1066
1067
IOCS
1069
1070
1071
1072
1073
1074
Manufactured articles for
dealer, acceptance refused,
Narr.
Manufactured building ma-
terial, acceptance refused,
Narr.
Manufacturing goods ijer sam-
ple, refusal, Xarr.
Manufacturing plant, refrig-
erating system, Narr.
Mechanic's , lien ; subcontrac-
tor, action
Mechanic's lien, notice
Mechanic's lien, Narr.
Money Lad and received, ac-
tion
Money had and received ; in-
surance money received by
factor, Narr.
Money had and received ; pur-
chase price under rescinded
contract, Narr,
Money stolen, Narr.
Paving under viaduct, action
Performance prevented, Narr.
Personal injuries, action
Personal injuries; sidewalk
injury, Narr.
Personal injuries ; street car
collision, Narr,
Preferance by bankrupt, Narr.
Professional services rendered
in another state, action
Profits, Narr.
Promise to marry, Narr.
Promissory notes, considera-
tion
Promissory notes, negotiabil-
ity
Promissory notes ; parties,
plaintiffs
Promissorj- notes ; parties, de-
fendants
Promissory notes ; declara-
tion requisites
Promissory notes ; indoi-see v,
indorser, Narr.
§§
1075 Promissory notes; indorsee v,
maker, Narr.
1076 Promissory notes; payee v.
maker, Narr,
1077 Purchase money ; sale of laud.
action, proof
1078 Purchase money ; sale of laud^
Narr.
1079 Reimbursement; accommoda-
tion maker, Narr.
1080 Reimbursement ; surety, Narr.
1081 Rent; assignee of lease, ac-
tion
1082 Rescission of contract, action
1083 Rescission of contract; per-
formance, proof
1084 Rescission of contract; re-
sale, measure of damages
1085 Rescission of contract; dec-
laration, requisites
10S6 Royalties, Narr,
1087 Sale; acceptance of goods, li-
ability
1088 Sale ; partner's interest, Narr,
1089 Sale ; purchase price, Narr.
1090 Sale ; refusal to accept cattle,
Narr.
1091 Sale; refusal to deliver goods,
Narr.
1092 Sale; refusal to deliver leaf
lard, Narr.
1093 School district, discontinued,
action
1094 Shipment ; delay, Narr,
1095 STiipment; non-delivery, ac-
tion
1096 Shipment ; non-delivery, Narr,
1097 Special assessment, action
1098 Subscription to shares of cap-
ital stock ordered paid by de-
cree, Narr.
1099 Taxes, Narr.
1100 Taxes paid under protest, ac-
tion
1101 Taxes paid under protest,
Narr.
1102 Taxes paid under void sale,
action
1103 Telegraph service, Narr.
346
ANNOTATED FOKMS OP PLEADING AND PRACTICE
§9
1104
1105
HOG
1107
1108
1109
1110
nil
1112
1113
1U4
1115
lllG
1117
1118
1110
1120
1121
1122
1123
1124
1125
1126
1127
1128
1129
1130
1131
1132
1133
1134
Tenants in common, action
Transportation ; failure to
provide, Narr.
Trespass on land, action
Trespass on land, declaration
requisites
Use and occupation, generally
Use and occupation, life and
sub-tenant, deatti of life ten-
ant, proportionuK'Ut of rent,
action
Use and oerupatlon. Narr.
Wages, demand
Water, failure to supply,
Narr.
COMMON COUNTS
Generally; common and spe-
cial counts
Award
Building contract
Fraud
Gaming
Insurance policy
Money had and received
Money ixild out for defendant
Money paid under protest
Payment in articles
Promissory note
Special assessment
FORMS
District of Columbia
Florida
Illinois; goods sold and deliv-
ered, generally
Illinois ; goods sold and deliv-
ered, quantum valebant
Illinois; work, labor and ma-
terials
Illinois ; money counts
Illinois; account stated
Maryland
Michigan
Virginia
AFFIDAVIT OF CLAIM
1135 District of Columbia
1136 Illinois
1137 Maryland
S§
1138 Michigan
1139 West Virginia
SPECIAL DEFENSES AND
PLEAS
1140 Acceptance of bill of ex-
change; denial, pleading
1141 Accord and satisfaction ; plea
and replication
1142 Agister's lien; plea, requisites
114.''> Bona fide defense, failure to
make; plea and replication
1144 Commission, real estate bro-
ker ; bad faith
1145 Commission, real estate bro-
ker; license, want of, plea
and replication
1146 Contract ; mutuality, test
1147 Contract, termination
1148 Conversion by sheriff, plea
and replication
1149 Dellveiy of goods by sheriff,
without consent ; plea and
replication
nBE INSURANCE
1150 Additional insurance, substi-
tuted i>olicy not
1151 Arbitration agreed to after
loss, pending; plea and rep-
lication
1152 Arbitration under policy pend-
ing ; plea and replication
1153 Cancelation of i>olicy ; plea
1154 Causing fire, pleading
1155 Causing fire, plea
1156 Forfeiture, waiver
1157 Incumbrance, plea and rep-
lication
1158 Iron safe clause, pleading
1159 Limitation, waiver, proof
1160 Overvaluation, plea
1161 Proof of loss, plea and rep-
lication
1162 Refusal, reasons
1163 Suspension of policy, plea and
replication
1164 Unconditional ownership, plea
and replication
ASSUMPSIT
347
§§
1165 Vacant and unoccupied, plea
and replication
1166 Warranties, pleading
1167 Indemnity bond obtained by
false representation ; plea
and replication
1168 Indemnity bond obtained by
fraud; plea and replication
1109 Indemnity bond, sheriffs
failure to follow instruc-
tions; plea and replication
1170 Joint liability ; denial, plea
1171 Joint liability or partnership ;
denial, plea
1172
1173
1174
1175
1176
1177
1178
1171)
1180
1181
1182
1183
1184
1185
1186
UPE INSURANCE
Beneficiary, -warranty
Deductions
Execution of assured
False representations, gener-
ally
False representations, plea
and replication
Forfeiture, waiver
Good standing
Incontestability
Limitation, plea and replica-
tion
Medical attention ; plea, rep-
lication and rejoinder
Murder of insured, jjlea and
replication
Occupation different, plea and
replication
Suicide
Suicide, plea and replication
Ultra vires, plea
1187 Loss of goods, express com-
pany ; validity of statute
1188 Non-performance, plea
PROMISSORY NOTES
1189 Accommodation maker, plea
1190 Assignment, practice
1191 Consideration, want or fail-
ure, generally
1192 Consideration, failure; plea,
requisites
1193 Consideration, partial fail-
ure ; plea, requisites
1194 Consideration, total failure;
plea, requisites
1195 Diligence, failure to use ; de-
murrer and affidavit of
merits
1196 Notice of defense
1197 Ownership, proof
1198 Surrender to maker
1199
1200
1201
1202
1203
1204
1205
1206
1207
1208
1209
1210
1211
1212
Recoupment
Redemption, failure ; plea, re-
quisites
Res judicata, replication
Set-off, advance money
Set-off, general plea
Set-off, special plea
Special assessment
Statute of frauds, plea
Statute of limitations ; plea,
re<iuisites
Statute of limitations; plea,
replication, and rejoinder
Subscription to shares of cap-
ital stock, fraud and circum-
vention ; plea and replication
Tender of admitted part, plea
and replication
Tender under compromise,
plea
Trust and monopoly, plea and
replication
GENERAL ISSUE
1213 Nature and .scope, generally
1214 Delivery
1215 Fraud
1216 Nonjoinder of proper plain-
tiffs
1217 Partnership
1218 Payment
1219 Performance
1220 Practice
FORMS
1221 District of Columbia
1222 Florida
1223 Illinois
1224 Maryland
348
ANNOTATED FORMS OF PLE-VDINO AND PRACTICE
S8
1225 Mississippi
1226 Virginia
1227 West Virginia
NOTICE WITH GENERAL
ISSUE AND GROUNDS
OF DEFENSE
1228 Check, plaintiCf not innocent
holder, uotici'
1229 Grounds of defense
INSUBANCE
1230 Generally
1231 Cancelation and other de-
fenses, notice
1232 Cause of Are, notice
1233 Increased hazard, etc., notice
1234 General defenses (fire insur-
ance) notice
1235 Other insurance, notice
1236 Set off, notice
1237 Use and occupation
AFFIDAVIT OF DEFENSE OR
MERITS
1238 Illinois, necessity
1239 Illinois, affidavit
1240 Maryland
1241 Michigan, necessity
1242 Mississippi
1243 Virgin la
1244 West Virginia
BILL OF PARTICULARS
1245 District of Columbia
1246 Illinois
1247 Maryland, demand
1248 Maryland, cross-motion
1249 Michigan, demand
1250 Michigan, notice and partic-
ulars
1251 Missis-sippl, application
1252 Mississippi, particulars and
affidavit
1253 Mississippi, counter-affidavit
VERDICT
1254 Florida
1255 Illinois, requisites
1256 Michigan, variance
1257 Mississippi
1258 Virginia
1259 West Virginia
JUDGMENT
1260 Generally ; amount, interest
1261 Motion for judgment
1262 Judgment
DECLARATION REQUISITES
940 Generally
A declaration in assumpsit must express a consideration, a
promise based thereon,^ and the failure to perform. The dec-
laration has usually six parts or elements: the inducement
the consideration, the promise, the conditions, the breach, and
the damages.2
941 Consideration, defect not cured
In actions which are not based upon contracts which im-
port a consideration, as deeds, bills of exchange and promis-
sory notes, the declaration must set out the particular con-
sideration of the undertaking or promise; for, a valuable con-
1 Read V. Walker, 52 111. 333, 334
(1869).
2 Chitty 's PL, p. 290.
ASSUMPSIT 349
sideration is of the very essence of the contract. The omis-
sion to state the consideration of a contract in a declaration,
when that is necessary, is fatal to the maintenance of the action
and is not cured by verdict. ^
942 Promise, use of v^ord
In assumpsit, the declaration should use the word "promise"
and not "agree. "^ It is not necessary, however, to actually
use the word "promise" where there is enough alleged in the
declaration which shows that a promise took place.^ The omis-
sion from the common assumpsit counts, except in one of them,
of a promise to pay, to which the general issue is pleaded, is
cured after verdict.*^
943 Promise; several defendants, doubt as to liability
A plaintiff who is not positive whether he can sustain an
action against either of two defendants, should allege in his
declaration a several promise against each of the defendants in
the alternative, or he should join two counts in the declaration,
each count alleging a contract by one of the defendants."^
944 Conditions, precedent and subsequent
The averment of conditions precedent is essential in a dec-
laration in which the right of the recovery depends upon their
performance.® If a party relies upon an excuse for not per-
forming he must state his excuse, but he must not aver per-
formance.^ At common law strict proof of performance is
necessary under an allegation of performance of a contract.
This rule has been relaxed in actions upon building contracts,
where proof of a substantial compliance with a contract is suf-
3 Minor v. Michie, Walker, 24, 29 Salt Assn., 140 Mich. 441, 444
(Miss. 1818); 1, Chitty's PL, p. (1905).
293. 8 Phoenix Ins. Co. v. Stocks, 149
*Guinnip v. Cater, 58 111. 296, 111. 319, 325 (1893); Tillis v. Liver-
297 (1871). pool & London & Globe Ins. Co., 46
5 Union Stopper Co. v. McGara, Fla. 268, 278 (1903); Expanded
66 W. Va. 403, 409 (1909). Metal Fireproofin? Co. v. Boyce, 233
eDemesmey v, Gravelin, 56 111. 93 111. 284, 287 (1908).
(1870). 9 Hart v. Carsley Mfg. Co., 221
TEoot & McBride Co. v. Walton 111. 444, 446 (1906).
350 ANNOTATED FORMS OF PLEADING AND PRACTICE
ficient.^0 The plaintiff is not bound to set up the performance
or the happening of conditions subsequent. ^^
945 Conditions; waiver or estoppel, proof
A count based upon an express contract need not allege
waiver of some of the provisions of the contract, as waiver or
estoppel may be proved without pleading it.^-
946 Breach
The breach which is assigned must be co-extensive with the
material part of the undertaking or promise that has been
averred. ^3
CAUSES OF ACTION AND SPECIAL DECLARATIONS
947 Acceptance of order, Narr. (111.)
1* For that whereas, one W F, on, to wit, , 19 .... ,
in the county aforesaid, made his certain order, and delivered
the same to the plaintiff, and thereby then and there re(iuested
the defendants to pay dollars ($ ) unto
the plaintiff or its order, which said order the defendants on,
to wit, , 19. . . ., accepted, and which said order
was in words and figures following: (Insert order.)
An which acceptance was thus: namely, plaintiff delivered
to said C D by delivery to said D I\I the said order, and the
said D ]M then and there, on his behalf and on behalf of said
C D, orally promised to pay said order, and then and there
did pay unto plaintiff the sum of dollars ($ )
thereon, by delivering unto plaintiff said C D's check for that
amount, which check was duly cashed, and further then and
there promised to pay the balance of said order in a few weeks,
and having so promised, retained in his possession, and still
retains (so far as plaintiff is informed) the said original order;
by means whereof the defendants then and there became liable
to pay to the plaintiff the said sum of money, according to the
tenor and effect of the said order, and of the said acceptance
thereof; and being so liable, the defendants, in consideration
thereof, then and there promised the plaintiff to pay to it the
said sum of money, according to the tenor and effect of the
10 Turner v. Osgood Art Colortype i3 Union Stopper Co. v. McGara,
Co., 223 111. 629, 637 (1906). 66 W. Va. 409, 410.
11 Carney v. Ionia Transportation i* See Section 211, Note 60. Pre-
Co., 157 Mich. 54, 59 (1909); Tillis cede and follow this and all other
V. Liverpool & London & Globe Ins. declarations by proper commence-
Co., supra. ment and conclusion if not given in
12 Evans v. Howell, 211 111. 85, form.
92 (1904).
ASSUMPSIT 351
said order and of the acceptance thereof aforesaid. Yet though
often requested the defendants have failed to pay said order
(except said $ ).
To the damage of the plaintiff for the sum still unpaid on
said order, namely, dollars ($ ) and in-
terest and costs thereon.
948 Account, credits
A check is no settlement of an account, if it is received and
cashed in part payment alone, and it need not be returned
before commencing suit for the balance.^^ The same rule pre-
vails where a creditor is paid a less amount in full satisfaction
of his claim under an agreement which is void on account of
fraud, the amount received need not be returned before in-
stituting action for the balance. ^^
949 Account, open, Narr. (Miss.)
The defendant is indebted to plaintiff in the
sum of dollars due by open account for merchan-
dise sold and delivered by the plaintiff to the defendant at his
special instance and request ; and also in the
sum of dollars for merchandise sold and delivered
by plaintiff to defendant at his special instance and request
; and in the sum of dollars, being
the amount of freight charges paid by plaintiff on some of the
goods so sold and delivered to defendant. And being so in-
debted the defendant undertook and promised to pay plaintiff
said sum of dollars and the remainder
of the indebtedness on with per cent inter-
est from maturity of said bills respectively. And though often
requested so to do, defendant has not paid said sum of money
or any part thereof; wherefore, etc.
950 Account stated, promise
A definite verbal promise to pay a sum certain will support
an action upon an account stated.^'
951 Account stated, Narr. (111.)
For that whereas, the said defendant, on, to wit, the
day of , and at the place aforesaid, accounted to-
gether with the said plaintiff of and concerning divers sums
15 Reed v. Engel, 237 111. 628, 633 it Watkins v. Ford, 69 Mich. 357,
(1909). See accord and satisfac- 362 (1888).
tion.
16 Hefter v. Cahn, 73 111. 296, 303
(1874).
352 ANNOTATED FORMS OF PLEADING AND PRACTICE
of money, before that time due and owing from the said de-
fendant to the said plaintiff and then and there being in arrear
and unpaid, and upon such accounting the said defendant then
and there was found to be in arrear and indebted to the said
plaintiff in the sum of dollars of lawful money
as aforesaid. And being so found in arrear and indebted to
the said plaintiff the said detVndant, in consideration thereof,
afterwards, to wit, on the same day and year, and at the place
aforesaid, undertook and then and there faith-
fully promised the said plaintiff well and truly to pay unto the
said plaintiff the sum of money last mentioned, when the said
defendant should be thereunto afterwards re<iuestcd.
952 Account stated and seizure, Narr. (Miss.)
The defendant is indtbtcd to plaint itf in the sum of
dollars for goods and merchandise sold and delivered to defend-
ant on day of and for freight charges
prepaid on the same; and being so indebted plaintiff and de-
fendant accounted together, when it was found that defendant
was indebted to plaintiff in the sum of dollars
with interest from ; and the defendant then and
there promised to pay the same. Therefore, plaintiff asks judg-
ment for said sum with interest and cost of suit.
Plaintiff also asks that a writ of seizure issue for said goods
now in the hands of the defendant and that the same be con-
demned to pay the said indebtedness and interest and cost of
suit and that 'judgment be entered accordingly.
Plaintiff files herewith an account or bill of particulars duly
sworn to ; he also files an affidavit describing the personal prop-
erty sold defendant and now in his possession; and it is a.sked
that a writ of seizure issue for the seizure of the property and
that it be subjected to the debt due plaintiff with interest and
all costs of suit, as the statute provides, that judgment over be
rendered in favor of plaintiff for the balance that may be due
after subjecting said property.
953 Account stated and seizure, affidavit of amount due
(Miss.)
Before me, the undersigned officer, in and for
county in the state of , this defendant personally
appeared , who being duly sworn, states that he
is of the , a corporation organized
under the' laws of the state of , and that the at-
tached account for dollars with interest at
on from against com-
pany, of , Mississippi, is just, correct and unpaid
and is due from said against whom it is charged.
Sworn, etc.
ASSUMPSIT 353
954 Account stated and seizure, affidavit describing property
(Miss.)
Before me, the undersigned officer, in and for
county, state of , this defendant personally ap-
peared , being by me first duly sworn, states that
he is of the , a corporation organ-
ized under the laws of the state of , that accord-
ing to the best of his knowledge, information and belief
of Mississippi, defendant in the
above entitled cause against whom suit has been or is about to be
brought by the , is indebted to said
in the sum of dollars, besides interest, for the
purchase money of certain personal property, which personal
property, according to affiant's information and belief is now
in the possession of said defendant in the of
district of county, Mississippi.
Said personal property consists of the following, sold ,
to wit: (Describe property).
Affiant further states that said indebtedness is now past due
and that the defendant is liable to pay the same.
Sworn, etc.
955 Account stated and seizure, writ (Miss.)
State of Mississippi.
To the sheriff of county, greeting:
Whereas in the case of v , in the
circuit court of district of county,
plaintiff has brought suit to recover the sum of
dollars with interest thereon at the rate of per cent
per annum, as sho^vn in the declaration in said cause, being
for the purchase money of certain personal property in pos-
session of said defendant, which purchase money is due and
unpaid. Said property is described as follows : (Set forth de-
scription of property), being the property sold and delivered
by plaintiff to defendant.
You are therefore commanded to deal with said property,
as in case of attachment for debt so as to compel said
to appear before circuit court of district of
county, IMississippi, at the next term thereof to be
held at the court house, in the of ,
on the in , 19 . . ; and we
command that you summon said , if he be found
in your county, to appear and answer.
Have then and there this writ with your proceedings en-
dorsed thereon.
Witness (by the clerk, etc.)
354 ANNOTATED FORMS OF PLEADING AND PRACTICE
Return
Executed by taking into my possession (Describe property)
of within named found in possession of ; the other
(Describe property) not found , and executed fur-
ther by delivering to (date), a true copy of this
writ on the same day.
(Signature)
956 Accounting, action
An action of assumpsit is not an appropriate remedy to set-
tle intricate and disputed accounts between parties.*^
957 Alimony, Narr. (Va.)
For this, to wit, that heretofore, to wit, on the
(jj^y Qf \'^. ., the said plaintitT iierein
was the plaintiff and the said defendant hereto was defendant
in a certain action then pending in the court of
state of , which action was brought
to obtain an absolute divorce for the said plaintiff from the
said dcftMidant, they being at that time hus])and and wife, and
which said action resulted in the granting by the court, of an
absolute divorce, of the said plaintiff from the said defendant;
that pending the determination of the said suit, the said plain-
tiff, by and through her attorneys and ,
made and entered into a certain contract in writing with the
said defendant who in making the said contract, acted by and
through his attorney, , which said contract is in
the words and figures following, to wit: (Insert contract).
That after the execution of the said contract, the said de-
fendant acting thereon, and recognizing his liability thereunder,
paid to the said plaintiff or her attorneys, the said sum of
dollars, in the said contract mentioned, as her
attorney's fee, and from the time of the execution of the said
contract, also paid to the said plaintiff, said sum of
dollars per week, in the said contract specified, up to the week
ending , 19.. And the said plaintiff avers
that afterwards, to wit, on the day of ,
19.., the said plaintiff made and entered into a certain other
contract in writing with the defendant, in which last mentioned
contract, it was recited that there was then pending between
the plaintiff and the defendant certain suits, among which was
a suit for divorce in one of the courts of , brought
18 Leigh V. National Hollow Brake-
Beam Co., 223 111. 407, 410 (1906).
ASSUMPSIT 355
by (the plaintiff herein) v (the
defendant herein), and among other things in the said con-
tract it was agreed between the plaintiif and the defendant, as
follows: (Insert agreement.)
An the said plaintiff says that the suit for divorce referred
to in the said last mentioned contract is the same suit for di-
vorce referred to in the first mentioned contract, and by the
alimony referred to in the last of the said contracts the said
parties meant and intended the said sum of dol-
lars per week, stipulated in the first mentioned of the said con-
tracts, to be paid to the plaintiff as alimony.
Nevertheless, the said defendant, not regarding his said sev-
eral promises and undertakings in the said contract specified,
hath not, nor has any one for him, paid to the said plaintiff,
the said sum of dollars per week from and since
the week ending , 19 . . , to the
day of , 19.., or any part thereof, although
often requested so to do, but the same to pay hath hitherto
wholly neglected and refused and still doth neglect and refuse,
to the damage of the said phiintift', dollars.
And therefore she brings her suit.
P- q-
958 Assignment of claim for use and occupation, Narr. (Md.)
And for that the said defendant was indebted to
for defendant's use and occupation of certain messauges, lands
and tenements of said , situate on
avenue, between and , in
• ••••.. county, state of Maryland, with said
permission ; which claim against the said said
duly assigned in writing to the plaintiff; and the plaintiff's
claims dollars.
959 Assignment of partnership account or note, Narr. (Mich.)
That heretofore, to wit, on day of ,
to wit, at the of , in said county
of , said defendant was indebted to the firm of
for goods, wares and merchandise heretofore sold
and delivered by said firm to said defendant in the sum of
dollars, which said indebtedness appeared in an
open account on the books of account of said firm against said
defendant ; that afterwards, to wit, on or about the
day of , 19 . . , the said firm assigned i*
to said plaintiff all and singular the said indebtedness account
19 An averment of assignment or prising the assignor. Wyckoff, Sea-
transfer of an account or note by a mans & Benedict v. Bishop, 98 Mich,
partnership to the plaintiff need not 352, 354 (1894).
specify the individual members com-
356 ANNOTATED FORMS OF PLEADING AND PRACTICE
and demands against said defendant; wherefore the said phiin-
tiff avers that the said defendant heretofore, to wit, on the
day of , II).., at the
, of , in the said county of
was indebted to the plaintiff as assignee aforesaid in the sum of
dollars for the price and value of goods then and
there sold and delivered by the plaintiff as assignee aforesaid
to the defendant at his request. (Add common counts)
And thereupon the said defendant afterwards, on the day and
year aforesaid, in consideration of the premises respectively,
then and there promised the plaintiff" as assignee aforesaid 1o
pay it, the said several sums of money respectively on request;
yet said defendant has disregarded the said promises and has
not (although often re<|ueste(l so to do) paid any of the sums
of money, or any part thereof; to the plaintitf's damage as as-
signee aforesaid of dollars, and therefore it brings
suit, etc.
960 Automobile insurance, Narr. (Md.)
(Precede this by common counts) And for that on the
day of , in the year 19 . . , the
said defendant, body corporate, by its policy of insurance No.
, in consideration of the sum of dollars
premium paid to said body corporate, did insure and cause
, the above named plaintiff', to be insured, at and
from the day of , 19 . . , at noon,
until the day of , 19 . . , at noon,
to the amount of dollars, upon the automobile
belonging to the plaintiff. No , and its equipment and
outfit on board, the make of said automobile being " "
(touring), wherever they may be in the United States and
Canada, against the risks of fire, explosion, self-ignition, light-
ning, and against sundry other risks in said policy mentioned.
That on or about the day of , in
the year 19. ., the aforesaid (touring) auto-
mobile. No , and its equipment and outfit on board be-
longing to said plaintiff were totally destroyed by fire, while
said automobile was being used in the United States; and that
said plaintiff has fully and completely performed all of the
terms and conditions of said policy of insurance issued by said
defendant to said plaintiff on his part to be performed, and
prior to the destruction by fire of said automobile, as aforesaid,
had paid to said body corporate, its agents and servants, the
agreed upon premium of dollars, in considera-
tion of which the aforesaid policy of insurance was issued by
said defendant to said plaintiff.
That by reason of the fire aforesaid, the aforesaid automo-
bile and its equipment and outfit on board were totally destroyed
and completely lost to said plaintiff, and said plaintiff notified
ASSUMPSIT 357
said defendant of said fire and said complete loss, and made
demand upon said defendant for the amount due by said de-
fendant to said plaintitf, to wit, the sum of dol-
lars ; and said plaintiff has otherwise fully and completely com-
plied with all the requirements of his contract of insurance with
said defendant on his part to be performed, but that said de-
fendant has failed and refused to pay said plaintiff the afore-
said amount of fifteen hundred dollars, and continues to fail
and refuse to pay the same.
And the plaintiff claims dollars.
Affidavit of claim
State of IMaryland,
City of , Set:
I hereby certify, that on this day of ,
19 , before me, the subscriber, a notary public, by letters
patent under the great seal of the state of Maryland, commis-
sioned and duly qualified, residing in the city and state afore-
said, personally appeared , the duly authorized
agent of , the within named plaintiff, and made
oath in due form of law that there is justly due and owing by
insurance company, , of ,
the defendant in the within case to the plaintiff' on the annexed
policy of insurance, the cause of action in said cause, the sum
of $ with interest from the day of
, 19.., to the best of his knowledge and belief;
and he further swears that the plaintiff is absent from the state
of Maryland, and that he is the agent of the said plaintiff, and
duly authorized to make this affidavit, and has personal knowl-
edge of the matters therein stated.
As witness my hand and notarial seal.
Notary Public.
961 Bailment, action
Assumpsit is maintainable for the value of property which
has been taken under a contract of bailment and converted, the
value of the property at the time of the making of a demand for
it being the measure of damages.^o
962 Bank deposit, Narr. (Md.)
(Precede this by common counts) And for that the plaintiff
on or about the day of , 19 ,
deposited, subject to her order, with the said defendant, then
2oCushman v. Hayes, 46 111. 145,
156 (1867).
358 ANNOTATED FORMS OF PLEADING AND PRACTICE
and ever since carrying on a duly authorized banking busi-
ness in county, in the state of Maryland, the sum
of dollars ; that tiic plaintill on or about the
day of , I'J . . , demanded from
the said defendant, the said sum of dollars, which
said sum or any part thereof, the said defendant refused and
ever since has refused and now refuses to pay to the plaintitf.
And the plaintiff claims dollars.
Attorney for plaintiff.
963 Bill of exchange; exceptor, liability
The acceptor of a bill of exchange becomes primarily liable
for its payment and is considered the principal debtor, regard-
less of whether the acceptance is for the accommodation of the
drawer or whether the acceptor has funds of the drawer in his
hands to pay it.-^
964 Bill of exchange ; declaration, requisites
In a declaration upon a bill of exchange or check, it is not
necessary to state the names of the parties to the instrument,
unless they are plaintiffs or defendants. So that the allegation
that "a certain person" made the check or bill is sufficient in
an action brought by the holder of the cheek.22
965 Bill of exchange; drawee v. drawer, Narr. (111.)
For that whereas, the said defendant heretofore, to wit, on
the day of , 19 . . , at . . , Illi-
nois, to wit, at the county and state aforesaid, made his certain
bill of exchange in writing and directed the same to the said
plaintiffs under the name and style of and therein
and thereby requested the said plaintitl's to pay to the order
of said being then and there a part-
nership firm composed of the sum of
dollars at the sight of said bill of exchanfre; which said bill of
exchange afterwards, to wit, on the day and year aforesaid at,
to wit, the place aforesaid, said and ,
partners as aforesaid under the name and style of ,
by writing on the back thereof endorsed and directed to be paid
to the order of ; and the said plaintiffs afterwards,
to wdt, on the day and year aforesaid, at, to wit, the place afore-
said, paid to the said , he being then and there
21 Huston V. Newgass, 234 HI. western National Bank, 152 HI. 296,
285, 291 (1908). 305 (1894).
22 First National Bank v. North-
ASSUMPSIT 359
the endorsee and holder of said bill of a exchange, the said
sum of dollars, as the said defend-
ant on his said bill of exchange had thereunto directed them,
the said plaintiffs ; and in consideration of which payment made
as aforesaid, defendant, on, to wit, the day and year aforesaid,
at, towit, the place aforesaid, became liable to pay to said plain-
tiffs the said sum of dollars, w^ien requested so
to do, and being so liable, in consideration thereof, the said de-
fendant then and there undertook and promised to them, the
said plaintiff's, to pay to them, the said plaintiffs, the said sum
of dollars when thereunto afterwards requested.
Yet, etc.
966 Bill of exchange; indorsee v. acceptor, Narr. (D. C.)
For that heretofore, to wit, on the day of
, at made its certain
several bills of exchange in writing, each bearing date the day
and year aforesaid, and thereby then and there requested the
defendants trading as in and
months respectively from date to pa^" to the
order of the said at for value re-
ceived the sum of upon each of said several bills
of exchange; that afterwards, to wit, on the day and year
aforesaid, the said several bills of exchange were duly presented
to the said firm of , for acceptance, and the said
firm, by the name of upon sight thereof, accepted
the same in writing, and affixed thereto the genuine signature
of the said firm ; that the said before the maturity
of any of said bills of exchange and before the payment of said
sums of money therein specified, or any part thereof, for value,
and in the usual course of business, endorsed each of said in-
struments and delivered the same to the plaintiff; that at the
respective dates of their maturity, the said bills of exchange
were duly presented for payment, and the plaintiff then and
there demanded payment of the respective sums of money
therein named; but neither of the defendants, nor any other
person, did or would, at that, or at any other time, pay the
said sums of money or any part thereof, but so to do hath
wholly neglected and refused ; by means whereof the defendants
became liable to pay to the plaintiff the said sums of money
when they should be thereuneto requested, and being so liable,
the defendants afterward, to wit, on the day of
, at the District of Columbia, promised to pay
to the plaintiff the said sums of money on request; they have
wholly disregarded their promise and have not paid to the
plaintiff the said sums of money or any- part thereof. Where-
fore, etc.
360 ANNOTATED FORMS OP PLEADING AND PRACTICE
967 Building contract; architect's certificate
The certificate of an architect as to tlie amount due under a
buildinf? contract is a condition precedent to the right to de-
mand payment, and can only be attacked for fraud or
mistake."^ An architect's certificate which is re(iuired to be
issued under a building contract must be considered and taken
as a whole, rejecting none of its parts.-^
968 Building- contract; apartment, Narr. (111.)
For that whereas, the said plaintiff heretofore entered into
certain articles of agi'eement in writing, nmde and concluded
on the day of , 19.., by
and between said plaintiff and said defendant, v.herein and
whereby the said plaintiff' agreed with said defendant to fur-
nish the labor and material for the excavation and mason work
of a certain story apartment house, to be erected
on the corner of avenue and
street, in the city of , county and
state aforesaid ; and under which said agreement the said plain-
tiff did do the work and lal)or and did furnish the material
according to the terms of said contract in all and every respect
as therein provided, as by said contract ready to be produced
•was provided that all questions of damages, allowances for
in court will more fully appear; and in which said contract it
extra work or work left out, payments upon said contract, and
all questions as to the true intent and meaning of said con-
tract shall be referred to as arl)itrator, whose
decisions should be final and binding, upon both ])arties; yet,
notwithstanding said contract, as aforesaid, the defendant act-
ing under the direction, instruction and advice of said archi-
tect, who wrongfully, fraudulently and unjustly acted as the
agent and attorney for said defendant and wholly failed to act
as an arbitrator under said contract, and said defendant con-
spiring with said architect to defraud said plaintiff by deduct-
ing large sums of money for delays alleged to have been caused
by said plaintiff, and upon other false and pretended charges,
deducted large sums of money from the amount due said plain-
tiff, has neglected and refused, and still does neglect and re-
fuse, to carry out and fulfill his part of said contract by him
to be kept and performed, or any part thereof, or to pay the
plaintiff the sums of money still due him thereunder, to the
great damage of said plaintiff in the sum of dol-
lars; and therefore he brings his suit, etc.
23 Weld V. First National Bank, 24 Weld v. First National Bank,
255 111. 43, 48 (1912). 255 111. 47.
ASSUMPSIT 361
S63 Building contract; building, Narr. (Va.)
For this, to wit, that heretofore, to wit, on the
day of , nineteen hundred and , the
said plaintiff at , Virginia, at the special instance
and request of said defendant, did by a written contract retain
and employ the said defendant (he the said defendant then
and there being a contractor for the erection of buildings) in
the way of his said business of a contractor, to erect a certain
two-story building at the corner of
and streets, in the city of , Vir-
ginia, and to make and lay a floor in said building, as will
more fully appear from said written contract, which, is in
words and forms, as follows, to wit: (Insert contract.)
And in consideration thereof, and also in consideration of a
certain reasonable reward to the said defendant in that behalf,
to wit, dollars ($ ), paid by the said plain-
tiff to said defendant, he the said defendant then and there, to
wit, on the day and year aforesaid, at , Virginia,
aforesaid, undertook, and then and there faithfully promised
the said plaintiff to erect said two-story building and to make
and lay therein said floor in a workmanlike and skilful man-
ner, and that the workmanship should be first-class in every
respect and satisfactory to the said plaintiff. And the said
defendant knew the purposes for which the said building was
to be erected and the uses to which the said floor Avould be put,
to wit, the manufacture of And the said plain-
tiff has performed all parts of said contract by him to be per-
formed.
But, the said defendant not regarding his said promises and
undertakings, unskilfully, carelessly, negligently and improp-
erly made and laid out the granolithic floor in said building
and improperly used such improper materials in making said
granolithic floor and improperly mixed the ingredients for mak-
ing and laying said granolithic floor, and improperly con-
structed the lower stratum or concrete foundation of said
granolithic floor upon which the upper stratum was laid, and
improperly constructed the upper stratum or wearing surface
of said granolithic floor, and improperly failed to water the
lower stratum or wearing surface, and improperly failed to
care for said granolithic floor after it had been laid and to do
whatever was necessary to make said floor harden ; and unskil-
fully, carelessly, negligently and improperly attempted to patch,
remake and relay said granolithic floor, that through the mere
unskilfulness, carelessness, negligence and improper conduct of
the said defendant in this behalf, it became and was necessary
for the said plaintiff to cause a new floor to be laid and also
thereby, he, the said plaintiff, was forced and obliged to and
did necessarily lay out and expend a large sum of money in
and about the making and laying of a new floor, to the great
362 ANNOTATED FORMS OP PLEADING AND PRACTICE
damage of the said plaintiff. And although often requested
so to do, the said defendant hath not as yet paid to the said
plaintiff the said sum of money, or any part thereof, but to pay
the same hath hitherto wholly neglected and refused, and still
doth neglect and refuse, to the damage of said plaintiff of
dollars. And therefore he brings his suit.
970 Building contract; church, Narr. (Md.)
For that the said plaintiff and defendants, on the
day of , in the year nineteen hundred and ,
entered into a written agreement, signed and sealed by the
said plaintiff and the said defendants, under which the said
plaintiff bound himself to erect for the said defendants in
county a certain church building, to be known as
, exclusive of all masonry work, which said
masonry work the defendants were bound to provide to be done
in a proper and suitable manner before the said plaintiff could
execute his part of the said agreement ; and that the said de-
fendants failed to perform their part of said agreement, in
that they did not erect suitable or proper masonry work, as in
the said agreement they were bound to do ; and by reason of
said failure by said defendants to perform their part of said
agreement, as aforesaid, the plaintiff in the erection and comple-
tion of the said church under said agreement suffered great
loss and damage.
And the plaintiff claims therefor dollars.
971 Building contract; factory, Narr. (Md.)
(Precede this by common counts) And for that the plain-
tiffs contracted with the defendants on ,
19 . . , and on , 19 . . , to build a fac-
tory building and to extend the same in accordance with the
terms of said contracts annexed hereto and hereby made a part
hereof, and by the second of said contracts, the plaintiffs agreed
to put in certain floors at the prices therein stipulated, upon an
election to be made by the defendants, and the defendants later
verbally elected to have a cement floor throughout the new
factory building as well as the factory building in the first con-
tract above referred to, and in accordance with the terms of
said contracts, the plaintiffs prepared and furnished all ma-
terials and erected a one-story building at the northwest cor-
ner of streets, , Maryland, and the
said materials were furnished and the said work was done in
accordance with the drawings and specifications submitted by
the builders after due notice to commence said work was given
to the plaintiffs by the defendants; and all other things required
by said contracts to be done by the plaintiffs were done and
performed by them; and the said plaintiffs further extended
ASSUMPSIT 363
the building on said property so as to cover the defendants'
entire lot on street, and the plaintiffs further
placed cement floorings through the entire building referred
to in said contracts; and by reason thereof, the defendants
promised and became obligated to pay to said plaintiffs the
sum of dollars ($ ) but the defendants have
not paid the same nor any one for them, except so far as is
shown by the account annexed to the affidavit in this suit, which
is made a part hereof.
And the plaintiffs claim dollars ($ ) dam-
ages.
972 Checks; drawee v. collecting bank (forged maker and
payee), Narr, (111.)
25 For that whereas, heretofore, to wit, in the
year of our Lord , at , to wit, at
said county, a certain person made and drew,
by and under the style, description and addition of
a certain draft or order in writing for the payment of money,
commonly called a check on a bank, the said check being then
and there entitled with the heading or title and
being then and there numbered with the number
and Ijearing date of a certain day and year therein mentioned,
to wit, the day and year last aforesaid, and then and there
caused said check to be countersigned by and under the style,
description and addition of and then and there
directed the said check to the said plaintiff by the name, style
and description of and thereby then and there
requested the said plaintiff byi the name, style and description
last aforesaid, to pay to the order of one
describing him in the said check, by the style,
description and addition of 5^6 and after
the aforesaid making of the said check, to wit, on the day and
year last mentioned, to wit, at said county of ,
some person or persons to the plaintiff unknown, wickedly con-
triving to defraud, etc., without the authority, consent or rati-
fication at any time of him the said and with-
out the knowledge of the said plaintiff, falsely simulated and
forged on the said check in the words and figures following, to
wit, the endorsement and order of the said
to whose order the said sum of money was in and
by said check ordered to be paid, and then and there caused
the said check so bearing said forged endorsement and order
to be placed in the hands of certain persons trading under the
style and firm name of who,
25 See Section 987. county, upon sight there-
28 If check was accepted, insert: of, accepted in writing on the face
which said check the said plaintiff, thereof in the words and figures fol-
afterwards, to wit, on the day lowing, to wit, (give form of ac-
of , in the year of our ceptance).
Lord last aforesaid, to wit, at said
364 ANNOTATED FORMS OF PLEADING AND PRACTICE
afterwards, to wit, on the day and year last aforesaid, to wit,
at said county, to give credit and currency to
the said forged endorsement and order, further endorsed said
check under said forged endorsement and order, in the words
and figures following: (Give form of endorsement)
and then and there deliv-
ered the said check, so endoi-sed, to the said defendant; and
the said defendant, afterwards, to wit, on the day
of in the year of our Lord last aforesaid, to wit, at
said county, seeking and requesting from the
said plaintiff the payment to it, tlie said defendant, upon the
said check, of the said sum of money therein re(iuired to be
paid to the order of the said
and to give further currency and credit to the said forged
endorsement and order of the said
then and there on the said check, and to induce the said plain-
tiff to make the said reijuested payment to it, the said defend-
ant, notwithstanding said forged endorsement and order, did
then and there, the said plaintiff being still ignoi-ant of said
forged endorsement and order, fui-ther endorse the said check,
after said forged endorsement and order, in the words and
figures following, to wit : (Insert copy of clearing house stamp)
and then and there, through the said
presented the said check, then and there so endorsed with said
forged endorsement and order and with the several other en-
dorsements aforesaid, to the said phiintiff for the said payment
thereon so as aforesaid sought and requested by the said de-
fendant.
And the plaintiff avers that thereby, and because of the said
several premises, and under and by virtue of the law of the
land, to wit, the law of merchant, and by the intendment and
implication of such law upon the facts aforesaid, the said de-
fendant, in consideration thereof and that the said plaintiff
would make to the said defendant on the said check the said
payment so as aforesaid sought and requested, did, when the
said check was so as aforesaid by it, the said defendant, pre-
sented to the said plaintiff for the said payment, to wit, on the
day and year last aforesaid, to Avit, at said
county, vouch for and warrant to the said plaintiff that the
said forged endorsement and order of the said
; then and there on the said check was the true
and genuine endorsement and order of the said
•, ; and the said plaintiff, confiding in the said
warranty of the said defendant and in consideration thereof,
did when the said check was so as aforesaid presented to it,
by the said defendant, for such payment, to wit, on the day
and year last aforesaid, to wit, at said county,
being still ignorant of the said forged endorsement and order'
thereupon make the said requested payment to the said de-
fendant upon the said check of the said sum of money thereby
ASSUMPSIT 365
required to be paid to tlie order of the said
upon receiving which payment the said de-
fendant then and there delivered to the said plaintiff the said
check then and there so endorsed with said forged endorse-
ment and order and with the several other endorsements afore-
said.
And the said plaintiff having afterwards, to wit, on the
in the year of our Lord last
said. And the said plaintiff having afterwards, to wit, on the
aforesaid, to wit, at said county, discovered the
fact of said forged endorsement and order, then and there noti-
fied the said defendant thereof; and further confiding in the
aforesaid warranty of the said defendant, then and there ten-
dered to the said defendant the said check, so endorsed with
said forged endorsement and order and with the several other
endorsements aforesaid, and then and there demanded of the
said defendant that it, the said defendant, should make good
its said warranty, and in that behalf should pay back to the
said plaintiff' the said sum of money so as aforesaid by the
said plaintiff' paid to the said defendant.
By means whereof, and because of said several premises, the
said defendant then and there became liable to pay to the said
plaintiff the said sum of money last mentioned when the said
defendant should be thereunto afterwards requested; and
being so liable the said defendant, in consideration thereof,
afterwards, to wit, on the day and year last aforesaid, to wit,
at said county, undertook, and then and there
faithfully promised the said plaintiff to pay to it the said last
mentioned sum of money when the said defendant should be
thereunto afterwards requested. (Add common indebitatus
assumpsit)
973 Checks; indorsee v. drawee, Narr. (111.)
For that whereas C K heretofore, to wit, on the
day of , 19 . . , at , to wit, at the
county of aforesaid, according to the usage and
practice of merchants, made their certain order in writing for
the payment of money, commonly called a bank check, bearing
date a certain day and year therein mentioned, to wit, the day
and year aforesaid, and then and there directed the said order
in writing or bank check to the said defendant by the name,
style and description of C D, and thereby then and there re-
quested and required of the said defendant to pay to the order
of ^I R the sum of dollars ($ ) ; and then
and there delivered the said order in writing or bank check
to the said M R.
And the said i\I R, to whom or to whose order Lhe payment
of said sum of money in the said bank check specified was to
be made as aforesaid, afterwards and before the payment of
said sum of money mentioned in said bank check or any part
366 ANNOTATED FORMS OF PLEADING AND PRACTICE
thereof, to wit, on the day and year last aforesaid, and at the
place aforesaid, endorsed the said order in writing or bank
check, and by such endorsement ordered and appointed the said
sum of money in the said bank check specified to be paid to the
plaintiff or order, and then and there delivered the said order
in writing or bank check so endorsed as aforesaid to the said
plaintiff; of which said endorsement so made thereon as afore-
said, the said defendant afterwards, to wit, on the same day
and year, and at the place aforesaid, had notice.
By reason whereof, and by force of the statute in such eases
made and provided, the said defendant became liable to pa}'' to
the said plaintiff the said sum of money in the said bank check
specified, according to the tenor and effect thereof, and of the
said endorsement so made thereon as aforesaid in case the said
defendant at the time of the presentation for payment of said
bank check had on deposit or in its possession subject to the
order of said C K sufficient money or funds and property to pay
the whole amount of said bank check according to the tenor
and effect of said bank check and the endorsement thereon.
And the said plaintiff avers that after the making of said
order in writing or bank check, and before the payment of the
said sum of money therein specified, to wit, on the day and
hour aforesaid, the said order in writing or bank check was pre-
sented and shown to the said defendant for payment thereof
according to the said usage and practice, and the said defend-
ant was then and there requested to pay the said sum of money
therein specified according to the tenor and effect thereof, and
the said endorsements thereon; the said defendant then and
there having on deposit or in its possession subject to the order
of said C K sufficient money or funds and property to pay the
whole amount of said bank check, according to the tenor and
effect thereof, and of said endorsements thereon ; but the said
defendant did not, nor would, at the time when the said order
in writing or bank check was so shown and presented to it for
payment thereof as aforesaid, or at any time afterwards, pay
the said sum of money therein specified, or any part thereof,
and then and there wholly neglected and refused so to do;
whereof the said defendant afterwards, to wit, on the day and
year aforesaid, at , in the said
county, had notice.
By means whereof the said defendant then and there became
liable to pay to the said plaintiff the said sum of money in the
said bank check specified, when the said defendant should be
thereunto afterwards requested, and being so liable the said
defendant in consideration thereof, to wit, on the day and year
aforesaid, at the county of aforesaid, undertook
and then and there faithfully promised to the said plaintiff to
pay it the said sum of money in the said bank check specified,
ASSUMPSIT 367
when it, said defendant, should be thereunto afterwards re-
quested. Nevertheless, etc.
974 Checks; indorsee v. maker, Narr. (111.)
For that whereas, the defendant . . , on the day of
, , in the county aforesaid, made . . h . . order
in writing, commonly called a check, on C, bankers, and di-
rected the same to said C, bankers, and required the said C,
bankers, to pay to the order of D, the sum of
dollars, and then and there delivered the said order or check
to said D ; and the said D, to whose order the payment of the
said sum of money in the said order or check specified was to
be made as aforesaid, afterwards, and before the payment of
the said money mentioned in the said order, or any part thereof,
to wit, on the same day and year and at the place aforesaid,
indorsed the said order or check in writing, by
, cashier, and then and there de-
livered the said order to the plaintiff. . ; and the plaintiff. .
aver. . that on the day aforesaid the said order was there pre-
sented to the said C, bankers, for payment thereof, and they
were then and there requested to pay the said sum of money,
according to the tenor and effect of the said order; but that
the said C, bankers, did not, nor would then nor at any other
time, pay the said sum of money or any part thereof, but re-
fused so to do; whereof the defendant., then and there had
notice. By means whereof the defendant . . then and there be-
came liable to pay to the plaintiff. ., on request, the said sum
of dollars ; and being so liable, the defendant . . ,
in consideration thereof, then and there promised the plain-
tiff. . to pay it the said sum of money. (Add common counts)
975 Commission; insurance adjuster, Narr. (Miss.)
The , the defendant, is a corporation
duly and legally organized and doing business at the
, Mississippi, in the district of
county, and that said defendant was before
and on the day of 19 . . , engaged in
the manufacture of cotton seed oil and other by-products from
cotton seed, and for that purpose had established in
, Mississippi, a plant commonly known as a cotton
seed oil mill, and had in the warehouse of said plant accumu-
lated a large stock of cotton seed which was on hand on the
day of 19 . . , and had procured and
did have on said date a large amount of fire insurance in sundry
and various companies amounting in the aggregate to
...... dollars on the plant and about dollars on
the products stored therein ; and on said date a fire broke out
in said warehouse and destroyed the same and the products
368 ANNOTATED FORMS OF PLEADING AND PRACTICE
therein, inflicting a loss upon said defendant on which the
insurance companies were obliged to pay for on the phint the
sum of dollars and on the products stored therein
dollars.
Said losses were distributed as stated among a large number
of fire insurance companies, some of which were authorized to
do business in the state of iMississippi and many of which were
not authorized to do business in the state of Mississippi ; and as
to the companies which were not authorized to do business in
this state it was impossible for said companies, without a viola-
tion of the criminal laws of the state, to have the loss ascer-
tained and adjusted, either by their special agents, or inde-
pendent adjustei-s for that purpose; and it was impossible
and impractical for the defendant to collect its loss without
making such proof.
Plaintiff is an authorized insurance adjuster in the state of
Mississippi and was employed by the said insurance companies
who were authorized to do business in this state, and who sus-
tained losses on said plants and products, to adjust said loss
for them, which plaintiff did.
Subsequent to this action on the part of plaintiff for said
authorized companies, the defendant, realizing that it must
have proofs of loss showing in detail the losses sustained by it
in said fires by which the said companies that were not author-
ized to do business in this state, negotiated with plaintiff and
procured his services to make for it proofs of loss against said
non-authorized companies, and with that end in view the de-
fendant forwarded to plaintiff a telegram as follows : (Set forth
telegram) by wiiich telegram the said defendant employed
plaintiff, who was a regularly authorized insurance adjuster
in the state of Mississippi, to do said work for it and became
liable and bound to pay a reasonable compensation for said
services ; whereupon in obedience to said request, plaintiff made
up the proofs of loss for said against the said
companies that were not authorized to do business in the state
of Mississippi and forwarded the same to the ,
which proofs of loss were comprehensive and in every partic-
ular sufficient for the purpose for which they were made, and
by reason of Avhich the , the defendant, was en-
abled to procure and did procure with the said insurance com-
panies a settlement and adjustment of the losses on the figures
thus furnished by plaintiff at defendant's request.
By reason of which request and the services rendered the de-
fendant became liable to plaintiff and then and there promised
to pay plaintiff a reasonable compensation and the usual
charges for said services. The defendant knew that plaintiff
was an insurance adjuster and that they would have to pay for
his services what they were reasonably worth and what it was
customary to charge when they made said request and accepted
ASSUMPSIT 369
said services, and defendant thereby became bound to pay the
plaintiff a reasonable price for said services ; and the customary
charge which the defendant promised to pay Avas the sum of
dollars, being .... per cent of the amount in-
volved as shown by the itemized bill of particulars filed with
this declaration and marked exhibit "A," which bill of par-
ticulars, exhibit "A," is asked to be taken, considered and
made a part of this declaration the same as if copied herein in
words and figures. Plaintiff avers and charges that the said
sum of dollars as shown by said bill of particu-
lars is a reasonable, usual, just and customary charge for said
services, and is the lowest per cent charged for similar services
by adjusters of insurance.
Plaintiff* avers and charges that said bill for said services was
rendered to the defendant for the said sum of
dollars, as shown in said itemized bill of particulars after said
services had been rendered and the adjustment with said com-
panies had been made when said sum was due and payable to
plaintiff; and although said sum is long since past due, and
the defendant has lieen often requested to pay the same, it has
wholly failed and refused to pay said sum, or any part thereof,
and still refuses to pay the same, to the damage, etc.
976 Commission; real estate broker, loan, Narr. (111.)
For that whereas the defendants, heretofore, to wit, on the
day of 19 . . , in the county
aforesaid, engaged the said plaintiffs to act for them and on
their behalf to procure for them a loan of .dol-
lars, to be secured by trust deed on certain real estate situated
in county, Illinois, and agreed to pay the plain-
tiffs a commission of .... per cent on said amount of
dollars for their services as brokers in negotiating said
loans, which agreement was in writing and is in the words and
figures folloAving, to vrit: (Insert application for loan). And
the said plaintiffs aver that in pursuance of said agreement
they at once entered upon the negotiation of said loan and pro-
cured the same from one of their customers, one
, for the amount and upon the terms therein stated; that
thereupon the said defendants became and were indebted to the
said plaintiffs for Iheir services in negotiating said loan, in
the sum of dollars, under the terms of said agree-
ment ; and being so indebted, the said defendants, in considera-
lion thereof, then and there promised the said
and to pay them said sum of money on request.
Yet, etc.
977 Commission; real estate broker, sale, authority
Ordinarily, an agent must personally perform his services,
unless he is expressly permitted to delegate his authority to
370 ANNOTATED FORMS OF PLEADING AND PRACTICE
others. An authority to employ a sub-agent cannot be implied
in the absence of evidence of a fixed and established custom
of the particular trade or business in the place where the
agency is to be exercised for the agent to employ sub-agents,
and such employment is necessary, proper and usual to the
effective exercise of the authority conferred.-^ An authority
to fix the price of anything does not confer the right to employ
a sub-agent.-^
978 Commission; real estate broker, sale, Narr. (Fla.)
Plaintiff sues defendant because prior to the institution oi
this suit, to wit, on the day of
19. ., the defendant employed the plaintiff, who is a real estate
and timber land broker, to procure a purchaser for the pine
timber lands owned by the defendant, lying in
county, in the state of Florida, represented by the said
defendant to be about acres, together with mills, plants
and railroads located thereon.
That the plaintiff in pursuance of his employment as such
broker did procure and introduce
to the said defendant, and that the said defendant subsequently
sold all of said lands to the said
And the plaintiff avers that the sale to the said .
was made through the efforts of the plaintiff in
interesting the said in said prop-
erty; that the plaintiff's acts in this connection were the pro-
curing cause of the sale of the said property for the sum of
dollars; and the plaintiff avers that by reason of
the premises the plaintiff became entitled to receive from the
defendant a commission of per cent of said amount.
Wherefore, etc.
(Illinois)
For that whereas, on, to wit, the day of
19. ., the defendant was the owner of the follow-
ing described premises, to wit: (Insert legal description), to-
gether with the improvements thereon, situated in the city of
, county and state aforesaid, and being such
owner, did, on, to wit, the day aforesaid, at, to wit, the county
aforesaid, employ the plaintiff to find a purchaser for said
premises, within days from the day aforesaid, at
the price of, to wit, dollars ; and the plaintiff
avers that said defendant then and there undertook and prom-
ised to pay to the plaintiff in consideration of the procuring by
the plaintiff of a purchaser for said premises, at said price, and
within said time, the sum of dollars. And the
27 Dogget V. Greene, 254 111. 134, 28 Dogget v. Greene, 254 HI. 138.
140 (1912).
ASSUMPSIT 371
plaintiff avers that he, thereafter, and within said period of
days, found and procured a purchaser for said
premises at and for the price aforesaid, and to which said pur-
chaser so procured by the plaintiff the defendant sold premises
at and for the price aforesaid. By means whereof the said de-
fendant became liable to pay to the plaintiff the said sum of
dollars, aforesaid. Nevertheless, etc.
b
For that whereas, heretofore, to wit, on the
day of 19 . . , the plaintiff was, and ever
since has been, a real estate broker carrying on his business
in the city of , county of and state
of Illinois ; and the said defendants, on the date last mentioned,
claimed to be the owners in fee simple of the premises on the
(Give general location) in the city and county aforesaid, and
the building thereon, known as the building, and
requested the said plaintiff to procure for them a purchaser for
said premises at the price of dollars, and then
and there promised to pay the plaintiff * so much money as he
reasonably deserved to have for his services in procuring such
a purchaser, and the plaintiff avers that he then and there
reasonably deserved to have therefor the sum of
dollars upon the rendition of said services ; whereof the said
defendants then and there had notice.* (Or, in place of the mat-
ter between stars, aver: "at the rate of commission which it
was then and there the custom to pay real estate brokers in
said city of, for services in procuring a purchaser
of real estate ; which rate plaintiff avers was per cent
on the price at which such property was sold or bargained to
be sold; and which custom and rate were well known to the
said defendants.")
And the plaintiff further avers that thereafter, on the date
last aforesaid, the plaintiff did procure a purchaser, ready,
willing and able to buy said premises, at the price so fixed, as
aforesaid, and the said defendants thereupon entered into a
contract with the said purchaser whereby the said defendants
agreed with the said purchaser to sell to him, and the said
purchaser agreed to buy of the said defendants, the premises
above described for the sum of dollars.
By means whereof the said defendants became and were in-
debted to the said plaintiff in the sum of dollars,
for procuring such a purchaser as above set forth; and being
so indebted, the said defendants in consideration thereof then
and there promised the said plaintiff to pay him the said sum
of money on request. Yet, etc.
c
For that whereas heretofore, to wit, on the
day of 19 . . , at the said county of
372 ANNOTATED FORMS OP PLEADING AND PRACTICE
, the said defendant by the name and style of
made and delivered to the plaintiff a certain agree-
ment in writing in the words and figures following, to wit :
, , , ID..
Dear Sir — I hereby agree to lease ray bldg. at
, known as the , at
$ per month for first year, or the privilege here-
after of buying if they choose at $ , or if ])uildings
should not be suitable will donate square ft., along
the for company to build on. AVill allow
you as commission for said location one-third interest in
acres located near said works. (Signature)
And the plaintiff avers that by the word "bldg." in the
said agreement was meant a certain building and premises of
the said defendant in said county, to wit, the building and
premises known as the at
, in said county; and that by the word "company" in
said agreement was meant a certain manufacturing firm or cor-
poration known as the , then and there
composed of certain persons, to wit,
and , said last named company was then
engaged or was about to engage in the business
of the manufacture and sale of in said
county.
And the plaintiff further avers that under and in pursuance
of said contract, the plaintiff afterwards, to wit, on the day and
year last mentioned, to wit, at said county, brought and intro-
duced to the defendant the said persons composing the
, to wit, said and said
; and through the said efforts and intro-
duction of the said plaintiff the said
did enter into, take and accept a lease and demise from the
plaintiff to them, said and
, of the said building and premises, for a certain
term, to wit, for the term of years at a certain agreed
rental, to wit, a rental of dollars per year, and
did under the said lease and demise enter into occupation of
said building premises and did locate said
in and upon said building and premises ; and that said
thereupon, to wit, then and there engaged in and
carried on, and has since that time thence hitherto carried on
and is still carrying on, on said premises, the said business of
the manufacture and sale of ; and the said plain-
tiff avers that said defendant accepted said location of said
on said premises as and for the location
in said contract mentioned.
Yet, the plaintiff avers that the defendant did not nor would
allow the plaintiff one-third interest in acres located
near said works, but wholly neglected and refused and still
ASSUMPSIT 373
neglects and refuses so to do, to wit, at said county, to the
damage of the plaintiff of dollars. By reason
whereof the defendant became liable to pay to the plaintiff his
said damage, to wit, said sum of dollars, and
being liable, the defendant afterwards, to wit, on the
day of 19 . . , to wit, at said county,
undertook and promised to pay the plaintiff said sum of money
last mentioned when thereunto requested. But although there
afterwards often requested, to wit, at said county, the defend-
ant hath neglected and refused and still neglects and refuses
to pay the plaintiff said sum of money, or any part thereof,
to the damage of the plaintiff of dollars ; where-
fore he brings suit, etc.
(Michigan)
For that whereas, the said defendant, heretofore, to wit, on
or about the day of 19 . . ,
was indebted to the said plaintiff' in the sum of
dollars, for services rendered pursuant to a special agreement,
entered into orally by and between the said defendant and the
said , deceased, in relation to the
sale and transfer of a certain piece of real estate on the
corner of avenue and street,
in the city of , county, Michigan,
of which said defendant had charge and control. And the
plaintiff avers that the said , de-
ceased, at the ref(uest of the said defendant, had agreed to
use his efforts in bringing about a sale of said real estate, and
in finding a purchaser for the same, and the said defendant
had agreed in consideration of the premises, that he would pay
the said , deceased, per
cent commission on the purchase price of said real estate, which
after some negotiations had been fixed at the sum of
dollars, and the said , de-
ceased, had found a purchaser in one ,
who was willing to buy said property at said price, if he could
make suitable arrangements for the purchase price thereof.
And the plaintiff avers that the said ,
deceased, had entered upon negotiations with the said
, under said contract, and at a certain stage of said ne-
gotiations, and before the said had effected
a sale, a new agreement was made orally between the said
and the said defendant, by which the said
defendant undertook and promised to pay to the said
his commission at all events, in case any sales should
thereafter be effected to the said of the said
property, either through the intervention of the said
, or any other person.
And the plaintiff avers that the said , de-
374 ANNOTATED FORMS OP PLEADING AND PKACTICE
ceased, continued his efforts in that behalf, and that the said
became the ultimate purchaser of the said
property, and that the said defendant recognized the fact that
the said had done a certain amount of labor
in finding a purchaser and bringing about a sale of said prop-
erty, and thereupon agi-eed to pay the said
the said commission of dollars, in pursuance of
said modified agreement.
And the plaintiff avers that in consideration of the premises,
the defendant then and there undertook and faithfully prom-
ised to pay the said , tliis plaintiff's intestate,
the said sum of dollars, to wit, on or about the
said day of ,
An the said agreement, in its modified form, being so made
as aforesaid, afterwards, to wit, on or about the said
day of , , at the city of
, in consideration thereof, the said defendant then and
there promised to pay the said plaintiff's intestate, the said
sum of money when requested. Yet the said plaintiff says that
the said defendant contriving and wrongfully and unjustly in-
tending to injure the said plaintiff's said intestate, did not nor
would perform said agreement, promise and undertaking, and
thereby craftily and subtly deceived the said plaintiff's intes-
tate, in this, that the said defendant neglected and omitted to
pay said sum of money, and the interest thereon, and as plain-
tiff's said intestate was entitled to receive by virtue of said
agreement and the modification thereof, constituting said spe-
cial agreement and undertaking, according to the tenor and
effect, true intent and meaning thereof, that is to say, refused
to pay said intestate the said sum of money and the interest
thereon, in compliance with his said special agreement and un-
dertaking, so made by the said defendant, as the agreed com-
pensation to the said intestate, for his said services rendered in
pursuance of the said agreement and undertaking, so modified
as hereinbefore set forth.
And the plaintiff avers that on the day of
19 ... , the said departed this
life at the city of aforesaid, and thereafter
such proceedings were had in the probate court for said county
of , and on the day of ,
19. . . , w^as duly appointed and duly
qualified as general administrator of the estate of said deceased,
and on the day of , 19 • • , the
said resigned the trust imposed upon him
by said court, and on said day of ,
19.., the said probate court accepted said resignation; and
thereupon on the day of ,
19 . . . the said was appointed administrator
de bonis non, and has duly qualified, and is now executing the
ASSUMPSIT 375
trust imposed by said office, and he brings into court here the
letters of said probate court, which give sufficient evidence of
his authority to act in that behalf. To the damage of the
plaintiff in all in the sum of dollars, and there-
fore he brings suit, etc,
(Mississippi)
That the plaintiffs are engaged in the real estate business in
, county, Mississippi ; that they ne-
gotiate sales of property for other persons, representing either
the seller or buyer ; that the defendant, ,
on the day of > 19 • • , was
owner of a certain residence, situated in the city
of , street, county,
Mississippi, and being desirous of selling the same, contracted
with the plaintiff's to procure for him a purchaser for said resi-
dence; that the said defendant contracted and agreed to pay
the plaintiffs per cent of whatever amount said prop-
erty should be sold for, which price should be satisfactory to the
defendant.
That after accepting said employment the plaintiffs used
all due diligence to find a purchaser for the defendant; that
they listed said property on their books and spent much time,
labor and money in an effort to find a purchaser for said prop-
erty. That the plaintiffs had amongst their customers and cor-
respondents, one , who desired to buy a resi-
dence in of , and the plaintiff with
the consent of the defendant took and
and showed them this property with the view of
making a sale of the same ; that said plaintiffs spent much time
and labor in an effort to make said sale ; that the said defendant
did not know the said and did not know that
he was a prospective purchaser of said house, and the said
did not know of the said defendant's house,
but that the trade hereinafter set out and made was the re-
sult of plaintiffs' effort; that after the said residence had been
shown to and by the plain-
tiffs and as a result of the plaintiffs' labor and efforts in finding
said customer and showing said property and introducing the
said defendant, upon the day of ,
19.., said trade was consummated, the said defendant taking
cash and other property, amounting in all to dollars,
the said defendant having duly deeded to said
residence, which deed is now on file in the chancery clerk's of-
fice in , Mississippi.
Plaintiffs allege and aver that it was solely and only through
the efforts of the plaintiffs that the said
and the defendant were introduced one to the other, and, as a
result thereof said sale was made. Wherefore, the said defend-
376 ANNOTATED FORMS OP PLEADING AND PRACTICE
ant became and was and is now indebted to the plaintiffs in the
sum of dollars, which the defendant refuses and
fails to pay, either in whole or in part, although payment has
often been demanded of him.
979 Commission; stock broker defined
A broker is one who purchases and sells for others stocks,
bonds or other securities on commission, and who has the power,
in his own name or that of his principal, to receive, hold or
transfer the securities which are the subject matter of the con-
tract, and to pay or receive payment for the securities bought
or sold, unless this power is limited by statute or ordinance.-^
A person who deals with property which is not in his custody,
is not a broker within the meaning of an ordinance of Chicago.
Certificates of stocks, bonds and other securities are considered
as property under that ordinance."^
980 Contracts, law governing
The construction, the validity and the obligation of a con-
tract is determined by the law of the place where it is made, or
it is to be performed. A contract is in law regarded as made
at the place where it is delivered. A void contract in one state
may be made valid and enforcible by the laws of another
state.^^ The security is merely an incident to the contract and
in no way affects its validity.^^
981 Contracts, generally
In an action upon a written contract, the whole agreement
and all of the previous conversations relating to the subject
matter, are presumed to have been merged in a written con-
tract and form the basis of the action.^^ An action of assump-
sit lies upon a contract express or implied. -^^ Immediately upon
the repudiation of an executory contract by one of the
parties, the other may bring an action for its breach without
29Banta v. Chicago, 172 111. 204, 32 Walker v. Lovitt, 250 111. 549.
213, 217 (1898); Hately v. Kiser, 33 Grubb v. Milan, 249 111. 456,
253 111. 288. 290 (1912). 463 (1911).
30 Hately V. Kiser, 5HiJra; Sec. 194 34 Chicago Terminal Transfer R.
City ordinances, Chicago. Co. v. Winslow, 216 111. 166, 171
31 Walker v. Lovitt, 250 111. 543, (1905).
546, 549 (1911); See. 8, c. 74, Eev.
Stat. (111.).
ASSUMPSIT 377
waiting for the day of performance of the contract therein
specified.^^
982 Contracts; performance, tender
A person who in good faith and not as a mere matter of spec-
ulation, fails to wholly perform an entire express contract may
sue in implied assumpsit the person Avho receives a substantial
benefit from the part performance of the contract for its reason-
able value, not exceeding the contract price, less the damages,
if any, resulting from the non-performance of the entire con-
tract, unless a performance is prevented by the defendant's
own fault, when the recovery may exceed the contract price.
This cause of action is not a repudiation or a rescission of the
special contract, but it is entirely independent thereof. It
arises upon equitable grounds from the benefit received from
the partial performance of the special contract, and is in dero-
gation of the common law. By that law, whenever there was
an entire express contract, none could be implied.^^ A contract
which calls for successive acts, first by one party and then by
the other, is not breached until the non-performance of the
precedent act. A contract which contemplates concurrent acts
is breached when one of the parties is ready and willing and
offers to perform, provided the other will concurrently perform
his part, the tender or offer to perform being conditional; or
when there is a refusal to perform bj^ one of the parties and the
other is ready and willing to perform, in which case no actual
offer or tender is necessary to a breach of the contract.^'^
983 Contracts; third person's benefit, action
A person for whose benefit a promise is made may maintain
an action upon it provided the promise is based upon valuable
consideration.^^
984 Contracts; third person's benefit, declaration, requisites
On a contract made for the benefit of a third person, the dec-
laration must contain an averment of the plaintiff's special
beneficial interest in the performance of the contract.^^
35 Chicago Title & Trust Co. v. 37 Osgood v. Skinner, 211 111. 229,
Sagola Lumber Co., 242 111. 468, 235 (1904).
476 (1909). 38Merriman v. Schmitt, 211 111.
36 Wilson V. Wagar, 26 Mich. 452, 263, 266 (1904).
456,463 (1873) ; Booske V. Gulf Ice 39 Rodhouse v. Chicago & Alton
Co., 24 Fla. 550, 559 (1888). Ey. Co., 219 111. 596, 602 (1906).
378 ANNOTATED FORMS OF PLEADING AND PRACTICE
985 De facto corporation, Narr. (111.)
For that whereas, heretofore, to wit, on the
day of , 19 . . , at the city of ,
to wit, at the county aforesaid, and at divers times prior thereto,
beginning with, to wit, the day of ,
19 . . . , at the city of , to wit, at the county
aforesaid, said defendants pretending to be directors and offi-
cers of a pretended stock corporation by the name of
, did assume to exercise corporate powers and to use
the name of said pretended corporation without having there-
tofore complied with an act of the state of Illinois, entitled,
"An act ocncerning corporations" (being a part of chapter 32
of the Kevised Statutes of the state of Illinois), which pre-
scribe and regulate the manner and means in and by which
corporations for pecuniary profit may be lawfully organized
and authorized to do business, that is to say, said defendants
did not tile or cause to be tiled and there had not been filed
prior to or at said time, to wit, the day of
, 19 . . , in the recorder's office of
county, in which county was the principal office of said pre-
tended corporation, a certificate from the secretary of state of
Illinois of the complete organization of said corporation, and
so assuming and pretending, as aforesaid, said defendants did
purchase from said plaintiff. . on the alleged behalf of said pre-
tended corporation, divers goods, wares and merchandise, of
the value in all of the sum of dollars and
cents, which said goods, wares and merchandise, were
by the said plaintiff, at the times respectively of said purchases,
and at the request of said defendants, delivered to them as and
so pretending to be directors, officers and agents of said pre-
tended corporation ; * by means of which said defendants be-
came and were jointly and severally liable as partners, doing
business under the name of , to pay the plain-
tiff said purchase price or value of said goods, wares and mer-
chandise, so as aforesaid purchased by them,* (In a second
count, in place of the matter between stars, aver: "whereby
and by force of the statute in such case made and provided,
said defendants became and were jointly and severally liable
to pay to the plaintiff. . said purchase price or value of said
goods, wares and merchandise, so as aforesaid purchased by
them in the name of such pretended corportion"), and being
so liable, said defendants in consideration thereof, then and
there, to wit, on the day and year aforesaid, at the place afore-
said, promised to pay to the said plaintiff said last mentioned
sum whenever they should be thereunto afterwards requested
by said plaintiff.'**^ Nevertheless, etc.
40 Loverin v. McLaughlin, 161 HI.
417 (1896).
ASSUMPSIT 379
986 Delinquent tax, drainage
In Michigan the county drain commissioners may maintain
an action of assumpsit for the collection of delinquent drain
taxes.^^
987 Draft, forged endorsement
The drawee who pays a draft to an endorser who derives title
to the draft through a prior forged endorsement, may recover
back the money so paid unless the forged endorsement was ob-
tained with the acquiescence of the drawee, on the principle
that when one of two innocent parties must suffer loss from the
wrongful acts of a third party, the party who has made it pos-
sible by his negligence for the third party to commit the wrong,
must stand the loss.-^^ A draft which is drawn with an intent
to use, and actually using, a fictitious person as payee, is in
legal effect, payable to bearer. The fictitious payee's endorse-
ment is not a forged endorsement.*^
988 Draft, indorsee v. acceptor, Narr. (Md.)
(Precede by common counts) And for that
aiid , co-partners trading as
, heretofore, to wit, on the day of
•. r • •, in the year 19. . ., according to the use and prac-
tice of merchants, made their ". . certain drafts or orders
in writing for the payment of money, each bearing date the
day and year aforesaid and payable respectively,
months after date, each for the sum of
dollars and then and there directed the said drafts or orders
to the defendant and thereby then and there requested the said
defendant to pay to their order, dollars, and de-
livered the said drafts or orders to the said defendant for ac-
ceptance; and the said defendant then and there accepted the
same in writing; and after the making of said drafts, and the
said acceptances thereof, and before the payment of the said
sums of money therein specified, the said ,
co-partners trading as aforesaid, for value and without notice
of any defect therein, before maturity transferred, assigned
and delivered the said drafts to the plaintiff, who then and
there became and was from thence hitherto hath been and still
is the lawful endorsee and holder in due course thereof, and
41(4367), C. L. 1897 (Mich.). « Bartlett v. First National Bank,
42 Bartlett v. First National Bank, 247 111 500.
247 111. 490, 497, 498 (1910).
380 ANNOTATED FORMS OF FLEADING AND PRACTICE
entitled to the payment of the said suras of money therein
specified; and the said plaintiff avers, that after the making
of the said drafts and after the said transfer, the said drafts
were each presented to the said defendant for payment thereof,
and the said defendant was then and there reciuested to pay
the same according to the tenor and effect thereof; but that
the said defendant did not pay the said drafts, or either of
them, or any part thereof; and that the said defendant hath not,
at any time, since paid the amounts specified in said drafts, or
any part thereof.
And the plaintiff claims dollars.
989 Drainage benefits, liability
One drainage district is liable to anotlier drainage district by
way of contribution, for any benelits it derives from the con-
struction or enlargement of a drainage system.
44
990 Drainage benefits; declaration, requisites
In an action by drainage commissioners for the recovery of a
fair amount for benefits arising from drainage, the declaration
must aver that the natural water-course or channel that was
improved was upon the lands owned by defendants, because the
statute authorizes the bringing of such action only against land
owners whose lands are intersected by the channel improved.*^
991 Employment ; civil service, new charges
The right of a civil service employee to continue in his ac-
tion for unpaid salary is not suspended by bringing new
charges agaust him under the Civil Service act after original
charges have been quashed on ceriiorari and there has been no
attempt to proceed under them."**'
992 Employment; constructive service, election of remedies
An employee who has been wrongfully discharged and paid
to the date of the discharge, may treat the contract of employ-
ment as at an end and sue at once for its breach, in which case
he can recover only the damages which resulted from the breach
from the date of the discharge to the date of the commencement
44 Drainage Commissioners v. 4c BuUis v. Chicago, 235 HI. 472,
Union Drainage District, 211 111. 479 (1908).
328, 332 (1904).
45 Vermilion Drainage District v.
Shockey, 238 111. 237, 239 (1909).
ASSUMPSIT 381
of the suit. Or, he may consider the contract of employment as
continuing and sue at any time before or after its expiration;
and if the suit is commenced before, but is not tried until the
expiration of the contract, he may recover the contract price,
less the amount that he has earned or that by reasonable dili-
gence he might have earned in other employment. A recovery
in one action is a bar to all future actions upon the contract of
employment and any actions that might have grown out of the
relation of employer and employee by reason of the wrongful
discharge. Contracts of employment which are payable in in-
stalments as the wages fall due do not constitute an exception to
this rule, as the doctrine of constructive service or employment
is not recognized in Illinois. An action upon one instalment is
a bar to an action upon a subsequent instalment of an employ-
ment contract.'*^
A contract which expressly stipulates for a fixed period of
employment is regarded as indivisible in jMaryland, although
the wages are to be paid in weekly or monthly instalments,
giving a wrongfully discharged employee who has been paid up
to the time of discharge but a single remedy for the recovery
of the entire damages sustained from the breach, and barring
any subsequent action in case of a recovery therefor.^s
In Mississippi, a contract of employment which requires the
payment of compensation in instalments is considered as di-
visible and will sustain an action for each maturing instalment,
the first judgment being no bar to a subsequent action and
judgment. ^'^
993 Employment ; cutter and fitter, Narr. (111.)
For that whereas, the said plaintiff, heretofore on, to wit,
the day of , 19 . . , at the city
of aforesaid, was by profession and occupation
a cutter, fitter and designer of ladies' cloaks and dresses, and
of long experience in the said profession and occupation, to
wit, years of such experience, during which time . .he
had conducted and carried on h . . said profession and occupa-
tion under h. . professional name of , and
was capable of earning and did earn a large salary in the exer-
cise of h . . said profession and occupation, to wit, a salary of
■«7 Dohertv v Schipper & Block, *» Williams v. Luckett, 77 Miss.
250 111. 128, 132, 134 (1911). 394, 397 (1899).
48 01mstead v. Bach, 78 Md. 132,
151 (1893).
382 ANNOTATED FORMS OF PLEADING AND PRACTICE
dollars ($ ) per week, under contracts
by the year ; all of which was then and there well known to
the defendant.
Plaintiff further says that on, to wit, the said
^ay of , 19 . . , at the special instance and re-
quest of the said defendant, . .he, under the said name of
J entered into a certain contract with the said de-
fendant in the line of h . . said profession and occupation, by
the terms of which the said defendant undertook and promised
to employ the said plaintiff, as a cutter, fitter and designer of
ladies' cloaks and dresses at the store of the said defendant in
the said city of , for one year from, to wit, the
day of , 19 . . , h . . daily hours
of service to commence at, to wit, o 'clock a. m. as
near as might be, and to end, at, to wit, the hour of
o'clock p. m., as near as might be, and the plaintiff to have
one week of vacation during the said year and all the regular
holidays, and all Saturday half holidays during the season in
which "it is customary to have the same, and to go to New York
City for one week, each trip, in the spring and fall on the busi-
ness of the said defendant connected with h. . said line of em-
ployment.
And the plaintiff further says, that the defendant was to
pay h. . therefore, the sum of dollars ($ )
each and every week during the continuance of the said contract
through said years and was to pay the same to h . . weekly.
And the plaintiff further avers that relying upon the afore-
said promises and undertakings of the said defendant, and in
consideration thereof, . .he accepted the said offer and agreed to
the terms thereof, and undertook and faithfully promised to
carry out the terms and conditions of the said contract, and at
once entered upon and continued the execution of the said
agi-eement and faithfully performed each and every of the
terms thereof, and especially performed each and every condi-
tion precedent to be done and performed by h. ., the said plain-
tiff, and so continued to execute and carry out the conditions
of the said contract until the defendant refused further to carry
out the terms and conditions thereof by h. . to be kept and per-
formed and refused to permit the plaintiff to execute and carry
out the same on h. . part, and wrongfully prevented the plain-
tiff from fulfilling the terms and conditions thereof to be kept
and performed by h. . .
And the plaintiff further avers that . .he so continued in the
execution of the said contract from, to wit, the said
day of , 19 • • , until, to wit, the
day of , 19 • • , and the de-
fendant paid h. . therefor, at the rate of dollars
($ ) per week, from, to wit, the said day
of , 19 . . , up to, to wit, the said
day of , 19 . . , when, without any reasonable
ASSUMPSIT 383
cause or excuse, the said defendant wrongfully discharged the
said plaintiff, and without any reasonable cause or excuse re-
fused to further carry out the said contract of employment and
so informed the said plaintiff, and the said plaintiff' then and
there, refused to permit the said defendant to annul and cancel
the said contract, and then and there offered the said defendant
to continue in the faithful execution of h . . said contract of
employment and to fully complete the same, but the said de-
fendant then and there refused to permit the said plaintiff so
to do, and then and there, and from thence on and to the end
of the said year, prevented h. . from executing and carrying
out the said contract and each and every provision thereof,
and then and there and from such time on, and to the end of
the said year, refused to pay h . . the amount due to h . . from
week to week under and by the terms of the said contract or
any part thereof ; and the said plaintiff, ever since h . . said
wrongful discharge by the said defendant has at all times been
ready and willing to carry out and perform the said contract
and would have done so in each and every particular, had not
the said defendant wrongfully prevented h. . from h. . execut-
ing and carrying out the said contract as aforesaid.
Plaintiff further avers that, from the time of h.. wrongful
discharge by the said defendant as aforesaid, and h . . wrongful
refusal to execute and carry out the said contract and h. .
wrongful refusal to permit h. . to execute and carry out the
same, on h. . part, . .he has made all reasonable effort to find
employment in the line of h. . said profession and occupation
and has utterly failed to so find such employment without fault
on h . . part ; by means whereof the said plaintiff has been pre-
vented by the said defendant from fulfilling and carrying out
the terms of the said contract, and has been prevented by h . .
from earning h. . said salary of dollars ($ )
per week, or any other sum since the said breach of the said
contract by the said defendant as above set forth, and said de-
fendant has utterly failed and refused to pay to the said plain-
tiff h.. said salary under the terms of the said contract, and
although often requested has not paid h.. the said salary of
dollars ($ ) per week, according to the terms
of the said contract, since, to wit, the said day of
, and has not paid to h . . the money due to h . . under and
by the terms of the said contract or any part thereof, to the
plaintiff 's damage in the sum of dollars
($ ).
994 Employment; general occupation, Narr. (Miss.)
That the said , during the summer of . . . . ,
entered into a contract with plaintiff, , by the
terms of which contract plaintiff herein bound and obligated
h to work for the said defendants in any honorable ca-
384 ANNOTATED FORMS OF PLEADING AND PRACTICE
pacity for and during the period of months, be-
ginning with and ending with , and
by the terms of said contract the said defendants,
, bound and obligated themselves to pay to plaintitf
herein, the sum of dollars for each and every one
of the said months above set out.
Plaintitf states that pursuant to and under the terms of said
contract plaintitf went into discharge of h. . duties as an em-
ployee of the said and was put to work by
them, and worked for the said defendants during the months
of , for each of which months the de-
fendants paid plaintiff the sum of dollars per
month.
Plaintiff states that on the said defendants
herein willfully and arl)ilrarily and without any reasonable ex-
cuse or justification for so doing discharged plaintitf and re-
fused to further comply with the terms of said contract, and
refused to allow plaintiff herein to continue in the employment
of the said defendants under and by virtue of said contract,
and refused to allow plaintitf herein to carry out h. . contract
with the said defendants during the remaining
months of said contract.
Plaintiff states that ..he stood ready and willing and did
offer in good faith to carry out h. . part of the said contract, but
that the said defendants, , willfully and ar-
bitrarily and without reasonable excuse whatever and without
any justificati(m or right discharged plaintiff and refused to
pay h. . for h.. services under the said contract during the
remaining months of said contract.
Plaintiff further states that . .he used due diligence to obtain
other and suitable employment during said
and was unable to obtain such employment.
Plaintiff states that by virtue of said contract the said
is indebted to h . . in the sum of
dollars.
995 Employment; housekeeper, Narr. (111.)
For that whereas, the said defendants, ,
heretofore, to wit, on the day of ,
19. ., at, to wit, at said county, in consid-
eration that the plaintiff had before that time, at the special
instance and request of the said defendants, bestowed work,
labor, diligence, care, attention and attendance and services
of said plaintiff as housekeeper and attendant for said defend-
ants at the city of , in said county, the said de-
fendants undertook and then and there faithfully promised to
pay said plaintiff the sum of dollars of lawful
money, when the said defendants should be thereunto after-
wards requested. Nevertheless, etc.
ASSUMPSIT 385
996 Employment; municipal employee, extra work
A regular employee of a municipal corporation has no right
of action against it upon a quantum meruit for work performed
outside of his regular hours,^^
997 Employment; public officer, action
A person who is entitled to a public office may sue for his
salary for the time during which he has been wrongfully pre-
vented from performing his duties of his office, regardless of his
earnings or opportunities to earn during such time, where such
salary has not been paid to any other person for the perform-
ance of the duties of the office.^^
998 Employment; police officer, Narr. (111.)
For that whereas, before and at the times hereinafter men-
tioned, the city of , was, and for more than
years last past has been, a municipal corporation in the said
county of , and state of Illinois, incorporated and
organized under an act of the legislature of said state, entitled :
"An Act to pi^ovide for the incorporation of cities and vil-
lages," approved April 10, 1872, in force July 1, 1872.
That prior to that date said defendant was a municipal cor-
poration, organized under a prior charter or act of the legis-
lature ; that the offices, positions and employments of
( ) police patrolmen or policemen of the city of
were created by an act of the legislature passed on, to
wit, , 1 .... , and said act authorized the appoint-
ment of ( ) police patrolmen or police-
men, to hold their office, position or employment during good
behavior, and such further number as the city council might
from time to time provide for.
That on, to wit, , 1 .... , the legislature passed
an act empowering the city council to increase the police force
and the number of offices, positions and employments of patrol-
men, on the recommendation of the board of police commis-
sioners ; that on, to wit, 1 (Include other
dates, if any), the city council of said defendant increased, by
ordinance duly passed, upon said respective dates in each in-
stance upon the recommendation of the board of police commis-
sioners, the offices, positions or employments of police patrol-
men by adding respectively ; that on the
day of , 1 .... , the city council of defend-
so May V. Chicago, 222 111. 595, si Bullis v. Chicago, 235 111. 472,
599 (1906). 480.
386 ANNOTATED FORMS OF PLEADING AND PRACTICE
ant passed an ordinance, which is recorded on page . . of the
city council proceed ini,'s of the city of for the
years 1. . ., 1. . . and 1. . ., in and by whicli ordinance the city
council provided that all nieinbers of the police force, including
the police patrolmen or policemen, who were then in tlie em-
ploy of the city should be, and did from tliat time henceforth,
constitute the patrolmen, otHcers and the police force of the
city of , and said ordinance also provided the
oath to be taken, and the duties of i)atr()lmen.
That on the day of , 1 . . . . the
city council of defendant, by an ordinance duly passed, which
is recorded on i)ay:e .... of the council proceedings of 1...,
provided a classilication of the patrolmen, and the number of
patrolmen that were then upon the police force of said city;
that on the day of , 1 . . . , the city
council of defendant duly passed and published an ordinance
of the city of , which is recorded on pages to
and the pages following, of the council proceedings for
the years 1 , for the appropriation for po-
licemen at dollars each.
That on , 1 , the city council of defendant
duly and regidarly passed an order authorizing the superin-
tendent of police to increase the numl)er of police officers or
employees on tlu' police force by filling vacancies wherever they
existed up to and not to exceed patrolmen, that beir.g
the number authorized to be appointed under the appropriation
budget of 19 ; that said order so passed as aforesaid was
in legal effect an ordinance of said defendant.
That on , 1 , there was duly passed by said
defendant an ordinance of said defendant, which occurs in vol-
ume of the Revised Code of , 1 , as chap-
ter ...., and which creates an executive department of the
municipal government known as the department of police, em-
bracing the superintendent of police, certain officers of police,
and the police patrolmen that have been appointed or may be
authorized by ordinance.
That from time to time since 1 , the common council have
authorized the appointment and employment of large numbers
of police patrolmen, until the number authorized and appointed
has reached the number of, to wit, ; and that on, to
wit, , the defendant duly passed an ordinance of said
city, by vote of two-thirds of all the aldermen elected, together
with the signature and assent of the mayor, in and by which
ordinance it is ordained and ordered that the police force shall
consist of ( ) police patrolmen, together
with the other officers.
That by the said ordinance creating said executive depart-
ment there w^as created the office of superintendent of police,
which superintendent, by the provisions of said ordinance, was
to be the head of said police department, and was to be ap-
ASSUMPSIT 387
pointed by the mayor of said city, by and with the consent of
the city council, on the first Monday in , 1 .... ,
or as soon thereafter as may be, and biennially thereafter.
That the council of the said city of , as here-
inbefore referred to, consists of a board of aldermen, who were
duly elected from their respective wards, by a plurality of all
votes cast at their respective elections, and that the ordinances
hereinbefore referred to were duly passed by a two-thirds vote
of all of said aldermen so elected, and holding the office at the
respective times at which said ordinances were passed.
That was duly elected mayor of the said city
of by a plurality of all the votes cast at an elec-
tion held in the said city of on the first Tuesday
of , 1 .... , and duly qualified as said mayor on
the first day of , 1 ; that was
on, to wit, the first I\Ionday of , 1 , duly ap-
pointed by said mayor of said city of , by and
with the advice and consent of the city council of said city,
as superintendent of police, and then and there began to, and
did, take charge of the otfice of superintendent of police, and
conduct the business of said superintendent of police, and was
afterwards, to wit, on , 1 .... , on recommenda-
tion by the mayor, duly confirmed by the council of said city
of , as the superintendent of police, and there-
upon became such superintendent of police, and under said
appointment and like reappointments he continued to hold the
position, and be the superintendent of police of said city, un-
til, to wit, , 1. . . .
That heretofore, to wit, in the year , before the city
election of that year, held on the first Tuesday of ,
1. . . ., more than one thousand of the legal voters of the said
city of , voting at the last preceding election,
petitioned the judge of the county court of county,
in which said city is located, to submit to the vote of all the elec-
tors of said city the proposition as to whether such city, and
the electors thereof, shall adopt and become entitled to the bene-
fits of the civil service act.
That the county court thereupon submitted such proposition
at the next succeeding city election, and an order was entered
of record in said county court submitting such proposition as
aforesaid ; that the said judge of the county court of
county gave at least ten days' notice of the election at which
such proposition was to be submitted, by publication of such
notice in one or more newspapers published within said city,
for at least five days; the first publication was at least ten days
before the day of election ; said election was held under the
election law in force in said city, on, to wit, the first Tuesday
of , 1 .... , and the proposition so to be voted for
appeared in plain, prominent type at the head of every ticket,
388 ANNOTATED FORMS OF PLEADING AND PRACTICE
and preceding the names of persons to be voted upon for the
various offices at said election.
That a majority of the votes cast upon such proposition were
for such proposition, and the said civil service act was thereby
adopted by said city, and the mayor thereupon issued a procla-
mation declaring said act in full force in said city ; and not less
than forty or more than ninety days thereafter said mayor
appointed three persons, who constitute and are known as the
civil service commissioners of said city, one for three years,
one for two years and one for one year from the time of their
appointment, and until their respective successors are appointed
and qualified ; and in every year thereafter the mayor did in
like manner appoint one person as a successor of the commis-
sioner whose term expired in that year, to serve as such com-
missioner for three years, and until his successor is appointed
and qualified.
Said commissioners were appointed from time to time by
the mByor until the said day of ,
1 .... , when , and were the com-
missioners aforesaid, and duly appointed as aforesaid by the
mayor of the city of ; that said commissioners
have classified all of the offices and places of employment in
said city of , with reference to examinations pro-
vided for in the civil service act, except those offices and places
of employment mentioned in section of that act, and
the offices and places so classified by said commission consti-
tute the classified civil service of said city, and the position or
employment of patrolmen was duly classified by said commis-
sion, and is under the Civil Service act, and constitutes part of
the classified civil service of said city ; that said commission
made rules to carry out the purpose of the said act, for exami-
nations, appointments and removals, in accordance with its
provisions.
That the first board of civil service commissioners in 1 ,
at the request of the chief executive officers of the said city of
and the comptroller of said city, adopted the
practice of passing upon and certifying all payrolls of the em-
ployes of said city of , including the payrolls
of all policemen in the employ of said city, which practice has
continued from thence hitherto ; and it was then and ever since
has been required by the comptroller of the said city that all
payrolls of the city of , including the police pay-
roll, should be so certified as a condition precedent to payment
thereof.
That on, to wit, , 1 , plaintiff was a citizen
of the United States of America above the age of twenty-one
years, and for more than two years prior thereto had been
continuously a resident of the city of , in said
county and state, and was then a qualified elector of said city
ASSUMPSIT 389
of , and had never been a defaulter to said mu-
nicipal corporation, the city of
That on, to wit, , 1 , plaintiff took what is
called the civil service examination, as to his qualifications for
the position or employment of patrolman of the city of
, which examination was conducted by and under
the direction of the civil service conunissioners of the city of
Upon the said examination plaintiff was passed
as duly qualified for the position or employment of patrolman
of said city, having passed with a grade of, to wit, per
cent upon a scale of one hundred per cent.
That on, to wit, , 1 , said superintendent of
police notified said commission of a vacancy in the positions or
employments of patrolmen, and said commission certified to
the said superintendent of police the name and address of your
petitioner, as standing highest upon the register for the class
or grade to which said position belongs, and the said super-
intendent of police notified said commission of the position
or employment of patrolman to be filled separately, and filled
such place by the appointment of plaintiff, certified to him by
said commission. That the position or employment of patrol-
men in the city of is not such a position or em-
ployment as is provided for in section II of the said Civil Serv-
ice act.
That plaintiff on, to wit, , 1 , took the oath
prescribed for such patrolmen, and at once entered upon his
duties as patrolman of the city of ........ , under the Civil
Service act, and the ordinances of said city.
That on; to wit, the day of ,1 ,
said civil service commissioners certified to the comptroller of
said city the appointment of plaintiff to the position or em-
ployment of patrolman in the classified service of said city ; and
plaintiff avers that he still is a patrolman of said city of
, duly appointed and qualified, and lawfully en-
titled to all the rights and privileges of said position or em-
ployment, including the right to be paid as patrolman from
time to time thereafter, as hereinafter claimed. That during
all the said time said plaintiff has never violated any of the
rules prescribed by the authorities of the city of
for the regulation of the police department, nor any of the
rules of the civil service commission, nor any of the provisions
of the Civil Service act.
That for, to vs-it, .... years next prior to
, plaintiff' was from month to month duly certified
by said civil service commission upon the payrolls of said city,
as a police patrolman entitled to pay as patrolman of said city ;
and that upon such payrolls he was, until , ,
paid from month to month as patrolman.
That he has never been laid off for lack of work or lack
of funds, or for other necessary cause; that by the appropria-
390 ANNOTATED FORMS OF PLEADING AND PRACTICE
tion made by defendant in or about the month of ,
. . . ., for the payment of ofiicers and patrolmen in the employ-
ment of said city, and for other municipal purposes, for the
year , there was an appropriation made for police
patrolmen of said city, including dollars ($ )
per year for plaintiff, payable monthly; and that in like man-
ner in or about the months of , 1 . . . . , ,
1. . . . and , 1. . . ., there were further appropria-
tions made by the defendant, for the payment of police patrol-
men of the said city, for the years respectively 1 .... , 1 . . . .
and 1. . . ., including dollars ($ ) per year
for plaintiif, payable monthly; and that said appropriations
were made for the benefit of all [)olie(' patrolmen and police
officers of said city, including plaintiff among tiic uum])er.
That defendant prevented plaintiif from occupying the posi-
tion, oi'tice or employment of patrolman from, to wit, ,
1 .... , to, to wit, , 1 . . . . (at which last date he
was reinstated in said office or employment) without just cause
or excuse, and refused without just cause or excuse to pay him,
nor did said defendant pay to any other person, officer, em-
ployee or patrolman, the money appropriated for his said posi-
tion or employment during said time; that plaintiff made due
and diligent effort to obtain employment after he was refused
said employment, but was unable to obtain any other employ-
ment except for a short period, during which he earned, to W'it,
$
By reason of all of which the defendant became liable and
promised to pay the plaintiff the sum of dollars
($ ) per month from , 1 . . . . , to ,
1. . . . ; yet the defendant, though often recpested, has not paid
said sums of money, or any part thereof.
Attorney for plaintiff.
999 Employment; superintendent gas plant, Narr. (111.)
For that whereas, heretofore, on, to wit, the
day of , 19 . . , the defendant . . , in con-
sideration of the plaintiff's promise to enter into the service of
the defendant., for a term of , to superintend
the construction of a gas plant then contemplated, in the city
of , and of similar plants in other cities if de-
sired by said defendant.., to superintend the manufacture of
gas, to design and superintend the construction of apparatus
and machinery by which gas is used, and to do such other duties
in connection with the defendant . . ' business as the defendant . .
might designate, at a compensation of dollars
($ ) per year, payable in monthly instalments, undertook
and agreed to pay the plaintiff in addition to his said salary
of dollars ($ ) per year for ,
three-eighths of one cent per pound for each pound of carbonic
ASSUMPSIT 391
acid gas sold from the plant then about to be constructed at
the works of , in , for a term of
years following; said date, such payments of three-
eighths of one cent per pound to be made in monthly instal-
ments at the end of each month for the gas manufactured and
sold during the previous mouth ; and the plaintiff avers that
he did then and there enter the employ of the defendant . .
and remained in the employment of the defendant . . for
and did superintend the construction of the plant
then contemplated in and of such other similar
plants in other cities as the defendant . . desired or required,
and did design and superintend the construction of apparatus
and machinery by wdiich such gas was used, and did perform
such other duties in connection with the defendant. . ' business
as the said defendant . . designated, all for the full term of
• ■ , and did fulfill and perform all agreements by
him to be performed according to the terms of the said con-
tract; yet the defendant. . not regarding afore-
said promises, but contriving and intending to wrong and de-
fraud the plaintiff, failed and refused to fulfill .... aforesaid
promises in this, that although in the months of , a
large amount of gas was manufactured and sold at said plant of
said to wit, the amount of pounds,
for which the plaintiff' by virtue of said agreement was en-
titled to the sum of, to wit, dollars ($ ),
nevertheless the defendant., although often requested there-
unto did not nor would pay the plaintiff the said sum of, to wit,
dollars ($ ), but of said sum ha. . paid the
plaintiff only the sum of, to wit, dollars ($ ),
and ha., failed and refused and still do., fail and refuse to
pay the plaintiff the said balance to wit, dollars
($ ), or any part thereof, to the damage of the plaintiff'
in the sum of dollars ($ ) ; and therefore he
brings this suit, etc.
1000 Employment; theatrical manager, Naxr. (111.)
For that whereas the plaintiff, being a joint owner of a valu-
able leasehold estate, to wit, a lease for a term of
years of the premises known as the , in ,
of great value, to wit, the sum of $ , on or about the
day of , 19 , in the city of
• • , to wit, in the place aforesaid, entered into a cer-
tain contract or agreement with the defendant, whereby it was
agreed that in consideration that the plaintiff should assign all
his interest in the said leasehold estate to the defendant, the
defendant would employ him (the plaintiff) as manager of the
said theater for the term of years, at a salary of
dollars a week, and per cent of the net
profits of the theatrical business to be conducted by defendant
392 ANNOTATED FORMS OF PLEADING AND PRACTICE
on said premises, to be accounted and paid at the end of each
and every theatrical season during said term; that said plain-
tiff accepted said employment and arrangement in good faith,
and did, to wit, on the day of , 1 . . . . ,
so assign all his interest in said lease to the defendant; that,
to wit, on the day of , 1 , the
said plaintiff' accepted and entered upon his position as man-
ager as aforesaid, and continued to perform his duties in accord-
ance with said contract in a competent and conscientious man-
ner up to about the day of , 1 .... ;
that on the day of the date last aforesaid the defendant wrong-
fully, unlawfully and in violation of his said contract dis-
charged the plaintiff, and thereafter, though often requested,
has altogether refused to perform his said contract, or to pay
to the plaintiff any of the said sums so due as aforesaid, to the
damage of the plaintiff of dollars, etc.
1001 Fees of officers, constables
At common law an action of assumpsit is maintainable by of-
ficers to collect their fees.^^ This action is not superceded by
the statutory remedy which permits the making up of a fee
bill and its placing in the hands of an officer for collection.^^
The defendant in an attachment or execution is liable in an
action of assumpsit to a constable for the expenses incurred by
him while preserving the property levied upon under the writ.^*
FIRE INSURANCE
1002 Proof of loss
(Venue)
Be it known that on this day of ,
19. ., before me, a notary public, legally qualified and residing
in said county and state, personally appeared ,
of the county of , and state of Illinois, who being
duly sworn, according to law, declares under oath that the
of , through its agency at ,
Illinois, did on the day of ,
19 . . , issue to their policy of insurance. No ,
the written body of which, with its immediate context is as fol-
lows : No , dollars. By this policy of in-
surance the , in consideration of and
of dollars, will indemnify against
loss dollars, on the one story frame building and
52 Morton v. Bailey, 1 Seam. 213, 28, e. 33, Kurd's Stat. 1909, p. 618.
215 (1835). 54Eames v. Hennessy, 22 111. 629,
53 Morton v. Bailey, supra; Sec. 632 (1859).
ASSUMPSIT 393
additions attached thereto now and to be occupied by assured
or tenant as a dwelling, and situate on assured 's farm in section
, in county, Illinois dol-
lars on household furniture, useful and ornamental, kitchen fur-
niture and utensils, family wearing apparel, printed books,
plate and plated ware, paintings and engravings and their frames
(in case of loss no one to be valued at more than cost), piano,
organ, sewing machine, family supplies and fuel, all while con-
tained therein. Reference is hereby had to assured 's appli-
cation No , which is made a part of this policy and a war-
ranty on the part of the assured. (Here follows the usual
"lightning clause"), then steam powder permitted for thresh-
ing, not to be set nearer than yards to the house insured.
dollars additional insurance on item
permitted; which said policy was duly issued and delivered to
affiant on the day of , and by its
terms the affiant was insured against loss for a period of
years from , 19 . . , to , 19 . . , at
noon.
That in addition to the amount covered by said policy of said
company there was dollars other insurance made
thereon, to the amount of dollars as specified
herein: On household furniture therein, on beds and bedding
therein and on wearing apparel therein, and on provisions
therein, and on sewing machine therein dollars.
On piano therein dollars, contained in dwelling
house in section , besides which there was no in-
surance thereon; the above amount being insured by the
'. . . of , Illinois.
That on the day of , 19 • • ,
a fire occurred by which the property insured was totally de-
stroyed, and the assured under above described policies suf-
fered loss to the amount of dollars on the property
covered by said policy as set forth in the accompanying sched-
ules marked respectively, schedule "A" and schedule "B,"
which affiant declares to be a just, true and faithful statement
of the loss of assured so far as he has been able to ascertain the
same, and he states that schedule "A" correctly sets forth the
plan of assured 's building, and its value immediately before
said fire, and schedule "B" the values of all the articles of
personal property in cash at the time of the fire.
That the actual cash value of the property so insured amounted
as set forth in said schedules "A" and "B," which are made
a part of this affidavit, to the total sum of dollars
on dwelling insured under first item in said policy, and
dollars on contents of same as described in the
second item in said policy, at the time immediately preceding
the fire, as will appear by the said annexed schedules, showing
a full and accurate description of each kind of property, and
the value of the same with the loss on each stated separately.
394 ANNOTATED FORMS OF PLEADING AND PRACTICE
That all the property insured, and which is described on said
schedules belonged to the assured,
That the building insured, and which contained the prop-
erty destroyed was oeeui)ied solely by the assured tor a private
dwelling and for no other purpose.
That said fire occurred on the day of ,
19. ., and was first discovered about o'clock in
the afternoon of said day, and originated from a cause totally
unknown to afliant, or to either of the assured; that on said
day affiant and his wife, left home about
o'clock noon on said day and went to about
miles distant; that the lires were carefully looked to and that
the fire in the kitchen stove had died out entirely, as an early
dinner had been provided in anticipation of getting an early
start; that only a very small amount of fire was left in the fire-
place, and this was carefully covered l)y affiant.
The fire was first diseoNcrcd by a neighbor who went for as-
sistance, and when he with anotiier neighbor reached the house
the roof had fallen in, or was just on the point of doing so, as
afliant is informed and believes, and that when he returned
about a half hour before sunset the house was entirely burned
up. Nothing whatever was removed from the house.
J3y reason of which fire the assured under said policy have
sustained a total lo.ss under same, and present tlieir claim for
the full amount thereof, being dollars on the first
item, and dollars on the second item, and in all
dollars.
And the said affiant further declares that the fire did not
originate by any act, design or procurement on the part of the
assured or of either of them, or in conse(iuence ol" any fraud
or evil practice done or suffered by them, or either of them,
and that nothing has been done by, or with, their privity or
consent to violate the conditions of said policy of insurance, or
to render the same void.
Subscribed, etc.
Notary's certificate
(Venue)
I, a notary public in and for said county, do
hereby certify that I am a resident of , and re-
side about miles from the site of the house described
in within proof of loss; that I am in no way concerned in the
loss as a creditor or otherwise nor related to the assured ; that
I have carefully examined the circumstances attending said
loss; that I know the character and circumstances of assured
and verily believe that the assured have, without fraud, sus-
tained loss on the property described in schedules "A" and
ASSUMPSIT 395
''B" hereto attached to the amounts therein, and in said proof
of loss stated.
Witness, etc. (Notary Public)
Schedule ''A"
Being a plan of the house of insured under
policy No of the of and
which has been destroyed by fire, and an itemized statement
of the value thereof.
The following is a statement of the materials, labor, etc., in
said house. (Insert itemized statement)
The foregoing is what I consider a fair estimate as to quanti-
ties and values:
Said house was completed in 19. . and
has since been occupied as a private dwelling by assured,' hus-
band and wife, and family, consisting of one child now
years old, and no other.
(Attach plan of house, in ink)
Schedule ''B"
List of personal property lost by fire and which were insured
under policy No of the and whicii be-
longed to with the present casii value of each
article at the time of said fire. (Insert articles and values.)
1003 Arbitration
Under a. policy providing for an award and arbitration in
case of loss by fire, a submission to arbitration, if not waived, is
a condition precedent to the right to maintain an action on the
policy.^^
1004 Parties
An action on a fire insurance policy must be brought by the
person or persons having an insurable interest at the time of
the loss.^^
1005 Bridge destroyed, efc, Narr. (Md.)
For that on the day of , in the
year 19. ., by its policy of insurance issued as of that date, and
in consideration of the stipulation therein named and of the
payment of dollars and cents ($ ),
as a premium, the said company of .'
s'- Southern Home Ins. Co. v. 5c Dix v. Mercantile Ins. Co. 22
Faulkner, 57 Fla. 194, 198 (1909). 111. 272 (1859). '
396 ANNOTATED FORMS OP PLEADING AND PRACTICE
county, defendant, promised and a^eed with the
phiintiff, to insui-e it, subject to the conditions therein named,
and for and during the period commencing on tlie
day of , 19. ., at noon, to tlie day
of 19. ., at noon, to the extent of
dollars ($ ) against all direct loss or damage by fire on
that part of main located in county.
Other insurance permitted without notice until required. Per-
mission to nmke ordinary alterations and repairs and to carry
over, attach and maintain telegraph and telei)lione wires through
and on the roof and sides of said l)ridge ; and wiiich said loss
when it did occur, the said insurance company did agree, sub-
ject to the terms of its policy, to pay to the plaintilT within
ninety days after due notice, ascertainment, estimate and satis-
factory proof of loss was received.
That on the day of , 19 . . , and
during the time prescribed in said policy, the said bridge therein
described and owned by the phiintilf was consumed and totally
destroyed by lire; that forthwitii the i)hiintitl' did give notice
thereof to the defendant company and furnish the j)roof of loss
required, and offered and tendered itself ready and willing
to furnish such other proof as tiie defendant's oHicers and
agents should reasonably demand; and the plaintifl; did there-
upon demand of the defendant the payment of the amount for
which it was insured under said policy, wiiich demand said
defendant has neglected and refused to pay and perform; tliat
such lire and such conse(iuent loss were not sucii as were by
said policy of insurance excluded from its oj)eration and effect,
but were such as were reasonably and legitimately included
Avithin the provisions of said policy of insurance of the defend-
ant; and that all times have elapsed and all things and condi-
tions have happened and have been performed, which, under
the terms of said policy of insurance were necessary to have
elapsed and to have been performed to entitle the plaintiff to
the said payment and to have and maintain this action.
And therefore the plaintiff brings this suit and claims
dollars ($ )
1006 Chattels on farm, Narr. (Md.)
For that the plaintiff was the owner of certain chattels de-
scribed in a certain policy No , issued by said defend-
ant eompan}' on the day of , 19 . . ,
situated on the farm of , about
mile. . west of , at the time of this insurance against
fire and also at the time of their destruction by fire as here-
inafter set forth ; that on the day of ,
19 . . , and theretofore, the defendant was and still is a corpora-
tion of the state of Maryland, duly incorporated with authority
to insure risks by fire; that on the said day in consideration of
ASSUMPSIT
397
the membership of said plaintiff in said defendant company and
the passing and issuing of a certain note of hand ot said piamtitt,
dated on the said ^^^ ^^ :'\"^^ ' X{.' '^'r,'
for the sum of ($ ) dollars, payable on
demand, and bearing interest at such rate as may be hxed by
the board, not exceeding .... per cent ( . .%) per annum, said
defendant executed to said plaintiff a certain sealed policy ot
insurance number on the said chattels, ^herein said
defendant insured said plaintiff, his executors, administrators
or assigns, agreeably to the terms and conditions of the said
company, for ($ ) dollars, against all loss
or damage by fire or lightning that may happen at any time
after the date of said sealed policy, so long as the terms and
conditions annexed to said policy are complied with, or until
canceled by order of the company ; that on the •
^ay of , 19- •» a part of said chattels, insured
under said policy to the sum of ............ ($• -^ • • • ) dol-
lars, were totally destroyed by fire, that the plaintiff s loss by
said fire, insured by said policy, was ..... ...... . ($•••• • • )j
that the plaintiff furnished to the defendant full proof ot said
loss and interest, and duly performed all the conditions of the
said policy on his part, but that the defendant has not paid
the said loss; and the plaintiff says that said policy has never
been canceled by order of said defendant company, and that
at the time of the happening of the fire aforesaid, was m tull
force and effect. And the plaintiff claims therefore $
1007 Dwelling, Narr. (111.)
For that whereas the defendant on, to wit, the ... . day
of 19 . . . in, to wit , in the county
and state aforesaid, made its policy of insurance and delivered
the same to the plaintiff and for the consideration therein ex-
pressed promised the plaintiff in the terms of said policy and
the conditions thereto annexed, which said policy and condi-
tions here follow in the words and figures following, to wit :
(Insert copy of policy). . i • ^p
And the plaintiff avers that at the time of the making of
the said policv and from thence until the happening of the loss
and damage hereinafter mentioned, it had an interest m the
said property to the amount of the said sum so by the defend-
and insured, as aforesaid; and the plaintiff further avers that
on, to wit, the day of ■'••■■■ --^ l^V' ^^^
said propertv was consumed and destroyed by fire; whereby
the plaintiff ^then and there sustained loss and damage on the
said property to the full amount of the sura mentioned m the
said policy of insurance, and which said loss happened with-
out fraud or evil practice of this plaintiff.
And the plaintiff further avers that forthwith, atter the
happening of said loss and damage, on, to wit, the
398 ANNOTATED FORMS OF PLEADING AND PRACTICE
day of , 19. ., it there gave notice thereof to the
defendant and as soon thereafter as possible on, to wit, the
day of , 19.., there delivered to
the defendant as particular an account of the said loss and
damage as the nature of the case would admit, which said
account was signed by , ,
of and for this plaintilF; which said account, also called "Proof
of Loss," stated the number of the policy of insurance, the
same being, to wit. No ; that the total insurance then
carried on the premises was dollars and no more ;
that the property described in the said policy belonged at the
time of the tire heretofore mentioned to this plaintitf ; that the
real estate was owned by this plaintiff in fee simple ; that there
were no encumbrances of any nature or amount at the time
of the tire ; that the building described, or containing the prop-
erty described, in said policy was occupied as a ,
by this plaintitf at the time of the lire; that no assignment,
transfer or encumbrance, or change of ownership or occupancy
of the property described had been made since the issuing of
the aforesaid policy; that the tire occurred on the
day of , 19. . ; at about the hour of
'clock P. M, ; that the cause of the said tire was unknown,
but was probably spontaneous combustion of in
the ; that the amount claimed by the plaintiff
of the said defendant was the sum of dollars ;
that the said fire did not originate by any act, design or pro-
curement on the part of the assured, being the said plaintiff,
or in consequence of any fraud or evil practice done or suf-
fered by said assured; that nothing has been done by or with
the privity of the assured, being this plaintiff, to violate the
conditions of the policy, or render it void ; that no articles were
mentioned in the said account but such as were in the building
damaged, or destroyed, and belonging to and in possession of
the said assured, being this plaintiff, at the time of the said
fire; that no property saved had been in any manner concealed
and that no attempt to deceive the said , being
the defendant herein, had in any manner been made as to the
extent of the said loss and damage; that the said account of
the said loss and damage was accompanied by the oath of
, of and for this plaintiff,
and accompanied by his oath that the statements made in said
account were true; and to the said account, also called "Proof
of Loss," was annexed and theremth delivered a certificate
under the hand and seal of a notary public nearest to the place
of the said fire, to wit, , showing that he, the said
notary, was not concerned in the loss or claim set forth in said
statement or Proof of Loss, either as a creditor or otherwise;
that he was not related to the assured or sufferers; that he had
examined the circumstances attending the fire and damages,
as alleged; that he was well acquainted with the character and
ASSUMPSIT 399
circumstances of the assured, and did verily believe that the
assured had by misfortune, and without fraud or evil practice,
sustained loss and damage on the property described in the
policy aforesaid, to the amount of $ And plaintiff fur-
ther avers that, although it has kept and performed all things
in the said policy contained on its part to be kept and per-
formed, and, although it has sustained loss and damage by
fire on the said property in the manner and to the amount
aforesaid, nevertheless, the defendant, though often thereto re-
quested, has not yet paid to the plaintiff that amount, or any
part thereof, but refuses so to do, to the damage of the plain-
tiff of dollars, and therefore the said plaintiff
brings his suit, etc.
h
For that whereas heretofore, to wit, on the
day of , 19 . . , to wit, at the
county aforesaid on the application of the plaintiff, in con-
sideration of a certain sum of money in the policy mentioned
and paid to it by the plaintiff, the defendant made a certain,
policy of insurance in writing and delivered to the plaintiff
its said policy of insurance, being in the words and figures
following: (Set out policy of insurance in haec verba).
And the plaintiff avers that at the time of the making of
the said policy of insurance, as aforesaid, and from then until
the loss and damage hereinafter mentioned, he had an interest
in the said insured premises and property to a large amount,
to wit, to the amount of all the money insured thereon to wit,
at aforesaid.
And that afterwards, to wit, on the day of ,
19. ., the said premises and property in the said policy of insur-
ance mentioned was burned, consumed and destroyed by fire,
which did not happen by an invasion, insurrection, riot, or
civil war or commotion, or by any military or usurped power,
or by order of any civil authority, or by theft or by neglect
of the insured to use all reasonable means to save and preserve
the property at and after the fire, or by explosion of any kind :
whereby the plaintiff sustained damages to a large amount,
to wit, to the amount of the money thereon assured, to wit, at
in the county aforesaid.
And the plaintiff further avers that the said premises and
property mentioned at the time of the destruction thereof,
as aforesaid, was also insured for the sum of
dollars in of and the
for the sum of dollars, no part of which has been
paid.
And the plaintiff avers that the said buildings in the said
policy mentioned was not at any time during the continuance
thereof appropriated, applied, or used to or for the purpose
of carrying on or exercising therein, any trade, business or vo-
400 ANNOTATED FORMS OF PLEADING AND PRACTICE
cation denominated hazardous or extra-hazardous, or for keep-
inj^ or storing in said building, or manufacturing or using
therein, any of the spirits, gases, oils, explosives, or products pro-
hibited in and by the provisions of said policy.
And plaintiff further avers that after the destruction of the
said property as aforesaid, the said plaintiff performed all of
the acts and things required of hira by said policy to be per-
formed by giving notice of loss and making proof thereof; and
the defendant then and there, to wit, on the day
of , 19. ., received and accepted the said
proof as satisfactory; and waived any and all other acts in
respect thereof on the part of the plaintiff.
And the plaintiff further avers that although he has kept
and performed all things in the said policy contained on his
part to be kept and performed, and although he has sustained
loss and damage by fire on the said property in the manner
and in the amount aforesaid, nevertheless the defendant, though
often requested, has not yet paid the plaintiff that amount, or
any part thereof, but refuses so to do, to the damage of the
plaintiff of dollars ; wherefore he brings suit, etc.
c
For that whereas the defendant on the day
of , . . . . , in the city of , county and
state aforesaid, made its policy of insurance and delivered the
same to F and N, assignors of the plaintiff, and for the con-
sideration therein expressed, did insure the said F and N
against loss or damage by fire, to the amount of
($ ) dollars, in the terms of the said policy and the con-
ditions thereto annexed; and at a time subsequent to the loss
and damage by fire, as hereinafter set out, and previous to the
bringing of this suit, the said F and N assigned all their right,
title and interest in and to said loss and damage in the terms
of said policy and conditions thereto annexed, which said policy
and conditions here follow, in these words and figures, to wit:
(Insert copy of policy).
And the plaintiff further avers that at the time of the mak-
ing of the said policy, and from thence until the happening of
the loss and damage hereinafter mentioned, the said F and N,
assignors of the plaintiff, had an interest in the said propertj^
to the amount of the said sum so by the defendant insured
thereon as aforesaid.
And the plaintiff further avers, that on the
day of , . . . . , about the hour of o'clock P.
M., the said property was consumed and destroyed by fire,
whereby the said F and N then and there sustained loss and
damage on the said property to the amount of the sum last
aforesaid, which said loss and damage did not happen by means
of any invasion, insurrection, riot, civil commotion, or of any
ASSUMPSIT 401
military or usurped power. And the plaintiff further avers
that forthwith after the happening of the said loss and dam-
age, to wit, on the day of 19
the said F and N there gave notice thereof to the defendant'
and as soon thereafter as possible, to wit, on this same day
there dehvered to the defendant as particular an account of
the said loss and damage as the nature of the case would admit •
which said account was signed by the said F and N and accom-
panied by their oaths that the same was in all respects just
and true, and showed the value of the said property, and in
what general manner the said building was occupied at the
time of the happening of the said loss and damage, and the
name of the person then in the actual possession thereof and
when and how the said fire originated, so far as the said F and
i\ knew or believed, and their interest in the said property at
that time; to which said account was annexed and therewith
delivered, a certificate, under the hand and seal of the notary
public nearest to the place of the said fire, to wit, S who is
not concerned in the loss as a creditor or otherwise nor related
to assured, showing that he, the said notary had examined the
circumstances attending the said fire and the loss and dam-
age alleged, and was acquainted with the character and cir-
cumstances of the plaintiff and verily believed that the plaintiff
had by misfortune, without fraud or evil practice, sustained
loss and damage on the said property to the amount of
dollars.
And the plaintiff further avers that the building which con-
tained the said property insured was not at or since that time
appropriated, applied or used to or for the purpose of carrying
on or exercising therein any trade, business or vocation de-
nominated hazardous or extra-hazardous or specified in the
said memorandum of special rates, or for the purpose of storing
therein any of the articles, goods or merchandise in the said con"-
ditions denominated hazardous or extra-hazardous, or included
in the said memorandum of special rates.
And the plaintiff further avers, that although the said F
and N have kept and performed all things in the said policy con-
tamed on their parts to be kept and performed, and although
they have sustained loss and damage by fire on the said property
m the manner and to the amount aforesaid, nevertheless the
defendant, though often thereto requested has not yet paid to
the said F and N, or to the plaintiff, that amount, or anv part
thereof, but refuses so to do, to the damage of the plaintiff
^^ dollars, and therefore he brings his suit, etc.
d
For that whereas, the defendant, on to wit, the
5^ay of , 19. ., in the city of "..'.'.'.",
in the county aforesaid, made its policy of insurance and de-
402 ANNOTATED FORMS OF PLEADING AND PRACTICE
livered the same to the said , and for the con-
sideration therein expressed, promised the said ,
in the terms of the said policy and the conditions tlicreto an-
nexed, which said policy and conditions here follow in tliese
words and figures, to wat, (Set out policy in liacc verba).
And the plaintiff avers that on, to wit, the
day of 11). ., she assigned ail of her riglit,
title and interest in and to tiie said policy of insurance and
all benefits and advantaj,'es to l)e dciivcd therefrom, to the said
, which said assij^Muneiit was approved and con-
sented to by the said defendant, which saitl assij^'iiment, ap-
proval and consent are endorsed on the back of the said policy
of insurance, in words and figures as follows: (Set out assign-
ment).
And the plaintiff further avers that on, to wit, the
day of , 19. ., the said as-
signed all of his right, title and interest in and to the said
policy of insurance and all benefits and advantages to be de-
rived therefrom to the said and tiiat the defend-
ant approved and consented to the said assignment, which said
assignment, consent and approval is in writing, attached to the
said policy of insurance, and is in words and figures, as fol-
lows: (Set out second assignment).
And the plaintiff further avers that at the time of the mak-
ing of the said policy and from thence until, to wit, the said
day of , 19 •• ,
had an interest in the said property to the amount of the said
sum so by the defendant insured thereon as aforesaid, and that
since the time of the making of the said assignment of the said
policy by the said to the said , the
said had an interest in the said property to the
amount of the said sum so by the defendant insured thereon
as aforesaid, and that the said , since the time ot
the said assignment to him from the said and un-
til the happening of the loss and damage hereinafter mentioned,
had an interest in the said property to the amount of the said
sum so by the defendant insured thereon, as aforesaid.
And the plaintiff further avers that on, to wit, the
day of , 19 . . , the said property was con-
sumed and destroyed by fire, whereby the said
then and there sustained loss and damage on the said property
to the amount of dollars and cents,
which said loss and damage did not happen by means of any
invasion, insurrection, riot, or civil commotion, or of any mili-
tary or usurped power.
And the plaintiff further avers that forthwith, after the
happening of the said loss and damage, to wit, on the
day of , 19 . . , he there gave notice thereof
to the defendant, and as soon thereafter as possible, to wit, the
ASSUMPSIT 403
day of , 19 . . , the said
delivered to the defendant as particular an ac-
count of the said loss and damage as the nature of the case
would admit, which said account was signed by the said
and accompanied by his oath that the same was
in all respects just and true and showed the value of the said
property, the occupancy of the said building at the time of
the happening of the said loss and damage, and when and how
the said fire originated, as far as the said knew
or believed, and his interest in the said property at that time,
to which said account was annexed and delivered therewith,
a certificate under the hand and seal of the notary public
nearest to the said place of the said fire, to wit,
showing that he, the said notary had examined the circum-
stances attending the said fire and the loss and damage al-
leged, and was acquainted with the character and circumstances
of the said and verily believed that the said
had by misfortune and without fraud or evil
practice, sustained loss and damage on the said property, to
the amount of dollars and cents.
And the plaintiff further avers that there was not, at or since
the time of making of said policy, any other insurance on the
said property, and that the said building was not at or since that
time, appropriated, applied or used to or for the purpose of
carrying on or exercising therein, any trade, business or voca-
tion denominated as hazardous, or extra-hazardous, or specified
in the said memorandum of special rates, or for the purpose
of storing therein any of the articles, goods or merchandise in
the said condition denominated as hazardous or extra-hazardous,
or included in the said memorandum of special rates.
And the plaintiff further avers that on, to wit, the
day of , 19 . . , an agreement was entered
into between the said , and the defendant in words
and figures as follows : (Set out agreement for appraisal of loss
etc.).
And that the said appraisers in said agreement mentioned
made the following dechiration : (Insert s.-ime).
And that the said appraisers in the said contract mentioned
made the following award: (Set out award or appraisal).
Nevertheless, although the said plaintiff and the succeeding
assignees of said policy have kept and performed all things
in the said policy mentioned, on their part to be kept and per-
formed, the defendant has not yet paid to the plaintiff the
said amount of the loss and damage aforesaid, or any part
thereof, but refuses so to do, to the damage, etc.
(Maryland)
(Precede this by common counts) And for thnt the de-
fendant is a corporation, dul}^ incorporated under the laws of
404 ANNOTATED FORMS OP PLEADING AND PRACTICE
the state of , and during the times hereinafter
mentioned was, and now is, engaged in the business of fire in-
surance in the city of , in the state of 2klaryhand ;
issued policies and made contracts agreeing to pay certain sums
of money, in the event that the party or parties named in said
policies or contracts should sustain loss or damage by fire ; and
by one of its said contracts or policies in writing, commonly
called an insurance policy, dated , 19. .,
and herewith filed, in consideration of dollars,
paid by plaintiff to defendant, undertook and agreed to in-
demnify the plaintiff against loss or damage by fire to certain
property therein described, to an amount not exceeding
dollars ($ ) on the two-story frame shingled
roofed building and additions thereto occupied as a dwelling,
situated on the side of near
in the district of county, state of ]\Iary-
land, and dollars ($ ) on the household
furniture, silver and plated ware, printed books and printed
music, paintings and their frames, clocks, watches, jewelry,
bicycles, sewing machine, trunks and other traveling equip-
ments, family wearing apparel and stores; for the term of one
year from the date of said policy; that is to say, the said
company of , the defendant in this case,
issued and delivered to the plaintiff in the above entitled
case, a policy or contract of insurance on the property, as above
described, and her interest therein, agreeing to indemnify her
against any loss by the destruction or partial destruction thereof
by fire prior to the first day of , 19 • • ; that after-
wards, to wit, on or about the day of ,
19. ., and w^iile said policy was in force, the said dwelling and
personal property covered by said policy ^vas totally destroyed
by fire; that the loss and damage to the said plaintiff on her
said dwelling house was dollars
($ ) and that on her furniture and other articles cov-
ered by the dollar clause of said policy, her loss
and damage was dollars, ($ ) ; that under
the terms of the three-fourth value clause, attached to said
policy, the plaintiff is entitled to be paid the sum of
dollars ($ ) for the loss and destruction of said dwelling
and is entitled to be paid the sum of dollars and
cents ($ ) for the destruction of the household fur-
niture and other articles covered by the dollar clause
of said insurance policy; and the plaintiff notified the defend-
ant of the destruction and loss of said dwelling, household fur-
niture and other articles covered by the said dol-
lar clause in said insurance policy; and defendant's adjuster
and agent visited said property and saw that it was totally
destroyed. That said plaintiff furnished to the defendant full
proof of her loss and damage, and otherwise duly performed
ASSUMPSIT 405
all the conditions and stipulations of said policy or contract
on her part to be performed. That the defendant, the said
company of has refused and still
refuses to pay her, the said plaintiff the amount
of said loss, due and owing to said plaintiff under said policy
or contract of insurance, and has denied and denies all liability
under said policy.
And the plaintiff claims therefore as her damages, the sum
of dollars ($ )
(Michigan)
For that whereas, heretofore, to wit, on the
day of , 19 . . , said plaintiff' was the owner of
certain property hereinafter described, and the said defendant
was an insurance company engaged in the business of fire in-
surance in the state of Michigan and elsewhere; and thereupon,
to wit, on the day of , 19 . . ,
the said defendant did issue to the plaintiff its policy of insur-
ance numbered dated the day of
, 19 . . , w'herein and whereby for a premium of
$ , to said defendant in hand paid by the said
plaintiff', the said defendant did insure the said plaintiff for
the term of one year from and after the day of
, 19 . . , at noon, to the day of ,
19 . . , at noon, against all direct loss or damage by fire, to an
amount not exceeding $ , to certain property described
and fully set forth in said policy of insurance, and described
as foUow's, to wit: (Describe property insured), which said
policy of insurance so covering and insuring said property
above described was duly accepted by plaintiff, and is still held
and retained by plaintiff.
And plaintiff avers that afterward, to wit, on the
day of , 19. ., direct loss and damage by fire oc-
curred to the property above described, damaging the same to
the extent of, to wit, upwards of $
And plaintiff avers that there was other insurance upon the
said property in favor of the plaintiff, and that the pro rata
proportion of such loss under such policy to said defendant
was, to wit, $
And plaintiff avers that due notice of such loss and due and
proper proofs of such loss were furnished to said defendant on,
to wit, the day of , 19 . . , and plain-
tiff in all things conformed to the recjuirements of the con-
tract between plaintiff and defendant. And although the time
allowed by said policy for the payment of said loss has long
since expired, yet the said defendant has wholly refused to
pay said, to wit, $ , or any part thereof, although here-
tofore, frequently requested so to do by plaintiff, to plaintiff's
406 ANNOTATED FORMS OF PLEADING AND PRACTICE
damage $ and interest and costs, and therefore she brings
suit, etc.
1008 Furniture, Narr. (District of Columbia)
For that whereas, heretofore, to wit, on or about the
day of , 19 . . , in the city of
, in the District of Columbia, by a certain policy
of insurance then and there made, for and in consideration of
stipulations named and the payment by the plaintilf to the
defendant of the sum of dollars as premium, the
defendant did insure the plaintiff for the term of
years from on or about the day of
against all direct loss or damage by fire, provided
that such loss was not caused by invasion, insurrection, riot,
civil war or commotion or military or usurped power, or by
order of any civil autliority. or l)y theft, or by neglect of the
insured to use all reasonable means to save and preserve the
property at and after fire, or by an explosion of any kind,
to an amount not exceeding the sum of dollars,
on the following described property named in said policy of
insurance, to wit, household furniture, (Describe property) all
while contained in the story (frame), metal roof
building, and while occupied by the assured as a dwelling and
situated on lot number That by the terms of said
policy the defendant agreed to pay the amount of any such loss,
not exceeding the amount of said insurance at the expiration
of days after the defendant had been furnished
by the plaintiff with the proofs of such loss.
The plaintiff avers that at the time of the making of said
policy of insurance and from thence until the loss and damage
hereinafter mentioned, he was possessed as sole owner of said
insured property in said policy mentioned and thereby intended
to be insured; that the premium in said policy mentioned was
at the time of the making thereof duly paid by him to the de-
fendant; that after making of said policy and whilst the same
was and remained in full force, to wit, on or about the
day of , the said insured property was burned,
damaged, consumed and destroyed by fire, whereby the plain-
tiff sustained loss and damage, to wit, dollars ;
and that although he has in all things conformed to and per-
formed and observed all and singular the stipulations in said
policy mentioned and on his part to be performed and observed
according to the true intent and meaning thereof, and furnished
proof of said loss on or about the day of
in such a form as was acceptable to the defendant, acting
through its general agent, due and formal proof thereof being
by the said defendant, acting through said general agent ex-
pressly waived, the defendant has refused to pay him the said
loss, or any part thereof, and the defendant and its agents have
ASSUMPSIT 407
refused to replace or repair the said insured property which
was burned, damaged and destroyed as aforesaid with property
of like kind and quality or with any property whatsoever, such
refusal on the part of defendant being contrary to the true in-
tent or meaning of the said policy of insurance and of the
agreement of the defendant in that behalf made and set forth
as aforesaid.
And the plaintiff avers that the defendant although often
requested so to do, has refused to perform its said agreement
and has broken the same and to perform the same does still
refuse. (Add common counts)
(Maryland)
(Precede this by common counts) And for that the defend-
ant by its contract in writing, commonly called an insurance
policy, dated , 19. ., and herewith filed, in consideration
of dollars and cents paid by plain-
tiff to defendant, undertook and agreed to indemnify the plain-
tiff against loss or damage by fire to certain property therein
described to an amount not exceeding $ for the term
of years from said date ; and afterwards, to wit, on
, 19. ., and while said policy was in force,
the said property described therein was totally destroyed by
fire; and the plaintiff promptly notified the defendant thereof,
and the defendant's adjuster and agent visited said property
and saw that it was totally destroyed and the defendant waived
the filing by plaintiff' with defendant of the formal proofs of
loss, and refused and still refuses to pay the amount of said
loss, and denied and denies all liability under said policy, and
the plaintiff complied with all the provisions of said policy on
his part, except so far as compliance therewith was waived by
the defendant, and the defendant unjustly refuses to pay said
loss, and said loss exceeded $
Ajid the plaintiff claims $
h
(Precede this by common counts) And for that on the
day of , 19 . . , the said defendant,
by its instrument of writing, otherwise known as an insurance
polic}^. No , in consideration of the stipulations therein
named, and of the sum of $ premium paid to said de-
fendant, did insure and cause to be insured, the said plaintiff,
, for a term of time from the day
of , in the year 19 . . , at noon, to the
day of , 19 . . , at noon, against all direct loss or
damage by fire, except as therein provided, to an amount not
exceeding dollars, upon the household furniture
408 ANNOTATED FORMS OF PLEADING AND PRACTICE
and other household chattels and effects therein mentioned,
situate in the premises No street, ,
Maryland.
That said plaintiff paid to said defendant the consideration
aforesaid, and received and accepted from said defendant the
policy of insurance aforesaid of said defendant.
That on the day of , 19 . . , a fire
occurred in the premises No street, occupied by
said plaintiff, and destroyed and damaged the household fur-
niture, goods, chattels and effects belonging to said plaintiff
covered by said insurance policy of said defendant, to an extent
in excess of said sum of dollars.
That said plaintiff notified said defendant in writing of said
fire, and of his loss, and did otherwise fully and completely per-
form all of the requirements of said policy of insurance on his
part to be performed.
That said plaintiff' has demanded of said defendant the amount
due said plaintiff* by reason of the terms of said policy and his
loss as aforesaid, but that said defendant has failed and re-
fused to pay the same, notwithstanding that more than sixty
days have expired since a full and complete proof of loss had
been furnished to said defendant by said plaintiff.
That by reason thereof said plaintiff has suffered great loss
and damage.
And the plaintiff claims dollars damages.
1009 Furniture and fixtures, Narr. (Fla.)
For that in consideration of the sum of dol-
lars to it in hand paid and payment acknowledged, the said
defendant issued to the plaintiff its policy of in-
surance and thereby promised the plaintiff in the terms of
said policy and upon the conditions thereto annexed, to insure
the plaintiff against loss and damage by fire to
the amount of dollars and to make good unto
said plaintiff' the loss or damage that should happen by fire,
not exceeding the said sum of dollars for the
term of years from the day of
, 19. ., to the .... day of on the
store fixtures and furniture including iron safe while contained
therein to the extent of dollars, said furniture and
fixtures being at that time and at the time the same was de-
stroyed by fire in the store building and located on (Give legal
description) the loss to be paid after days' no-
tice, and proof made by the plaintiff and received by the de-
fendant; and in said policy sundry provisions, conditions, pro-
hibitions and stipulations were and are contained and thereto
annexed, as by a copy of the original policy filed herewith and
made a part of this declaration will more fully appear.
And afterwards, to wit, on the day of
ASSUMPSIT 409
the said store house above mentioned and the store furnishings
and fixtures and trees were totally destroyed and
burned by fire, and damage and loss was thereby occasioned to
the said plaintiff to the amount of
dollars on the store, furniture and fixtures, and
dollars on the trees near said property under such circumstances
as to come within the promise and undertaking of said policy
and to render liable and oblige the said defendant to insure the
said plaintiff to the said amount of
dollars on the property aforesaid; of which loss the said de-
fendant has had due notice immediately after said fire occurred
and sent its adjuster and agent to the scene of said fire to ad-
just and pay said loss; at which time the said adjuster and
agent of the defendant was furnished with all the evidence to
be had as to the cause of said fire and all the other things ap-
pertaining thereto ; and on the day of ,
wdthin days after said fire, the plaintiff furnished
the defendant with formal proofs of loss which the defendant
has kept and has made no objections thereto; and although
all conditions and requirements contained in said policy of in-
surance so issued, as aforesaid, have been performed and ful-
filled and all events and things existed and happened and all
periods of time have elapsed to entitle the plaintiff to a per-
formance by the defendant of said contract, and to entitle the
plaintiff to said sum of dollars, and nothing has
occurred to prevent the plaintiff from maintaining this action,
yet the said defendant has not paid nor made good to said plain-
tiff the said amount of loss and damage aforesaid, or any part
thereof, but refuses so to do.
^^ That the plaintiff has had to employ an attorney at law
to collect the amount due the plaintiff under the terms of said
policy of insurance because of the damage and loss so sustained
by him as aforesaid and because the defendant has failed and
refused to pay the same ; and the plaintiff claims
dollars as a reasonable fee or amount or compensation to pay
his said attorney for being forced by the defendant to collect
said amount so due, as aforesaid, under the terms of said policy
of insurance, which said amount the defendant is required to
pay.
1010 Sav/-mill and plant, Narr. (111.)
For that whereas, the defendant, on the day of ,
19. ., at, to wit, the county of and state of
, made its policy of insurance, and delivered the
same to the plaintiff, and for the consideration therein ex-
pressed promised the plaintiff, in the terms of said policy and
57 In an action upon a fire insur- Bedding, 47 Fla. 228, 232, 233
anee policy, attorney's fees are re- (1904); c. 4173, Act 1893; Tillis v,
coverable under the Florida statute, Liverpool & London & Globe Ins.
the validity of which has been up- Co., 46 Fla. 276.
held. Hartford Fire Ins. Co. v.
410 ANNOTATED FORMS OP PLEADING AND PRACTICE
the conditions thereto annexed, which said policy and the con-
ditions here follow in these words and lif^ures, to wit: (Set out
contract of insurance in Jmcc verba).
And the plaintiff further avers that at the time of the mak-
ing of said policy and from thence until the happening of the
loss and damage hereinafter mentioned, it, the plaintiff, had
an interest in the said property to the amount of the sum in
said policy set out and by defendant insured thereon, and
to the amount of all the insurance on the said property ; and the
plaintiff further avers that on the .... day of ,
19. ., on section (Describe the real estate) in
the county of and state of , on which
said section said proi)erty was situated, the said property was
destroyed by tire, whereby the plaintilf then and there sustained
loss and daiiuige on the said property so insured, as aforesaid,
to an amount much in excess of the sum luentioned in said
policy, and in excess of all of the insurance on the said prop-
erty, which said lire and loss and damage did not happen by
means of any invasion, insurrection, riot, civil war or commo-
tion, or military or usurped power, or by order of any civil
authority.
And the plaintiff further avers that forthwitii, after the hap-
pening of said loss, to wit, on the day of ,
19.., it gave notice thereof to the said defendant, and subse-
quently, to wit, on the day of ,
19. ., and within days from the date of
said fire, the plaintiff delivered to the defendant as particular
an account of said loss and damage as the nature of the case
would admit, and in accordance with the terms and require-
ments of the said policy relating to notice and proofs of loss;
and the plaintiff here avers that the defendant, both liefore
and after the furnishing and delivery of said proofs of loss,
denied that it was in any wise liable, on said policy, for any
part or portion of the loss or damage so sustained by the plain-
tiff as aforesaid.
The plaintiff further avers that neither at the time of the
making and delivery of the said policy, nor at any time after-
ward, was there any other insurance on said property except
that which was provided for, permitted or required in and by
the said policy ; and that at the time of the said fire, the plain-
tiff held other policies of insurance, on said property, as fol-
low^s: (Give number, expiration, the name of the company and
amounts of each policy).
In addition to the above insurance, issued through the agency
of , at , , there was
other insurance to the amount of dollars placed
with and bound by said agency, but the plaintiff is not now
able to give the names of the companies nor the amount of the
respective policies covering said sum of dollars.
The plaintiff' further avers that it has kept and performed
ASSUMPSIT 411
all tliincrs in the said policy contained, on its part to be kept
and performed, and that it has sustained loss and damage by
said tire on said property, in the manner and to the amount
aforesaid; nevertheless, the defendant, tiiough often thereto
recjuested, has not yet paid to the plaintilf that amount, or any
part thereof, but refuses so to do, to the damage, etc.
1011 Stock in trade and furniture, Narr. (Mich.)
For that whereas, on the day of ,
19.., and for a long time prior thereto, the defendant, the
of a corporation,
was engaged in writing fire insurance risks and conducted a
general tire insurance business in the state of Michigan.
That the said defendant had an agency which was conducted
in its behalf by and , in the city
of , in the state of Michigan.
That the said , of , a
corporation, as aforesaid, on the day of ,
19. ., undertook to insure for said , of the
city of , state of I\Iichigan, who is plaintiff herein,
the saloon and restaurant furniture, fixtures and appurtenances,
and stock in trade at the plaintilf's place of business, situated
on the westerly side of street, being number . . . .,
known as the , in the city of and
state of Michigan.
And thereupon the said defendant, the , on the
day of , 19 . , , issued a certain
fire insurance policy, to wit, policy No , and delivered
the same to the said , plaintiff herein, whereby
the said defendant, the in consideration of the
sum of dollars, to it paid by tiie said plaintiff, did
insure the said against any loss or damage by
fire to the extent of dolUirs on the above named
property, more fully described as the saloon and restaurant
furniture, furnishings and fixtures, beer pumps, electric
motor, gas engine, belting, shafting, electric dynamo, elec-
tric switchboard, carbonating machine and all appliances,
pipes and fixtures used in connection therewith, electric light
fixtures, lamps and fixtures, bars and bar furniture, stoves and
ranges, mirrors, pictures, books, tables, chairs, iron safe, glass-
ware, china-ware, silver-ware, plated-ware, ice-chest, partition,
portieres, rugs, sideboards, signs and awnings in and outside
of the building, hot water urn, piano, cash register, nickle-in-
the-slot machines, ornaments, kitchen furniture, and fixtures in
the toilet rooms, and all such other fixtures, utensils and fur-
nishings as wei-e used by the assured in connection with his sa-
loon and restaurant.
Also his stock in trade, consisting principally of liquors,
wines, beers, whiskies, cigars, tobacco, mineral water, provi-
412 ANNOTATED FORMS OF PLEADING AND PRACTICE
sions and restaurant supplies, all of which were contained in
the two-story brick store building and additions thereto situated
on the westerly side of street at No , and
known as the , in the city of , state
of Michigan.
And the said defendant, in consideration of
($• ) dollars to it paid by the said plaintiff, in the said
policy of insurance, undertook and promised to make good to
the said plaintiil", any loss by fire not exceeding the sum of
($ ) dollars as should happen to said prop-
erty above described, from the day of ,
19 . . , at noon, to the day of , 19 . . ,
at noon, the amount of such loss to be paid sixty (60) days after
due notice, ascertainment and satisfactory proof of the loss ac-
cording to the terms and conditions of said policy, which said
premium of ($ ) dollars was duly paid in full
by the said to the of ,
prior to the day of , 19. . .
That on, to wit, the day of ,
19. ., the said policy of insurance being then in full force, the
plaintiff being in possession of the said property hereinbefore
described, and insured by the said defendant, being the said res-
taurant, fixtures, appurtenances, and stock in trade, described
more fully in this declaration and situated at No
street, in the city of , state of Michigan, the plain-
tiff suffered damage by fire of, to wit, ($ )
dollars, from which loss as sustained, the said defendant in its
insurance policy, to Avit, No , agreed to hold the said
plaintiff harmless to the extent of ($ )
dollars, and thereupon the said within sixty (60)
days after the said fire, gave the said defendant notice in writ-
ing of the said fire and the amount of the loss thereby sus-
tained by the said plaintiff, as ascertained ; and proof of same
was duly made in accordance with the provisions of the said
policy, to wit. No , as required by the said defendant :
that more than sixty (60) days have elapsed since the ascer-
tainment and proof of loss as aforesaid.
Plaintiff avers that with the consent of the said defendant,
he carried concurrent insurance of ($ )
dollars.
That by reason of the premises, the defendant, the ,
of , on, to wit, the day of ,
19 . . , at, to wit, the city of , county of
, state of Michigan, became and was indebted to
the plaintiff, , in, to wit, the sum of
($ ) dollars and interest, according to the terms of its
said contract, and in consideration thereof, then and there
promised to pay to the said plaintiff the proportional amount
of said loss, to wit, the sum of ($ ) dollars
and interest thereon ; nevertheless the said defendant neglected
ASSUMPSIT 413
to pay the said plaintiff as aforesaid although often requested
so to do. (Add common counts)
1012 Stock of goods or merchandise, Narr. (Mich.)
For that whereas, the said defendant on the
day of , 19 . . , by its policy of insurance num-
bered , same being a Michigan standard policy issued at
its , Michigan, agency and countersigned by
, agent, did insure said plaintiff against loss or
damage by fire and lightning in the sum of dol-
lars upon'^his stock of and all other goods, wares
and merchandise kept for sale by the assured while located in.
the one story, iron clad building and its additions situate on
lot ."^ of the village of , Michigan,
which said policy of insurance commenced , 19. .,
and expired , 19... That said plaintiff paid a
premium of dollars for said insurance.
That afterwards, on to wit, , 19 . . , while
said policy was in full force and effect, said plaintiff suffered
a loss by 'fire which destroyed and damaged the property cov-
ered by said, and insured against loss and damage by fire and
lightning by said policy of insurance, and being the prop-
erty of said plaintiff, said loss and damage being in the
sum of, to wit, dollars. That said plaintiff fur-
nished proper proofs of loss to said defendant That said
defendant's proportion of said loss and damage which it should
have paid to this plaintiff was, to wit, the sum of
dollars, according to the terms of its said policy of insurance,
and under and by virtue of its promises therein made.
Yet, etc.
For that whereas, the said defendant heretofore to wit, on
the day of , 19. ., at the vil-
lage of , in said state of Michigan, on application
of said , made and delivered a certain policy of
insurance in writing and bearing date the said
day of , 19 . . , whereby said defendant, in
consideration of the sum of dollars ($. . ), in
premium, in hand paid by the said plaintiff to the said defend-
ant, or its duly authorized agent, the receipt whereof was thereby
acknowledged, did insure the said plaintiff, the said ,
against loss or damage by fire to the amount of
dollars, as follows, to wit, dollars on his stock of
merchandise, consisting principally of , and all
other goods, wares and merchandise not more hazardous kept
for sale by the assured not specified in the foregoing, while con-
tained in the frame, shingle-roof building and adjoining and
connecting additions thereto while occupied as a
414 ANNOTATED FORMS OF PLEADING AND PRACTICE
and dwelling, and situated on the of block ,
north side of street, Michigan ;
dollars on furniture and fixtures
while contained in said building, including the iron safe and
cash register; and dollars on his household and
kitchen furniture, useful and ornamental, beds, bedding, linen,
family wearing apparel, plated ware, printed books, (mirrors,
pictures, paintings, engraving and their frames, jewelry in use,
value claimed not to exceed cost), crockery, glass and china-
ware, pianoforte, sewing machine, fuel and family stores, all
contained in said buildnig.
And said defendant, for the consideration aforesaid, did in
and by the said policy, promise and agree to make good and
satisfy unto the said , all such loss or damage,
not exceeding in amount the sura of dollars, as
should happen by fire to the property therein and herein above
specilied, on the day of ,
19 . . at noon to and until the day of ,
19. ., at noon, the said loss and damage to be estimated accord-
ing to the true and actual value of the property at the time
such loss or damage should happen, and to be paid within sixty
days after notice and proof thereof ; and which said policy of
insurance so delivered by said defendant to said plaintiff was
destroyed by fire at the time of the loss by fire of said property
above "described at the time hereinafter mentioned.
The said plaintiff avers that at the time of the making of the
said policy of insurance, as aforesaid, and from tlience until
the loss and damage hereinafter mentioned, he had an interest
in the said insured premises and property to a large amount,
to wit, to the amount of all the money by him insured thereon,
and that afterwards, to wit, on the day of
'...., 19. ., the said personal property, goods
and chattels above mentioned, being the said insured property,
the property in said policy of insurance mentioned, were burned,
consumed and destroyed by fire, which did not happen or take
place by means of any invasion, insurrection, riot, or civil com-
motion, or of any military or usurp powder; whereby the plain-
tiff sustained damage to a large amount, to wit, the amount of
money thereon assured.
And the said plaintiff further avers that by the terms of said
policy of insurance above mentioned, other concurrent insur-
ance of said insured property was permitted, and that the prop-
erty in said policy mentioned, at the time of said fire, (was not in-
sured in any other office or company than defendant's), except
as permitted by said defendant 's policy of insurance ; but that
it was insured, as permitted by said policy of insurance, for the
sum of dollars in the company,
, of at the time of said fire ; (that
said insured property was not insured at the time of the mak-
ASSUMPSIT 415
ing of said defendant's policy in any other office or company
than the defendant's.)
The said plaintiff further avers that the said building, in
the said policy mentioned, was not at any time after the mak-
ing thereof, and during the continuation thereof, appropriated,
applied or used to or for the purpose of carrying on or exer-
cising therein any trade, business or vocation denominated haz-
ardous or extra hazardous, or specified in special rates required
by said defendant, or for the purpose of storing therein any
of the articles, goods or merchandise in the said rates denom-
inated as hazardous or extra-hazardous, and mentioned in the
memoranda of special rates unless otherwise specially provided
for in said policy.
And the plaintiff further avers that he forthwith, after the
said loss, gave notice thereof to defendant, and as soon there-
after as possible, to wit, on the day of ,
19 . . , by mail from the city of , in said
state of Michigan, to the said defendant in the city of ,
in the state of Illinois, and by it then and there duly received
particular account of his loss and damage as the nature of the
case would admit, signed by the plaintiff and by him sworn
to; that said account was in all respects just and true, and
showing in said account the value of the property insured,
and in what manner the building of which the same was con-
tained was occupied at the time of loss, the name of the per-
son having charge thereof and residing therein, and when and
how the said fire originated, so far as the affiant knew or
believed, and his interest in the property insured at the time
of the los^ and damage aforesaid; that annexed to the said
account then and there delivered was a certificate under the
hand and seal of a notary public unconcerned in said loss, therein
stating that he had examined the circumstances attending such
fire, and loss and damage alleged and that he verily believed
that the said insured had hone.stly sustained loss and damage
on the said insured property to the amount claimed in said
affidavit, the same being at least the sum of
dollars.
The said plaintiff further avers, that although he has in all
things observed, performed and fulfilled all and singular the
matters and things which on his part were to be observed, per-
formed and fulfilled according to the form and effect of the
policy of insurance, and altliough he has sustained loss and
damage on occasion of said fire to a large amount, to wit, the
amount of dollars, as aforesaid, yet the defendant
has not paid to the plaintiff the said sum of money, so by the
defendant assured, as aforesaid, and by the plaintiff lost, as
aforesaid, or repaired or reimbursed for said loss sustained by
said fire, aforesaid, although often request so to do, or any part
thereof, and the said loss, and every part thereof still remains
wholly unpaid and in arrear, contrary to the form and effect
416 ANNOTATED FORMS OF PLEADING AND PRACTICE
of said policy of insurance, and to the damage of said plain-
tiff in the sum of dollars ; and therefore he brings
suit, etc.
(Virginia)
For this, to wit, that, heretofore, to wit, on the
day of , 19.., the said defendant caused to be
made a certain policy of assurance in writing, purporting
thereby and containing therein, that in consideration of the
sum of dollars and cents, to it paid
by the said plaintiffs, the receipt whereof the said defendant
thereby acknowledged, and the agreement on the part of the
said plaintiffs to pay all assessments, which might equitably
and ratably be levied upon them by the said defendant, the
said defendant undertook and promised the said plaintiffs that
it, the said defendant, would insure according to the provisions
and plans of hazardous risks, known as class .... in the said
defendant association, the said plaintiffs, against loss or dam-
age by fire or lightning, to the amount of dollars,
and would make good unto the said plaintiffs any such loss or
damage as should happen by fire, not exceeding the said last
named amount of dollars, for the term of
years from the day of , 19 . . , at
noon, until the day of , 19 . . , at
noon, on certain premises, the property of the said plaintiffs,
in the said policy described as "IMerchandise in frame store
, $ situated at ,
county, Virginia;" the said loss or damage to be estimated
according to the actual cash value of the said property at the
time the same shall happen, and to ])e paid by the said defend-
ant within sixty days after due notice and proof thereof, made
by the said plaintiffs in conformity to the conditions of the
said policy, and the amount to be paid should have been deter-
mined upon, unless the said defendant should have given notice
of its intention to repair or replace the damaged property ; and
in the said policy sundry provisos, conditions, prohibitions and
stipulations were and are contained and thereto annexed as by
the original policy, which is filed herewith, wall more fully and
at large appear.
And the said plaintiffs say that before and at the time of
making the said policy of assurance by the said defendant, and
continuously from that time until the day of
, 19. ., the said plaintiffs were interested in the
insured property, in said policy mentioned, and described as
aforesaid, to a large amount, to wit, the amount of
dollars, but that on the aforesaid day of ,
19 . . , the said , one of the plaintiffs, and a partner
in the aforesaid firm of , which was composed of
the said and , sold his interest in the prop-
ASSUMPSIT 417
erty mentioned and described in the policy aforesaid, and con-
sisting of one stock of general merchandise, located at ,
in county, Virginia, and delivered the aforesaid
policy of insurance to the said , the remaining
partner in the said firm of , who at that time
became the sole owner of the aforesaid property, and has been
the sole owner, and in sole possession thereof, continuously,
since, and is now ; and the said stock of merchandise, in the
said policy mentioned, and located at in
county, Virginia, afterwards and between the
day of , 19 . . , at o 'clock
noon, and the day of , 19 . , , at
o 'clock noon, to wit, on the day of ,
19, ., was burned up, and consumed and destroyed by fire, and
damage and loss was thereby occasioned to the said plaintiffs,
to the amount of dollars, in such manner, and
under such circumstances as to come within the stipulation,
promise and undertaking aforesaid of the said defendant in
the said policy contained, and to render liable and oblige the
said defendant to insure the said plaintiffs against loss or
damage by fire, to the amount of dollars, and
to make good to the said plaintiffs any such loss or damage
as should happen by fire, not exceeding the said last mentioned
sum of dollars on the property aforesaid, in
the said policy described, and thereby intended to be insured;
of which said burning and destruction by fire and of the loss
and damage aforesaid thereby occasioned to the said plaintiffs,
to wit, to the amount of dollars, due notice and
proof was afterwards, to wit, on the day of
, 19. ., made by the plaintiff to the said defendant,
and was received at the office of the said defendant in conformity
to the conditions of the said policy. And the said plaintiffs fur-
ther say that they have performed, fulfilled, observed and com-
plied with each and all of the conditions, provisos and stipula-
tions of the said policy on his part and behalf to be performed,
fulfilled, observed and complied with, and has violated none of
its prohibitions, according to the form and effect, true intent
and meaning of the said policy.
Yet, the said plaintiffs say that although sixty days have
elapsed since due notice and proof as aforesaid was made to
the said defendant, as aforesaid, of the said burning and de-
struction by fire, and of the loss and damage, aforesaid, thereby
occasioned to the said plaintiffs, the said defendant has not
paid nor made good to the said plaintiffs the said loss and dam-
age of dollars, or any part thereof, but the
same and every part thereof are wholly unpaid and unsatisfied
to them, contrary to the force and effect of the said policy.
Wherefore the said plaintiffs say that the said defendant,
although often requested, hath not kept with the said plaintiffs
the agreement aforesaid, contained in the said policy, made
418 ANNOTATED FORMS OP PLEADING AND PRACTICE
between it and the said plaintiffs, in that behalf as aforesaid,
but that the said defendant hath broken the same, and to keep
the same with the said plaintiffs hath hitherto wholly refused,
and still doth refuse, to the damage of the said plaintiffs
dollars, which said sum of money in damages is
the relief here prayed for.
And therefore they institute this action of trespass on the
case in assumpsit.
1013 Forfeiture of contract, wrongful, Narr. (III.)
For that whereas, heretofore, to wit, on the
day of , 1 . . . . , at, to wit, the county afore-
said, the defendant was a corporation organized and existing
under and by virtue of the laws of the state of ,
and as such was engaged in the work of channeling or excavat-
ing a certain drainage canal in said state of , and
thereupon and on said first mentioned date entered into a cer-
tain contract or agreement with the plaintiff for the channel-
ing or excavating of that certain portion of said drainage canal
known as, to wit, section , which said contract or agree-
ment was in writing and was in words and figures as follows,
to wit: (Insert copy of proposal, contract, specifications and
bond).
And the plaintiff alleges that after the execution of said con-
tract hereinbefore mentioned between the parties hereto he,
the plaintiff, entered upon the performance of the said contract
and was carefully performing and complying with each and
every requirement imposed upon him by the terms and condi-
tions of said contract until thereafter, and on the
day of , 19 . . , when the said defendant, by
its officers and agents, wrongfully, improperly and erroneously,
as hereinafter set forth, declared the said contract forfeited and
thereby prevented the plaintiff from carrying on the work con-
templated by said contract, and has ever since kept and pre-
vented the plaintiff from performing and carrying on said
work.
And the plaintiff further alleges that, the pretended forfeiture
of said contract by the defendant was improper, erroneous and
false, and that the said defendant had no authority to declare
the same for the reason that the plaintiff was complying in all
things with the requirements imposed upon him by the said
contract, but that the defendant, by its officers and agents in
its behalf, based said pretended forfeiture of said contract upon
a false and erroneous estimate of the amount of work and exca-
vation to be done and made by said plaintiff under said contract,
in that it demanded and required by said estimate that the plain-
tiff should excavate a quantity of rock, glacial drift, earth and
ASSUMPSIT 419
other material which exceeded the requirements of said con-
tract in the sum of, to Avit, per cent ; and said defend-
ant, by its officers and agents, further based said pretended for-
feiture of said contract upon a false, improper and wrongful
method of computing the rate of progi^ess which was to be made
by plaintiff in performing the work under said contract, in this,
that the said defendant ascertained the rate of progress which
should be made by plaintiff by dividing the total amount of
money which was to be paid the plaintiff for the work to be
performed under said contract by the total amount of months
in the period in which said work was to be performed, although,
as the plaintiff alleges, the only true and proper method of esti-
mating the said rate of progress under this contract was to
determine the time needful for the execution of the several in-
dependent parts of the work in a proper and economical man-
ner, that is to say, the number of months of work, and to di-
vide said number of months so ascertained by the number of
months allotted for the doing of the whole work. And the
defendant, by its officers and agents, further based said pre-
tended forfeiture upon its decision that the plaintiff was required
to commence the said work upon the day of
, 19. ., although, as the plaintiff alleges, the true
and only proper date to be taken as the date of commencing
said work under the terms of said contract was the
day of , 19 . . , whereby, and by means of the
premises, the plaintiff alleges the said defendant wrongfully and
improperly declared said contract forfeited, and wrongfully
and improperly kept and prevented the plaintiff from com-
pleting said work under the terms and conditions of said con-
tract.
And the plaintiff further alleges that he claims damages for
the reason that he was obliged to and did lay out and expend
large sums of money in the preparation and prosecution of such
work, and otherwdse in and about the doing of what was neces-
sary and proper to be done under said contract, and for the
loss of great gains and profits which he would have received
and made except for such wrongful forfeiture and breach of
contract by defendant as aforesaid, that is to say, that he had
the means and ability to perform, and was performing, the
work demanded of him by said contract, and was thereby able
and was making a good profit out of said work, to wit, a profit
of, to wit, cents on each cubic yard of glacial
drift so excavated and removed by him, and a profit of, to wit,
cents on each cubic yard of solid rock so exca-
vated and removed by him, and a profit of, to wit,
cents on each cubic yard of dry rubble masonry so built by
him.
And so the plaintiff alleges by means of the premises afore-
said he has been deprived by the defendant of great gains and
profits, amounting to a large sum of money, to wit,
420 ANNOTATED FORMS OF PLEADING AND PRACTICE
dollars, which he otherwise might and would have made had
he been permitted by the defendant to complete and perform
the terms and conditions imposed upon him by said contract.
(To the damage, etc.)
1014 Gaming, action
Assumpsit lies under the Gaming act of Illinois to recover
money, goods, or other valuabh; things, lost, paid, or delivered
to the winner or winners at gaming.^**
1015 Grain transfer contract, Narr. (111.)
For that whereas, heretofore, to wit, on the day
of , 1!). ., the said i)laintitf and the said
defendant, for a valuable consideration, entered into a certain
contract in writing in the words and tigures following: (In-
sert contract in hacc verba.)
And said plaintiff further avers that on, to wit, the
day of , . . . ., the said plaintiff assigned all his
interest in said contract unto the firm of R, which said firm
was composed of said plaintiff A B, and of one M, which said
assignment was ratified and confirmed by said defendant.
And plaintiff further avers that in consideration of the prom-
ises in said contract contained on behalf of said defendant, said
firm of R, to wit, on the day of , ,
with the consent and authority of said defendant, commenced
to erect and build a Grain Transfer House and Hopper Scales,
and all the machinery pertaining thereto, as provided for in
said agreement, on the land described in said agreement, to
wit, in said county, for the purpose of handling,
weighing and transferring in bulk all the grain, mill feed and
seeds which should be transferred from the cars of western and
other connecting railroad lines, to wit, at county
aforesaid, to the cars used by said defendant for transportation
of such grain, mill feed and seeds over its railway to points east
of in said county, as provided in
said agreement with said railway company, which said Transfer
House and Hopper Scales, with all attachments and machinery
adequate for the purpose of weighing and transferring all grain,
mill feed and seeds which could or should be presented for
transfer by said defendant, were completed, to wit, on the
of , , and said R, by reason
of the consideration and promises aforesaid on the part of said
defendant, and wdth the consent, authority and ratification of
said defendant, did thereupon enter upon the business of trans-
58 See, 132, c. 38, Kurd's Statute
1909.
ASSUMPSIT
421
ferring all such grain, mill feed and seeds from ear to ear, and
weighing the same, as provided for in said agreement.
And said plaintiif further avers that said R, could not con-
veniently transfer mill feed through its said Transfer House,
and the right to have such transfer of such mill feed and the
weighing thereof was waived by said defendant.
And plaintiff further avers that said R, to wit, on the
day of , , entered upon the per-
formance of the duties so imposed upon it by said contract,
with the consent and authority of said defendant, and weighed
and transferred all the grain and seeds presented to it at such
transfer house to be transferred and weighed, and so continued
to weigh and transfer all such grain and seeds, until, to wit,
the day of , , and kept and per-
formed all its promises and obligations, and the promises and
obligations of said plaintiff individually under said contract.
And plaintiff further avers that although said firm of R,
kept and performed all things in said agreement contained on
its part or on the part of said plaintiff' to be kept and performed,
nevertheless, the said defendant, though often thereto requested,
has not kept and performed its said promises on its behalf to
be kept and performed.
And said plaintiff' avers that on, to wit, ,
, the said defendant, to wit, at
county aforesaid, abandoned the said contract on its part to be
performed, and neglected and refused to perform the same, and
also refused, without any reasonable or just cause, to be bound
by the same.
And said plaintiff avers that after the abandonment ot said
contract and refusal to perform the same by said defendant,
he, the said M, departed this life, on, to wat, ,
19... ,
And said plaintiff further avers that said ^ and
the said plaintiff have always been ready and willing and have
offered the defendant to continue in the said service and em-
ployment of defendant in weighing and transferring said grain
and seeds as aforesaid as provided in said contract, and to per-
form all the duties required by him or it to be performed
according to the terms of said contract.
And the plaintiff further avers that the weights so obtained
by it in weighing and transferring such grain and seeds con-
tracted for to be transferred through said Transfer
House as aforesaid, are and were of the value of to wit,
per car. And he avers that the number of cars annually trans-
ferred on the track to the cars of said defendant company
amount, to mt, ($ ) dollars.
And he further avers that, to wit, ( )
cars per annum of grain and seeds will continue to be trans-
ferred on said track to the cars of said defendant for and dur-
422 ANNOTATED FORMS OF PLEADING AND PRACTICE
ing the period of time provided in said contract, viz., up to,
to wit, ,
And the plaintiff further avers that the saving to said de-
fendant company in tlie switching, weigliing and transfer of
such grain anil seeds in said agreement referred to through
the methotls and devices of said second party, as set out in
said contract over and above the actual cost of doing the same
work under the ways ami methods used by said tii-st party at
the time of said contract amounts annually to the sum of, to wit,
($ ) dollars.
And the plaintiff further avers that he and the firm of R
were obliged to, and did lay out and expend large sums of
money for work, labor and material necessary to build and
equip said Transfer House, according to the terms of said con-
tract; and that said Transfer House was valuable solely for
the purposes contemplated by said contract of transferring
grain and seeds from car to car, and that in conse(iuence of
said abandonment and refusal of said defendant company to
be bound by the terms of its contract, said Transfer House has
become of no value to the plaintiff and the plaintiff says that
he has thereby suffered damage to the extent of
($ ) dollars.
And the plaintiff further avers that there is now due to him
from said defendant company, on account of such non-perform-
ance of said contract by it, a large sum of money, to wit, the
sum of ($ ) dollars, being the amount of
damage to and amount due said plaintiff* by reason of the breach
of said contract from the date of said defendant's wrongful
refusal to perform said contract on its part to be performed,
as aforesaid.
And the plaintiff further avers that he claims special dam-
ages for loss of profits, which the firm of R, or he as survivor,
would have received, except for such breach of contract, from
the receivers and shippers of grain and seed at ;
and he avers that said R or he as its representative, had a
contract with the receivers and shippers of grain and seed at
for the purchase of the weights of grain and seed,
which said firm, or he as receiver obtained or would have
obtained in transferring grain and seed from the cars of west-
ern railways having their eastern termini at , to
the cars of said defendant railway company, to wit, at
county aforesaid. And he avers that except for the breach,
of said contract by said defendant, said firm, or he as survivor,
would have received large profits, to wit, per
car, from such receivers and shippers of grain and seed at
for the weights, to wit, of the cars of grain and
seed transferred, or which would have been transferred by such
firm, or by plaintiff as survdvor from the cars of said western
railways to the cars of said defendant company, to wit, the
ASSUMPSIT 423
weights of cars per annum, during the unex-
pired term of said contract, to wit, for years.
And plaintiff further avei-s that he claims special damages
for loss of profits which the firm of R, or he as survivor other-
wise would have received, except for such breach of contract,
from western railways having their eastern termini at ,
and he avers that at the time when said contract was entered
into between him, the said A B, and the said defendant com-
pany, it was known to said defendant, or its chief executive
officers, that he, said A B, contemplated as a source of profit
the sale of his weights so obtained or to be obtained to such westr
ern railways, and said plaintiff' avers that except for the breach
of said contract of said defendant, said R, or he as survivor
would have received large profits, to wit, per car
from such western railways, for the weights, to wit, of all cars
of grain and seed transferred or which would have been trans-
ferred by said firm, or by said plaintiff as survivor, from the
cars of such western railways to the cars of said defendant
railway company, to wit, the weights of per annum,
during the unexpired term of said contract, to wit, for
years.
And the plaintiff further avers that although he and the
said firm of R have kept and performed all things in the said
contract contained on liis or its part to be kept and performed,
nevertheless the defendant railway company, though often re-
quested, has not performed said contract, and refuses so to do,
to the damage, etc.
1016 Guaranty of account, Narr. (Miss.)
That on and before day of ,
19. . , the said defendant was engaged in the
private banking business in of , in
the state of , under the name and style of the
bank of That on and before the day and date
aforesaid, there appeared and was on the books of account of
said bank of a certain account or statement of
debits and credits against one who had thereto-
fore been doing business with the said bank of
which said account, or statement of debits and credits, on the
day and date aforesaid, to wit, the day of
, 19 . . , showed that the said
was indebted to the said bank of in the total
sum of dollars, with interest thereon at the rate
of per cent per annum from and after the
day of , 19 . . A true and correct copy of
which said statement of account between the said bank of
and the said is hereto attached,
marked exhibit "A" and made a part of this declaration.
That on the day and date aforesaid, to wit, the
424 ANNOTATED FORMS OF PLEADING AND PRACTICE
day of , 19 . . , the said for and
in consideration of the sum of dollars to him then and
there paid, did sell, assi{,'n, and transfer unto the plaintills and
one jointly all of the assets of every kind and de-
scription belonging to the said bank of including
the account against as aforesaid, and then and
there turned over and delivered to plaintilVs and the said ^
all the books, accounts, and ehoses in action, of said bank of
including the account herein in controversy. A
true and correct copy of which assignment and transfer is
hereto attached, ma iked exhibit "B" and nuule a part of this
declaration.
That by virtue of said a.ssignment and transfer of the books,
assets and ehoses in action of said bank of to
plaintiffs and the said , the said defendant
did then and there on, to wit, the , .
day of , 19. ., impliedly warrant the i)lain-
tiffs and the said that the account here in con-
troversy, marked exhibit "A," was a valid subsisting ol)liga-
tion in his favor against the said to the extent
showing thereby, to wit, the sum of dollai-s, with
interest thereon at the rate of per cent per annum
from and after the tlay of ,
19 . . .
That subsequently, on, to wit, the day of
19 . . , the said did, for a valu-
able consideration to him in hand then paid, assign, set over
and transfer unto the plaintitVs in this action, his entire interest
in and to the assets of the said bank of including
the account here in controversy. A copy of which said transfer
is hereunto attached, marked exhibit "C" and hereby made a
part of this declaration. That thereafter, to wit, on ...
day of , 19. .. the plaintiffs iierein insti-
tuted a certain suit against the said on the ac-
count aforesaid, in the court of county,
having then and there jurisdiction to determine said contro-
versy. A copy of the declaration or petition in such case is
hereto attached marked exhibit "D" and made a part hereof.
That thereafter, on, to wit, the day of ,
19. ., the said defendant i\h'd his certain plea
or answer to said declaration, denying thereby any liability to
plaintiffs on account of the same suit in the declaration or peti-
tion aforesaid, a copy of which said plea or answer is hereto
attached marked exhibit " E " and made a part of this declara-
tion.
That plaintiffs notified the defendant of the pendency of
the said suit and that the same was being contested by the
said
That thereafter said court of
eountv having tried the issue joined between
ASSUMPSIT 425
plaintiffs and said , then and there having juris-
diction so to do, rendered a judgment lor the defendant, in
and by which said judgment it was determined and adjudged
that the said claim was not a valid subsisting claim against the
said , a true and correct copy of which said judg-
ment is hereto attached and marked exhibit "F" and made a
part of this declaration.
Wherefore plaintiffs in this action say that on, ,
to wit, the day of , 19. .,
the said claim or account of said bank of against
the said , which was then and there assigned and
transferred by the said defendant as aforesaid,
was not a valid subsisting claim against tlie said
, to the amount shown thereon, or to any part, as
determined and adjudged by the said court of
county , and that the said defend-
ant 's implied warranty has been breached, to the damage, etc.
1017 Guaranty of contract, Narr. (111.)
For that whereas, on, to wit, in consideration
that the plaintiff would make for tlie to wit,
pictures at the price of, to wit, and wouUl deliver
to the said pictures at a certain time thereafter,
to wit, on or before , the said prom-
ised to accept of it, the plaintiff, said pictures when the same
should be so made and delivered and to pay it the said price
for tiie said pictures in two promissory notes of said
each for the sum of , payable on
and endoi-sed by the defendant by the name and
the defendant at the time for the making of said contract, in
writing guaranteed the faithful performance and fulfillment
of the said contract by the in consideration of
the promise of the plaintiff to make said pictures for said
which said agreement between the plaintiff and
said .*.'.*.'.' with the guarantee thereof by the defendant
were in the words and figures as follows, to wit: (Insert copy
of agreement and guarantee).
And the plaintiff avers that it did afterwards, to wit, on
there made the said pictures for the
and thereupon then and there was ready and willing and offered
to deliver the same to it, and did deliver the same to the .
and requested it to accept and pay for the same as aforesaid.
And the plaintiff avers that although it has in all respects com-
plied with said contract and made said pictures in all respects
in accordance with said contract and delivered the same within
the time and at the place mentioned in said contract, yet neither
the nor the defendant, did, nor would then or at
any other time, pay the plaintiff for said pictures the price
aforesaid, or any part thereof, or give or deliver to the plain-
426 ANNOTATED FORMS OF PLEADING AND PRACTICE
tiff the aforesaid notes of the endorsed by the
defendant as aforesaid, but to do so both the said
and tile defendant have hitherto refused and still do refuse,
to the damage, etc.
1018 Guaranty of notes, Narr. (111.)
For that whereas on, to wit, the day of ,
19. ., the plaintiff by its salesman, made a
proposition in writing to of in the
state of , to furnish certain articles and machinery
in said proposition mentioned, by the plaintiff to the said
, which proposition is in the words and figures
following, to wit: (Set out proposition).
And plaintiff avers that the said upon, to ^nt,
the day of liK . , accepted
the said proposition, and thereupon on the day last aforesaid,
in considci-ation that the phiintiff, at the request of the defend-
ant, would approve the saiil proposition aforesaid and furnish
the articles of machinery in tlie siiid proi)osition mentioned,
and would in the manner and at the time in the said proposi-
tion mentioned, and would accept the said notes
therefor executed in conformity with said proposition, tlie said
defendant, by his agreement in writing then and there made,
executed and delivered to the plaintiff, promised the plaintiff
to stand responsible for the said notes so to be executed by the
gaid , as they should mature, if the said
should fail to make payments thereon at the time specified in
said notes respectively, for payment; which said promise so
made to the plaintiff, is in writing and is in the words and fig-
ures following, to wit: (Set out guaranty).
And the plaintiff avers that thereupon it, in consideration
of the promise of the defendant, in his said writing contained,
afterwards, to wit, on the day of ,
19 . . , at its office in , in the state of ,
approved the said proposition, and thereupon, entered upon the
performance of the contract so entered into by and between
plaintiff and said
Plaintiff' further avers that on or before ,
19. . it furnished and shipped f. o. b. cars at
to at , Michigan. (Describe the
machinery that was shipped) ; that the common carrier refused
to ship said articles so loaded at , as aforesaid,
unless the freight thereon was prepaid ; and that plaintiff there-
upon prepaid the freight thereon, from to
Plaintiff further avers that the defendant, well knowing that
the said articles so shipped from as aforesaid,
had not been shipped on or before on .
by his instruction in writing, directed the shipment of said
articles ; that upon the arrival at , of the articles
AssuMPsrr 427
so shipped from , as aforesaid, the defendant
accepted said articles from the common carrier, and thereafter
paid the plaintiff the freight so prepaid thereon.
Plaintilf further avers that all of said articles so furnished
and shipped by it, as aforesaid, were constructed of good
material and in a workmanlike manner and were so furnished
in good shipping order.
And plaintiff avers that aftenvards, to wit, on the
^^y of , 19. ., the said made,
executed and delivered to plaintiff, his certain
promissory notes, each bearing date and each for
the sum of dollars, payable to the plaintiff
^t , and each bearing interest at the rate of
per cent per annum, until paid, the first due in
months after date, and second and third due, respectively, in
months after date ; which said notes, so executed
as aforesaid, were submitted to the defendant, by the said
; and the defendant thereupon directed the sign-
ing and delivery thereof by the said to the plain-
tiff, copies of which notes are hereto attached.
Plaintiff further avers that although the date of maturity
of the first of the said notes has long since ehipsed, that the
sa^d has not paid nor caused the same to be paid,
nor any part thoreof, nor the interest thereon, nor any part
thereof, whereof the defendant had notice; yet the defendant
has not paid, nor caused the first of the said notes nor any
part thereof, nor the interest thereon, nor any part thereon,
to be paid to the plaintiff, but refuses so to do, to the damage
of the plaintiff of dollars; and therefore it brings
suit, etc.^^
1019 Guaranty of shares of stock, Narr. (111.)
For that whereas, a certain A P, on, to wit, the
t^ay of , 1...., at the city of '/in
the county of , and state of , made
and entered into and delivered to the plaintiff a certain agree-
ment in writing and under seal, in and by which said agree-
ment, after reciting the sale to the plaintiff hy said A P of
shares of the capital stock of the
company for dollars cash, it was provided that
the purchase of said stock by said plaintiff and the sale thereof
by said A P was made upon the condition that if at any time
between days after the date of said agreement
in writing, to wit, , 1 . . . ., and ,
59 Phoenix Mf^. Co. v. Bogardus.
231 111 528 (1907).
428 ANNOTATED FORMS OF PLEADING AND PRACTICE
1 , the said plaintiff should need the said sura of
dollars, and because of said need it should be imperative that
he, the plaintiff, sell and dispose of said shares of stock, then
the plaintiff therein and tlierchy agreed tliat before offering
said stock to any other person whatsoever he would sei-ve a
sixty-day notice upon said A P, reciuesting him to take up all
of said stock for exactly the same sum by liim paid therefor,
to wit, dollars, and in consideration of said sale
therein made by said A 1' to the plaintiff, the said A P therein
and thereby expressly agreed to accept said notice and to take
up within said sixty days all of said shares of stock and repay
to the plaintiff the said sum of , and the said de-
fendant, in consideration thereof, by his certain agreement in
writing, signed by him and sealed 'with his seal, did promise
and agree to and with the said plaintiff that in the event that
the sixty-day notice mentioned in said agreement with said A
P was served upon said A P and the said A P failed to take
up said stock in said agreement mentioned, then and in that
case the said C 1) Iherein and thereby agreed and promised to
take up said stock and j)ay the plaintiff therefor the sum of
And the plaintift' avers that afterward, to wit, the
day of , 1 , he, the said
plaintiff, was in need of said , and because of
said need it was imperative that he sell and dispose of said
shares of stock, and that before offering said shares of stock
to any other person whatsoever he, the said plaintiff, served a
sixty-day notice upon the said A P in accordance with the
terms of said agreement, retpiesting him, the said A P, to take
up said shares of stock for exactly the same sura paid by the
plaintiff therefor, to wit, , and requesting said
A P to repay to said plaintiff the said sum of ;
that the saidA P then and there accepted said notice by prom-
ising the plaintiff to take up all of said shares of stock and
repay to said i)laintiff the said sum of , within
sixty days thereafter.
And tlie plaintiff' further avers that at the time of said notice
to said A P and the promise of said A P to take up said stock
and repay the plaintiff said sum of , as aforesaid,
and ever'since that time, the said plaintiff was, and he now is,
ready, able and willing to give up and surrender the certificate
for the shares of stock hereinbefore mentioned to the said A P
or the said defendant whenever either the said A P or said
defendant should take up said stock and repay the plaintiff
therefor the said sum of ; that at the expiration
of said sixty days the plaintiff requested the said A P to take
up said shares of stock and repay to him the said sum of
according to the terms of said agreement ; but
the said A P did not then or at any other time before or after-
ward pay the plaintiff the said sum of dollars, and
ASSUMPSIT 429
did not then or at any other time take up said shares of capital
stock, or any portion thereof. Thereupon the plaintiff requested
the said defendant to take up the said shares of stock and pay
to the plaintiff the said sum of according to the
said agreement in writing of said defendant ; yet the said
defendant has not taken up said shares of stock and paid the
plaintiff' said , but refuses so to do, to the damage,
etc.60
1020 Heirs and devisees ; declaration, requisites
In a creditors' action against heirs or devisees brought under
the statute, without joining the personal representative, the
declaration must set forth the facts which authorize the bring-
ing of the suit,^'! that the personal property which belongs to
the estate is insufficient to discharge the just demands against
it, that certain real estate descended to the heirs,'^^ ^j^^ either
that judgment had been obtained against the personal repre-
sentative and that there were no assets in his hands to satisfy
it according to statute, or, that the estate was not administered
upon within one year from the death of the testator or intestate
as is reiiuired by statute.*^^ The common counts in assumpsit
are insufficient to sustain an action against heirs or devisees.^^
1021 Indemnity bond as salesman, Narr. (111.)
For that whereas, heretofore, to vnt, on and before ,
19. ., and from thence hitherto, the plaintiff was and is carry-
ing on and conducting a wholesale grocery business in the city
of , county of , and state of
, and in the operation, conduct, and management
of its business, employed salesmen to solicit sales of its goods,
and merchandise ; and that, on, to wit, the day of
19 , ., at, to wit, the city of
in, to wit, the county of , and state of .,
aforesaid, one D. was employed by the plaintiff as traveling
salesman for the plaintiff and otherwise, and in consideration
of such employment, and of the sum of dollars
($ ) to the defendants in hand paid, the said defendants
on, to wit, the day of 19 . . ,
at said county and state, made, executed, and delivered to the
«o Wolf V Powers, 241 111. 9 ^3 Hoffman v. Wilding, 85 111. 453,
(1909). 456 (1877); Sec. 12, c. 59, Eev.
61 Ryan v. Jones, 15 111. 1, 6 Stat. (111.).
(1853) ; McLean v. McBean, 74 111. 64 McLean v. McBean, 74 111. 134,
134, 137 (1874). 137.
62 Guv V. Gericks, 85 111. 428, 430,
431 (1877).
430 ANNOTATED FORMS OF PLEADING AND PRACTICE
plaintiff. . their written obligation, substantially in words and
figures as follows: (Insert personal service bond) ; which bond
was then and there, on, to wit, the day of ,
19. ., at the city of , in the said county aiid
state, executed and delivered to and accepted by the said plain-
tiff. In consideration whereof, and relying upon the said bond
aforesaid, the plaintiff did then and there, on, to wit, the
day of , 1'^ • • , employ the
said D as its traveling salesman, and otherwise, as aforesaid,
and said D continued and remained in the employ of the said
plaintiff until, to wit, the day of ,
19...
And the plaintiff avers that after the making and delivery
of said writing obligatory, as aforesaid, and before the said
day of , !!•.., and while the
said D was still so in the employment of the plaintiff afore-
said, the said D became indebted to the plaintitl' in a large sum
of money, to wit, in the sum of, to wit, dollars
($ ), for moneys advanced by plaintiff to said D, and in a
like amount for goods, wares and merchandise by the plaintiff
sold and delivered to said D, and in a like sum for attorneys'
fees incurred and paid by plaintiff, and in a like sum for interest
on divers sums of money during that time furnished by the plain-
tiff' to said 1), all of which said D has neglected to pay, although
often requested; by means whereof, and by reason whereof,
the defendants became liable to pay the plaintiff, whenever
thereunto demanded, the sum of, to wit, , dollars
($ ) ; and being so liable, then and there at, to wit, the
county aforesaid, promised to pay the plaintiff whenever so
requested the said sum of, to wit, dollars ($ ) ;
yet, etc.
1022 Indemnity bond to sheriff, Narr. (111.)
For that whereas in the year , said , was
sheriff of the county of , in the then territory of
, and was performing the duties pertaining to his
said office, and at the term co-part-
ners doing business as defendants herein, sued
out of the district court of the judicial district of the
county of in the said territory of ,
a certain writ of the people called a writ of attachment, by
which said writ the said , sheriff as aforesaid,
was commanded to attach so much of the estate, real or personal,
of co-partners doing business as to
be found in said county as should be of value sufficient to satisfy
said writ; and that afterwards, by virtue of said writ, said
, sheriff as aforesaid, then and there seized certain
goods and chattels of the said for the purpose of
satisfying the claim of said
ASSUMPSIT 431
And plaintiff further avers that after the attachment of said
goods by the said , sheriff as aforesaid, under said
writ of attachment in said suit of against
one claimed to have the right of possession of
said property so levied on as aforesaid, by virtue of a certain
chattel mortgage made, executed and delivered by said
to said , dated , upon and covering
said property taken by said sheriff as aforesaid,
to secure the sum of dollars ; and that said
m^de a demand upon said , sheriff
as aforesaid, to deliver to him, the said said goods
so levied upon by said , sheriff as aforesaid, as
the goods of , but said being in-
structed by the defendants, not to deliver said
goods to the said the said defendants, by the name
of at the request of said and accord-
ing to the statute in such case made and provided, to protect
the said from all damages, costs, expense and
trouble of any nature whatsoever which he might incur by the
holding of said goods so levied on in said case of
against after the demand so made by said
for said goods, executed and delivered to said
a certain indemnifying undertaking as follows: (Insert
copy of bond.)
In and by means of which writing the defendants then and
there faithfully promised, undertook and agreed that they, the
said defendants, would at all times and forever thereafter keep
said harmless and indemnified of, for and against
said claim of said and all costs, charges, trouble
and expense of any nature whatsoever, to which he might be
put by reason of such levy and sale, or either; and the said
confiding in said promise and undertaking of
the defendants, refused to deliver said goods and chattels so
attached by him the said sheriff as aforesaid,
under and by virtue of said writ of attachment issued out of
said district court of the judicial district
of the county of , in the territory of
, at the suit of said to the said
, but retained the same in his, the said
possession ; and thereafter certain proceedings were had in said
district court aforesaid, whereby the attachment of said
against the said was sustained, and
the said goods so levied upon by said sheriff as
aforesaid, in said suit to satisfy the said claim of ,
were sold under the order of said district court of the
judicial district of county, in said territory of
^ and the sum dollars was realized
by said sheriff as aforesaid for said goods.
And that thereafter in the district court of the
judicial district of the county of , in the territory
432 ANNOTATED FORMS OF PLEADING AND PRACTICE
Qf said commenced an action
against s<iid ' for the conversion of the said goods
so taken and seized by said on the writ of attacli-
ment issued in said suit of against
by the seizing of said goods under said writ of attachment
in said action of against and
by the holding of said goods after demand was made on said
sheriff as aforesaid, by said for the
possession of said goods; and that the value of the goods in
controversy in said action of . against • .
was the value of said goods seized by said , sheriif
as aforesaid under and by virtue of said writ of attachinciit
issued in said case of against , which
were the goods for the taking and holding possession of which
by the said , sheriff as aforesaid, the said
in and by their said bond hereinbefore set forth undertook and
agreed to hold the said , sheriff as aforesaid,
harmless and indemnified.
And that thereafter such proceedings were had in said suit
of against that a judgment was
rendered in said district court of the judicial dis-
trict of the county of , in siiid territory of
, in said action of said against said
'. in favor of said and against said
[[[ for the sum of , with legal intei-est
thereon since the day of and costs
and disbursements; and in order to satisfy said judgment and
pay his attorney's fees and other necessary and unavoidable
expenses in said suit incurred by him, the said
was compelled to pay out and expend, and did pay out and
expend a large sum of money, to wit,
That at the time of the occurrences hereinbefore described,
there was in force in the territory of a statute in
the words and figures as follows, to wit: (Insert copy of
statute). That said statute remained in full force and effect
thereafter until the territory of wvas admitted as
one of the states of the United States, when the following stat-
ute went into force : (Insert copy of statute).
Nevertheless, the said defendants not regarding their said
promises, undertakings and agreements, though often requested
so to do, have not yet repaid to the said or to the
plaintiff, the administrator of the estate of said ^
said sum of $ or any part thereof, nor have they in any
manner indemnified the said or the plaintiff, the
administrator of the estate of said on account
of having paid the same, but have hitherto wholly neglected
and refused to pay the same, and still do so neglect and refuse
ASSUMPSIT 433
to do, to the damage of the plaintiff of the sum of $ for
which he brings his suit, etc.^^ '
1023 Insurance, contract, ambiguity
Ambiguous or doubtful provisions of an insurance contract are
interpreted against the insurer, but this does not authorize a
perversion of language for the purpose of creating an ambigu-
ity where none exists.^*^
1024 Insurance, form of action
Since the statutory provision abolishing common law distinc-
tions between sealed and unsealed instruments as controlling
the form of action, an action of assumpsit is appropriate on a
sealed policy of insurance.*^ ^
1025 Insurance, parties
The surviving beneficiary may bring an action upon an in-
surance certificate without joining the administrator of the
decedent.68 A benefit certificate that has been made payable
to "children," does not include children of deceased children,
or grandchildren, for in Illinois, the beneficiary has no vested
right or interest in the contract between the mem])er and the
benefit society, and the statute of Descent is inapplicable.^^
1026 Insurance; declaration, requisites, proof
In declaring upon an insurance policy, all precedent acts
or conditions should be set out and performance should be
averred, either in terms or in substance showing a right of re-
covery, omitting all conditions subsequent to the right of re-
covery and all acts to be done by the insurerjo An allegation
that the plaintiff has performed all of the conditions, etc., refers
to conditions which have not been waived.'^ The averments of
performance in a declaration may be general, under Florida
practice.'^2 ^ requirement in Michigan that a declaration on
05 Meyer v. Purcell, 214 ni. 62 "o Rockf ord Ins. Co. v. Nelson 65
^ r«n^- r. ■ . .rr ^^- ^^^ ' ^'^^'^ ""• Liverpool & Lon-
C6 Crosse v. Kni;rhts of Honor, 254 don & Globe Ins. Co., 46 Fla ''78
111. 80, 85, 86 (1912). 7i Levy v. Peabody Ins Co., 10 W
G' Rockford Ins. Co. v. Nelson, Va. 560, 565 (1877)
65 HI. 415, 424 (1872). 72 Tillis v. Liverpool & London &
«8 Jones V. Knig:hts of Honor, 236 Globe Ins. Co.. supra.
111. 113, 117 (1908).
69 Martin v. Modern Woodmen,
253 111. 400, 403 (1912).
434 ANNOTATED FORMS OP PLEADING AND PRACTICE
an insurance policy need not set forth the policy in haec verba
does not dispense with the necessity of proving such policyJ^
1027 Instalments
Any number of instalments due upon an instrument may be
declared for in one and the same count."*
1028 Interest, foreigfn laws, Narr. (HI.)
And whereas, also, the said defendant, to wit, on tlie first
day of , was indebted to the said plaintiff in tlie
further sum of, to wit, dollars lawful
money of the United States for interest upon and for
the forbearance of divers other sums of money before that time,
and then due and owing from the said defendant to the said
plaintiff, for, to wit, interest on the sum of, to wit,
and dollars, the amount due from said defendant
to said plaintiff for cattle sold and delivered by said plaintiff
to said defendant, on and before to wit, under
and in accordance with said contract in said count
mentioned and set out — said interest being due at the rate of
per cent per annum from to wit,
, under and by virtue of the law and statute of
the state of , in force upon said day
of , and from thence hitherto, — said law and stat-
ute to be found in, to wit, section .... of chapter . . . ., of the
compiled statutes of enacted at the regidar
session of the legislative assembly of ,
which said law and statute of the state of , is in
the following words, to wit: (Insert pertinent section).
And being so indebted to the said plaintiff, the said defendant
in consideration thereof, afterwards, to wit, on the same day
and year, and at the place aforesaid, undertook and then and
there faithfully promised the said plaintiff well and truly to
pay unto the said plaintiff the sura of money last mentioned
when the said defendant should be thereunto afterwards
requested. Nevertheless, etc.'^^
1029 Judgment; merger of judgment debtor, Narr. (Mich.)
For that whereas, hereofore, to wit, on the
day of , 19. ., the circuit court of the United
States for the district of , at a reg-
ular term of said court holding at the city of ,
73 Morley v. Liverpool & London v. Buekmaster, 1 Scam. 447, 450, 451
& Globe Ins. Co. 85 Mich. 210, 217 (1838).
(1891). 75 Morris v. Wibaux, 159 111. 627
74 Consolidated Coal Co. v. Peers, (1896).
150 111. 344, 349 (1894); Godfrey
ASSUMPSIT 435
in the state of , in a certain cause therein pending
wherein the plaintiff herein was plaintiff, and the said J, a
corporation organized under the laws of the state of Michigan,
was defendant, awarded to the plaintiff' a final judgment against
the said J in the sum of, to wit, dollars damages,
being the amount then and there adjudged to be due to the
plaintiff in said action on account of the non-periormance of
certain undertakings of the said J, as well as the further sum
of, to wit, dollars and cents for the
costs and charges of the said plaintiff by him about his suit in
that behalf expended, as by the records and proceedings thereof
remaining in said court more fully appears, which said judg-
ment still remains in full force and effect and has not been
reversed, satisfied or otherwise vacated.*
And the plaintiff avers that, before the rendition of said
judgment, but after the cause of action upon which the same
was based had accrued to the plaintiff, to wit, on the
day of , 19. ., said J, W, and certain other corpo-
rations unknown to the plaintiff, all of which were organized
under the laws of the state of ^Michigan, became and were
merged, consolidated and amalgamated into a certain other
corporation organized under the laws of the state of Michigan,
to wit, C.
And the plaintiff avers that afterwards, to wit, on the
day of , 19 . . , said C became and
was merged, consolidated and amalgamated with and into the
defendant herein, M.
And the plaintiff avers that said C was in law and in fact
a consolidation, merger and amalgamation of the said J and
W and other corporations unknown to the plaintiff, and that
the defendant herein is in law and in fact a consolidation,
merger and amalgamation with said C; and the plaintiff avers
that since the respective consolidations, mergers and amalga-
mations, said J and said C have wholly ceased to do or trans-
act any business, that neither of said corporations have any
property, assets or franchises of any kind or description and
are wholly insolvent and without property or assets of any
description with which to pay and discharge their respective
debts and obligations. That all of said property, assets and
franchises of both of said corporations are now owned, pos-
sessed, used and occupied by the defendant herein by virtue
of said several and respective mergers, consolidations and amal-
gamations as aforesaid.
2. (Consider first count to star as here repeated the same as
if copied in words and figures.)
And the plaintiff avers that before the rendition of said judg-
ment, but after the cause of action upon which the same was
based, had accrued to the plaintiff, to wit, on the
day of , 19 . . , said J, by certain mesne
436 ANNOTATED FORMS OF PLEADING AND PRACTICE
conveyances assigned and transferred to the said C, all of its
property, assets and franchises of every kind and descrij)tion.
That the only consideration for said assigniiieut and transfer
aforesaid was the issue and delivery to bondholders of said J,
of the said bonds of said C, in exchange for and in substitu-
tion of the bonds of said J, and also the issuance and delivery
to the stockholders of said J, of the stock of said C, in exchange
for and to take tiie place of the stock held by said stockholders
in said J; and that no other or further consideration was paid
by said C, to or received by the said J.
And the plaintiff further avers that, afterwards, to wit, on
the day of , 19 . . , the said C, assigned
and transferred all of its property, assets and franchises of
every kind and description, including the property so received
by it as aforesaid from the said J to M, the defendant herein.
That no other or further consideration was paid by said defend-
ant to said C than the issuance and delivery to the bondholders
of the said C bonds of said dt^fendant in exchange and to take
the place of the bonds of said C, and of the issue and delivery
of stock of said defendant to the stockholders of said C in
exchange and to take the place of the stock held by the stock-
holders in the said ('.
And the plaintiff further avers that since the said several
transfers and assignments as aforesaid the said J and the said
C have wholly ceased to do or to transact any business and
that neither of said corporations have any property, assets or
franchises of any kind or description, but are wholly insolvent
and without any means whatever with wliich to pay and dis-
charge their respective debts and obligations. That all of said
property, assets and franchises of both of said corporations,
to wit, J and C, are now owned, possessed, used and occupied
by the defendant herein by virtue of said several assignments
and transfers aforesaid, and for no other or additional con-
sideration than the exchange of said stocks and bonds afore-
said.
3. (Consider first count to star, as here repeated, the same
as if copied in words and figures.)
And the plaintiff avers that before the rendition of said
judgments, but after the cause of action upon which the same
was based had accrued to the plaintiff, to wit, on the
day of , 19 . . , the said J transferred
and assigned to C all of its property, assets and franchises of
every kind and description, and that in consideration of said
transfer and assignment said C promised and agreed to and.
wdth said J that it, said C, would pay and discharge all claims,
demands, judgments and causes of action of every kind and
description then or thereafter arising or owing by the said
J, and particularly said C promised and agreed to and with
said J and the plaintiff herein that, in consideration of said
ASSUMPSIT 437
assignment and transfer, it, said C, would pay and discharge
the claim and judgment of the plaintiff hereinbefore mentioned.
That no other consideration was made or given by the said C
for such assignment and transfer aforesaid except the promise
and agreement aforesaid.
And the plaintiff further avers that, afterwards, to wit, on
the day of , 19 . . , the said C as-
signed and transferred all of its property, assets and franchises
of every kind and description to the defendant herein, M.
That, in consideration of said assignment and transfer as afore-
said of all property, assets and franchises of said C to the de-
fendant herein, the said defendant promised and agreed to and
with the said C and the plaintiff herein that it would pay and
discharge all claims, demands, judgments and causes of action
of every kind and description owned by the said C, and par-
ticularly did the said defendant herein promise and agree with
the said C and the plaintiff herein that it would pay and dis-
charge the claim and judgment of the plaintiff hereinbefore
mentioned in consideration of the assignment and transfer as
aforesaid.
And the plaintiff further avers that since said several assign-
ments and transfers as aforesaid said J and C have ceased
to transact any business and that neither of said corporations
have any property, assets or franchises of any kind or descrip-
tion with which to pay and discharge their respective debts
and obligations. That they are wholly insolvent and without
means of any description whatever; that all of said property,
assets and franchises of both of said corporations are now
owned, possessed, used and occupied by the defendant herein
by virtue of said several assignments and transfers as afore-
said; and that no other or further consideration was paid by
the defendant herein.
By means whereof, the said defendant became and was in-
debted to the plaintiff upon said judgment, and being so in-
debted, the said defendant afterwards, to wit, on the
day of , 19 . . , in consideration of
the premises, promised the plaintiff to pay him the said sev-
eral sums of money hereinbefore mentioned when it, the said
defendant, should be thereunto afterwards requested. Never-
theless, etc.
1030 Lease, Narr. (111.)
For that whereas, heretofore, to wit, on the
day of , 19 . . , at , county of
, and state of , the said plaintiff, by
name and style of , demised to the said defendants
by the several names of and , a
certain messuage and premises with the tenements and
appurtenances thereunto belonging, situate in the city of
438 ANNOTATED FORMS OF PLEADING AND PRACTICE
, county and state aforesaid, being the
floor, known and designated as the floor of the
apartment building, numbers ave-
nue, to have and to hold the same to the said defendants for a
certain term, to wit, for and during the term from the
day of , li). ., to the
day of , 19 . . , they yielding and paying
therefor, during the said term to the said plaintiff, the rent of
dollars, that is to say, on the flrst day of each
and every month during said term, the sum of .
dollars by even and e(iual portions; by virtue of which said
demise, said defendants entered into possession of said properly
with the appurtenances and became and were possessed thereof
from, to wit, the said day of ,
19. . ; that the said demise is still in full force and effect; and
that a large sum of money, to wit, the sum of dol-
lars of the rent aforesaid for the space of months,
ending, to wit, on the day of j " /. ' ' i '
19.., became and was due and payable from the said detend-
ants to the said plaintiff, and still is in arrears, and unpaid to
the said plaintiff, to wit, at , in the county of
, and state aforesaid. By reason whereof, and
by force of the statute in such case made and provided, said
defendants became liable to pay to said plaintiff the said sum
of money, rent as aforesaid, in the said lease specified according
to the tenor and effect of the said lease; and being so liable,
said defendants, in consideration thereof, afterwards, to wat,
on the same day and year last aforesaid, and at the place last
aforesaid, undertook and then and there faithfully promised
said plaintiff well and truly to pay unto said plaintiff said sum
of money, rent as aforesaid, in the said lease specified, accord-
ing to the tenor and effect of said lease. Yet, etc.
For that whereas, to wit, on the first day of ,
19 . . , by a certain lease in writing then and there made between
the plaintiff of the one part, and 0, a corporation, etc., of the
other part, the plaintiff demised and leased unto said 0, and to
its successors and assigns, the following described premises, to
wit (Describe property), which said premises were to be occu-
pied for a saloon, beer garden and dwelling, and for no other
purpose; and in and by said lease said was to have and to
hold the said premises to itself and its successors and assigns
from the day of , 19 . . , to the . .
day of , 19..,, yielding and paying to the
plaintiff therefor the sum of ($ ) dollars
in monthly instalments of ($ ) dollars m
advance upon the first day of each and every month of said
term, at the ofiBce of the plaintiff in And said
ASSUMPSIT 439
0, for itself and for its assigns, did thereby then and there
covenant and promise with the plaintiff, his heirs, representa-
tives and assigns, that it would well and truly pay or cause
to be paid to the plaintiff, his heirs, representatives and assigns,
the said rental in monthly instalments of dol-
lars each in advance, in accordance with the conditions of said
lease; and said further covenanted, promised and agreed with
the plaintiff that it would pay its portion of the water taxes
levied or assessed against the said premises during the term
of said lease ; a copy of which lease, Avith the endorsements and
assignments thereof, is hereto attached, marked exhibit "A,"
and made a part hereof.
And the plaintiff avers that afterwards, and on, to wit, the
day of , 19 . . , said did, for a
valuable consideration, duly sell, assign, transfer and set over
in writing all of its right, title and interest in and to said lease
to A, the defendant herein, and to its successors and assigns,
in consideration of said assignment by said to the defend-
ant, and of the consent to such assignment by the plaintiff, in
writing, which assignment and consent were duly accepted by
the said defendant, said defendant entered into the possession
and complete control of the said demised premises as of its
own property, in accordance with the terms and conditions
of the said lease hereinbefore referred to ; and by means whereof
the defendant did covenant, promise and agree to and with the
plaintiff' to keep and perform any and all of the covenants,
terms and conditions in the said lease contained, and did also
further promise, covenant and agree to pay, or cause to be paid
to the plaintiff's or to his heirs, representatives and assigns,
the several sums of money that might become due and payable
under the terms and conditions of said lease, and in accordance
with the agreements therein contained, upon the day or days
therein named. By reason thereof, the said defendant thereby
bound itself, its successors and assigns, to keep and perform
any and all of said covenants, terms and conditions in said lease
contained.
And in consideration of the said assignment of said lease by
said to the defendant, the consent to such assignment by the
plaintiff, the acceptance of said lease and the assignment there-
of, as aforesaid, by the defendant on, to wit, the day and year
last aforesaid, the defendant became and was possessed of the
said premises, to the same extent and under the same terms
and conditions as those possessed by said 0, prior to the time
of said assignment; that in pursuance of such assignment and
the acceptance thereof, as aforesaid, and on, to wit, the day and
year last aforesaid, the defendant entered into the possession
of and control over the said demised premises in the said lease
specified as of its own premises, and the said defendant con-
tinued to use, occupy and enjoy the said premises and the rents,
issues and profits thereof, from, to wit, said last named day,
440 ANNOTATED FORMS OF PLEADING AND PRACTICE
without interruption or hindrance thereof on the part of the
plaintiff or of his representatives or assigns until the full termi-
nation of the term of said lease and until, to wit, the
day of , 19. . .
Yet, the plaintiff avers, that after the making and execution
of the said assignment of the said lease, as aforesaid, by said O
to the said defendant, and w'ith the consent of the plaintiff, as
aforesaid, the said defendant, wholly neglecting and refusing
to keep and perform the terms and conditions of said lease,
did not pay or cause to be paid to the plaintiff' a large sum of
money justly due to the plaintiff by the terms and conditions
of said lease, so that on, to wit, the day of ,
19. ., the defendant was in arrears for rent justly due the plain-
tiff from it, as aforesaid, in the sum of (.$ )
dollars, being the instalments of rent due for the period of
months, commencing on the day of
19 . . , and ending on the day
of , 19. . ; that said sum of money is still duo and
unpaid to the plaintiff", contrary to the tenor and etfect of the
said lease and of the assignment thereof to the defendant, and
of the acceptance of such assignment in the manner aforesaid.
And so the plaintiff avers that the defendant has not kept and
performed its covenants and agreements in the said lease con-
tained, as required by the assignment thereof and the accept-
ance of such assignment in the manner aforesaid, but on the
contrary thereof, the defendant has broken its several cove-
nants, i3romises and agreement, so made as aforesaid. (Add
count for use and occupation and common assumpsit counts.)
LIFE INSURANCE
1031 Warranties and representations
An applicant's answers to questions in an application for life
insurance, which have been honestly and truly made, which
are not material to the risk, which have not been intended by
the parties to be regarded as warranties, and which relate to
matter of opinion or judgment concerning which there might
be a mistaken but honest belief, will be considered as mere rep-
resentations, and as not barring a recovery, if such a construc-
tion may reasonably be given to the insurance contract, not-
withstanding a provision in the contract that the questions and
answers are to be deemed warranties. But such answers will
be deemed material, whether they are so or not, when they are
expressly warranted to be true, and will prevent a recovery un-
der the contract, where they are shown to be false, although in-
ASSUMPSIT 441
nocently madeJ^ The question whether any specified relatives
or blood relatives of the proposed insured had been afflicted
with either of certain enumerated diseases, or with any other
disease not mentioned that is hereditary, is material to a life
insurance risk/''' "How long since were you attended by a
physician or professionally consulted one?" means how long
it had been since the applicant had last consulted a physician or
had been treated by one, and does not relate to a matter of
opinion or judgment concerning which there might be a mis-
taken but honest belief, and an answer to the question is ma-
terial to the riskjs
1032 Accident, Narr. (111.)
For that whereas on, to wit, the day of ,
19. ., at the place hereinbefore stated, to wit, at the county of
, and state of , the defendant,
, made a certain policy of insurance and delivered
the same to , who was then and there the son
of the plaintiff herein, and thereby said defendant then and
there, for the consideration therein expressed, promised the
plaintiff in the terms of said policy of insurance and the agree-
ments and conditions thereto annexed, which said policy of
insurance and agreements and conditions are in the words and
figures, following, to \v\t: (Set out policy in haec verba).
And plaintiff' alleges that the representations made by the
said in the application for said policy of insur-
ance were true in all respects in substance and in fact, and
that he paid the regular premium as required by the terms of
said policy and all moneys due from him to said defendant ac-
cording to the terms of said policy, and did all things on his
part to be performed.
And the plaintiff further alleges that she is the mother of
the said , and is named in the said policy of insur-
ance as the beneficiary therein, and that the said ,
at the time of the issuing of said policy of insurance to him as
aforesaid, was by occupation and employment a
for a railroad contractor and resided in the town of ,
in the county of , in the state of
And the plaintiff alleges that the said ,
up to the time of his death as hereinafter set forth, kept and
performed each, all and every one of the conditions, obliga-
tions and requirements of the said policy of insurance.
76 Crosse v. Knights of Honor, 254 78 Crosse v. Knights of Honor,
111. 80, 84 (1912). 254 111. 83, 86.
77 Enright v. Knights of Security,
253 111. 460, 462, 465 (1912).
442 ANNOTATED FORMS OP PLEADING AND PRACTICE
And plaintiff further alleges that the said died
on the day of , 19 . . , at the
county of , in the state of , afore-
said, to wit, at (Here insert county where suit is
brought) county. That his death was produced by bodily in-
juries received by or through external, violent and accidental
means within the true intent and meaning of the aforesaid pol-
icy of insurance, to wit, by accidentally taking and drinking
poison ; and that such injuries alone occasioned the said death
of the said within days from
the happening thereof, to wit, on the same day of the happen-
ing thereof; and plaintiff further alleges that the said policy
of insurance was not obtained by the said by
or through the means of any misrepresentation, or concealment,
or of any false, fraudulent or untrue statements of any nature,
and that no attempt has been made by this plaintiff or by any
other persons whomsoever, either by fraud or by the conceal-
ment, suppression or misrepresentation of any material fact
or facts to obtain any money from the said defendant, ,
or by virtue of said policy of insurance.
And plaintiff further alleges that the said death of the said
was not produced in consequence of disease exist-
ing prior or subsequent to the date of said policy of insurance;
and that said death of . , . . " was not a case of disap-
pearance, nor suicide, sane or insane, nor accident, nor death,
nor loss of limb or sight, nor disability resulting wholly or
partly, directly or indirectly, from any one of the following
causes, or while so engaged or affected: (Name the diseases
and causes which the policy specifically fails to cover), within
the time, intent and meaning of said policy.
And plaintiff further alleges that due and sufficient proofs
of the death of the said through bodily injuries
received by or through external, violent and accidental means
as aforesaid, were presented to the said defendant insurance
company within months after the death of the
said , to wit, , 19 . . , in accord-
ance with the requirements of said policy of insurance, but that
the said defendant then refused, and still does refuse, and
neglects to pay the amount so justly due and owing to this
plaintiff upon the said policy of insurance as aforesaid. And
plaintiff alleges that no part or portion of the amount agreed
to be paid in and by said policy of insurance, to wit, the sum
of dollars, has been paid to or received by her,
but that the whole amount thereof is due and owing to her, to
wit, the just and full sum of dollars.
And plaintiff further alleges that the said ,
from the time of the issuing to and the receipt by him of the
said policy of insurance as aforesaid, and up to and at the time
of said accident and of the death of the said
therefrom, as aforesaid, the said continued to and
ASSUMPSIT 443
did reside in the said county of and state of
., to wit, (Insert county of suit, although actual residence
is different), county, and remained and con-
tinued in the business of for a railroad contractor,
and was not during that time engaged m any other business,
occupation or employment; and plaintiff avers that, as the
mother of the said , and as the beneficiary
named in said policy of insurance and person to whom the
same was to be paid in the event of the death of the said
. . ., she has kept, done and performed all things by her to
be kept, done and performed according to the terms of said
policy of insurance, and that she is entitled to have and receive
from the said defendant, the amount of said policy so agreed
to be paid to her as aforesaid, to wit, : • • • • 5 ^'^\ ^i^^
said defendant, not regarding its said promise m that belialt,
utterly broke and violated the same and refused to pay the
same, or any part thereof, and though often requested to pay
the same, has hitherto refused and neglected and still refuses
so to do, to the damage, etc.'^^
h
For that whereas, before and at the dates hereinafter men-
tioned, the said defendant was engaged in the business of insur-
ing persons against accidental bodily injuries, including acci-
dental death, in said county, and on, to wit, the
(Jay of , 19 • • , and in the Jitetime of said
J W in consideration of the payment by him of the sum of
' ($ ) dollars, did issue and dehver in said
county to said J W a certain contract or accident insurance
policy, number , duly signed by its president and sec-
retary and general agent, a copy of which policy is attached to
this declaration, marked exhibit "A," and made a part hereof,
which said policy provided among other things substantially
as follows: In consideration of the warranties set forth m
said policy and of the sum of ($ ) dollars,
the C D insured and promised to insure said J W for the term
of months from the day of ,
1 9 *.*,** at noon, against bodily injuries effected through
external violent and accidental means, in the principal sum of
' ($ ) dollars ; that the said principal sum
should be payable to the executors, administrators and assigns
of the said J W in case of his death from such bodily injuries
alone within ninety days from the time of receiving such injur-
ies- and that in case such injuries were in consequence of
the' burning of a building in which the said J W should be at
the commencement of the fire, the amount to be paid his execu-
tors, administrators or assigns should be double the said amounl
79 Travelers ' Ins. Co. v. Dunlap,
160 m. 642 (1896).
444 ANNOTATED FORMS OF I'LEADING AND PRACTICE
that is to say, should be the sum of ($ )
dollars. That on, to wit, the day of ,
19.., the said defendaut, in consideration of the further sum
of ($ ) dollars, then paid to it in said
county by said J W, issued to him a further contract or renewal
receipt, duly signed by tlie proper agents of said defendant, a
copy whereof is hereto attached, marked exhibit "B," and made
a part hereof, whereby the said policy of insurance was renewed
and continued for a further term of months, be-
ginning on the day of , 19 . . ,
and running to the day of , 19 . . , at
noon.
And the plaintiff further avers that subsequently, to wit, on
the day of , 19. ., and while
said policy was in force as aforesaid, the said J W suffered
injuries in the said county aforesaid through external, violent
and accidental means and in consequence of the burning of a
building in which the said J W was at the commencement of
the fire, from the result of which injuries solely the said J W
died within ninety days thereafter, on, to wit, the
day of , 19. ., in the county aforesaid.
And the plaintiff further avers that all the requirements and
conditions of said policy to be kept or performed or necessary
to happen in order to render the said defendant liable to pay
the said amount of ($ ) dollars to this plain-
tiff have been duly kept and performed and have happened,
and that said policy was never assigned by said J W.
By reason of which premises aforesaid the defendant thereby
became and was liable to pay to the plaintiff the said sum of
($ ) dollars; yet, though often requested
so to do, the said defendant has not paid the said sum, or any
part thereof, to the plaintiff, but has wholly neglected and now
wholly neglects and refuses so to do. (Add consolidated indeb-
itatus counts)
For that whereas, heretofore, on, to wit, the
day of , 19 . . , at, to wit, the city of ,
county and state aforesaid, the defendant, for and in considera-
tion of the warranties endorsed on the policy of insurance here-
inafter set forth, and of the payment of a premium of, to wit,
, did make, execute and deliver to F, of the county
and state aforesaid, its policy of insurance, which said policy
and warranties endorsed thereon are in words and figures as
follows, to wit: (Set forth policy and endorsements m haec
verha). And plaintiffs further aver that they are the duly
appointed and acting executors of the said F, deceased, whose
estate was made the beneficiary under said policy of insurance.
Plaintiffs further aver that the premium of, to wit,
($ ) dollars, in said policy mentioned, was paid
ASSUMPSIT 445
to tlie defendant by said F at the time of the execution and
delivery of said policy of insurance; that thereafter, and on,
to wit, the day of , 19 . . , the said F
came to his death by bodily injuries sustained through external,
violent and accidental means, to wit, by bullet wounds inflicted
by certain persons, who, at the time said wounds were inflicted,
assaulted said F for the sole purpose of robbery; that death re-
sulted within ninety days from such injuries, independently of
all other cases. (Aver administration)
Plaintiffs further aver that immediate written notice was
given to the defendant, at , , of the
injuries from which the death of said F resulted, with full
particulars thereof, and the full name and address of the
assured ; and that affirmative proof of the death of said assured
was also furnished to the defendant within months
from the time of death.
Plaintiffs further aver that by the execution and delivery of
said policy of insurance, and the designation thereon of the
estate of the said F as the beneficiary thereunder, and the death
as aforesaid of the said F, the defendant became bound and
obligated to pay to these plaintiffs a large sum of money, to
wit, ($ ) dollars ; that plaintiffs have
requested the defendant to pay them the said sum of money,
but that the defendant has refused, and still refuses, so to do,
and that the said sura of money remains wholly due and unpaid
to the plaintiffs, to the damage of the plaintiffs of
($ ) ; and therefore they bring their suit, etc.
1033 Benefit, agency
The person who takes an application of benefit insurance is
the agent of the society, and knowledge to him is knowledge to
his principal.^^
1034 Benefit; warranties, waiver
A benefit society waives its right to claim that certain answers
shall constitute warranties, when false answers to an applica-
tion are written down by the agent of the society. And this
is not affected by a request in the benefit certificate, to which
is attached a copy of the application containing the answers, to
read the application and to inform the society if the answers are
incorrect.^^
80 Johnson v. Royal Neighbors, si Johnson v. Royal Neighbors,
253 111. 570, 574 (1912). supra.
446 ANNOTATED FORMS OP PLEADING AND PRACTICE
1035 Benefit; liability, law and fact
The application for the certificate, the physician's examina-
tion, the by-laws of the society and the certificate issued are
all to be considered as the contract of fraternal benefit insur-
ance, and their meaning and construction are questions of law.^^
1036 Benefit; liability, commencement, interest
A by-law of an insurance benefit society that its liability
upon a benefit certificate shall not begin until its actual manual
deliver}^ to a member who is then in sound health protects the
society from liability in consequence of disease contracted by a
member subsequent to his application for membership and be-
fore delivery to him of the benefit certificate, as in the course of
business a considerable space of time might elapse between the
date of the application and the delivery of the benefit certifi-
cate.^^ A plaintiff who is entitled to recover upon a benefit in-
surance certificate is also entitled to interest.^*
1037 Benefit, beneficiary
The undertaking of a lodge or order is that it will pay the
amount agreed upon to the person designated in the certificate
if he is within the eligible class; and if he is not, that it will
pay the benefit fund to some other person w'ho is within the
eligible class. The designation by a member of an ineligible
person merely relieves the order of liability to pay to the person
designated. The general obligation to pay to the proper per-
son still exists and constitutes the cause of action. Hence, a
count which bases the recovery of the plaintiff as beneficiary
named in the benefit certificate, and a count which claims the
right of recovery in behalf of a person who is not thus desig-
nated, do not necessarily state different causes of aetion.^^
Under a benefit certificate w^hich has been issued in behalf of
an ineligible and an eligible beneficiary, the entire fund goes to
the eligible beneficiary.^^
82 Enright v. Knights of Security, S5 Beresh v. Knights of Honor,
253 111. 462. 255 111. 127.
83 Johnson v. Eoyal Neighbors, so Cunat v. Ben Hur, 249 111. 448,
253 111. 576. 449, 450 (1911).
Si Beresh v. Knights of Honor, 255
111. 122, 128 (1912).
ASSUMPSIT 447
1038 Benefit, Narr. (HI.)
(Precede this by common consolidated counts)
Por that whereas, on, to ^vit, the day of .,
19 . . , the defendant made its policy of insurance wherein
and whereby, for the consideration therein expressed, then and
there paid to the said defendant by S, the receipt whereof was
by the defendant then and there acknowledged in writing and
endorsed on the said policy, the said defendant constituted said
S a benefit member of said defendant association, and therein
and thereby agreed to pay to the plaintiff the sum of $ .,
subject to the conditions contained in said policy, in
days after acceptance of satisfactory evidence to
said association of the death of said member and proof of a
valid claim ; and the said defendant then and there, on, to wit,
said day of , 19 . . , at ,
in the county aforesaid, delivered the said contract or policy
of insurance to the said S, which contract or policy of insur-
ance is hereto attached, marked exhibit "A," and made a part
of this declaration.
And the plaintiff further avers that afterwards, to wit, on the
day of , 19 . . , and while the said
contract or policy of insurance was in full force and effect, the
said S then and there died; and thereafter the plaintiff made
and furnished to the defendant satisfactory evidence of the
death of said S and proof of a valid claim of plaintiff under
said contract or policy aforesaid, which said evidence of the
death of said S and proof of said valid claim was in all respects
in accordance with the terms and provisions of the said contract
or policy of insurance ; and the plaintiff avers that it then and
there became and was the duty of the defendant to pay to the
plaintiff the sum of $ , in accordance with the
terms of said contract or policy of insurance; nevertheless the
defendant, though often thereunto requested, has not paid to
the plaintiff the said amount, or any part thereof, but refuses
so to do, to the damage of the plaintiff of $ , and
therefore she brings her suit.
b
For that whereas, on, to wit, , 19 . . , the defend-
ant made its policy of insurance, called a benefit certificate,
and delivered the same to S, the father of these plaintiffs, and
who was then living, which policy or benefit certificate is in
words and figures as follows: (Copy benefit certificate, with all
endorsements).
That said S became a member of No , of
, , of the order of afore-
said, and became a contributor to its beneficiary fund, and fully
complied with all the laws, rules and regulations of said order,
and all the conditions in said certificate, and was in good stand-
448 ANNOTATED FORMS OF PLEADING AND PRACTICE
ing in said order at the time of his death, which occurred on the
day of , 19. . . That in accordance
with its promises in said certificate, the said defendant has now
become obligated to pay to these plaintiffs the sum of
($ ) dollars out of its beneficiary fund ; neverthe-
less the defendant, although duly notified of the death of said
S, and often requested to make such payment to these plaintiffs,
has not paid said amount, or any part thereof, and refuses so
to do, to the damage, etc.
c
For that whereas, the defendant is and has been, at the time
herein mentioned, and before and since, a corporation duly
organized, existing and doing business under the laws of the
state of Illinois, with its office in the city of , in
said county, incorporated for the purpose of providing life insur-
ance or death benefits to the beneficiaries of members of the
police force of said city of , upon payment of
certain assessments and compliance with certain requirements
and conditions.
That on, to wit, the day of ,
19. ., plaintiff's intestate and husband , was
a member of the police force of the city of , on
active duty and in good standing; that, on, to wit, the date
aforesaid, in consideration of the sum of dollars
by theretofore paid to said defendant association,
and the further payment by him, to wit, of dol-
lars upon the death of each member of said defendant associa-
tion, as provided by its by-laws, and also his compliance with
the constitution and by-laws of said defendant association, the
said defendant association executed and delivered to the said
its certain agreement in Avriting or certificate,
numbered , in and by which, among other things,
it agreed to pay, upon the death of said , within •
days after satisfactory evidence thereof, to the
plaintiff, the wife of said , dollars.
The plaintiff further avers that she is the beneficiary named
in said certificate at its date and has been the wife of said
; that on, to wit, the day of .,
19 . . , said suddenly and without explanation
left and disappeared from his home, , and that he
has been unaccountably absent ever since; that he has never
returned or been heard of since said departure, although plain-
tiff has made diligent and continuous search for him; that said
plaintiff has been and is wholly unable to find said ,
or to get any clue of him ; that on, to wit, , said
unheard of absence of said had continued seven
years, and that at the end of said seven years said
was presumed by law to be dead ; that said
departed this life on, to wit, ; that on, to wit, the
ASSUMPSIT 449
day of , 19 . . , said plaintiff
gave said defendant full, accurate, and specific notice in writ-
ing, verified by her oath, of said 's said disappear-
ance, the date thereof, and his said continued and unheard of
absence for more than seven years, ever since, and requested
the defendant association to pay her, as said 's
beneficiary, the said sum of dollars, named in said
certificate ; ^^ that at the time of said 's death the
defendant association consisted of more than
members; that all dues and assessments under and in compli-
ance with said certificate and defendants' constitution and by-
laws have been duly and reasonably paid b}'' and on behalf
of said up to and including the dues for the
month of , amounting to dollars ;
that the said and the plaintiff, his beneficiary,
have in all respects and things complied with the constitution,
by-laws and said certificate, and did all things required of
them to be done by the terms thereof; that at the time of said
's death, he was a member in good standing in
said defendant association; and that by reason of the premises
the plaintiff is entitled to be paid the said sura of
dollars, with interest thereon at the rate of per cent
per annum, from the day of ,
19 . . , and also to recover the said sum of dollars
and cents, the payment of , as an
overpayment and unearned premium with like interest from its
date. Nevertheless, etc.
d
For that whereas, heretofore, to wit, on the day
of , 19 . . , at , in county,
said defendant made its certain policy of insurance, sometimes
called an individual accident insurance certificate, also called
a certificate of membership, and delivered the same to F, then
living, which said policy of insurance, sometimes called a certifi-
cate of membership, was and is in the words and figures follow-
ing, that is to say: (Set out certificate).
That thereupon the said F was duly and properly admitted
to membership in said association, and in consideration of said
membership, representations and warranties made to it by the
application for said membership and the sum of
($ ) dollars, paid by the said F, and the further payment
of other sums of money as they became due under calls of said
defendant association, the said defendant association did prom-
ise and agree to and with the said F to pay or cause to be paid
to the plaintiff within ninety days after satisfactory proof of
87 Policemen's Benevolent Ass'n.
V. Kyce, 213 111. 9, 19 (1904).
450 ANNOTATED FORMS OF PLEADING AND PRACTICE
the death of the said F received at the office of said defendant
association and approved by tiie directors of said association,
the simi of ($ ) dollars ; and that it
was provided and agreed by said F in said application for mem-
bership in the words following, to wit: (Set out agreement).
And the plaintill' aveis that, on, to wit, the day
of , 19- •, the said insured, F, died from the effects
of poison taken by him accidentally and in the place and stead
of distilled water, which said F intended to take and believed
he was taking at the time, and that he did not die from hernia,
orchitis, fits, vertigo, somnambulism, nor of any bodily injury
happening or disability resulting directly or indirectly in con-
seciuence of disease, or bodily intirmities, or of poison in any
way taken, administered, absorbed or inhaled, witiiin the mean-
ing of said words as used in his said application for member-
ship ; nor did he die of any surgical operation or medical treat-
ment ; nor did the said F die from any injury which happened
to him while under the infiuence of intoxicating drinks or nar-
cotics, or in consequence of having been under the influence
thereof; or while violating or in consequence of having vio-
lated the rules provided by any company or corporation or
of the law of the state.
And the plaintiff further avers that all assessments or pay-
ments and calls due upon said membership certificate or policy
of insurance due at and before the time of the death of the
said F, were duly and properly paid to the defendant associa-
tion, and that the said F kept and performed all things in the
said policy of insurance or certificate of membership on his
part to be kept or performed.
And the plaintiff further avers that the said defendant asso-
ciation, after the death of the said F, waived the furnishing
by the plaintiff of any proof of the death of the said F,
And the plaintiff further avers that she, the plaintiff, has
observed and kept all things in the said policy of insurance con-
tained on her part to be kept and performed ; yet, notwithstand-
ing which, the defendant, although often requested so to do,
has not kept and performed its said promises and undertakings
in the said policy contained and by it to be kept and performed,
and has not paid to the plaintiff the said sum of
dollars, or any part thereof, and refuses so to do, to the dam-
age, etc.
e
For that whereas, on, to wit, the day of ,
19 . . , in the city of and county of ,
said defendant made its certain certificate and delivered the
same to B, then in life, but since deceased, at. to wit, the city
of , on, to wit, the day aforesaid, and in consid-
eration of the payment of an examination fee and all dues and
assessments required by the by-laws of said defendant, and fur-
ASSUMPSIT 451
ther payment by B of the various sums required to be paid to
said defendant, promised the said B, in the terms of the said
certificate, and the conditions therein expressed and thereto
annexed, which said certificate and conditions here follow in
the words and figures following, to wit: (Set forth bene-
ficiary's certificate).
And plaintiff avers that the said B departed this life at the
city of and said county, on, to wit, the
day of , 19. .. He further avers that the said B
had complied with all and singular the terms and conditions of
said certificate by it required to be performed, and fully com-
plied with all the laws, rules and regulations of the said order
which were at any time between the day of ,
19 . . , and the day of , 19 . . , in force
in said order, up to the time of his death ; and plaintiff further
avers that the said B was at the time of his said demise a member
in good standing of said defendant order, and that the said
defendant has had satisfactory evidence of the death of the said
B, and that the said A, the beneficiary by the terms of the said
certificate, through his legal representative, has, in all respects,
complied with all the terms and conditions of said certificate
upon him by it imposed ; and the plaintiff further avers that no
other certificate has been issued at the request of the said B
but the one herein issued on ; and the plaintiff
brings said certificate into court here and offers to defendant
the same in accordance with the laws of said defendant order;
and plaintiff avers that the said A, being a minor son of the
said B, is the same as the beneficiary A named in said certifi-
cate ; that on the day of , 19 . . , the
plaintiff was appointed by the court of
county, conservator of the estate of the said B ; and that plain-
tiff thereupon duly qualified as such conservator and entered
upon the discharge of such duties, which will more fully appear
from the record of said court ; nevertheless,
although the said beneficiary A and the plaintiff for him, has
kept and performed all things in the said certificate on his
part to be kept and performed, the defendant has not yet paid
to the plaintiff the said sum of ($ ) dollars
or any part thereof, but refuses so to do, and there is now due
and owing to the plaintiff as conservator of the said A from the
defendant the sum of ($ ) dollars, for
which he brings suit, etc.
C, conservator of the estate of A,
Plaintiff.
By ,
his attorney.
1039 Employers' liability, Narr. (111.)
For that w^hereas, on the day of ,
19.., in the city of and county and state of
452 ANNOTATED FORMS OF PLEADING AND PRACTICE
, said defendant made its policy of insurance or
contract of indemnity, and delivered the same to said plaintiff,
and thereby then and there, in consideration of
dollars to it paid by the plaintill', did agree to indemnify said
plaintiff against loss from the liability imposed by law upon
said plaintiff' for damages on account of bodily injuries or death
accidentally suft'ered by any employee or employees of said
plaintiff while employed by said plaintiff' in and about its fac-
tory or plant, located at ,
county, , excepting, however, certain employees
therein named, in a certain condition, to wit, condition "A" of
said policy, for a period one year from the day
of , noon, to the day of ,
noon, as will more fully appear from the policy, which is ready
to be produced in court, and which said policy of insurance, or
contract of indemnity, was and is in the words and figures fol-
lowing, to wit: (Set forth policy).
And thereupon, to wit, on the day of ,
19.., in consideration of the premises, said plaintiff, at the
special instance and request of said defendant, then and there
paid to said defendant, the sum of dollars,
as a premium for the insurance and the indemnity aforesaid;
and said defendant, by said policy of insurance, or contract of
indemnity, did undertake and faithfully promise and agree to
indemnify, make good and satisfy unto said plaintiff, all of such
loss or damages as it might sustain, or be compelled to pay, not
exceeding, however, the sum of dollars, for injur-
ies to, or death of any one person covered by said policy of insur-
ance, or contract of indemnity, on account of any accident which
should happen during the period said policy of insurance, or
contract of indemnity was in force, resulting in bodily injury
or death of any such person so employed by said plaintiff in
and about its said plant, and covered by said policy of insur-
ance, or contract of indemnity.
And the plaintiff avers that, on, to wit, the day
of > 19- •> and wiiile said policy of insurance
or contract of indemnity was in full force and effect, ,
who was then employed by said plaintiff as a charger in and
about its said plant, at , in the county of
and state of , said being then and
there one of the employees of said plaintiff, whose compensation
was included in the estimate set forth in said schedule and
policy of insurance, and not being of the employees or class
of employees excepted from the liability of said policy of insur-
ance, as provided in said condition "A" of said policy, sus-
tained a bodily injury for which said plaintiff then and there
became liable for damages under the law ; that said
sustained said injury while engaged in the work of said plaintiff
in its said plant in the place and at the time last aforesaid.
And by reason of such injury so sustained, the said ,
ASSUMPSIT 453
afterwards, to wit, on the day of ,
19 . . , brought suit in the court of said
county, , to the term,
19. ., of said court, against the plaintiff herein, to recover dam-
ages for the injuries sustained by him as aforesaid. And said
plaintiff avers that said defendant, well knowing that it had
not been given written notice by said plaintiff of such injury,
and claim for damages of said against the
plaintiff herein, as provided in and by condition "B" of said
policy of insurance or contract of indemnity ; and well knowing
that after the said suit was brought against said plaintiff by
said to enforce said claim for damages by rea-
son of such accident and injuries resulting therefrom, so re-
ceived by him, and arising from a liability covered by said
policy of insurance or contract of indemnity, that said plain-
tiff had neglected and failed to forward to the home office of
said defendant every summons and process as soon as the same
was served upon the plaintiff, as provided in and by condition
"C" of said policy; with full knowledge of the above facts,
and of the failure on the part of said plaintiff to give the writ-
ten notice of the said injury to said , as pro-
vided in and by said condition of said policy of insurance, and
with full knowledge of the fact that the plaintiff herein had
failed to forward every summons or process as soon as the same
was served upon said plaintiff' to the home office of said defend-
ant, as provided in and by said condition of said policy of insur-
ance, the said defendant wholly waived such notices and said pro-
visions of said policy of insurance and contract of indemnity, and
began a negotiation for a settlement, and assumed and took upon
itself the management, control and defense of said suit, and ap-
peared in said court, in said cause, in the name and for and on
behalf of the plaintiff herein ; that by reason of said defendant
having waived the giving of the notice as provided in said condi-
tion of said policy of insurance, and assuming and undertaking
the defense of said suit, said plaintiff was prohibited in and by
condition "D" of said policy of insurance, from interfering in
any negotiations for a settlement, or legal proceedings in said
cause ; that, on, to wit, the day of ,
19 . . , the same being one of the judicial days of the
term, 19. ., of said court, after a trial of the issues, a final judg-
ment was rendered in said suit against the plaintiff herein and
in favor of said , on account of said injuries,
so sustained b}^ him as aforesaid, for the sum of
dollars and costs of said suit.
And said plaintiff further avers that afterward, on, to wit,
the day of 19 . . , said defend-
ant waiving and ignoring said conditions in said policy and the
notice required in and by said conditions, further appeared in
said court in said cause in the name of the plaintiff herein,
under and ly virtue of the provisions in said policy of insur-
454 ANNOTATED FORMS OP PLEADING AND PRACTICE
ance or contract of indemnity, then and there excepted to the
judgment so rendered by said court, and prayed an appeal from
the judgment of said court, to the appellate court, in and for
the district of the state of Illinois, Avhich said
appeal was by said court allowed and granted, upon the plaintiff
herein giving an appeal bond in the sum of dol-
lars, to Ik" filed with and approved by the clerk of said
court, within days and presenting a bill of excep-
tions within days after the rendition of such
judgment. And afterwards, on, to wit, the day
of , 19 . • , and within days
after the rendition of said final judgment, said plaintiff, at the
special instance and request of the defendant herein, and pur-
suant to, and in accordance with said order granting said appeal,
caused to be filed in the office of the clerk of said
court, an appeal bond in said cause, in the penal sum of
dollars, which said bond was approved by the
clerk of said court and then and there became the appeal bond
required by said order of court. All of which said proceedings
and doings in said cause will more fully appear from the rec-
ords and files in said cause now remaining on file in the office
of the clerk of said court, reference being had thereto for greater
certainty.
And said plaintiff avers that under the conditions of said
policy of insurance, or contract of indemnity, it became and
was the duty of said defendant, after it had waived said notice
provided in said policy, and assumed and took upon itself the
defense of said suit, and after said plaintiff had been barred
from appearing in said suit, under the conditions of said con-
tract, by reason of said defendant having waived such notice,
and assumed and undertook the defense of said suit, either to
pay said judgment, or to prosecute and perfect said appeal in
said appellate court and to indemnify and save the plaintiff
from paying said judgment. Yet, the said defendant, not re-
garding its duty in that behalf, failed, neglected and wilfully
refused to pay said judgment, or prosecute and perfect said ap-
peal. And afterwards, to wit, at the term,
19 . . , of said appellate court, on motion of said ,
said appeal was dismissed by said court, and judgment ren-
dered against the plaintiff herein, and in favor of said
for the amount of said judgment, to wit, dollars,
together with 5 per cent damages, and cost of suit.
And afterwards, to wit, on the day of ,
19 . . , said commenced a suit in the
court of said county, , to the
term, 19.., against the plaintiff herein, on said appeal bond,
to recover said judgment, damages and costs, and on the
day of , 19. ., the same being one of the judicial
days of said term of court, final judgment was entered in said
suit, against the plaintiff herein, and in favor of said ,
ASSUMPSIT
455
for the amount of said judgment, damages and costs, amount-
ing to, to wit, dollars and
cents; and thereupon the said caused an execution
to be issued out of said court, directed to the sheriff of said
county commanding him that ot the goods,
chattels,' lands' and tenements of the plaintiff herein, he make
the amount of said judgment and cost.
And afterwards, on to wit, the day ot • • .,
19 the plaintiff herein satisfied said judgment and execution,
by" payment to said sheriff of the full amount of said judgment
and cost; all of which will more fully appear from the records
and files in said cause, now remaining in the office ot the clerk
of said court. • n
And said plaintiff further says, that although it has m all
things conformed itself to and kept and observed all and singu-
lar the said acts, stipulations, conditions, matters and things,
which on its part were to be observed and performed according
to the form and effect of said policy of insurance or contract
of indemnity, and all the conditions thereto annexed, except the
givincr of the written notice of said injury according to said
eondilion "B" of said policy, and the forwarding of every
summons or process, as soon as the same was served upon it
as provided in and by condition " C " of said policy ; and although
it has sustained loss from the liability imposed by law upon
said plaintiff for damages on account of bodil} injury accident-
ally sustained while said policy of insurance, or contract of in-
demnity, was in force, by the said ., who was then
and there an employee of the plaintiff, covered by said policy
of insurance, and not of either kind or class of employees men-
tioned incondition "A" of said policy who were excepted from
the liability thereunder, and who sustained said injury at the
time and in the manner aforesaid while employed m the said
faXiy or plant of said plaintiff; and although
said defendant waived the giving of the written notice of such
iniurv as provided by condition "B" of said policy and the
forwerdinc- of every summons or other process in said cause as
soon as the same was served upon said plaintiff, and began a
neo-otiation for a settlement, and assumed and took upon itselt
the responsibility, control, management and defense of said suit
under said policy, well knowing that it had not been notified
of said injury, and of the pendency of said suit, according to
the terms thereof, and waiving all irregularities in the giving
of such notice and compliance by said plaintiff with the condi-
tions of said policy of insurance aforesaid; and although said
plaintiff sustained damages in the manner, and to the amount
aforesaid; yet, said defendant, though often requested has not
paid to said plaintiff, the said sum of money, or any part thereof
but has refused and still refuses so to do, to the damage of said
plaintiff of • • • dollars, and therefore it brings this suit.
456 ANNOTATED FORMS OF PLEA.D1NG AND PRACTICE
1040 Endowment, Narr. (Md.)
For that on the day of ,
19. ., defendant was a corporation of the state of ,
duly incorporated under the laws of said state and doing busi-
ness and authorized to do business as such corporation in the
state of , and with authority under its charter
to utter and issue insurance upon the lives of persons residing
and being in the state of , and that on the said
day of , 19 . . , in consideration
of the payment of the annual premium of
dollars made by a certain , of county,
, paid defendant, and of the application of the
said for a policy of insurance and the under-
taking by the said to pay a like amount of
dollars upon each day of , ,
thereafter until full years' premi-
ums shall have been paid, or until the prior death of said
• , the said defendant made and executed its policy
of insurance in writing, number of the following
effect, viz. : , in consideration of the annual prem-
ium of dollars (the receipt of which was thereby
acknowledged), and the payment of a like amount upon each
• • • ; day of and thereafter
until full years' premiums shall have been paid,
or until the prior death of the insured, the , of
, promised to pay at the home office of the com-
pany in the city of , to , wife of
, of county, of state,
of therein called the insured, on the
day of , if the insured be then living, or upon re-
ceipt at said home office of due proof of the prior death of the
insured, to his said wife, , the beneficiary, with the
right of revocation, dollars, less any indebtedness
thereon to the company and any unpaid portion of the premium
of the then current policy year, upon the surrender of the policy
properly receipted ; and said plaintiff avers that said defendant
thereby insured the life of the said in the said
sum of dollars, payable to said plaintiff, his wife,
upon the death of the said , during the continuance
of the said policy and before the day of ,
upon receipt at the home office of said company of due proof
of the death of the insured.
And said plaintiff avers that on or about the
day of , the said died (and his death
was not caused by any of the causes exempted in said policy) ;
and thereafter in due time as required by said policy, due proof
of the death of the insured was made, delivered to and accepted
by the home office in , by the plaintiff, the bene-
ficiary named in the policy of insurance (no revocation and
ASSUMPSIT 457
no change of beneficiary having been made therein), in accord-
ance with the requirements of the said policy of insurance ; and
that the said during his lifetime paid all the premiums
and made all of the payments required by said policy and fully
complied with all the stipulations and obligations on his part
therein required of him by the terms of said policy; whereby
said plaintiff avers that under said policy, undertaking and
writing aforesaid, said defendant then and there became liable
to pay to her the said sum of dollars, as specified
in said policy of insurance, and that she did fully perform every
stipulation, requirement and thing required of her by the said
policy as the beneficiary therein to entitle her to recover from
said defendant the said sum of dollars ; but the
defendant, wholly unmindful of its duty in the premises and
its obligation under said writing, refused to pay, and has not
paid to said the said sum of dollars,
or any part thereof, or any interest thereon, although the plain-
tiff has made frequent demands upon said defendant to pay the
same; and therefore the plaintiff brings this suit and claims
dollars.
(Virginia)
For this, to wit, that heretofore, to wit, on the
day of , 19 . . , the said defendant caused to be
made a certain policy of insurance in writing purporting thereby
and containing therein, that in consideration of the quarter
annual premium of $ , receipt of which the defend-
ant acknowledged, and the payment of a like amount upon the
day of , , .., •••••
and thereafter, until twenty full premiums should
have been paid, or until the prior death of the insured, the said
defendant undertook and promised , the insured,
under said policy that it, the said defendant, would pay to
the plaintiff, , the sum of $ upon
due proof of the prior death of said , the insured,
who was then and there alive, provided the said
should continue to pay the said quarterly premiums as they
fell due as hereinabove set out and in said policy contained,
and to the same annexed were and are sundry other provisos,
conditions, prohibitions and stipulations, as by the original policy
aforesaid, which is filed herewith, will more fully and at large
appear.
And the said plaintiff says that after the making of said
policy as aforesaid, by the defendant, to wit, on the
day of , 19 • • » the said died, whereof
afterwards, to wat, on the day of ,
19 . . , due and sufficient proof was made to the said defendant,
in conformity to the terms and conditions of the said policy.
And the said plaintiff further says, that the said ,
458 ANNOTATED FORMS OF PLEADING AND PRACTIO:
in his lifetime, did perform, fulfill, observe and comply with,
and the said plaintiff since the death of the said ,
has performed, fulfilled, observed and complied with each and
all of the conditions, provisos, and stipulations in the said policy
contained, or to the same annexed, on the part and behalf of the
said , in his lifetime, and of the said plaintiff,
, since the death of the said , to be
performed, fulfilled, observed and complied with, and neither
the said in his lifetime, nor the said ,
plaintiff, has violated any of the prohibitions in said policy
contained, according to the form and effect, true intent and
meaning of the said policy.
Yet the said plaintiff says, that although months
have elapsed after due and sufficient proof was made, as afore-
said, to the said defendant, of the death of the said
the said defendant has not as yet paid to the said plaintiff the
said sum of $ , but the same and every part thereof,
has wholly refused to pay and hath always refused to pay,
contrary to the force and effect of the said policy. And the said
plaintiff further says that the said defendant has not kept with
the plaintiff the agreement aforesaid, contained in said policy
made in this behalf as aforesaid, but the said defendant has
broken the same, and to keep same with the said plaintiff hath
hitherto wholly refused, and still doth refuse.
To the damage of the plaintiff, $
And therefore she brings her suit.
1041 Life and accident, Narr. (111.)
For that whereas, heretofore, to wit, on the
day of 19 . . , at, to wit, in the city of
, county aforesaid, the said defendant entered
into a certain policy of insurance, instrument and an agree-
ment with the plaintiff in the words and figures following, to
wit: (Set forth policy of insurance and agreement of accident
insurance) ; and upon the back of said instrument or policy of
insurance appears the following: (Set forth notice); wherein
and whereby the said defendant for a valuable consideration
did insure the life of the said H of , in the county
of , and state of , designated in the
said policy as the insured, in the sum of ($ )
dollars for the term of his natural life from and after the
date thereof ; which said sum should be paid at the office of
the said company in , , to the plain-
tiff, wife of the said insured, within ninety days after due no-
tice and direct evidence of the death of the said insured, dur-
ing the continuance of said policy.
And the said plaintiff avers that the said insured, H, during
his lifetime did in all things conform himself to, observe, per-
form and keep all things in the said policy of insurance on his
ASSUMPSIT 459
part and behalf to be observed and performed, according to
the form and effect of the said policy of insurance.
And the plaintiff further avers, that the said 11 paid ;ill the
instalments of premium provided by the said policy to be paid
by him from the date of the said policy up to and including
the instalment of premium falling due thereon on the
day of , 19.., and all the sums due upon the
contract of accident insurance annexed to the said policy from
the date thereof, up to and including the amount due thereon
on , 1
And the plaintiff further avers that, on, to wit, the
day of , 19. ., the said II, without the knowledge
and consent of the said plaintiff', did execute and deliver to the
said defendant, in payment of the premium of
dollars, due on that day on the said policy of life insurance,
and for the further sum of , due on said
day of , 19. ., on said contract of accident insurance,
annexed to the said policy, making the sum of dollars,
his promissory note, which said note the defendant then and there
accepted, as payment of the said instalment of i)reiuium, due
on said life policy, and on said contract of accident insurance,
and as full payment of the premium due on said lil'e policy,
and said contract of accident insurance, on said
day of , 19. ., and each of the same and the whole
thereof, and upon the acceptance of said note by the said defend-
ant for such premium as aforesaid, the said defendant did
then and there deliver to the plaintiff' its properly executed
premium receipt, provided for in the said policy, for the full
payment of the said premium, due on the said life policy and
contract of accident insurance, due on said day
of , 19. ., for the six months then next ensuing,
and ending the day of , 19.., which
said receipt is in the words and figures following, to wit: (Set
out copy of receipt).
And the said plaintiff further avers that, on, to wit, the
day of , 1. . . ., the said note being
then in the custody of and owned by the said defendant, the
said H, by his agent, J, at the city of , county of
, and state of , and at the office of
the said company, the defendant herein, in said city, did offer
to pay to the said defendant the amount then due on the said
note, and the interest thereon, and did then and there offer
to bring in and to pay to the defendant, on the next day, the
same being the day of , 19 . . , the
amount in money then to become due on the said policy of life
insurance, and the said contract of accident insurance, and
the amount due on the said note with interest thereon; but the
said defendant did then and there refuse to accept any money
on said note, and did then and there wrongfully refuse to accept
460 ANNOTATED FORMS OF PLEADING AND PRACTICE
at any time, any money in payment of the said note and interest
thereon, or any part thereof, and did then and there vvroiigfuily
state that it would not receive any money in payment of the
premium, or any part thereof to become due on the said policy
on the said day of , 19. ., and did
then and there wrongfully refuse to accept any money in pay-
ment of any premium that might become due by the terms and
conditions of the said policy of insurance, during the lifetime
of the said H, and did then and there wrong Itilly claim, in
response to the said offer of the said PI, that the said policy
was in all respects forfeited and that the said II owed the said
defendant nothing by reason of the issuance thereof, or of the
conditions thereof, and that the defendant would not accept
any money in payment of the premium on the same.
And the plaintiff further avers that, on, to wit, the
day of , 19. ., and during the customary banking
hours of the said day, and before the hour of twelve o'clock
noon, of the said day, the said H, at the city of ,
county of , and state of , and at the
ofQce of the said company, the defendant herein, by his agent,
J, said H having then and there a sufficient sum in lawful
money of the United States, to wit, the sum of
($ ) dollars, being a sufficient sum to cover the amount
due on the said note, and all interest thereon, and being also a
sufficient amount to cover the amount due on that day upon
the said policy of life insurance and the said contract of acci-
dent insurance, and all interest that might be due thereon,
according to the terais and conditions of the said policy, and
, being the place where he was entitled to pay the
premiums that might become due on the said policy, and where
he was entitled to pay the said note, and where he was entitled
to demand and receive the premium receipt of the said defend-
ant, upon such payment to the defendant, did then and there,
on behalf of the said H, offer to pay to the said defendant the
said premium and the whole thereof, falling due on the said
day of , 19 . . , according to the
terms and conditions of the said policy, and did then and there
demand of the said defendant, that upon such payment it should
deliver its properly executed premium receipt as provided for
in said policy, and did then and their offer to pay the said note
and interest thereon and the whole thereof, and did demand
that the said defendant surrender up to him the said note, but
the said defendant did then and there wrongfully refuse to
accept any money whatsoever, and did then and there refuse
to turn over and deliver to the said J, the said note, and did
then and there refuse to deliver to the said J its premium receipt
upon the payment of the said premium that were due upon the
said policy on said last mentioned day, according to the terms
and conditions thereof, and in response to the said offer by the
said J as aforesaid, did then and there wrongfully state and
ASSUMPSIT 461
claim to the said J that said policy was forfeited and void, and
that said H owed the said defendant nothing by reason of the
issuance thereof, and by the terms and conditions of the said
policy of insurance, and did then and there wrongfully state
to the said J, in response to his said offer to pay the said prem-
ium, that defendant would not accept any money as premium
upon said policy, and would not deliver said premium receipt,
and would not accept any payment of the said note, and would
not accept any further instalments of premiimi that might
become due by the terms and conditions of the said policy of
insurance, during the lifetime of the said H.
And the plaintiff further avers that the said H, by his said
agent, the said J, then and there had the said sum of money,
and then and there offered to pay to the said defendant the
said premium, and the amount of the said note and interest
thereon as aforesaid, and for the purposes aforesaid, and would
then and there have paid the same, and would have accepted
the premium receipt, which the said H would be entitled to,
upon the payment of the said premium, had not the defendant
then and there wrongfully refused to accept such payment,
and wrongfully asserted that the said policy was forfeited and
void, and then and there wrongfully refused to deliver said
premium receipt.
Plaintiff further avers that the said H, after the said offer
on the said day of , 19 . . , by the
said J, to so pay said note as aforesaid, was ever ready, willing
and able during his lifetime to pay the said note, and was ever
ready, willing and able to pay the said premium so falling due
on the said day of , 19 . . , and was
ever ready and willing to accept the said premium receipt he
was entitled to upon such payment if the defendant would
have accepted the same, and was ever ready, willing and able
to pay every other instalment of premium which became due
on the said policy of insurance during his lifetime, and to accept
the properly executed premium receipt therefor, if the defend-
ant would have accepted the same when it became due or at
any time thereafter, and since the maturity of the said policy
by reason of the death of the said H, said plaintiff has ever
been ready and willing to allow the amount of the said instal-
ment of premium falling due on the said day of
, 19 . . , and all interest that may be found to be
due thereon, together with all other instalments of premium
falling due on the said policy of life insurance, according to its
terms, during the life of the said H, and all interest that may
be found to be due on each and every of such instalments in
abatement and in reduction of the sum now due to her upon the
maturity of the said policy of life insurance by the terms and
conditions thereof, and she hereby authorizes and consents that
all such sums be allowed in abatement of and in reduction of
the sum due to her as aforesaid, and that such allowance, abate-
462 ANNOTATED FORMS OF PLEADING AND PRACTICE
ment and reduction be embraced in any verdict or any judg-
ment found or rendered in her favor in this action.
And the plaintiff furtlier avers that afterwards, to wit, on
the day of , 19 . . , the said H died ;
that afterwards, to wit, on the day of ,
19 . . , due notice and direct evidence of the death of the insured,
during the continuance of this policy, was given to the defend-
ant company; that during his life the said PI was prevented
and absolved by the defendant from the payment of the prem-
ium falling due on the said policy of life insurance, by its terms,
on the day of , 19 . . , and was pre-
vented and absolved by said defendant from the payment of
the several premiums thereafter falling due upon the said policy
of insurance, at the time and in the manner as provided in said
policy; and that although the ninety days after due notice
and direct evidence of the death of the said insured during the
continuance of said j)olicy have been given to the said defend-
ant, according to the terms of the said policy, have long since
elapsed, of all which said defendant afterwards, on, to wit, the
day and year last aforesaid, had notice, and said defendant was
then requested by the plaintiff to pay her the said sum of
($ ) dollars so by it insured, as aforesaid ;
yet, said defendant, disregarding its said promise, has not paid
the said sum of ($ ) dollars, or any part
thereof, but has wholly neglected and refused so to do, to plain-
tiff's damage of dollars.
1042 Ordinary; premium, pajmaent
The premium of a policy may be paid by note by agree-
ment of the parties, and when a note is taken under circum-
stances which constitute an absolute payment of the premium,
the default in the payment of the note does not invalidate the
insurance.^^
1043 Ordinary; delivery of policy, liability
An insurance policy is in force at the time of the approval of
the application, the payment of the premium, the signing of the
policy, and its issuance at the office of the company, regardless
of the actual delivery of the policy to the insured.^^ The policy
is in force upon its unconditional delivery, notwithstanding an
express provision therein that the company shall not be liable
until the premium is actually paid; as such a delivery consti-
88 Devine v. Federal Life Ins. Co., 89 Rose v. Mutual Life Ins. Co.,
250 111. 203, 207, 208 (1911). 240 111. 45, 51, 52 (1909).
ASSUMPSIT 463
tutes a waiver of the prepayment of the premium.^o An in-
surance policy which has been duly signed and forwarded to
the insurance broker to whom the application for insurance
was made, to be delivered to the insured, will support an action
thereon, unless actual delivery of the policy to the insured is
expressly required by contract.^i The insurer is liable for
damages and costs incurred by the insured after the insurer
has wrongfully refused to recognize his liability on the policy,
although the damages and costs together with a judgment upon
the policy exceed its face.^^
1044 Ordinary, general, Narr. (111.)
For that whereas, heretofore, to wit, on the
day of , 19. ., said defendant caused to be made,
executed and delivered to M, hereinafter called the insured, a
certain policy of insurance, in writing, upon the life of the
said insured, wherein and whereby said defendant, in considera-
tion of the payment of dollars, to be paid on the
delivery of the said policy, or before it should take effect, and
of the promise of the said insured to further pay an equal sum
on the day of , 19 . . , undertook and
promised to and did insure the life of the said M, the said insured,
for the term commencing simultaneously with the actual deliv-
ery of said policy to the said insured and the payment of said
premium, and ending with the day of ,
one year from the date of said policy, to wit, on ,
19. ., and' by such insurance said defendant promised upon the
death of the said insured during the aforementioned term of
insurance, and upon the surrender of the said policy and the
receipt and approval of proofs of death of the said insured
during the continuance of the said contract of insurance, to
pay to the said plaintiff the sum of at the home office
of the said defendant in the city of , • .
The plaintiff says also that it was further provided in said
policy that said policy should not take effect until the first prem-
ium of had been paid and the policy actually
delivered during the life and good health of the said insured,
and that the said policy contained, and to the same annexed
were and are sundry other provisos, conditions and stipulations
as by the original policy aforesaid (a copy whereof is filed here-
with) will more fully appear. The plaintiff further says that
after the said policy was made and executed as aforesaid, and
during the life and good health of the said insured, said policy
was actually delivered to the said insured by the said defendant
90 People V. Commercial Ins. Co., ^- Sandoval Zinc Co. v. New Am-
247 111. 92, 103 (1910). sterdam Casualty Co., 235 111. 306,
91 Devine v. Federal Life Ins. Co., 313 (1908).
250 111. 203, 206 (1911).
464 ANNOTATED FORMS OF PLEADING AND PRACTICE
and the first premium, amounting to dollars, was
duly paid, and the promise of the said insured to further pay
an equal sum on the day of , 19 . . ,
was duly made ; and that thereafter during the continuance
of the said policy, to wit, on the day of ,
19.., the said M departed this life, whereof afterwards, on, to
wit the day of , 19 . . , due and suffi-
cient proof was made to said defendant in conformity with the
terms and conditions of said policy ; and that this plaintiff was
at all times before the bringing of this suit, and ever since has
been, ready and willing to deliver up said insurance policy to
the said defendant company, but that no surrender or offer to
surrender up said policy to the said defendant company was
ever formally made before the bringing of said suit for the
reason that the said defendant had then wholly refused and
has always since refused to pay the said amount so promised
to be paid as aforesaid under any circumstances. And the plain-
tiff further says that the said insured in his life time did per-
form, fulfill, observe and comply with, and that the said plain-
tiff at all times has performed, fulfilled, observed and complied
with each and all the conditions and stipulations in said policy
contained or to the same annexed on the part and behalf of
the said insured in his life time, or of the said plaintiff at any
time to be fulfilled, performed, observed or complied with; and
that the said insured in his lifetime did not, nor has the said
plaintiff at any time violated any of the provisions in the said
policy contained or to the same annexed according to the terms
and effect, true intent and meaning of said policy.
Yet the plaintiff says that though a long time, to wit, the
space of months, has elapsed since due and sufficient
proof was made as aforesaid to the said defendant of the death
of the said M, said insured, and since the performance by the
said plaintiff of all the conditions hereinabove mentioned to be
performed before the fulfillment of the said promise of the
said defendant as aforesaid, said defendant has not yet paid
to the said plaintiff said sum of dollars, but the
same and every part thereof is wholly due, unpaid and unsatis-
fied to her, contrary to the force and effect of said policy ; and
so the said plaintiff says that the said defendant has not kept
with the said plaintiff the agreement aforesaid contained in
the said policy executed as aforesaid by the said defendant, but
that the said defendant has broken the same and to keep the
same with the said plaintiff has hitherto wholly refused and
doth refuse; to the damage, etc.
1045 Ordinary; non-constable policy, Narr. (111.)
I
1. For that whereas, on, to wit, the day of ,
19.., said defendant made a certain insurance policy in writ-
ASSUMPSIT 465
ing and delivered the same to , by which, in con-
sideration of certain stipulations and agreements in a certain
application by him theretofore made a part of said policy, and
in consideration also of the payment of dollars
and therein expressed as being the premium thereon for the
first year thereof, promised to pay the plaintiff by the name,
style and description of , the wife of said ,
in liis lifetime, or to her legal representatives and assigns, the
sum of dollars less any indebtedness on account
of said policy, within days after acceptance at
the office of said defendant in the city of , of sat-
isfactory proofs of the death of said of ,
county, Illinois, provided such death should occur
on or before the day of , 19 . . .
2. And the said defendant in said contract of insurance fur-
ther agreed to renew and extend said insurance upon the afore-
said conditions without medical re-examinations during each
successive year of the life of the insured from the date thereof,
upon the payment on or before the day of ,
in each year, of the renewal premiums in accordance with a
certain schedule of rates, less the dividends thereon, in said
policy set out ; and said defendant in and by said policy, in con-
sideration of the premises, further agreed that said annual
premiums might be paid by quarterly instalments on or before
the day of , in each year.
3. And said defendant for the same consideration further
agreed to limit its expense charge, that is to say, its charge for
conducting its business of insurance to dollars
per annum, on each thousand dollars insured and to divide the
residue of each renewal premium in said policy mentioned as
follows: Such amount as should be required for said policy's
share of death losses to the appropriation of a death fund to
be used solely in the settlement of death claims, and the
remainder to be used as a guaranty fund towards offsetting any
increase in premiums on said policy from year to year, and
for the purpose of keeping the premiums equal or level with
that for the year 19 . . , at which time the said was
years of age, and the quarterly premiums for that
age were dollars as set forth in the schedule of
([uarterly renewable rates for the sum of dollars
insurance.
4. And the plaintiff avers that said caused to
be paid to said defendant from the said day of
, 19 , . , up to the day of ,
19 . . , the sum of dollars for each quarter of a
year for the renewal and extension of said premiums; and on
the day of when the said ,
caused to be paid the quarterly premium for such renewal, the
said defendant fraudulently and in violation of its contract
required the sum of dollars as and for a quarterly
466 ANNOTATED FORMS OP PLEADING AND PRACTICE
renewal premium to renew and extend said policy of
dollars, which sum the said paid to the defendant
and continued to pay on or before the required day of each
quarter until the day of , 19 . . , for the extension
and renewal of said policy of insurance.
5. And the plaintiff further avers that, on to wit, the
day of , 19.., she appeared on behalf of said
at the office of the defendant in the city of
, and tendered and offered to its authorized agent
the exact sum of dollars in specie of the United
States as and for the renewal and extension of said policy from
, 19 . . , to , 19 . , ; whereupon said
agent stated to the plaintiff that he, in behalf of the defendant,
would not accept said sum of dolhirs for the reason
that said defendant had raised the renewal rates and that the
sum of dollars would be required to renew and
extend said policy to , 19. ., and that there was
no guaranty fund with which to offset the increase in the
premium or to keep the same level with the rate of premiums
at which said had paid since , 19 . . .
6. And the plaintiff avers that the statements aforesaid of
said agent were false and fraudulent and were wrongfully made
for the purpose of compelling the said to discon-
tinue the renewal of said policy, and that on the day aforesaid,
he had funds to his credit in the hands of said defendant and
to the credit of the said policy, as part of the guaranty fund
aforesaid, sufficient to keep said renewal premiums to the level
of dollars aforesaid on said date and up to and
beyond the date of the death of , and that such increase
in the rate was a fraud upon said and the plaintiff,
and that such tender aforesaid was sufficient to bind said de-
fendant and then and there constituted a payment for the re-
newal and extension of said policy during the whole period
within which said sum of dollars together with
such guaranty fund would have constituted a renewal payment
for such policy, to wit, until , 19 . . .
(Consider paragraphs 9, 10 and 11 of count IV as here
repeated the same as if set out in words and figures.)
II
(Consider paragraphs 1 and 2 of count I as here repeated
the same as if set out in words and figures.)
3. And the plaintiff further avers that one of the paragraphs
on the page of said policy is headed in large black type,
as follows: ''Regarding the death and guaranty fund," and
that said paragraph is in the following words and figures, viz. :
(Set forth paragraph).
4. And the plaintiff avers that the said paid to
the said defendant all renewal premiums demanded by it, and
that it did not as it agreed, keep said premiums level, but on
ASSUMPSIT 467
the contrary, on , 19 • • , increased said renewal
premiums from $ per one thousand dollars of insurance
for one quarter to $ dollars per one thousand dollars of
insurance for one quarter, which the said paid
and continued to pay at said rate of $ per one thousand
dollars until , 19 . . , when said defendant again
increased the premium rate to $ per one thousand dollars
of insurance.
5. And the plaintiff further avers that, on, to wit,
19. ., she appeared at the office of the said defendant and offered
and tendered to an authorized agent of said defendant, the
snm of dollars, in specie of the United States,
being the quarterly premium of dollars for the
then next ensuing quarter, at which rate the said
had renewed said policy from the day of ,
19.., till that date, to wit, , 19..; whereupon,
said agent refused to accept said sum of dollars
and stated to the plaintiff that the rate had been increased and
that it would require the sum of dollars to renew
said policy for the then next ensuing quarter. And the plain-
tiff" avers that she then demanded of the said agent, for and
on behalf of said that the amount retained of
premiums paid by said under the guaranty fund
clause of said policv, be applied to extend said policy, or that
said defendant issue to said paid up insurance
purchased with the amount so retained; which the said defend-
ant then refused and ever since has refused to do.
6. And the plaintiff avers that the said had then
paid to the defendant for more than full years
premiums, and had then paid full years' prem-
iums ; and that said defendant after deducting
dollars per annum for dollars of insurance for
its expense charge, and after deducting from the premiums so
paid said policy's share of death losses that there remained a
sufficient sum in its hands to have extended said insurance to
, 19.., and beyond that date, by using %
of the amount retained in its hands after deducting said expense
charge, death losses, and money used to offset increase in prem-
iums so far as said defendant did offset such increase.
7. And the plaintiff further avers that said increase to
dollars per quarter made, on, to wit, ,
19 . . , by the defendant was fraudulent and done for the pur-
pose 'of compelling said to discontinue the pay-
ment of renewal premiums and that the said defendant had in
its hands a sufficient sum under the said guaranty clause of
said policy, to extend the same to , 19 . . , and that
said policy under said clause and because the said defendant
had sufficient money of said guaranty fund as aforesaid to
extend said policy to said , 19. ., was in full force
468 ANNOTATED FORMS OF PLEADING AND PRACTICE
and effect on the date of the death of said to wit,
on ,19...
(Consider paragraphs 9, 10 and 11 of count IV as here
repeated the same as if set out in words and figures.)
Ill
(For a third count consider paragraphs 1 and 2 of count I
as here repeated the same as if set out in words and figures.)
3. And the plaintiff avers that beginning with ,
19.., aforesaid, the said paid or caused to be
paid to said defendant up to , 19. ., all the prem-
iums reciuired or demanded of him by said defendant, to be
paid to renew and extend said policy ; that he paid such prem-
iums by quarterly instalments on or before the
day of of each year from , 19 . . , to
, 19 . . , that is to say, for full years,
4. And the plaintiff' further avers that under and by virtue
of the statutory laws of the state of , in which
state said defendant was incorporated, it is provided that when-
ever any policy of life insurance issued after 19. .,
by any domestic life insurance corporation, after being in force
years, shall by its terms lapse or become forfeited
for the non-payment of premiums or any note given for a prem-
ium or loan made in cash on such policy as security, or of any
interest on such note or loan, the reserve of such policy com-
puted according to the American experience tables of mortality
at the rate of per annum shall on demand made
with surrender value of the policy within months
after such lapse or forfeiture, be taken as a single premium of
life insurance at the published rates of the said corporation
at the time the policy was issued, and shall be applied as shall
have been agreed in the application or policy either to con-
tinue the insurance of the policy in force at its full amount so
long as such single premium will purchase temporary insurance
for the amount at the age of the insured at the time of the
lapse or forfeiture, or to purchase paid insurance; or if there
be no such agreement in the policy, such single premium may
be applied in either of the specified modes aforesaid, at the
option of the owner of the policy, notice of such option to be
contained in the said demand,
5. And the plaintiff avers that the said policy was issued
after , 19 . . , and on , 19 , . ; that said
defendant is a domestic corporation of the state of ;
that said policy was in force for more than years
and was in force full years ; and that the said
complied with all the conditions, stipulations and provisions
thereof; and paid to said defendant all premiums required and
demanded by it upon said policy for the renewal of the same;
that on, to wit, ? 19 • • , the plaintiff then and there,
acting for said tendered and offered to an author-
ASSUMPSIT 469
ized agent of the defendant the sum of dollars
as and for the renewal premium upon said policy for the
period beginning , 19 . . , and ending
, 19 . . , which was the amount the said
had paid during each quarter from ,
19 . . , for the renewal and extension of said policy ; which the
said agent then and there refused to receive upon the ground
that the renewal rate on said policy had been increased. And
thereupon, then and there and at other times within
months of the said , 19 . . , the said
demanded of the defendant that the reserve on such policy com-
puted according to the American experience tables of mortality
at the rate of per annum with the surrender value of
said policy to be taken as a single premium of life insurance
at the published rates of the said corporation at the time the
said policy was issued either to continue and extend the said
insurance in force for the full amount so long as said single
premium would purchase temporary insurance at the age of
the insured at the date of the said lapse of said policy on
, 19 . . , to wit, at the age of years, or
to purchase paid insurance; which the said defendant, then
refused and at all times, and ever since has refused to do.
6. And the plaintiff avers that the reserve on said policy com-
puted according to the American experience tables of mortality,
at the rate of .... % per annum on, to wit, , 19. .,
amounted to, to wit, dollars, and that the sur-
render value of said policy on said date was, to wit,
dollars, which sums, or either of them, were sufficient to extend
and renew said policy until, to wit, , 19. . .
7. And the plaintiff further avers that in all of the
years during which the said paid to the defend-
ant the premiums demanded, the actual losses of said defend-
ant were greatly less than the expected and anticipated losses
as computed by the actuaries upon the American experience
tables of mortality ; that in consequence thereof, the said defend-
ant saved large sums of money in its business of insurance
between the expected and realized losses which the said defend-
ant under said policy of insurance and the laws of the state
of , w^as and is bound to a credit on the said policy
for the purpose therein expressed and embodied in the said
statutory law of the state of
8. And the plaintiff avers that under and by virtue of the
laws of the state of , the said defendant was
bound to extend and renew said insurance; that by virtue of
said laws said policy could not become lapsed for failure to pay
any renewal premium, so long as the said policy had been in
force full years, and so long as there was the reserve
thereupon as aforesaid, computed as aforesaid to be taken as
a single premium for the continuance of such insurance as
provided by the said law^s.
470 ANNOTATED FORMS OP PLEADING AND PRACTICE
(Consider paragraphs 9, 10 and 11 of count IV as here
repeated the same as if set out in words and figures.)
IV
(For a fourth count, consider paragraphs 1 and 2 of count
I to star as here repeated the same as if here set out in words
and figures.)
3. And the plaintiff avers that said policy of insurance was
not a policy of term insurance for years or less, but
was a continuing insurance on the life of said ,
upon the payment of the lawful premiums as expressed in said
schedule in said policy contained and the contemporary stipula-
tions and agreements also in said policy contained.
4. And the plaintiff further avers that by the terms of said
policy the premiums due and payable to keep said policy in
force were variable and that such premiums in amount were
subject to change by the provisions of said policy aforesaid;
that the rates in said schedule contained were subject to
diminution by the dividends tliereon and also l\y the provisions
in said policy contained ; that the guaranty fund of said policy
accumulated less the payment of the policy's share of death
losses and the expense charge limited to dollars
per thousand per annum was to be used by saild defendant to
keep the premiums due and payable on said policy level with
the premium due and payable upon the issuance of said policy
of insurance.
5. And the plaintiff further avers that by virtue of the
statutory laws of the state of , in which said defend-
ant did and still does business, it is provided that no life insur-
ance corporation doing business in said state of
shall declare forfeited or lapsed any policy hereafter issued or
renewed and not issued on payment of monthly or weekly pre-
miums, or unless the same is a term insurance contract, for one
year or less, nor shall any such policy be forfeited or lapsed
by reason of non-payment when due of any premium, interest
or instalment or any portion thereof required by the terms of
the policy to be paid, unless written or printed notice stating
the amount of such premium, interest, instalment or portion
thereof due on such policy, the place where it should be paid
and to whom the same is payable, shall be duly addressed and
mailed to the person whose life is insured, or to the assignee
of the policy if notice of the assignment has been given to the
corporation, taking his or her last known postoffice address,
postage paid by the corporation or by an officer thereof or per-
son appointed by it to collect such premium, at least fifteen
and not more than forty-five days prior to the date when the
same is payable. And said statutory law further provides that
said notice shall also recite that unless such premium, interest,
instalment or portion thereof then due, shall be paid to the
corporation or to a duly appointed agent or person authorized
ASSUMPSIT 471
to collect such premium, by or before the date it falls due, the
policy and all premiums thereon will become forfeited and void,
except as to the right to a certain valued or paid up policy,
as in the chapter in which said section of said statutory law
occurs is provided.
6. And the plaintiff further avers that the said
caused to be paid to the defendant all the premiums demanded
by said defendant under said policy from the
day of , 19 . . , up to the day of
, 19 • . , quarterly in advance on or before the
day of of each year ; that owing to the terms of said
insurance policy, said assured could not and did not know the
amount of quarterly premium that could be and would be
demanded by said defendant to keep said policy in full force
and effect; that by the terms of said policy the assured was
required to pay by way of renevral premiums according to cer-
tain schedule rates in said policy of insuranpe included, less
the dividends awarded thereon; and it was further provided
that the surplus accruing to the credit of said policy was to
be applied towards keeping the premiums level with the pre-
mium at the date said policy was issued; and that by reason
thereof the renewal premiums on said policy designed to be
and were in fact variable and the amount thereof could not
be known by the assured, unless the assured was notified by said
defendant company; of which said defendant company at all
times had notice, and at all times had in its possession the com-
plete data from w^iich it could compute the amount of renewal
premiums. .
7. And the plaintiff further avers that she w^as the wife of
the said during his lifetime, and that she acted
for the said assured and as his agent in paying the premiums
due and demanded on said policy ; that, on, to wit, ,
19.., she, on behalf of said assured, offered to pay to said
defendant the sum of dollars, as and for the
renewal premium and extension of said poliej^ from ,
19.., which was the amount of quarterly premium on said
policy of dollars, which she had paid on behalf
of said assured to said defendant for the renewal of said policy
from, to wit, , 19. . ; and that said authorized
agent at said time and place refused to accept said sum of
dollars as the renewal premium, and demanded
of the assured through the plaintiff for the renewal and exten-
sion of said policy from , 19. ., to ,
19 . . , the sum of dollars.
8. And the plaintiff further avers that said assured jiever
at any time had any notice of the amount of premium which
would be demanded by or be due to said defendant on ,
19. ., prior to the time aforesaid, when plaintiff on behalf of
said assured offered to pay the sum of dollars to
said defendant for the said renewal premium; and that no
472 ANNOTATED FORMS OF PLEADING AND PRACTICE
written or printed notice was ever given to the assured, or to
any one representing him as required by the said statutory
law, stating the amount of premium due, the place where it
should be paid, and if the same was not paid at a given place
and time, the said policy should become forfeited and void ;
and that said assured never knew prior to the date when the
plaintiff offered the said sum of dollars to the
defendant, that said defendant demanded a larger or different
amount, or that said premium would be increased on said
,19...
9. And the plaintiff' further avers that the said ,
the assured, departed this life on, to wit, the day
of , 19. ., and that on, to wit, the same day, the
plaintiff offered and desired to make to said defendant, as in
and by said policy required, proofs of the death of the said
and said defendant on, to wit, the same day
waived said proofs of death and refused to pay the said sum
of dollars in said policy mentioned, on the ground
that said policy was not in force at the time of the death of
the said , but that said policy had become forfeited
and lapsed and void on , 19 . . , for the failure on
the part of said assured to pay the renewal premium alleged
by said defendant to be due on said date.
10. And the plaintiff avers that the said in his
lifetime did perform, fulfill and comply with all the conditions,
provisions and stipulations in said policy contained or thereto
annexed according to the due effect and meaning of the same;
and as by said policy provided, he duly renewed the same from
time to time, and offered on, to wit, , 19 . . , to
renew the same according to the terms and meaning of said
policy, and kept the same in full force and effect ; and that
said policy was in full force and effect at the time of the death
of the said ; and that the plaintiff has fully
observed the terms and conditions thereof.
11. Yet, the plaintiff avers that although more than
days have elapsed since the said refusal to allow the plaintiff
to make proofs of death as she was then and there willing and
able to make the same, said defendant has not paid the plain-
tiff the said sum of dollars, or any part thereof,
but to keep and perform any and all of the conditions and
undertakings of said policy, has wholly neglected and refused,
to the damage, etc.
1046 Ordinary; payment of premium extended, Narr. (111.)
For that whereas, heretofore, to wit, on the
• day of , 19. ., at the city of to wit,
in said county of , said defendant made its cer-
tain policy of insurance of that date numbered
and then and there delivered the same to , late
ASSUMPSIT 473
of the said city of and husband of the plaintiff,
in and by which said policy said defendant, in consideration
of the application therefor and of the premiums paid and
assumed to be paid to said defendant upon and for the said
policy as therein mentioned assured the life of the said
in the amount of dollars from dur-
ing the continuance of said policy and contract, and did further
promise and agree to pay said sum of dollars at
its principal office in to the plaintiff within
days after satisfactory proofs (under oath on the company's
blanks) of the death of said insured, the balance of the year's
premium, if any, and any other indebtedness to the company
being first deducted therefrom; the said policy being hereto
attached and hereby referred to and made a part hereof.
And the plaintiff avers that all of the said premiums men-
tioned in said policy and due on and
in each year were fully paid on said dates except the semi-
annual premium due on and which said pay-
ment of said last premium was duly extended by said defend-
ant for days from said last date, and the payment of
which said last premium was duly tendered to said defendant
before the expiration of said extension, to wit, within
days from said
And the plaintiff further avers that the said
departed this life on , in the city of ,
said county of , and while said policy was in full
force and effect ; that afterward, to wit on , the
plaintiff, being the w'idow of said deceased, furnished to the
defendant proofs of death of said , which proofs
W'ere made on the blanks of the defendant furnished by the de-
fendant to the plaintiff, were properly filled out and which were
accepted by the defendant in full compliance with the require-
ments of said defendant and within the time directed by said
defendant.
By means whereof the said defendant became liable to pay
to said plaintiff the said sum of dollars accord-
ing to the tenor and effect of said insurance policy; and being
so liable, said defendant, in consideration thereof, afterwards,
to wit, on the date and at the place aforesaid, undertook and
then and there promised to pay the said plaintiff said sum of
money in said policy mentioned according to the tenor and
effect thereof. Nevertheless, etc.
1047 Sick benefit, Narr. (Md.)
For that the defendant is a corporation duly incorporated
under the laws of the state of , and during the
times hereinafter mentioned was and now is engaged in the
business of accident and liability insurance in the city of
, state of Maryland, and issues policies agree-
474 ANNOTATED FORMS OF PLEAD]NG AND PRACTICE
ing to pay certain sums of money in the event that the p'arty
named in said policy shall become injured by accident and
indemnitying iiim against disability IVoni illness; and in pur-
suance of and in accoi-dancc with the business of said defend-
ant, and for a good and valual)le consideration, to wit, the sum
of ($ ) dollars paid by the said
to said defendant on or about the day of ,
19. ., the defendant issued to the said a certain
policy or certificate of insurance designated as No ,
wherein and wbereby said defendant promised and agreed to
pay to the phiintilf, the said , certain sums of
money, according to a schedule of operations attaclied to said
policy, and a further sum for each week during the disability
of said resulting from such illness.
And the said on the day of ,
19.., was operated on for a certain disability mentioned in
said schedule, to wit, ma.stoiditis, and was tliereby incapacitated
and disabled from perforiuing his usual l)usiness duties for a
period of weeks, accounting from the
day of , 19 . . . And the said fur-
nished the defendant with notice of said illness and operation
and gave proper and sufficient proof of said operation and ill-
ness, in accordance with the reriuirements of said policy and
contract ; and said plaintiff has performed all the conditions
and stipulations of said policy on his part to be performed,
but said defendant has refused and still refuses to pay to said
plaintiff the sum of ($ ) dollars, due and
owing to said plaintiff under said policy.
And the plaintiff' claims ($ ) dollars.
1048 Suicide, liability
In case of an assured 's suicide while sane the right of recov-
ery on an ordinary life insurance policy depends upon the
absence of a provision in the policy against liability under the
circumstances and also upon the character of the beneficiary.
If the policy is payable to the estate of the deceased, no recov-
ery can be had under it ; but if the policy is payable to a third
person, the policy is enforcible. So, in fraternal insurance,
the intentional self-destruction of the assured while sane does
not defeat the right of his beneficiary, if it be his wife, to a
recovery, where the contract of insurance is silent on the rights
of the parties in case of self-destruction.^^
93 Select Knights of America v. Supreme Conclave v. Miles, 92 Md.
Beaty, 224 111. 346, 349, 351 (1906) ; 613 (1901).
ASSUMPSIT 475
1049 Manufactured articles for dealer, acceptance refused,
Narr. (111.)
For that whereas, heretofore, to wit, on the
day of , 19.,, C was then and there employed
and engaged in the work of cutting, designing and manufac-
turing ladies' cloaks and garments for M, in the city of
and county aforesaid, and whereas the said defendant herein
was then and there engaged in the wholesale dry goods business
and manufacturing, buying and selling ladies' cloaks and gar-
ments, and being so engaged in said business on the day and
year last aforesaid, and being desirous of having the serv-
ices of said C in and about the manufacture of such cloaks and
garments as said defendant might want, the said defendant
on the day and year last aforesaid then and there requested
the said C to obtain another person with capital and means for
the purpose of carrying on the business of manufacturing such
cloaks and garments as aforesaid, and such as the said defend-
ant would order, and then and there promised the said C that
said defendant would buy and receive and accept from such
person whom he, said C, would associate with him when the
same would be so manufactured by him, such cloaks and gar-
ments to be ordered by him, to the amount of
($ ) dollars, and pay to the said person whom the said
C would associate with him in the said enterprise, a sum equal
to per cent upon the cost price of said cloaks and gar-
ments so to be ordered by and manufactured for said defend-
ant; tiiat the said C then selected and obtained said plaintiff
herein for the purpose of manufacturing and delivering said
cloaks and garments as aforesaid to the said defendant, who
then and there was satisfactory to and accepted by said defend-
ant as such manufacturer; and plaintiff says that said C before
then, had never been engaged in the manufacture of cloaks and
garments nor had he before then fitted up premises or pur-
chased any cloths or materials, nor engaged help in the manu-
facture of such cloaks and garments, nor had he any money or
means for the same, but the defendant being then and there
desirous, as aforesaid, to have said plaintiff engage in the
manufacture of said cloaks and garments, and to have said C em-
ployed and engaged by said plaintiff', as the cutter and designer
of such cloaks and garments to be manufactured by said plain-
tiff as aforesaid, he, the said defendant, then and there induced
said plaintiff to engage in the said business of manufacturing
the said cloaks and garments as aforesaid, and to buy goods,
wares, merchandise and machinery and apparatus for the manu-
facture of the same, and also to rent, lease and fit up the prem-
ises wherein the same were to be so manufactured as aforesaid,
and to employ divers persons in and about the manufacture of
such cloaks and garments, and then and there undertook and
promised, to wit, at the county aforesaid, on the day and year
476 ANNOTATED FORMS OP PLEADING AND PRACTICE
last aforesaid, in consideration of the premises, and in considera-
tion that the said plaintiff aforesaid would manufacture and
make for him, the said defendant, ladies' cloaks and garments
to the amount of ) . . ($ ) dollai-s as the same
should be ordered by him, the said defendant, and would deliver
said cloaks and garments when completed, to said defendant,
and he, the said defendant, then and there undertook and prom-
ised the said plaintiff to accept cloaks and garments of said
plaintiff when so manufactured and made, and pay him for
the same, the said cost price thereof, to wit, the amount of
($ ) dollars together with a profit of
per cent of such cost price of such cloaks and garments on the
delivery of them, from time to time as the same were ordered
and delivered ; and said plaintiff avers that he, confiding in
said promises and undertakings of said defendant, to wit, on
the day and year last aforesaid, and for a long time thereafter,
to wit, at the county aforesaid, purchased a large amount of
cloths, trimmings, and other goods and chattels used in and
about the manufacture and making of the said cloaks and gar-
ments, and samples thereof, for the said defendant, and also
purchased a lot of machinery and apparatus used in and about
the manufacture of such cloaks and garments, and leased and
rented the premises and fitted the same up for the purpose of
so manufacturing such cloaks and garments as aforesaid, and
also employed and hired divers persons in and about the manu-
facture of the same, and did, to wit, at the county aforesaid,
for a long time thereafter, to "wit, for the period of
months after the day and year last aforesaid, manufacture
cloaks and garments for the said defendant as a part and parcel
of the said cloaks and garments so to be accepted by said defend-
ant, to wit, a part and parcel of said cloaks to the amount of
($ ) dollars.
And plaintiff avers that being so induced to purchase said
cloths, materials, machinery and apparatus, and to lease and
rent premises and to fit the same up and to employ divers per-
sons in and about the manufacture of said cloaks and garments
and to manufacture and make the same, he, said plaintiff, was
ready and willing and then and there offered to deliver the
same to the said defendant, and requested him to accept the
same as well as the remainder of said quantity so to be manu-
factured for said defendant ; all of which said premises the
defendant then and there had notice; and he did then and
there submit to said defendant such cloaks and garments so
manufactured by said plaintiff for the said defendant, which
said cloaks and garments plaintiff avers were duly approved of
by the said defendant ; yet the said defendant not regarding his
said promises and undertakings and knowing that by reason
of his said promises and undertakings, as aforesaid, he induced
and obtained said plaintiff to buy said goods, clothes and ma-
terial, and the said machinery and apparatus necessary for the
ASSUMPSIT 477
manufacture of such cloaks and garments, and to lease and
tit up premises and to employ aud hire divers persons for the
manufacture of the same, but contriving and intending to injure
plaintiff in this behalf, did not nor would then nor at any other
time accept said goods and chattels so made and manufactured
by said plaintiff' or any part thereof, nor pay him, the said
plaintiff, said price thereof or any part thereof, but he to do so
wholly failed, and still wholly fails and refuses so to do, to wit,
at the county aforesaid ; nor would he order nor accept from the
said plaintiff, the remainder of the said cloaks and garments
so to be manufactured by the said plaintiff for the said defend-
ant, to wit, to the amount of ($ ) dollars,
but to do so neglected and absolutely refused and still refuses
to accept or receive the same or any part thereof, to wit, at the
county aforesaid.
And plaintiff avers that in consideration of said promises and
undertakings of the said defendant as aforesaid, and the breach
thereof by the said defendant, he, the said plaintiff, was obliged
to and did sell said cloaks and garments so manufactured and
made for the said defendant at a great sacrifice, to wit, at the
sacrifice of fifty per cent of the value thereof; and being in-
duced by said defendant as aforesaid, and in order to keep and
perform his said promise and undertaking to manufacture such
cloaks and garments, he, the said plaintiff', was obliged to and
did pay, lay out and expend for help and labor in and about the
manufacture of said cloaks and garments, a large sum of money,
to wit, the sum of ($ ) dollars, and also
for machinery and apparatus necessary and used in and about
the manufacture of the same, a large sum of money, to wit, the
sum of ($ ) dollars, and also for the rental
and fitting up of the premises necessary and used in and about
the manufacture of said cloaks and garments a large sum of
money, to wit, the sum of ($ ) dollars ; of
all of which said premises said defendant had notice, to wit,
at the county aforesaid, whereby said plaintiff has lost and been
deprived of the benefit of said per cent of said sum of
($ ) dollars, so to be paid to him for the
manufacturing and delivering of said cloaks and garments to
the said defendant as aforesaid ; and he was also obliged to and
did sustain great loss and injury by selling said cloaks and gar-
ments so manufactured, at a sacrifice; and he was obliged to
and did pay, lay out and expend large sums of money for help
and labor by fitting up said premises in and about the manufac-
ture of said cloaks and garments as aforesaid ; and he was
obliged to and did sustain great loss in and about the disposition
of the cloths and materials purchased by said plaintiff for the
purpose of carrying out his promise and undertaking in the
premises; and he was obliged to and did pay out large sums
of money for and on account of rental for premises to be used
for the purpose of manufacturing said cloaks and garments, and
478 ANNOTATED FORMS OF PLEADING AND PRACTICE
for machinery purchased for the purpose of manufacturing said
cloaks and garments for said defendant; of all of which said
defendant had notice, to wit, at the county aforesaid. Where-
fore plaintiff says he is injured to the extent of
($ ) dollars, therefore, he brings his suit, etc.
1050 Manufactured building material, acceptance refused,
Narr. (111.)
For that whereas, heretofore, to wit, on the
day of , 19.., at , to wit, at the
county aforesaid, in consideration that the plaintiff. . would
make or cause to be made and furnished for the defendant.,
at h. . request (Describe goods to be made), and set same up
ready for use in defendant. . ' new building in at
and for the price of dollars, and would deliver
to . .h. . the said (Describe goods) and set up in said building
on the day of , 19. ., . .h. ., the de-
fendant. ., promised the plaintiff. . to accept of . .h. . the said
(goods) when the same should be so made, and to pay ..h..
the said price for the same, on the delivery thereof as aforesaid.
And the plaintiff., aver., that ..he., did afterwards, to wit,
on, etc., there make the said (Describe goods) for the defend-
ant. ., and thereupon then and there .... ready and willing
and offered to deliver the same to . .h. , and requested . .h. . to
accept and pay for the same as aforesaid. Yet, the defendant . .
did not, nor would then or at any other time accept of the
plaintiff". . . the said (Describe goods) or pay. . . . therefor the
price aforesaid, or any part thereof, but refuses so to do. (Add
common counts)
1051 Manufacturing goods per sample, refusal, Narr. (111.)
For that whereas, on, to wit, , 19. ., in ,
in the county aforesaid, the plaintiff.., at the request of the
defendant . . , bargained for and agreed to buy of the defend-
ant. . a large quantity, to wit, gross of w^ood ink
bottles, gross of bottoms for bottles,
gross of tops for bottles, gross of necks for bottles,
and such other goods of the same quantity as the plaintiff. .
should require for use in . . h . . business during the year ,
the plaintiff. . being then and there a manufacturer of inks and
blueing; that such goods were bargained for by the plaintiff. .
from the defendant. . on the following terms, that is to say,
gross two ounce bottles like sample, marked "A,"
at (State price), said order having been given on the basis of
the prices being outside figures, and orders in addition to' the
above having been left open to competition; it being agreed
between the plaintiff., and the defendant., that the defend-
ant . . w . . . . bound to manufacture during the year
ASSUMPSIT 479
in addition to said order, all of the goods of like character as
was stated in the contract, which plaintiff. . needed for use in
. .h. . business at prices not exceeding prices named in said con-
tract, which said contract and order above referred to is here-
to attached, marked exhibit "A." And thereupon, in consid-
eration of the premises and that the plaintiff. . had promised
the defendant., at ..h.. request to accept the delivery and
shipment of all of the goods mentioned in the above described
contract and order as aforesaid, and to pay the defendant. . for
the same at the rates in said contract mentioned as aforesaid,
in the county aforesaid, said defendant . . promised said plain-
tiff. . that ..h.., the defendant.., would, within a reasonable
time then next following, procure to be delivered and shipped
to the plaintiff., in manner aforesaid the said quantity of
goods above mentioned of the quality called for by the samples
above referred to, at the prices above named and contained in
said contract, and such other goods of the same quality and
at the same prices as are named in said contract to which refer-
ence is made. That the time for making shipment and delivery
as aforesaid has long since elapsed and the plaintiff., w
always during and since that time ready to accept the delivery
and shipment of all such goods described in said agreement and
such other goods as . .he. . might order, and to pay for the same
as aforesaid, whereof the defendant. . then had notice; yet, the
defendant., (though often thereto requested), did not nor
would within such reasonable time or afterwards procure to be
delivered or shipped, for the plaintiff., in manner aforesaid,
or otherwise, the said amount of manufactured goods of quality
aforesaid or any such goods whatever, but refused and still
refuse . . so to do.
By means whereof, the plaintiff., ha., been deprived of
great gains and profits which . .he. . might and otherwise would
have acquired, being unable to place ..h.. inks and blueing
therein and to put the same upon the market, at the time when
it would have been most advantageous for . .h. . to do so; but
the plaintiff. ., on account of the failure and refusal of the de-
fendant. . to carry out said contract, w compelled to pur-
chase manufactured goods of the same character as those which
were to be furnished by the defendant. ., paying therefor prices
much higher than the prices agreed upon in the said contract ;
and the plaintiff. ., relying upon the promises of the defend-
ant. . in said agreement entered into between sel and
the defendant . . , disposed of a large quantity, to wit,
dollars' worth of glass goods owned by the plaintiff. ., intended
for use in and about the business of the plaintiff. ., discounting
the same at the rate of per cent with the intention
of substituting them by goods bargained for of the defend-
ant. ., for the glass goods so sold at a sacrifice by the plain-
tiff. . ; and the plaintiff. . say. . that by reason of having relied
upon the promise of the defendant. . to furnish the goods men-
480 ANNOTATED FORMS OF PLEADING AND PRACTICE
tioned in said agreement, and so relying upon the promises of
the defendant. . having sold the glass goods then owned by the
plaintiff. ., and the defendant. . not having furnished the goods
agreed to be furnished by ..h.., the plaintiff., w.... pre-
vented from placing . .h. . inlvs and blueing upon the market,
for a long space of time, to wit, for about the space of
months, and w. . , . thereby deprived of great gains and profits
which . .h. . might have acquired by being enabled to sell . .h. .
own goods put up in the packages bargained for of the defend-
ant..; wherefore the plaintiff'., say., that ..he
injured and ha. . sustained damage to the amount of
dollars; and therefore bring. . . .h. . suit.
1052 Manufacturing plant, refrigerating system, Narr. (111.)
For that whereas, heretofore, to wit, on the day
of , 19 . . , at, to wit, in the county aforesaid, the
plaintiff and defendant made and entered into a certain agree-
ment in writing of which the following is a true copy, and
thereby mutually undertook and promised as is therein set forth,
to wit: (Set forth agreement in Jiacc verba).
And thereafter, on, to wit, the day of ,
19 . . , at , in the county aforesaid, the plaintiff
and defendant made and entered into a certain other agreement
in writing additional and supplemental to said agreement of
, 19. ., above set out, of which the following is a
true copy, and thereby mutually undertook and promised as
is therein set forth, to wit: (Set out agreement referred to).
And the plaintiff avers that after the execution of said con-
tract and supplemental contract, and as full compliance there-
with, it furnished and erected in the premises specified in said
contract and supplemental contract, a refrigerating plant, and
delivered the same to said defendant on or about the
day of , 19 . . , at , in the county afore-
said; and that the said defendant then and there accepted the
same as in compliance with said contract and supplemental con-
tract, and is now using the same.
And the plaintiff further avers that after the delivery of said
machinery by plaintiff at the premises of defendant, the defend-
ant paid to the plaintiff on account thereof the sum of
dollars, and that upon the acceptance of said refrigerating plant
by the defendant as aforesaid, the defendant became indebted
to the plaintiff for the balance of the purchase price of said re-
frigerating plant, as provided in said contract and supplemental
contract, to wit, dollars ; and being so indebted,
the defendant then and there faithfully promised the said plain-
tiff well and truly to pay unto the said plaintiff the sum of money
last mentioned, when the said defendant should be thereunto
afterwards requested. (Add consolidated common counts)
Nevertheless, etc.
ASSUMPSIT 481
1053 Mechanic's lien; subcontractor, action
A subcontractor may bring assumpsit against the owner and
the contractor to enforce a mechanic 's lien.'^^
1054 Mechanic's lien, notice (Fla.)
To
Notice is hereby given you that I have performed labor upon
your house, which was built on the hereinafter described lot,
such labor consisting of (Set forth the nature of the labor) ;
that said labor was performed for , contractor ;
that the amount due him for such labor is dollars
and cents ; that the lot referred to is (Describe
property) ; and that I claim and intend to hold a lien on your
house and lot mentioned for such labor performed and for said
amount.
Dated, etc.
(Character of workman)
Affidavit
(Venue)
Before the undersigned authority personally appeared ,
to me well known to be the person who signed the foregoing
notice, and who, being duly sworn, says that the facts therein
stated are true and that the sum of dollars and
, cents stated therein to be due him on said ac-
count, is due, just and true and remains unpaid.
Subscribed, etc.
(Illinois)
To (name owner)
You are hereby notified that I have been employed by (Name
contractor) to (State nature of contract or work done, or to be
done, or of what the claim is for), under his contract with you,
on your property (Set forth substantial description) at ,
and that there was due me (or is to become due me therefor),
the sum of dollars.
Dated at , this day of , 19 . .
95
94Harty Bros. v. Polakow, 237 ss Sec. 24, e. 82, Hurd's Stat.
111. 559, 566, 567 (1909). 1911, p. 1845.
482 ANNOTATED FORMS OF PLEADING AND PRACTICE
1055 Mechanic's lien, Narr. (Fla.)
sues , as his contractor, for money
due for labor performed and materials furnished for (Describe
character of work), on the residence of said defendant, situate
on lot (Describe property), the said work having been per-
formed and the materials having been furnished during the
year of , at the separate request of , as con-
tractor, and of , as owner.
And the plaintiff prays the court for a judgment herein and
that the said property, to wit: (Describe as before) be sold to
satisfy his lien.
Bill of particulars
The following amounts are due , from ,
as his contractor, to wit:
Year I Name ! Kind of work I Amount
1056 Money had and received, action
An action for money had and received is equitable in its
nature and generally lies for money which the defendant ought
to refund in justice and fair dealing {Ex aequo et hono).^^
Money which had been paid voluntarily under a mistake of law,
or under a claim of right to the payment, with knowledge of the
facts by the person making the payment cannot be recovered back
on the ground that the claim was illegal, unless the payment had
been made under a controlling necessity arising from the particu-
lar circumstances amounting to a compulsion.^'' Thus, money
paid under protest to a party or a corporation who had no right
to receive it and the payment was made to prevent injury to per-
son, business or property of the payor ;^s money paid as the
only means to recover possession of one's own property ;^^ and
66 Ward V. Bull, 1 Fla. 271, 278 ss Chicago v. Northwestern Mutual
(1847). Life Ins. Co., 218 111. 40, 44 (1905).
97 Chicago V. McGovern, 226 111. ss Spaids v. Barrett, 57 111. 289,.
403, 406 (1907); Cook County v. 293 (1870).
Fairbank, 222 111. 578, 589 (1906);
Illinois Glass Co. v. Chicago Tele-
phone Co., 234 111. 535, 541 (1908).
ASSUMPSIT 483
money realized from the wrongful conversion and sale of per-
sonal property may be recovered back in this form of aetion.^"^
To render the payment compulsory, the pressure brought to
bear upon the person paying must have been such as to inter-
fere with the free enjoyment of his rights of person or property,
and the compulsion must have furnished the motive for the pay-
ment sought to be avoided. i*'^
An action for money had and received is appropriate to com-
pel a city to pay over a special assessment which has been levied
and collected, and nothing remains to be done but to pay it ;io2
to recover back taxes which have been paid involuntarily upon
a void assessment ;^*'^ and to recover from the sheriff the sur-
plus that belongs to a judgment debtor upon an execution sale
and the satisfaction of the judgment. ^°^
A party who has a right of action ex delicto may waive the
tort or wrong and sue in assumpsit for money had and
received.^o^
A partner cannot sue a co-partner in assumpsit for money ad-
vanced to him in furtherance of the partnership.ioe
1057 Money had and received; insurance money received by
factor, Narr. (111.)
For that whereas, heretofore, to wit, on the day
of , 19. ., the defendant. ., w. . and from thence
hitherto ha. . been engaged in the business of selling produce
on commission at , to wit, in said
county, and that, afterwards, to wit, on the day and year last
aforesaid, at , to wit, at said county,
the plaintiff. . entered into an agreement in writing bearing
date the day and year last aforesaid with the defendant. .
under the style of , whereby the plaintiff. . prom-
ised to ship the defendant.., to wit, one or more carloads of,
to wit, , and in consideration thereof the defend-
ant. . promised to receive and sell the same for and on account
100 Watson v. Stever, 25 Mich. 386, io4 Commerce Vault Co. v. Barrett,
387 (1872). 222 111. 169, 176 (1906).
101 Illinois Glass Co. v. Chicago io5 May v. Disconto Gesellschaft,
Telephone Co., 234 111. 535, 543. 211 111. 310, 315 (1904).
102 Conway v. Chicago, 237 HI, loe Hartzell v. Murray, 224 111.
128, 135 (1908). 377 (1906).
103 Nicodemus v. East Saginaw,
25 Mich. 456, 458 (1872).
484 ANNOTATED FORMS OF PLEADING AND PRACTICE
of the plaintiff. . for a reasonable compensation to be paid
by the plaintiff. . therefor and to keep said insured
against loss or damage by fire for the benefit of plaintiff. ., so
long as said should be in the defendant . . pos-
session and remain unsold.
And the plaintiff. . aver. . that relying upon the said prom-
ises of defendant., the plaintiff., afterwards, to wit, on the
day of , 19 • • , shipped to the defend-
ant. ., under tlie"^ style of , one carload of, to wit,
, to wit, (Describe contents of car), weighing in
the aggregate, to wit, pounds, and that afterwards,
to wit, on the day of , 19 . . , the
plaintiff., shipped to the defendant.., under the style of
, an additional carload of , weighing
in the aggregate, to wit, pounds ; that the defend-
ant. . afterwards, to wit, on the day and year last aforesaid
received said and placed the same in storage in
the name of , at, to wit, at the warehouse of the
, to wit, at said county ; that on, to
wit, on the day of , 19. ., there re-
mained unsold and so as aforesaid stored in said warehouse and
in possession of defendant . . , to wit, pounds of
said ; that prior to the day and year last aforesaid
the defendant. . had procured, to wit, divers insurance policies
of insurance upon the said ; and that on the day
and year last aforesaid, and while the said policies of insurance
were in full force, a fire occurred at said warehouse and dam-
aged the goods of said plaintiff. . so stored as aforesaid; that
the defendant. . then and there made claim upon the insurance
companies that had issued said policies of insurance that said
so as aforesaid in store in said warehouse was
damaged by reason of said fire ; that afterwards, to wit, on the
day and year last aforesaid, the defendant., made a set-
tlement with said insurance companies for said damages to
said so in storage as aforesaid and that said insur-
ance companies then and there paid to the defendant. . as dam-
ages sustained by reason of said fire the sum of •
cents per pound upon each pound of said so m
store at said warehouse and in possession of defendant. . at the
time of said fire.
And plaintiff., further aver., that the defendant., after-
wards, to wit, on the day and year last aforesaid, sold the said
for and on account of the plaintiff. . ; that said
piai'ntiff. . ha. . paid to the defendant. . the full amount of the
premium paid by the defendant . . for the said insurance on said
and ha. . paid to the defendant. . the full com-
pensation charged by the defendant. . for the sale of said
and ha. . also paid to the defendant. . all other
charges and expenses made or sustained by the defendant. . in
and about the handling or selling the said. . ; yet, the defend-
ASSUMPSIT 485
ant. . ha, . neglected and refused and still neglect. . and refuse. .
to pay to the plaintiff. . the said sum of money so collected and
received by the defendant. ., from the said insurance companies
as damages sustained upon the said , the property
of the plaintiff.., by reason of said fire, whereby the defend-
ant., became liable to pay to the plaintiff., the sum of, to
wit, dollars, and being so liable the defendant . .
then and there promised the plaintiff. . to pay . .h. . the same
when . . he . . should be thereto afterwards requested. Never-
theless, etc.
1058 Money had and received ; purchase price under rescinded
contract, Narr. (111.)
For that whereas, on the day of ,
19. ., in the county aforesaid, the defendant entered into a con-
tract in writing with the plaintiff in the words and figures fol-
lowing, to wit: (Set out contract).
And the plaintiff avers that he then and there paid to the
defendant the sum of ($ ) dollars pursu-
ant to the terms of said contract; that afterwards, the said de-
fendant delivered to the plaintiff an abstract of title of said
described land as a true and correct abstract of title to said
land, and assured plaintiff that said abstract contained a true
and correct history of the source, nature and condition of de-
fendant's title to said land at the time said abstract was deliv-
ered, upon which said abstract plaintiff might safely and solely
rely to ascertain the source, nature, condition and sufficiency
of defendant's title to said land and defendant's right and abil-
ity to convey and assure under said contract to plaintiff by a
good and sufficient warranty deed said described land in fee
simple clear of all incumbrances whatsoever; that plaintiff re-
ceived said abstract for examination and relied on the contents
and representations thereof ; that an examination of said abstract
disclosed clouds and incumbrances on and over said title as
follows, to wit:
The patent from the United States government to said land
was granted , 1 . . . . , to J, M, J J, D and K ; that
subsequently thereto, D, L D pretend to convey said described
lands to parties through whom defendant derives title, no con-
veyance by the original patentees being shown by said abstract
and no sufficient evidence being disclosed that the said grantors
and the said patentees were identical ; that said M died prior to
, 19 . . , without probate of his estate and proof of
heirship, and said abstract does not show that all the heirs of
said M conveyed the interest of said M, deceased, to any one
in the chain of title through which defendant pretends to have
acquired title ; that documents numbers . . . . , .... and .... of
said abstract show a partition proceeding attempted to be made
by the heirs of one P, to whom title is pretended to have passed,
486 ANNOTATED FORMS OP PLEADING AND PRACTICE
one of said heirs named P being a minor, over whom the court
entertaining said partition proceeding had no jurisdiction and
whose rights and interests in said described land were not by
said proceeding concluded and who is not by said proceeding
bound; that said abstract does not disclose the heirs of said P,
and that the title to said described land is subject to the rights
of any person who may be shown to be the heir of P, other than
those mentioned in said partition proceeding; that the court
in said proceeding had no right or authority to order a sale
of said described land, and the rights of the heirs of said P
were not by the sale in said proceeding ordered concluded ; that
said abstract shows a mortgage of said described land in the
state of , which said mortgage is not by due author-
ity canceled and released; that in said partition proceeding a
sale of the said described land was made by one
without any authority from the court ordering said sale, the
person by said court appointed to make said conveyance being
known and described as ; and that said described
property was then and there subject to the rights of parties
then and there in possession, the names of whom are to plaintiff
unknown.
Plaintiff further avers that there was then and there in full
force and effect in the state of , and continued to
be in full force and effect until the commencement of this suit,
the following law, to wit: (Set out statute).
And the plaintiff' further avers, that afterwards, to wit, on
and after the day of , 19 . . , he, the
said plaintiff, was ready and willing, and offered to execute and
deliver to the said defendant a trust deed upon said described
property securing the payment of the sum of
($ ) dollars, due in years from the date
thereof, with interest at the rate of per cent per annum,
payable semi-annually, on the whole sum remaining unpaid,
and to pay all taxes, assessments or impositions that may be
legally levied or imposed upon said land subsequent to the year
19. . ; that the said defendant was then and there informed of
the above mentioned defects, clouds and incumbrances upon
said title; that by reason of said clouds, incumbrances and de-
fects in said title, and the operation of the statute law of the
state of , said defects, clouds and incumbrances
were then and there subsisting clouds and incumbrances upon
said title ; that the defendant was then and there unable to con-
vey and assure to the plaintiff in fee simple clear of all incum-
brances whatever, by a good and sufficient warranty deed, the
said described piece and parcel of land, though requested so
to do by the plaintiff ; and that thereupon the plaintiff rescinded
said contract ; and that the defendant then and there by reason
of said premises became and was indebted to the plaintiff in the
sum of ($ ) dollars theretofore paid by the
plaintiff to the defendant as aforesaid; and being so indebted,
ASSUMPSIT 487
the defendant, in consideration thereof, then and there promised
to pay him the said sum of money on request. Yet the defend-
ant, though requested, has not paid the same or any part thereof,
but refuses so to do ; to the damage of the plaintiff in the sum
of ($ ) dollars, and therefore, he brings his
suit, etc.i"^ (Add money counts)
1059 Money stolen, Narr. (Md.)
For that the defendant is indebted to the plaintiff in the
sum of $ , for moneys stolen by the defendant from
the plaintiff while he, the said defendant, was a clerk in the
office of the , and acting as such in
the said office of the , and in the
employment of the plaintiff* as such, which said $
at the time of such theft, as aforesaid, by the defendant, was the
property of the plaintiff, and which said property and money,
so stolen by the defendant as alleged, the defendant has taken
away and appropriated to his own use and refuses and has
refused and still refuses to pay the same to the plaintiff.
And the plaintiff' claims $
1060 Paving under viaduct, action
In the absence of contract, a municipality, under its police
power, cannot require a railway company to re-pave, re-curve
and re-sidewalk a subway constructed by the railway company
under its charter by the elevation of its tracks. Neither is it
within the power of the municipality, under its general au-
thority to compel railways to construct and maintain proper
crossings at streets, alleys and highways, or to maintain via-
ducts with proper approaches thereto, to force a railway com-
pany to re-pave, etc., approaches to a viaduct which are not legal
approaches thereto. Ordinarily an "approach" is considered
a part of the viaduct. Its. determination, however, depends upon
what would be reasonable under the circumstances and the local
situation in each case. The filling of some of the approaches to
a viaduct pei-manently, the full width of the street, resulting in
a mere raising of the street grade constitutes no part of the
viaduct or its approaches. ^*^^
1061 Performance prevented, Narr. (Va.)
For this, to wit, that heretofore, to wit, on the
day of , at the in the county of
lOTEffgers V. Busch, 154 HI. 604 los Chicago v. Pittsburgh, Ft. W.
(1895) & C. Ry. Co., 247 111. 319 (1910).
488 ANNOTATED FORMS OF PLEADING AND PRACTICE
, by a certain agreement then and there made
between the said plaintiff and the said defendant, the said
plaintiff agreed to construct and complete a certain barge, fur-
nishing all the materials and labor in the construction of the
same, the said barge to be of the dimensions of feet
and feet in depth, and it was further agreed that said
barge was to be completed in days from the time of
its commencement; it was also then and there agreed between
the said plaintiff and the said defendant, that he, the said defend-
ant, would pay unto the said plaintiff, upon the completion of the
said barge the full sum of dollars. And the said agree-
ment being so made, afterwards, to wit, on the day, month
and year first above written, in consideration thereof, and that
the said plaintiff, at the special instance and reiiuest of^ the
said defendant had then and there undertaken and faithfully
promised the said defendant to perform and fulfill the said
agreement in all things on the said plaintiff's part and behalf
to be performed and fulfilled, he, the said defendant under-
took and then and there faithfully promised the said plaintiff
to perform and fulfill the said agreement in all things on said
defendant's part and behalf to be performed and fulfilled. And
the said plaintiff had always from the time of the making of
the said agreement, performed and fulfilled all things on his
part and behalf in the said agreement to be performed and ful-
filled, and did afterwards, to wit, on the day of
. . . , , enter upon and commence the said work, and for
that purpose did procure and find all materials and labor neces-
sary for performing same, and did the same in part, and hath
always been ready and willing to perform and complete the
whole of said work in pursuance of the said agreement ; of all
which premises the said defendant hath notice.
Yet, the said plaintiff in fact sayeth that the said defendant
contriving and wrongfully intending to injure said plaintiff,
did not nor would, perform said agreement, nor his said prom-
ise and undertaking, and wholly disregarded the said agreement
and said promise and undertaking; and afterwards, to wit, on
the day of , did not, nor would, permit or suffer
the said plaintiff to proceed to complete the said work and then
and there wholly hindered and prevented him from so doing,
and then and there wrongfully discharged the said plaintiff
from any further performance or completion of his said agree-
ment and promise and undertaking; whereby the said plaintiff
hath lost and been deprived of profits and advantages, which
he otherwise might and would have derived from the comple-
tion of said work; and although often requested, said defend-
ant has not paid to said plaintiff the money that is due him
under the terms of said contract, or any part thereof, to the
plaintiff's damage in the sum of dollars; and
therefore, he brings this suit, etc.
ASSUMPSIT 489
1062 Personal injuries, action
Assumpsit, and not case, is the appropriate remedy against
the principals and their sureties to recover damages for per-
sonal injuries resulting to a party from a breach of any of the
conditions of a contractors' bond.^^^
1063 Personal injuries ; sidewalk injury, Narr. (Mich.)
For that whereas, heretofore, to wit, on the
day of , 19- •, the said defendants by their writ-
ing obligatory, bearing date the day and year aforesaid, acknowl-
edged themselves to be held and firmly bound unto the city of
, a municipal corporation in said county of
[[/,, , in the sum of dollars, lawful money
of'theUnited States, to the payment of which, well and truly
to be made, they bound themselves and each of their heirs, exe-
cutors, administrators and assigns jointly and severally. And
in said writing obligatory it was expressly set forth that whereas,
the above bounden desired to engage in the busi-
ness of laying stone or cement sidewalks, cross-walks or curbs
in the city of ; and whereas, the common council
of the said city, in pursuance of the authority conferred upon
it to regulate the construction of sidewalks, cross-walks and
curbs, did at the regular meeting held on the day
of , 19. ., adopt the following resolution : (Set
out resolution).
And the said writing obligatory was upon the express condi-
tion that .if the said shall construct and lay all
such stone or cement sidewalks, cross-walks, or curbs, laid by
them in said city, of first class material, in good and worknian-
like manner, upon and along grades furnished and established
by the board of public works, and shall keep the same in good
repair for a period of years from and after the date
of said instrument, and shall properly support and protect all
the retaining walls upon the land abutting and adjoining where
said walks may be laid, so as to prevent injury thereto by reason
of the construction of any such walks and curbs, and shall in
all things abide by the rules and regulations made by the said
board of public works governing the construction of said walks,
cross-walks or curbs in said city, and shall also protect and
save the said city of , free and harmless from all
loss or damage caused by said , in and about the
construction of said sidewalks, and shall indemnify, protect
and save harmless all persons mentioned in the above resolu-
tion, and for whose benefit said bond was given, said bond being
given in pursuance of and in compliance with the terms of said
109 Cox V. Fidelity & Deposit Co.,
157 Mich. 59, 64, 65 (1909).
490 ANNOTATED FORMS OF PLEADING AND PRACTICE
resolution, then said bond or obligation to be void, otherwise
to remain in full force and effect. The plaintiff avers that
said writing obligatory which was by the said defendants duly
signed and sealed, was delivered and filed with the board of
public works of said city of , and became from
thence and thereafter a valid and substantial obligation upon
the part of said defendant.
And plaintiff avers that at the time of the making and filing
of said writing obligatory as aforesaid, the said defendants con-
templated the construction of a certain sidewalk in
street, a legally constituted highway in said city of
on the side thereof, for the , a cor
poration, by contract with said company, along the property
of said company, in said city of ; that there-
after the said defendants , did enter upon the con-
struction of said cement sidewalk at the place aforesaid, and
did construct the same for said , under contract
with it ; and that to protect said cement sidewalk after same was
constructed as aforesaid, the said defendants did
place a certain wire netting across the said sidewalk at or near
the place where the said cement sidewalk joined it, or was con-
nected with another sidewalk in said street, and wiiich in con-
nection with said sidewalk formed a continuous walk along the
side of said street at the place aforesaid.
The phiintiff further avers that among the rules and regula-
tions of the board of public works of said city of ,
at the time of the construction of said sidewalk aforesaid, and
the erection of the barrier aforesaid, w^as a rule and regulation
that barriers erected as aforesaid to protect said walks as afore-
said should be of sufficient height to prevent persons using said
sidewalks from walking into said cement sidewalks and from
falling over said barriers, and that at the same time said board
of public works had another rule or regulation that in the
night all barriers erected as aforesaid should be properly pro-
tected by light or lamp.
And the plaintiff avers, that, to wat, at the time and place
aforesaid, it was the duty of the said defendants
to erect and maintain a barrier, at the place aforesaid, of suifi-
cient height so as to prevent persons from walking on said walk
or falling over said barrier, and that at the said time and place
it was also the duty of said defendants to have
a light or lamp in the night time at or near said barrier so
that the same might be seen and so as to prevent any person
from colliding therewith.
But the plaintiff avers that contrary to the duty of said
, as aforesaid, to wit, on the day of
J 19 • • , and, to wit, for days prior thereto,
the said had permitted said wire barrier to be
and remain in a fallen down condition at the place aforesaid,
ASSUMPSIT 491
thereby failing to prevent a person from walking on said cement
sidewalk or from stumbling over the same; and, to wit, on
said day of , 19.., in the night
time of said day, said had utterly neglected and
failed to provide any light or lamp at or about the barrier
aforesaid, so that the same might be seen; and that by reason
of the premises, the plaintiff who on the day and year aforesaid,
in the night time of said day, at about the hour of
noon, was lawfully proceeding along said street
on the sidewalk thereof, towards said cement sidewalk, without
any fault or negligence upon part, because of
the absence aforesaid of a light or lamp at the place aforesaid,
and because of the fallen down condition of said wire barrier,
as aforesaid , the said plaintiff ,
stumbled over said wire barrier without seeing the same and
was by the said wire barrier thrown violently down upon the
said cement sidewalk. By reason of which . .h. . sustained
severe injury to head, right shoulder, right arm and side, and
right elbow and wrist, and right knee, and the same became
bruised, lame, sore, wrenched and strained, and ..h.. whole
system was badly shocked, and by reason of which . .h. . became
sick, sore, lame and disordered and unable to help ......self
or to pursue . .h. . ordinary avocation which was
that of , by means of which avocation . .h. . was
enabled to earn and did earn large sums of money, to wit,
dollars per month ; and has so remained, to wit,
from thence hitherto; and that by reason of the premises, the
plaintiff has been caused to suffer pain and anguish of body
and mind, and will in the future be caused to suffer great pain
and mental and bodily anguish; that the plaintiff has been
caused to spend large sums for physicians and medicine in and
about endeavoring to be cured of the injuries aforesaid, and
. . h . . has suffered injury in all to the amount of
dollars.
And plaintiff says that by reason of the premises an action
hath accrued to . .h. . to have and demand of and from the
said defendants, under the writing obligatory aforesaid the
damages aforesaid, and that by reason of the premises the said
defendants have promised to pay to , the said
plaintiff, the damages aforesaid, whenever thereunto requested;
but the plaintiff says that although often requested so to do,
the said- defendants have neglected and refused and still do neg-
lect and refuse to pay said plaintiff the said damages so sustained
by ..h.. as aforesaid, to the damage, etc.
10C4 Personal injuries; street car collision, Narr. (111.)
For that whereas, before and at the time of the making of
their promises and undertakings hereinafter next mentioned,
said defendants were in the use, control and management, as
492 ANNOTATED FORMS OP PLEADING AND PRACTICE
receivers aforesaid, of divers lines of street railway in the city
of , county of , and state of Illinois,
■which were operated prior to said order in the name of said
, and by it, together with certain cars, machinery,
powerhouses, and other devices and instrumentalities used by
them, and in their use, control and management, for the pur-
pose of operating street railways in the city of ,
and conducting the business of a common carrier of passengers
for hire, and in that regard of propelling along certain tracks
in the city of , divers cars for the accommodation
of persons and for the purpose of carrying persons to and from
divers parts of the city of , for hire and reward
to the said defendants, in that behalf paid.
And the plaintiff avers that on, to wit, , 19 . . ,
in consideration that the said plaintiff, at the special instance
and request of the said defendants, would take and engage a
certain street car, then and thereon, to wit, the said day, in the
use, control and management of said defendants, under said
order and operated by them in street in Illinois,
to be carried and conveyed in said street car by said defendants
so operating, controlling and managing the same, from, to. wit,
avenue, a certain street in the city of ,
to, to wit, another certain street in the city of ,
known as avenue at and for certain reasonable
hire and reward, to wit, the sum of cents to be
therefor paid by the said plaintiff to the said defendants in
that behalf, they, the said defendants, then and there undertook
and faithfully promised said plaintiff to safely carry and con-
vey said plaintiff in the said street car from, to wit,
avenue to, to wit, avenue in the city of ,
and to use due care and diligence in and about the safe carry-
ing and conveying of the plaintiff, as aforesaid.
And the plaintiff in fact says that she, confiding in the afore-
said promise and undertaking of the said defendants to safely
carry her in said car, as aforesaid, did, afterwards, to wit, on
the same, at, to wit, in the county of ,
and state of Illinois, become a passenger upon said certain car
then and there in the use, control and management of said
defendants under said order, that is to say, a certain car man-
aged, controlled and then and there propelled by them on a
certain line of street railway lying in said street
and in the use, possession and management of the said defend-
ants under said order. And the plaintiff did, so confiding in
the said promise, take and engage transportation in the said
car to be carried and conveyed in and by the said car to wit,
avenue to, to wit, avenue in said
street in the city of , and did then
and there pay to the said defendants the sum of cents ;
the same being the hire and reward requested by said defend-
ants for the carriage of the plaintiff upon said car from said,
ASSUMPSIT 493
to wit, avenue to, to wit, avenue in
tlie city of
And although the plaintiff confiding in the said promise and
undertaking of the said defendants, did afterwards, to wit,
on the day and year aforesaid, to wit, aforesaid,
become and was such passenger in and by the said street car,
operated, controlled, and managed in said street,
by the defendants, to be carried and conveyed in and by the
same from said avenue to said
avenue; yet, the said defendants not regarding their said prom-
ise and undertaking so by them made in manner and form afore-
said, did not nor would use due and proper care, skill and dili-
gence in and about the carrying and conveying of the
said plaintiff in and by the said street car from said
avenue to said avenue ; but then
and there wholly neglected and refused so to do, and on the
contrary thereof so carelessly, improperly, negligently and un-
skillfully drove and managed a certain other street car then and
there in the like use, control and management of the said defend-
ants under said order and being then and there operated by
said defendants upon said line of street railway lying then and
there in street, that by reason thereof said street
car last mentioned collided with the said street car upon which
the plaintiff was then and there a passenger, near, to wit,
street, in the city of , county and
state aforesaid, and on the day and year aforesaid.
By and through the carelessness, negligence, unskillfulness
and misconduct of the said defendants, in the management ot
said cars a;id in thereby causing said collision as aforesaid, and
while the plaintiff was then and there in the exercise of due care
and caution for her own safety, and was then and there in the
act of alighting from said car, and in that behalf was in the
exercise of due care and caution for her own safety, the plain-
tiff was thrown from the said car upon which she was then
and there a passenger, to and upon the ground then and there,
and by reason thereof, and the said several premises, the plain-
tiff's left humerus and lower end of the plaintiff's left radius
were fractured. And the plaintiff sustained thereby and by
reason thereof a great shock and was then and there in other
respects and thereby greatly hurt, bruised, and was sick, sore,
lame and disabled in consequence of said several premises, and
so remained and continued for a long space of time, to wit,
from thence hitherto. During all of which time she, the said
plaintiff, and in consequence of said injuries, suffered and under-
went great pain and was hindered and prevented from perform-
ing and transacting her necessary affairs and business, by her
during that time to be performed and transacted. And also
thereby, she the said plaintiff, was forced and obliged to, and
did, necessarily lay out and expend a large sum of money, to
wit, the sum of dollars in and about endeavoring
494 ANNOTATED FORMS OP PLEADING AND PRACTICE
to be cured of the said fractures, bruises, wounds, sickness, sore-
ness, lameness and disorders aforesaid, occasioned as aforesaid,
at the place aforesaid.
And the plaintiff avers that by reason of the injuries sus-
tained as aforesaid she has become permanently injured and
that she has suffered permanent injury in the use of her h'ft
arm, and in conse(|ueni-e of the said injuries has suffered from
an attack of neurasthenia and has become and is permanently
impaired in her health and physical well being. To the damage,
etc.
1065 Preference by bankrupt, Narr. (111.)
For that whereas, on. to wit, the day of ,
19. ., there was filed in tlie court of the United
States for the district of ,
division, a petition in bankruptcy against the said K, and on,
to wit, the day of , 19 . . , it was
therein adjudged a bankrupt, and on, to wit, the
day of , 19.,, plaintiff was appointed trustee of
the estate in bankruptcy of the said bankrupt, and duly (luali-
fied as such, and is still acting as such.
Further this plaintiff avers that within four months prior
to the date of the said filing of said petition, and upon, to wit,
the day of , 19 . . , there was trans-
ferred to the defendant from the then estate of the said bank-
rupt sundry items of assets, to wit, shares of stock, notes, and
choscs in action, to the amount of, to wit, ($ )'
dollars, upon pre-existing indebtedness then due to the said
defendant from the said K; that at the time of said transfer
the said K was insolvent and unable to continue its business;
that at and throughout the time of the making of said transfer
the said defendant was himself president and director of said
company ; that said defendant when receiving said assets had
reasonable cause to believe and did believe that it was intended
thereby to give to him, the defendant, a preference; that said
K then owed fully dollars to sundry and divers
of its creditors, other than the said defendant, no part of which
has ever been paid; and that by the fact of the said transfer
the said defendant was enabled to obtain a greater percentage
of his said debt than any other of the said bankrupt's then
creditors of the same class with the said defendant.
Further this plaintiff says that upon, to wit, the
day of , and within a year of the date of the
filing of the said petition, this plaintiff notified the said defend-
ant of this plaintiff's election to rescind said transfer, and did
demand from the said defendant the return of the said assets,
or if they were disposed of, then the return of their proceeds;
by reason of which premises the defendant then and there
undertook and promised to make such return, etc., but, although
ASSUMPSIT 495
often requested, has failed and refused so to do, and has become
indebted to this plaintiff in the sum last aforesaid : and for this
plaintiff brings suit, etc.
(Mississippi)
For that whereas on day of , 19 • • ,
a petition in bankruptcy was filed in the Federal court at
, against by his creditors, petition-
ing that the said be, by said court, declared a
bankrupt, and that on the day of ,
19.., the said was by said court duly declared
a bankrupt, and that the said plaintiff by the court in said
bankruptcy proceedings was duly declared a trustee ; that there-
after, in due time and form, plaintiff became trustee, qualify-
ing as such and giving bond as is required in such matters.
That prior to such bankruptcy proceedings and within four
months thereof the said , being indebted to said
defendant and other persons, and the said , know-
ing himself to be insolvent, turned over dollars
in cash, then belonging to himself, to said defendant, Avith the
intent and purpose to favor said defendant and to give said
defendant a preference over said and other cred-
itors of the same class.
That at the time of the delivery of said cash to said defend-
ant by said the said and the said
defendant knew of the insolvent condition of the said
and that the said defendant received the said sum of money
knowing that at the time that he received a greater per cent
of his indebtedness than would be received by any other cred-
itor of the same class of the said , and that the
said defendant knew at the time of such delivery, that it was
intended by said to prefer and favor the said
defendant above any other of said creditor of said
That by the payment and delivery of said money by the
said to said defendant for the purpose and intent
aforesaid, an action has accrued to the plaintiff for said amount.
1066 Professional services rendered in another state, action
A physician may recover for medical services rendered to a
patient who is temporarily in another state, under a license to
practice in lUinois.i^**
1067 Profits, Narr. (111.)
For that whereas, heretofore, on, to wit, day
of , 19.., the defendant entered into a certain
110 Ziegler v. Illinois Trust & Sav-
ings Bank, 245 111. 180, 198 (1910).
496 ANNOTATED FORMS OP PLEADING AND PRACTICE
agreement in writing for a good and valuable consideration,
to wit, the assignment of all the plaintiff's interests in a cer-
tain lease of the premises known as the , in the
county aforesaid, dated , 19.., for a term of
years, at a gross rental of ($ )
dollars, whereby he agreed that the plaintiff should have
per cent of the net profits of said theatre during the term of
years after the date of said lease, to be accounted and
paid over at the end of each and every theatrical season, to wit,
day of , of each year ; and the plain-
tiff alleges that said theatre has made large profits since the
day of , 19 . . , up to the commence-
ment of this suit; and that estimating upon the large business
done and profits made up to this time, the plaintiff would be
entitled to a large amount, to wit, upwards of
($ ) dollars, as his share in the future profits of said
theatre for the remaining term of his said contract. But that
the defendant, thougli often requested heretofore, has refused
and at present does refuse wholly to account for or to pay
over any of the profits or any portion of plaintiff's share therein
up to the present time, or to recognize any rights of the plain-
tiff under said contract to any of the future profits of said
business ; to the damage of the plaintiff of dollars,
and therefore, he brings this suit, etc.
(Mississippi)
For that whereas, on the day of ,
19 . . , the plaintiff was the manager and director of a theatrical
troupe known as and the defendant was on said
date one of the owners of the house in the city of
, , and on the date aforesaid the
said plaintiff and defendant entered into a contract, whereby the
plaintiff obligated himself to furnish (State who and in what
play) and to furnish all transportation, express, freight, and
baggage charges for his company, and advance printing, lith-
ographs, etc. ; and the defendant obligated himself to furnish
said house well lighted, cleaned and heated, with all the requisite
attaches both in rear and before the curtain, included, etc.,
for a period of one night and one matinee performance com-
mencing ; that the said contract further provided,
as a consideration therefor, that the plaintiff was to receive ....
per cent of the gross receipts of each and every performance,
and the remainder, or .... per cent, the defendant was to
receive as his share of the earnings ; all of which agreement will
more fully appear by reference to a copy of said written eon-
tract herewith filed, marked exhibit ''A" and made a part of
this declaration.
That pursuant to said contract, the plaintiff furnished (State
who and in what play) at said house in the city
ASSUMPSIT 497
of , on , in perform-
ance; that he in all things kept and performed said contract
on his part ; but he alleges that the defendant failed and refused,
and still fails and refuses, to keep and perform the same on his
part, as hereinafter stated.
The plaintiff avers that the per cent of said gross
receipts of each and every one of said performance due him by-
said defendant amounts to dollars, as more fully
appears by a sworn supplemental answer of the defendant or
his agent as manager, herewith filed marked exhibit "B" and
made a part hereof.
That by means w^hereof the said defendant then and there
undertook and promised to pay plaintiff, or his order, said sum
of dollars whenever he should be thereunto after-
wards requested so to do.
Yet, plaintiff avers that though requested, the said defendant
has wholly failed and refused and still fails and refuses to pay
him, or to pay to his said order, and sum of money, or any part
thereof, to the damage, etc.
1068 Promise to marry, Narr. (111.)
For that whereas, heretofore, on to wit, the day
of , 19. ., at, to wdt, the county aforesaid, in con-
sideration that the said plaintiff, being then and there unmar-
ried, at the special instance and request of the said defendant,
had then and there undertaken and faithfully promised the
said defendant to marry him, the said defendant, he, the said
defendant, undertook, and then and there faithfully promised
the said plaintiff to marry her, the said plaintiff, in a reason-
able time next following ; and the said plaintiff avers that she,
confiding in the said last mentioned promise and undertaking
of the said defendant, hath always hitherto remained, continued,
and still is sole and unmarried.
And plaintiff avers that after making of said promise and
undertaking to marry plaintiff' as aforesaid, the said defendant,
contriving and fraudulently intending, craftily and subtly to
deceive and injure the plaintiff, and to w^antonly corrupt her,
the plaintiff, to his base passions and licentious use, he, the
said defendant, on, to wit, the day of
19 . . , at, to wit, the county aforesaid, did wrongfully and
wickedly seduce her, the said plaintiff, and have sexual inter-
course with said plaintiff, and did then and there cause her to
become pregnant with child by him, the said defendant. And
that after she so became pregnant, as aforesaid by him, the said
defendant, she, the said plaintiff, still confidently relying upon
and believing in the promise and undertaking of the said defend-
ant to marry her, the plaintiff as aforesaid, solicited and
requested him, the said defendant, to forthwith marry her, the
said plaintiff, and the said defendant, still further contriving
498 ANNOTATED FORMS OF PLEADING AND PRACTICE
to deceive her, the plaintiff, told plaintiff that if she would
accompany him to the city of , at, to wit, tlie county
of , and state of , he, the said defend-
ant, would then and there marry her; and still relying upon
the faithfulness of the said defendant, said plaintiff did then
and there, on, to wit, the day of ,
19. ., go with him, the said defendant, to , as afore-
said, and then and there said plaintiff requested said defend-
ant to marry her, the said plaintiff.
And plaintiff avers that thereafter, on, to wit, the
day of , 19. ., and at divers times since that time,
at, to wit, the county of aforesaid, she, the said
plaintiff, has repeatedly requested said defendant to marry
her, the said plaintiff, as aforesaid; yet, the said defendant,
further contriving and fraudulently and craftily intending to
deceive and injure the said plaintiff, after the making of said
promise to marry her, as aforesaid, did designedly, wrongfully
and injuriously, on, to wit, the day of ,
19 . . , at, to wit, the city of , in the county of
, and state of , marry a certain other
person, to wit, one , contrary to his promise to
marry the plaintiff as aforesaid.
Wherefore, the said plaintiff saith that she is injured and
hath sustained damages to the amount of dollars.
and therefore she brings suit, etc.
1069 Promissory notes, consideration
A promissory note given without consideration and received
by the payee under an agreement never to call upon the maker
to pay it is invalid and unenforcible in the hands of the
payee.i^^
1070 Promissory notes, negotiability
A promissory note is negotiable if it expresses a promise by
one person to another person therein named, or to his order, to
pay a fixed sum of money at a specified time, unconditionally,
before maturity.^ ^- The question of the negotiability of a
promissory note arises only before maturity. After a promis-
sory note is due its negotiability is at an end.^^^
111 Straus V. Citizens State Bank, us Stitzel v. Miller, supra.
254 111. 185, 187 (1912).
112 Stitzel V. Miller, 250 111. 72,
75 (1911).
ASSUMPSIT 499
1071 Promissory notes; parties, plaintiffs
The payee alone can sue on a promissory note which has not
been assigned. ^^^ In ease of death of a payee an action upon
the note should be brought in the name of the administrator
or personal representative.^ ^^ The purchaser of a negotiable
instrument which is duly endorsed by the payee, may main-
tain an action thereon in his own name.i^^
The holder of a negotiable instrument made payable and en-
dorsed to a fictitious person or bearer may bring suit in his own
name, regardless of whether the maker of the instrument knew
that it was so endorsed. ^^^
1072 Promissory notes ; parties, defendants
All, or any number, of the parties on a promissory note may
be sued, under the Illinois Negotiable Instrument act, in one
action, either as makers or endorsers.^^^
1073 Promissory notes; declaration, requisites
In an action upon a promissory note, payable at a specified
place, the averment of a demand is unnecessary.^!'^ Nor is it
necessary to allege the particular consideration for which the
note was given, although the consideration is mentioned in the
note. 120 The date of a promissory note is matter of essential
description and must be precisely alleged and proved.121 Sev-
eral promissory notes constituting similar causes of action may
be joined in one count. ^22
1074 Promissory notes ; indorsee v. indorser, Narr. (111.)
For that whereas P, on the day of .,
19 at in s^id county, made his certain promis-
sory 'note in' writing, bearincv date the day and year aforesaid
whereby he then and there promised to pay to the order of
said D ($ ) dollars, days after the
114 Newman v. Ravcnscroft, 67 El. "9 Hannibal & St. Joseph R. Co.,
496 497 (1873) 102 111. 249, 2.59 (1882); Butter-
lis Newhall v. Turney, 14 111. 338, field v. Kinzie, 1 Scam. 445 (1838).
339 341 (1853). 120 Gaddy v. McCleave, 59 111. 182,
lieStitzel v. Miller, supra. 184 (1871).
117 Keenan v. Blue, 240 111. 177, 121 Streeter v. Streeter, 43 111. 155,
188 (1909) I^^ (1867).
118 First National Bank v. Miller, 122 Godfrey v. Buckmaster, 1
235 111. 135, 137 (1908). Scam. 447, 450 (1838).
500 ANNOTATED FORMS OF PLEADING AND PRACTICE
date of said note, at avenue, in the said city of
, with interest at per cent ( % ) per
annum, for value received, and then and there delivered the
said promissory note to the said defendant, and the said defend-
ant, D, then and there endorsed the said note in writing and
delivered it to the plaintiff; and the plaintiff avers that after-
wards, to wit, on the day of , 19 • • ,
the said promissory note having become due and remaining
wholly unpaid, the said plaintiff instituted a suit on the said
note against the said P, in the court of
county, in the state of , to the , 19 . .
term thereof. And afterwards at the said term
of said court, 19. ., to wit, on the day of ,
19 . . , the said plaintiff recovered a judgment in said
court against the said P for the sum of ($ )
dollars, damages, and ($ ) dollars, costs of
said suit.
And the plaintiff further avers that afterwards, to wit, on
the day of , 19 . . , he caused to be
issued in the office of the clerk of said court of
county a writ of fio-i facias directed to the sheriff
of said county of , in which the said P resided,
commanding him that of the lands and tenements, goods and
chattels of said P he cause to be made the sum of
($ ) dollars damages aforesaid, with interest thereon from
the date of the rendition of said judgment, and also the costs
aforesaid, and that he have that money at the clerk's office
aforesaid in days from the date of said writ, to render
to the plaintiff; which writ was afterwards, to wit, on the
day of , 19 . . , delivered to the sher-
iff of the county of , and on the day
of , 19 . . , the said sheriff made due return of said
writ in the office of the clerk of said court with his return
thereon endorsed to the effect that he, the said sheriff, could
find no property wherewith to satisfy the said writ, or any part
thereof, and therefore returned the same wholly unsatisfied;
as by the records and proceedings in said suit in said court
remaining will more fully appear. And the said plaintiff avers
that he used due diligence by the institution and prosecution
of said suit against the said P, the maker of said note.
By means whereof and by force of the statute in such case
made and provided, the said defendant became liable to pay
to the plaintiff the sum of money in said note specified ; and
being so liable, in consideration thereof, afterwards, to wit, on
the day and year last aforesaid, at the place aforesaid prom-
ised the plaintiff to pay him the said sum of money in the said
note specified when thereunto afterw^ards requested.
2. And whereas also P, on the day of ,
19 . . , at , in said county, made his certain other
promissory note in writing bearing date the day and year last
ASSUMPSIT 501
aforesaid, whereby he then and there promised to pay to the
order of D, ($ ) dollars, at
avenue, with interest at per cent ( %) per annum,
days after the date thereof, for value received, and
then and there delivered the said promissory note to the said
defendant, and the said defendant, D, then and there endorsed
the said note in writing and delivered it so endorsed to the
plaintiff ; and the plaintiff avers that when said promissory note
became due and payable the said P had become and was wholly
insolvent and unable to pay the amount of said note, or any
part thereof, and hitherto from thence has continued insolvent
and has not paid the amount of said note, or any part thereof,
to the plaintiff. And the plaintiff avers that it is and has been
impossible at any time since the said note became due and pay-
able to collect the same or any part thereof by legal proceedings
against the said P, and that any such legal proceedings at any
time since the maturity of said note would have been wholly
unavailing.
By means whereof and by force of the statute in such case
made and provided the said defendant became liable to pay
to the plaintiff the sum of money in said note specified, and
being so liable, in consideration thereof, afterwards, to wit,
on the day and year last aforesaid, at the place aforesaid, prom-
ised the plaintiff' to pay him the said sum of money in the said
note specified when thereunto afterwards requested.
Yet, the said defendant, not regarding his said promises and
undertakings, but contriving, etc, and although often thereto
requested, has not paid said plaintiff said sums of money, or
any part thereof, but has hitherto wholly refused and neglected
so to do, and still does so refuse and neglect, to the damage of
said plaintiff, as he says, of dollars, and there-
fore he brings his suit, etc.
1075 Promissory notes; indorsee v. maker, Narr. (District of
Columbia)
For that heretofore, to wit, made their
certain promissory note, dated, now overdue and
thereby promised to pay to the order of the defendant by the
name of dollars, days after date, value
received with interest at per cent per annum. That
said payee for value, before the maturity of said promissory
note and in the usual course of business endorsed and delivered
the same to the plaintiffs. That said note was duly presented
for payment, but was dishonored and protested ; and the plain-
tiff claims the sum of dollars with interest at the
rate of per cent per annum from the day
of , and costs of protest, besides costs of this suit.
502 ANNOTATED FORMS OP PLEADING AND PRACTICE
Affidavit
(Venue)
I, , being first duly sworn do upon oath depose
and say that I am a member of the tirm of . and
copartners trading and doing business under the
firm name and style of who are the persons named
as plaintiffs in the annexed declaration, which is hereby referred
to and made a part of this affidavit. That said copartners trad-
ing as aforesaid, have a cause of action against ,
who is named as defendant in said annexed declaration. That
said cause of action is based upon a certain promissory note-
bearing date and signed and pay
able to the order of for the sum of
payable days after date, at value receivecl.
interest at That before maturity said promissory*
note was endorsed by the payee , to the plaintiffs
, who are the bona fide holders for value. That
at maturity of said note the same was presented for payment
by the plaintiffs, but the defendant did not pay the same, and
said note was dishonored and protested, and no part of said
note has been paid. And that there is justly due and owing
the plaintiffs from said defendant, the sum of
dollars and dollars costs of protest with interest
as claimed in said annexed declaration, exclusive of all set offs
and just grounds of defense.
Subscribed, etc.
(Florida)
For that the defendant on the day of ,
19.., by his certain promissory note now overdue promised to
pay to the order of , months after date,
dollars with interest at the rate of per
cent per annum from date ; and said , endorsed
the said note to the plaintiff; and that the defendant has not
paid the same. And plaintiff claims dollars.
(Illinois)
For that the said defendant heretofore, to wit, on the
day of , 19 . . , at and wdthin the
county and state aforesaid, made his certain note, in writing,
of that date thereby, by name of promising to
pay to the order of (by the name of ) ,
at the office of in the city of , Illi-
nois, the sum of dollars, months after
date thereof, for value received. And the said ,
by his signature, in writing, en the back of said note, afterward,
ASSUMPSIT 503
on the same day (signed ) ordered and assigned
said note to be paid to the plaintiff, of whicii defendant had
notiee.^23
Yet, the said defendant, his promise aforesaid not regarding,
hath not paid said note, nor the sum of money therein specified,
either at the office of the said in the city of
aforesaid, nor to the said plaintiff, although the
time specified in said note for the payment thereof hath long
since elapsed; but to pay the same or any part thereof, hath
hitherto refused, and still doth refuse, to the damage, etc.
(Maryland)
by his attorneys, sues ,
for money payable by the defendants to the plaintiff.
And for that the said defendants on the day
of , 19 . . , by their promissory note now over due
promised to pay to , or bearer, $ ,
years after date, and that the said endorsed the
same to the plaintiff, as follows : , trading as
per , and the said note was duly
presented for payment and was dishonored, whereof the defend-
ants had due notice, but did not pay the same.
And the plaintiff claims $
1076 Promissory notes; payee v. maker, Narr. (111.)
For that whereas, at to wit, at the county afore-
said, on the day of , 19 . . , the said
defendants made their certain promissory notes,
in writing, and thereto subscribed their proper hand writings,
the date whereof is the day and year aforesaid, by one of which
said promissory notes, the said defendants on or before the
day of , then next, promised to pay
to the order of , dollars, for value
received, with interest at the rate of per centum
per annum after due and payable. By another of said promis-
sory notes, the said defendants on or before the
day of , then next, promised to pay to the order
of , dollars, for value received with
interest at the rate of per centum per annum, from the
said day of , 19 . . . (Aver similarly
for each subsequent note)
123 A declaration on an assigned plies delivery, notwithstanding the
promissory note must aver an en- fact that precedents contain such
dorsement upon the note. Keeler v. an averment. Chester & Tamaroa
Campbell, 24 111. 288 (1860). The Coal & E. Co., 72 HI. 521, 523
averment of delivery of the promis- (1874). The declaration need not
sory note is immaterial and may be aver that the note is held by the
omitted where there is an averment plaintiff for the use of another,
that the payee endorsed the note to Zimmerman v. Wead, 18 111. 304
the plaintiff, as an endorsement im- (1857).
504 ANNOTATED FORMS OF PLEADING AND PRACTICE
Nevertheless, not regarding the several promises and under-
takings aforesaid, in form aforesaid made, and not regarding
the said several promissory notes, or any or either of them, or
the said several sums of money, or any part thereof, so due and
owing to the said , the said plaintiff, the said
defendants, or any or either of them, have not paid or any
part thereof, although the same to pay, they, the said defend-
ants, have been often thereto requested, to wit, at the county
aforesaid, but the same to pay have hitherto wholly neglected
and refused, and still do refuse, to the damage of the said plain-
tiff dollars; therefore, he brings suit, etc.^-"*
(Mississippi)
For that heretofore, to wit, on the day of
, 19 . . , the said was indebted to said
plaintiff in the sum of dollars and for the pay-
ment of which the said , defendant in this suit
did execute his two promissory notes, one for the sum of
dollars due and payable on , and the other
for the sum of dollars due and payable ,
each of said notes bearing interest at the rate of per
cent per annum from maturity ; true copies of said notes being
filed herewith and made a part of this declaration and marked
exhibits "A" and ''B."
That both of said notes are now past due and that defendant
has been often requested to pay the same as he has therein
promised and agreed to do, but that he has not complied with
his said promise and agreement by paying same, and that he
has wholly made default therein, and that he has thus far
failed and refused to pay the amount due on said notes, or
any part thereof, to the damage of plaintiff' in the sum of
dollars, together with interest at the rate of
.... per cent per annum from the maturity of said notes.
Wherefore, plaintiff brings this suit and demands judgment
against defendant in the sum of dollars, prin-
cipal and dollars interest, and such other interest
on said notes as may accrue during the pendency of suit, and
all costs of suit.
(West Virginia)
For this, to w^it, that heretofore, to wit, on the day
of , 19. ., at the county aforesaid, the defendant
made, executed and delivered to plaintiff his certain promissory
note in writing, — a copy of which is filed herewith marked
exhibit "A" and made a part of plaintiff's declaration, — the
date whereof is the same day and year aforesaid, whereby he
promised and agreed, for value received, as acknowledged and
set out on the face of said note, to pay to plaintiff, or its order,
124 Godfrey v. Buckmaster, 1
Scam. 447,
ASSUMPSIT 505
in days after date (which period had elapsed
before the commencement of this action), at the office of
in , the sum of dollars
and !...'. cents ($ ), with interest after maturity
until paid, with the further provision that if said note should
be paid by the day of of the year
aforesaid, there should be allowed thereon a discount of
per cent. And plaintiff avers that afterwards, to wit, on the
\ day of , 19 . . , when, according to
the tenor and effect thereof and according to the custom and
usage of merchants, the said note became due and payable, the
same was presented for payment, but that the same was not
paid to plaintiff or any one for it ; and that although said note
has long since been due and payable, defendant had not paid
the amount of same, or caused the amount of same to be paid
for plaintiff or any one for it.
By means whereof, and by reason of the non-payment of the
said sum of dollars and cents
($ ), last above mentioned, an action has accrued to plain-
tiff to have and demand of and from defendant, the said last
mentioned sum of dollars and cents
($ ), with interest thereon from the day of
, 19. ., until payment.i-^
Yet, etc.
Affidavit
(Venue)
, being first duly, sworn, says, that he is the
treasurer and general manager of the , a corpora-
tion created and organized under the laws of the state of
, the plaintiff named in the foregoing action ; and that
there is, as he verily believes, due and unpaid from the defend-
ant in said action to the said plaintiff upon the demand stated
in the declaration in said case, including principal and interest
to this date, after deducting all payments, credits and setoffs
made by the defendant, and to which he is in any wise entitled,
the sum of dollars and cents ($ )
Taken, sworn to and subscribed before me, a notary public
in and for county, , this
day of ,19...
>
Notary Public.
1077 Purchase money; sale of land, action, proof
Assumpsit will lie for the recovery of the unpaid purchase
price under a verbal contract for the sale of land which has been
125 Acme Food Co. v. Older, 64
W. Va. 255 (1908).
506 ANNOTATED FORMS OF PLEADING AND PRACTICE
fully performed on the part of the vendor by the delivery of
a deed for the premises, and notliing remains to be done but to
pay the money. ^-*^ To prove performance, or an offer to perform
on his part, in an action for the purchase price, the vendor is
not bound to affirmatively show a good title, but he may rely
on his tender of a deed without producing evidence of title, ^^t
1078 Purchase money; sale of land, Narr. (111.)
For that whereas, heretofore, to wit, on the
day of , 19 . . , at the county of , and
state of aforesaid, said plaintiff. . made and
entered into a certain contract and agreement to and with the
said B, the defendant., in this cause, in and by which said
contract and agreement the said A, said plaintiff agreed to sell
and did sell to the said B, the following described real estate,
to wit: (Set out legal description) of the
principal meridian, and containing ( ) acres
more or less, situated in the county of , and the
state of ; and in and by the said contract and
agreement the said A further agreed to and with the said de-
fendant.,, B, that ..he.., the said plaintiff.., would convey
and warrant unto the said defendant. ., B and . .h. . assigns,
the premises above described by a good and sufficient warranty
deed of the said premises on the demand of the said defend-
ant. ., B. Said plaintiff. . further agreed to and with the said
defendant. ., B, that . .he. ., said plaintiff, would pay the gen-
eral taxes assessed and levied upon the said promises for the
year 19. . ; and that . .he. . would furnish to and for the said
defendant. . a complete abstract of title of llie above described
premises, with a continuation thereof brought down to cover
the date of the said contract and agreement, to wit, the
day of , 19. ., at . .h. ., the said plaintiff. . ' expense.
And the said defendant. ., B, in and by the said contract and
agreement so made and entered into by and between the said
plaintiff. . and the said defendant. ., agreed to and with the said
plaintiff., that ..he.., said defendant.., would and ..he.,
thereby did purchase of the said plaintiff. . the real estate and
premises above described, and ..he., the said defendant,.,
therein covenanted and agreed to pay to the said A, for the said
premises above described the sum of dollars upon
the delivery to . .h, ,, the said B, or . .h. . assigns, goods and
sufficient warranty deed conveying to the said B, or . .h. . as-
signs good title to the said premises above described, as . .he. .,
the said B should demand. And the said A agreed to and with
126 Knig:ht V. Collins, 227 111. 348, 127 Dwiett v. Cutler, 3 Mich. 566,
353 (1907). 577 (1855).
ASSUMPSIT 507
the said B that . .he. . would pay to the said A the said sum of
dollars for the said premises in the following
manner," that is to say : dollars in cash in hand
paid at the signing of the said agreement, and the sum of
dollars in cash on or before the day of
19 . . , together with interest thereon at the rate
of * .' per centum per annum from the date of the said
contract', 'to wit, the day of 19. ■ ;
and the said B further agreed to and with the said plamtitt . .
that ..he., would make a subdivision of the premises above
described, which were the same premises so sold by the said
plaintiff. . to the said defendant. ., and to pay all expenses for
platting the same and for recording the said plat, when so made,
in the recorder's office of county in the state of
aforesaid; and the said defendant., further
agreed to and with the said plaintiff., that ..he.., the said
defendant., would hold and conduct an auction sale for the
choice of lots in the said subdivision when the same was so made
as aforesaid of the said above described premises, and that
..he., said defendant., would pay to the said plaintiff., all
money derived from such sale of and for the choice of lots, the
said money so paid to be credited upon and applied by the said
A as part of the purchase money for the said premises above
described, each lot in the said subdivision as made to be entitled
to a credit of the part of such total sum so derived
from the sale of lots therein ; and it was further agreed that for
the balance of purchase money of and for the said above de-
scribed premises, to wit, the sum of dollars not paid
in cash by the said B as aforesaid, the said defendant. ., would
give to the said plaintiff. . notes, the payment of which would
be secured by trust deeds or mortgages upon the said lots in the
said subdivision when so made as aforesaid of the premises
above described, given, made and executed by the purchasers
of the lots therein; the said notes so agreed to be given by the
said defendant. . to the said plaintiff. . were to be proportioned
upon the said lots in the said subdivision aforesaid in equal
amounts according to the number of the lots therein, and the
notes on each lot were to be made in and of two equal amounts
and to be and become due and payable on or before two years
after the date of the said contract, to wit, the
day of , 19- •, said notes to bear interest there-
on at the rate of per centum per annum after the
date thereof, pavable annually; and the said defendant., fur-
ther agreed to and with the said plaintiff., that ..he.., the
said defendant.., would make and acknowledge or pay for
the making and acknowledgment of all papers, deeds, trust
deeds and mortgages which were or would be necessary to con-
vey the said property above described by the said A, to the said
defendant., or ..h.. assigns as ..he.., said defendant..,
should direct and to secure the deferred payments thereon, and
508 ANNOTATED FORMS OF PLEADING AND PRACTICE
the said defendant. . would pay all recording fees for the filing
of record any and all trust deeds or mortgages that the said
plaintiff., might be given, by the said defendant., as part
payment of the purchase money for the premises above described.
And the said A, the plaintiff. . herein, being .so bound and
obligated as aforesaid did thereupon furnish to the said B, a
".omplete abstract of title bi-ought down to cover the date of the
-said agreement as is therein provided, which said abstract of
title the said B then and there accepted, and upon an exami-
nation thereof by the said defendant.., the said defendant.,
then and there approved of the title to the said premises and
requested the said plaintiff. . herein to convey by good and sufli-
flient warranty deed or deeds the said premises ab(n'e described
to ..h.. the said defendant., and ..h.. assigns as ..he.,
the said defendant. . then and there directed . .h. ., said plain-
tiff. ., to convey the same; whereupon, lie, tiie said A and his
wife joining him, made, executed and delivered to the said de-
fendant.., B and ..h.. assigns, good and sufficient warranty
deeds to the said above described premises as . .he. ., the said
B demanded, in and by wiiicli said warranty deeds . .he. ., tlie
said A, conveyed to the said B and . .h. . assigns, good title to
the said above described promises, and . .he. . tiie said A, then
and there paid the said general taxes levied and assessed upon
the said premises for the said year 19. ., and . .he. . the said
plaintiff. . then and there did and performed all of the terms
and conditions of the said contract and agreement by . .h. ., the
said plaintiff. ., to be done and performed. Yet, well knowing
that the said plaintiff". , had done and performed all of the con-
ditions and terms of the said contract and agreement to be done
and performed by . .h. ., and well knowing that . .he. ., the said
plaintiff. . had furnished to . .h. ., the said defendant. ., a com-
plete abstract of title to the said premises above described, with
a continuation thereof brought down to cover the date of the
said agreement, to wit, the day of
19. ., and that the said plaintiff'. . at the request and demand
of the said defendant. . conveyed by good and sufficient war-
ranty deeds good title to the said premises above described to
the said B or . .h. . assigns, all of which said deeds of convey-
ance so made and executed by th. . plaintiff. . were accepted
and approved of by the said defendant. ., and although often
requested so to do, said defendant., ha., not done and per-
formed the terms and conditions of the said agreement to be
by . .h. . done and performed, and although often requested so
to do, ha. . not paid to the said plaintiff. . the said sum of
dollars in manner and form as . .h. ., the said de-
fendant. . agreed in and by the said contract to pay the same,
or any part thereof, nor the interest thereon or any part there-
of ; nor ha. . the said defendant. . paid to the said plaintiff. .
the said sum of dollars due and payable on or
before the day of , 19 . . , or any part
ASSUMPSIT
509
thereof, or the interest thereon at the rate of ... . . . per centum
per annum as agreed in and by the terms and the conditions
of the said contract or any part thereot; and the said detend-
ant. ., although often requested ha. . not paid to the said plain-
tiff the said sum of money derived from the sale of lots in the
said subdivision or any part thereof, or the interest thereon, or
any part thereof; and the said defendant. ., although oiten re-
quested so to do, ha. . not given to the said plaintiff, any note
or notes, the payment of which was or were secured by trust
deeds or mortgages upon the said lot or lots m the said subdi-
vision so made by the said defendant. ., to secure the payment
of the balance of the said purchase of and for the above de-
scribed premises not paid in cash or money by the said defend-
ant. . to the said plaintiff..; and the said defendant.., al-
though often requested so to do, ha., not paid to the said
nlaintiff . . any part of the recording fees and expenses by . .h. .
incurred in and about the said sale and transfer and conveyance
of the said real estate and premises above described and agreed
to be paid by the said defendant. . but so to do ha. .totally
neglected and refused to do, to the damage of the said plain-
tiff' . in the sum of dollars, and therefore . .he. . bring. .
. .h. . suit, etc.
1079 Reimbursement; accommodation maker, Narr. (Md.)
For that on day of , 19. ., the
defendant requested the plaintiffs to sign his promissory note
for the sum of dollars as accommodation co-
makers and that thev acceded to his reciuest and executed with
him and others a promissory note of the foUowing tenor and
effect- (Set out note); and afterward said note upon the
decease of the said ^vas by • • ^ the admin-
istrator of the said , the payee of the said note,
duly assigned to , now , ^^ho atter-
wards, to wit, on day ot V " l^' •''
demanded pavment of said note upon which was due the prin-
cipal thereof \^nd interest thereon from ••••••••• • ".' ^!^1 lyl
defendant did not pay the same or any part thereof, and the
plaintiffs were compelled to and did pay said sum ot ••••••;•••»
to the said , who thereupon duly assigned to them
said promissory note on the <^j'y ^f ••••••••; ' ' "'
19 before the bringing of this suit. And the defendant has
not paid said sum of money or any part thereof.
1080 Reimbursement; surety, Narr. (Md.)
For that the defendant on ^^/-^^-^ -V V ' * 'a
19 bv his promissorv note, in which the plaintiffs united and
signed as suretv of said defendant, now overdue, promised to
pay to the order of year after date
510 ANNOTATED FORMS OF PLEADING AND PRACTICE
dollars with interest from date thereof, which
note for value was duly assigned to the order of ,
but that said note and interest thereon was not paid by the
said defendant, or any part thereof (except the interest thereon
to ) and that said note was paid by plaintiffs to
the said and the said note was endorsed and
assigned by said to said plaintiffs, before the
bringing of this suit. And the defendant has not paid said
sum of money or any part thereof.
1081 Rent; assignee of lease, action
An assignee of a lease is liable for a breach of an express
covenant in the lease which runs with the land or tlie terra, sucb
as to pay rent, during the continuance of tlie privity of the
estate between the lessor and the assignee of the term. An
assignee of an unexpired term is not liable for rent of the en-
tire unexpired term, unless expressly made so by contract.
The mere taking of an assignment of the lease "subject to agree-
ments," etc., in the lease assigned does not create a personal
liability upon the assignee for rents accruing after a second
assignment of the lease by the first leasee.^ -^
1082 Rescision of contract, action
If a party rescinds a contract, he cannot sue for a breach of
it,^-'-^ but he may sue in assumpsit to recover the consideration
paid under the contract and interest, if the contract has been
rescinded by mutual consent; ^^^ or he may sue to recover for
work performed under the rescinded contract.^^^ A rescision
of a contract cannot be based upon the opposite party's partial
neglect or refusal to comply with the terms of the contract, but
the failure must be entire and defeating the object of the con-
tract, or rendering it unattainable. For a partial derelection
and non-compliance in matters not necessarily of first import-
ance to the accomplishment of the object of a contract, the in-
jured party must seek his remedy upon the stipulations of the
contract itself. ^^2 Proceeding wdth the performance of the con-
128 Consolidated Coal Co. v. isi Selby v. Hutchinson, 4 Gilm.
Peers, 166 111. 361, 368 (1897). 319, 328 (1847).
129 Hubbardston Lumber Co. v. i32 Selby v. Hutchinson, 4 Gilm.
Bates, 31 Mich. 158, 169 (1875). 333.
130 Smith V. Treat, 234 111. 552,
557 (1908).
ASSUMPSIT 511
tract after default made by the opposite party is a waiver of the
default and an affirmance of the continued subsistence of the
contract.^3^
1083 Rescision of contract; performance, proof
A readiness and willingness on the part of the vendor to per-
form are sufficiently shown by notice to the vendee of such readi-
ness and willingness and the advertisement of the goods for re-
sale. It is not necessary that shipment to the place of delivery
shall be continued after notice of rescision from the vendee and
his refusal to receive any more of the goods.^^'*
1084 Rescision of contract; re-sale, measure of damages
Upon the vendee 's rescision of an executory contract, whether
the articles contracted for are at the time manufactured or are
thereafter to be produced, and a re-sale of the articles, the
measure of damages is the difference between the contract price
and the net amount realized fi*om the re-sale; the right of re-
sale is not limited to the place of delivery of the articles, but it
is to be exercised, in good faith and with reasonable diligence,
with a view of realizing the largest amount obtainable at the
re-sale.i35
1085 Rescision of contract; declaration, requisites
In an action of assumpsit to recover for work performed un-
der a rescinded contract, it is permissible to set up the contract
by way of inducement, provided the recision of the contract is
plainly alleged. ^^^
1086 Royalties, Narr. (111.)
For that whereas, heretofore, to wit, on the
day of , in the year , at the county afore-
said, the plaintiff. . by certain agreement in writing, a
copy of which is filed herewith and made a part hereof marked
exhibit "A," then and there leased to the defendant., cer-
tain machines to be used in the process of manufacturing
, to wit, certain machines known as ;
certain other machines known as ; a certain other
machine known as , all of which said machines
were then and there the property of the plaintiff. . .
133 Selby V. Hutchinson, supra. Crescent Coal & Mining Co., 254
134 ^Vhit0 Walnut Coal Co. v. Cres- 111. 372.
cent Coal & Mining Co., 254 111. 368, i36 Selby v. Hutchinson, 4 Gilm.
377 (1912). 328.
135 White Walnut Coal Co. v.
512 ANNOTATED FORMS OF PLEADING AND PRACTICE
And the plaintiff. . by . .h. . said written agreement did then
and there license the defendant. . and . .h. . operatives in
employed at factory in the city of^
^ to use said machines upon certain terms and condi-
tions in said agreement in writing fully set forth, and the defend-
ant. . upon . .h. . part, in consideration of such leasing by the
plaintiff.., then and thereby agreed, amongst other things,
that . .h. ., the defendant. ., would keep an account of all
made by . .h. . or by any other person for . .h. . or for
others, by the aid of the machines so leased, or any of them, or
by the use of the patents by which said machines were then and
there protected, or any of them; that ..h.. would render an
account thereof to the plaintiff". ., successors or assigns,
on or before the day of each month, and in and
by said account to specify the number of pairs of
made under said lease and license during the calendar month
next preceding, and the class to which said
belonged in accordance with the schedule of rents and royalties
in the said agreement in writing fully and at large set forth ;
that ..h.. would require the operator or operators on said
machines to keep a daily account of all made on
said machines upon certain printed forms to be furnished by
the plaintiff'. . in duplicate, one copy of which, containing such
reports for the calendar month next preceding, to be sent to
the plaintiff. . on or before the day of each month ;
and that said defendant., agreed to pay to the plaintiff., as
rent for the machines so as aforesaid leased, and as royalty for
the use of the patents by which the said machines were so pro-
tected, the rent or royalty specified in a certain schedule in
said agreement at large set forth, on each pair of
of the respective kinds mentioned and described in said sched-
ule, made by the aid of said machines, or any of them, or by
the use of said patents, or any of them; the rents and royalties
for all of such made as aforesaid during any one
calendar month to be due and payable on the day of
the calendar month next following and to be paid within one
month from that time.
And the plaintiff, . further aver. . that there was a provision
incorporated into, and made a part of said contract, in and
whereby it was agi^eed by the plaintiff. . that if the rents and
royalties due as aforesaid on the day of any month
should be paid on or before the day of that month,
, the plaintiff. . would, in consideration thereof, grant
a discount of per cent from the rents and royalties
specified in the schedule aforesaid.
And the plaintiff., aver., that the defendant., during the
month of , in the year , did manufacture,
by the aid of the machines aforesaid, so as aforesaid leased by
the plaintiff . . to the defendant . . , a large number of ,
ASSUMPSIT 513
to wit, , thereof, and did in due course render
to the plaintiif . . , an account specifying the number of
so made under said lease and license during the calendar
month aforesaid, to wit, the month of , in the
year , and of the class to which said belonged
according to the schedule aforesaid, in and by which said
accounting so rendered it appeared that of the number of ......
so as aforesaid manufactured during said
month by the aid of said machines so leased as aforesaid, there
were (Describe goods manufactured) for which, according to
the terms of the schedule aforesaid . .h. . w to pay to the
plaintiif. . the sum of per
And the plaintiff., aver., that by the terms of the lease
and agreement aforesaid the defendant. . then and thereby
became liable to pay to the plaintiff. . as royalty for the use
of the machines aforesaid for the said month of in
the year aforesaid the sum of dollars and which
sum was payable by the defendant . . on the day
of '...., in the year aforesaid, with the privilege, as
aforesaid, to the defendant . .of paying the same on or before
the day of , in the year aforesaid,
and thereby becoming entitled to said discount of
per cent upon the amount of said indebtedness.
And the plaintiff., aver., that afterward, to wit, on the
day and year last aforesaid, the defendant.., in consideration
of . .h . . liability aforesaid then and there promised and faith-
fully undertook to pay to the plaintiff. . the said sum of
when . . h . . should be afterward thereunto requested,
but the defendant. . did not on or before the said
day of , in the year aforesaid, pay the said sum
of money, or any part thereof to the plaintiff. . , but neglected and
refused so to do for a long space of time thereafter, to wit, until
the day of , in the year ,
at and upon which said last mentioned date the defendant . .
paid to the plaintiff. . the sum of , and no more
and from thence hitherto the defendant., ha., at all times
wholly neglected and refused and still neglect., and refuse.,
to pay the balance of said sum of money or any part thereof,
although often requested so to do; whereby an action hath
accrued to the plaintiff. . to recover the same.^^^ (Add con-
solidated common counts)
1087 Sale; acceptance of goods, liability
In the absence of a warranty, the purchaser is liable for the
purchase price of goods which he does not return within a rea-
137 A general demurrer was sus- tract which was made a part of the
tained to the declaration solely on declaration as an exhibit. Goodyear
the ground that the plaintiff had no Shoe Machinery Co. v. Selz, Schwab
cause of action under the particular & Co., 157 111. 186 (1895).
interpretation of the license con-
514 ANNOTATED FORMS OF I'LEVDING AND PRACTICE
sonable time after discovery of a departure from the terms of
the contract, or if he accepts the goods on delivery, i^** The ex-
ercise of acts of ownership over an article of purchase consti-
tutes an acceptance of the article.^^^
1088 Sale; partners interest, Narr. (Mich.)
For that whereas, the said plaintiff and the said defendant
and one , of the city of , were for many
years prior to , 19- •, co-partners under the firm name
and style of , conducting the business of jobbing and
selling at retail, notions, underwear, hosiery and other like
articles. And whereas for several years previous to the said
day of , 19. ., the said plaintiff had
received a compensation for his services to the said business
and as pi-ofits, large sums of money, annually, to wit, in the
neighborhood of per year. And whereas, dis-
agreements arose between the said on the one
hand and the said plaintitf and Stiid on the other.
Thereupon, the said plaintiff' and the said for a
valuable consideration therein set forth, entered into a written
contract upon the day of , 19 . . , with
the said whereby and wherein the said
agreed to purchase and said and plaintiff agreed
to sell, the interests of the said and said plaintiff
in said business, upon certain terms and contlitions in said
contract contained, a true copy of which contract hereinbefore
referred to, is hereto annexed and marked exhibit "A," and
made a part of this declaration.
And plaintiff' avers that he in all things complied with the
duties and obligations resting upon him under the terms of the
said contract and agreement ; and in all things executed the obli-
gations imposed upon him by said contract insofar as said defend-
ant would permit him to do so ; and it thereupon became and
was the duty of the defendant under said contract and agree-
ment hereinbefore referred to, to pay to the said plaintiff the
sums of money due to the said plaintiff under said contract upon
the day of 19 . . , to wit, the sum of
$
And thereupon the said defendant afterwards, and to wit,
on the day of , 19 . . , in consideration
of the premises respectively then and there promised the plain-
tiff to pay to him, the said plaintiff, the said several sums of
money so due to the said plaintiff, on request; yet, etc,
138 American Theatre Co. v, i39 Wolf Co. v. Monarch Eefrig-
Siegel, Cooper & Co., 221 111. 145, crating Co., 252 111. 491, 502 (1911).
147 (1906).
ASSUMPSIT 515
1089 Sale; purchase price, Narr. (District of Columbia)
That heretofore on divers days before, and
, the plaintili's, sold and delivered to the said
, at the latter 's instance and request, goods, wares
and merchandise to the value of dollars. That the
said goods, wares and merchandise are more particularly de-
scribed in the annexed particulars of demand, to which refer-
ence is hereby made. That said promised to
pay to the plaintiffs for said goods, wares, and merchandise, the
said sum of dollars. And that the said
did not nor did anyone for him pay the said sum or any part
thereof, and the said defendant as executor of the estate declined
to pay said sum or any part thereof, and no one for him has paid
any part thereof. Wherefore, etc.
(Illinois)
For that whereas on, to wit, the day of ,
19. ., in , to wit, in the county aforesaid, in con-
sideration that the plaintiff would make for the defendant at
his request a large quantity, to wit, pictures, at
the price, to wit, , and would deliver to him the
said pictures at a certain date thereafter, to wit, on or before
, he, the defendant, promised the plaintiff to accept
of it the said pictures when the same would be so made and de-
livered, and to pay the plaintiff the said price for the same, as
follows, to wit, promissory notes of
each for the sum of , payable on ,
each endorsed by the defendant by the name of ,
one of which notes was to be given at the time of making of said
contract and the other on the deliver}' of the pictures as afore-
said; and the plaintiff avers that it did afterwards on, to wit,
the day of , then and there make
said pictures for the defendant, and then and there was ready
and willing and offered to deliver the same to the defendant,
and did deliver the same to the defendant and requested him
to accept and pay for the same as aforesaid ; yet, the defendant
did not, nor would then or at any other time, pay the plaintiff
therefor the price aforesaid, or any part thereof, or deliver to
the plaintiff the said notes of the , endorsed by
the defendant as aforesaid, but refuses so to do. To the dam-
age, etc.
1090 Sale; refusal to accept cattle, Narr. (111.)
For that whereas, on, to wit, the day of ,
19 . . , the defendant bargained for and bought of the plaintiff
and the plaintiff then and there sold to the defendant at his
request all of the plaintiff's steers, from three years old and
516 ANNOTATED FORMS OF PLEADING AND TRACTICE
up then on the plaintiff's range, between the and
liie , estimated at al)oiit heatl, more
or less, branded and marked on the riglit side,
and on both sides; also all of the steers from tliree years old
and up, to be delivered to the under the-ir contract
with the plaintiff known as the brand ; also all
ol; the steers lour years old and upwards, to be delivered by the
under their contract with the plaintiff', known as
the brand, said steers to be good, merchantable
cattle, with no stags, cripples, or big jaws aaioiig them ; also
all of the plaintiff "s dry cows, then on the plaintiff" "s said range,
and all dry cows to be delivered to the plaintiff under contract
between the plaintiff' and the , and the ,
all of said cows to be from two years old and up, branded and
marked in manner as the said steers; the total number of dry
cows estimated at about head, more or less ; said
steers and cows to be delivered by the plaintiff, to the defendant
between , and on the cars at ,
in the state of , on the tracks, the
defendant agreeing to pay for said steers dollars
per head and for said cows dollars per head.
And the plaintiff' further avers that in pursuance and in ac-
cordance with said contracts and at the place aforesaid, he was
ready and willing and tendered and offered to deliver to the
defendant and steers, and
and dry cows ; which and
steers all were on the day of , either
on the plaintiff"s range between the and the
, and marked on the right side, and
on both sides, or were delivered after said last mentioned date
to the plaintiff by the under their contract above
referred to with the plaintiff, and marked the
brand , said steers all being three years old and
upwards; or were delivered after said last mentioned date to
the plaintiff by the under their contract with the
plaintiff above referred to, said steers being marked
brand and being years old and upwards; and all
of the steers above described being good, merchantable cattle,
with no stags, cripples or big jaws among them; and the said
and dry cows all were on said
, 19. ., on the plaintiff's range above described, or
were after said date delivered to the plaintiff under the con-
tracts between the plaintiff and the and the ,
referred to in said contract. ., all of said cows being two years
old and upwards and branded and marked in the manner as
said steers. But the defendant, contrary to his said contract,
refused to accept all of the said and
steers and and dry cows, and re-
fused and declined to receive and accept thereof
ASSUMPSIT 517
I
and of said steers and and
of said dry cows, and to pay therefor as aforesaid.
Whereby the plaintiff has been deprived of divers great gains
and profits which otherwise would have accrued to him from the
delivery of said cattle as aforesaid, and was obliged to and did
re-sell a large portion of said cattle at a great loss, and suffered
great loss by reason of the depreciation in the market price of
cattle not received by defendant as aforesaid, and was put to
great expense and loss in keeping, feeding and caring for said
cattle, to the loss of plaintiff of, to wit, dollars.
(Add common counts)
1091 Sale; refusal to deliver goods, Nair. (111.)
For that whereas, heretofore, to wit, on the day
of , 19. ., at the city of , county of
, and state of , the said plaintiff, at
the special instance and request of the said defendant.., bar-
gained with the said defendant. ., and the said defendant. . then
and there sold to the said plaintiff a large quantity of goods, to
wit (Describe goods), to be delivered by the said defendant. .
to the said plaintiff in certain specified quantities, as follows,
to wit (Stale deliveries), at the city of , county of
, and state of , and to be paid for m
cash, days after delivery thereof, or at a discount
of .'. per cent allowed, if paid in cash days
after the date of said delivery, by the said plaintiff to the said
defendant . . at the rate as aforesaid ; and in consideration
thereof, and that the said plaintiff", at the like special instance
and reciuest of the said defendant. . then and there had under-
taken and faithfully promised the said defendant., to accept
and receive the said goods and to pay them for the same at the
rate or price aforesaid, they, the said defendant.., undertook
and then and there faithfully promised the said plaintiff to de-
liver the said goods to the said plaintiff as aforesaid ; and although
the said time for the delivery of said goods as aforesaid has
long since elapsed, and the said plaintiff hath always been ready
ancf willing to accept and receive the said goods and to pay for
the same, at the rate or price aforesaid, to wit, at the city of
aforesaid, whereof the said defendant . . ha . .
always' iia'd notice; yet, the said defendant.., not regarding
..h.'. said promises and undertakings, but contriving and in-
tending to deceive and defraud the said plaintiff in this behalf,
did no"?, nor would, within the time aforesaid, or at any time
afterwards, deliver the said goods, or any part thereof for the
said plaintiff at the city of , aforesaid, or else-
where, but wholly neglected and refused so to do, save as fol-
lows, to wit, (Describe goods). ■ , ,.
And the said plaintiff further avers that after the making
of the said bargain and contract with said defendant. . as
518 ANNOTATED FOKMS OF PLEADING AND PRACTICE
aforesaid, to wit, on, etc., and on divers other days and times
between that day and the comuieneement of this suit, it, the
said plaintiff, confiding in said promise and under la king of
the said defendant.., expecting ..h.. performance thereof,
to wit, at the city of , and county of ,
and state of , aforesaid, did make and enter into
divers bargains and agreements with divers persons for the sale
to them respectively, of divers (luantities of such goods, so bar-
gained for, and purchased by the said plaintilf, as aforesaid, and
for the want of said goods wliicii the said defend-
ant. . ought to have delivered to said i)laintitf, as aforesaid, it,
the said plaintiff, was forced and obliged to deliver to them, the
said persons respectively, divers (juantities of certain other
goods which said plaintiff' was obliged to purchase
in open market and at a much higher price or rate than that
bargained for by said plaintiff" with said defendant.., to wit,
at the price of $ more than the price or value of
said goods, which said defendant. . ought to have
delivered to the said plaintiff as aforesaid; and thereby the said
plaintiff' has sustained great loss, to wit, a loss amounting to the
sum of ($ ) dollars, to wit, at the city of
, county of , and state of Illinois, afore-
said. (Add common counts)
1092 Sale; refusal to deliver leaf lard, Narr. (111.)
For that whereas, on the day of ,
. . . . , at the city of , to wit, at the county aforesaid,
the plaintiff.., at the request of the defendant.., bargained
with the defendant. . to buy of , and the defendant. .
then and there agreed to sell to the plaintiff. . a large quantity,
to wit, ( ) pounds of leaf lard, at the price
of ( ) cents for each pound thereof.
Delivery of said lard by the defendant. . to the plaintiff. . to
commence , and to be consummated ,
and to be made as follows : that is, pounds daily,
when the hogs cut by defendant . . should enable
to deliver that quantity; but if on any day or number of days
during said period from to , the
product of defendant . . should fall short of
pounds, then defendant. . should have the privilege of deliver-
ing enough on days when product should be in
excess of pounds, to make the average of defend-
ant . . daily delivery pounds.
Said delivery to be at, to wit, at the county aforesaid, and
said lard to be paid for by the plaintiff. . to the defendant. .,
daily on the delivery thereof as aforesaid.
And in consideration thereof, and that the plaintiff. . had
promised the defendant . . at request to accept and
receive the said lard, and to pay defendant. . for the same at
ASSUMPSIT 519
the price aforesaid daily on delivery, , the defend-
ant. ., on the day first aforesaid, at the county aforesaid, prom-
ised the plaintiff. . to deliver the said lard to . .h. . as aforesaid,
and plaintiff., aver., that defendant., w. . able to deliver,
daily, during the period mentioned from to
pounds of leaf lard. And although said time for the delivery
of said lard has long since elapsed, and the plaintiff, . w. ., dur-
ing the period aforesaid, from to ,
always ready and willing to accept and receive the said lard,
and to pay for the same at the price aforesaid, to wit, at the
county aforesaid; j'et the defendant. . did not, nor would, within
the time aforesaid or afterwards deliver the said lard, or any
part thereof to the plaintiff., at the county aforesaid, or else-
where, but refused so to do. Whereby, the plaintiff. . ha. .
been deprived of divers great gains and profits which otherwise
would have accrued to . .h. . from the delivery of said lard to
..h.., as aforesaid, and thereby the said plaintiff'., h. . sus-
tained great loss, to wit, a loss amounting to the sum of
($ ) dollars, to wit, at the city of , county of
, and state aforesaid.
1093 School district discontinued, action
The legal discontinuance of a school district puts an end to
an executory contract with it for the purpose of performance
and entitles the other party to bring an action for the profits
that would have been realized had the contract been
completed. ^*<>
1094 Shipment; delay, Narr. (Miss.)
Tliat at divers times between the day of ,
19 . . , and tlie day of , 19 . . , the said
defendants then and now being partners engaged in business of
common carriers of freight, the plaintiffs had delivered to said
defendants, at their station within this state, car-
load lots of lumber, to be transported and delivered to
plaintiffs at their station within said state, and
that the said defendants promised to plaintiffs to so transport
and deliver the said carload lots of lumber within
a reasonable time after the delivery thereof to them in each case,
in consideration of their usual, customary and legal tariff charges
which the plaintiffs on their part promised to pay at the date
of said delivery to the defendants, the initials and car num-
bers, the point from which shipped, tlie date of re-delivery to
the plaintiffs, the reasonable time required for transportation,
140 Chalstran v. Board of Educa-
tion, 244 111. 470, 476 (1910).
520 ANNOTATED FORMS OP PLEADING AND PRACTICE
the number of days in transit and the number of days reason-
ably detained, with reference to each of said cars,
being specifically shown and set forth by exhibit "A" to plain-
tiff's declaration, which is made a part hereof; but that the de-
fendants, notwithstanding their promise aforesaid, and not-
withstanding that the plaintiffs paid their tarilf charges, as
promised by them that they wouhl do, have wholly failed to
re-deliver each of said carload lots of lumber to plain-
tiffs at their station within a reasonable time, and for
the length of time by said exhibit each shown to have been un-
reasonably detained ; that each of said cars was so unreasonably
detained and delayed by the negligence of the defendants
switching the same to sidetracks and there leaving it between
the point of origination and the point of destination; and that
the said defendants promised the plaintiffs, as ref|uired by rule
of the Demurrage and Delayage Rules of the ]\Iissis-
sippi Railroad Commission, adopted on and efVt'Ctive
that they v/ould pay to them dollars per car per
day on each of said cars so detained; but that though often re-
quested so to do, the said defendants had hitherto wholly failed
and refused to pay to the plaintiffs the said sums so |)romised to
them, to their damage in the sum of dollars. Where-
fore, etc.^'*^
1095 Shipment; non-delivery, action
An action of assumpsit will lie against a railroad company to
recover the value of goods which it has failed to deliver.'"*- In
an action of assumpsit against a common carrier for the value
of lost merchandise, the measure of damages is the market value
of the merchandise at the place of its delivery.'^*'^
1096 Shipment; non-delivery, Narr. (111.)
For that whereas, before and at the time of the making of
promises hereinafter next mentioned, the defendant was a com-
mon carrier of goods and chattels for hire, over and by a certain
railroad, and being such carrier aforesaid, on or about the
day of , 19.., at , in the state of
I, at the request of the defendant, the plaintiffs caused
to be delivered to said defendant certain goods and chat-
tels of the plaintiffs, to wit, pounds of bulk pota-
toes safely and securely loaded in a certain railroad freight ear
then and there furnished to the plaintiffs by the defendant, said
potatoes being then and there of the value of dol-
141 Keystone Lumber Yard v. i^'^Plaff v. Pacific Express Co.,
Yazoo & Mississippi Valley E. Co., 231 111. 243, 248 (1911).
53 So. 8 (Miss. 1910).
142 Chicago & Northwestern Ey.
Co. V. Ames, 40 111. 249 (1866).
ASSUMPSIT ^21
lars, to be taken cave of and saf^ carried by the lefendant^as
^""," r/'omslTd '°inth state of (aforesaid, to
railroad, from sa.d.^^^...^.^^. of P, and at the last
„ent-.^d^pl.eto be ^-^ ^:^ Z:^^:^^^^^
plaintiiis to ; •> '^"'^'^ ■ ;a ■ and m
+iiT« «t the streets m said • ■ • • '/^^ '"
nSS tt ^en^aS^'r rs^;f<s^^3
county at^ esaid,' promised the plaintiffs to t»ke care of said
nlar.e to safelv deliver the same for the plaintiffs
^ And althou-h the defendant as such carrier as aforesaid then
l.U nor safely carried the same . from^. .^^.^.^.^. .^- -p.
ZoJ^^^Z has it arthe-.iasV mentioned place safely deliv-
ered the same - the^P— s at the • - ^
;;;n--;r;' thereof the defendant so carelessly behaved itself ^vlth
were wholly lost to plaintiffs.
2. And for that ...ereas, ^^so, on^ the da^y aforesai^d at
ihat tiie'piain'tili-s'had then and there caused to be delivered to
tr^^^ baded ;nd stored iS a certain railroad freight c.r
of •.■.■•■•■■••■ V ■ 'r-'' '° "' '"'^ "" in'thf tro7t
by the defend>u,t rom .^..^.^^•■••^•-^^;.,^ ^ ,,, , t
to ••.•••••••,■■■';" v'hv it delivered for the plaintiffs, for
?::":7to'tf Tefe'nd^t i'n .^^afbralf, it, the defendant, prom-
S:d e Phli^i.tffs to take care of the last mentioned goods and
eliattcls and safely to c.rry ..e san. ^^^^^;^^^, ^ ,
*°'And"flthouEh the defendant then received the last named
long since elapsed, the defendant did not nor would within sucH
522 ANNOTATED FORMS OF PLEADING AND PRACTICE
reasonable time or afterwards, though often requested, safely
carry the last mentioned goods and chattels from ,
aforesaid, to , aforesaid, or at tlie last named place
deliver the same for the plaintiffs to , then and
there agents of the plaintiffs, at the streets, in
said , but has hitherto wholly neglected so to do;
whereby the last named goods and chattels by reason of the
careless and negligent behavior of the deieiulaut in this behalf
and through the negligence and carelessness, and default of the
said defendant in the premises, the said goods and chattels were
so negligently and carelessly and unreasonably delayed by the
defendant, that (being of a perishable nature) they became and
were by reason of said negligent and unreasonable delay, decayed
and spoiled, and afterwards, to wit, on the day and year afore-
said, at , aforesaid, became and were and are
wholly lost to the plaintiffs.
3. And whereas, also, heretofore, to wit, on the
day of , ID . . , to wit, at , in considera-
tion that the said defendant, at its special instance and reciuest,^
then had the care and custody of divers goods and chattels of
the said plaintiffs, to wit, goods and chattels of like number,
quantity, quality, description and value as those in said first
and second counts mentioned, it, the said defendant, undertook
and then and there faithfully promised the said plaintiffs to
take due and proper care thereof, whilst the said defendant so
had the care and custody of the same; yet, the said defendant,
not regarding its said promise and undertaking, but contriving,
intending to injure and defraud the said plaintiffs in this be-
half, whilst the said defendant so had the care and custody of
the said goods and chattels, took so little and such bad and im-
proper care thereof that the same afterwards, to wit, on the day
and year aforesaid, at , aforesaid, became and were
greatly damaged and injured and wholly lost to the said plain-
tiffs. "Wherefore, etc.
b
For that whereas, the said defendant before and at the time
of the making of its promise and undertaking hereinafter next
mentioned was a common carrier of goods and chattels for hire
from a certain place, to wit, from , in the county
and state aforesaid, to a certain other place, to wit, to .,
in the state of , to wit, at the county aforesaid :
and the said defendant being such carrier as aforesaid, the said
plaintiff, heretofore, to wit, on the day of ,
, at, to wit, , in the county aforesaid, at the
special instance and request of the said defendant, caused to
be delivered to the said defendant, so being such carrier as afore-
said, at , to wit, in the county of
aforesaid, certain goods and chattels, to wit, one carload of
merchandise of the said plaintiff, of great value, to wit, of one
ASSUMPSIT 523
dollars, to be taken care of and safely and securely
carried' and conveyed by the said defendant as such carrier as
aforesaid from aforesaid to aforesaid, and there,
to wit at aforesaid to be safely and securely de-
livered by the said defendant to the said plaintiff or to his
order; and in consideration thereof and of certain reward to
the said defendant in that behalf the said defendant, being such
carrier as aforesaid, there and then, to wit, on the day and year
aforesaid, at, to wit, in the county aforesaid, undertook and
faithfully promised the said plaintiff to take care of the said
goods and chattels and safely and securely to carry and convey
the same from aforesaid, to afore-
said and there, to wit, at aforesaid safely and se-
curely to deliver the same to the said plaintiff or to his order.
And 'although the said defendant as such carrier as aforesaid
then and there had received the said goods and chattels for the
purpose aforesaid, it did not regard its said duty as such car-
rier nor its said promise and undertaking so made as aforesaid,
and contriving and fraudulently intending, craftily and subtlely
to deceive and injure the said plaintiff in this behalf, has not
taken care of the' said goods and chattels or safely or securely
carried or conveyed the same from aforesaid to
aforesaid, nor has there, to wit, at .
aforesaid safely or securely delivered the same to the said plain-
tiff or to his order; but, on the contrary thereof, it, the said de-
fendant being such carrier as aforesaid, so carelessly and negli-
gently behaved and conducted itself and with respect to the
said goods and chattels aforesaid, that by and through the mere
carelessness, negligence and improper conduct of the said de-
fendant, and its servants in this behalf, the said goods and chat-
tels, being of the value aforesaid, afterwards, to wit, on the day
and year aforesaid, at, , to wit, in the county of
aforesaid, became and were wholly lost to the
said plaintiff, to wit, in the county of aforesaid,
to the damage, etc.
1097 Special assessment, action
A city may maintain assumpsit for the collection of a special
assessment after it has become due.^^^
1098 Subscription to shares of capital stock ordered paid by
decree, Narr. (111.)
For that whereas, the plaintiff is a corporation, and was organ-
ized in the year , under and by virtue of a law of the
state of Illinois, providing for the establishment of telegraphs,
144 (3220), C. L. 1897 (Mich.).
524 ANNOTATED FORMS OF PLEADING AND PRACTICE
which was enacted and went into effect in the year , and
having a capital stock of dollars, divided into
shares of the par value of dollai-s each, the sub-
scriptions and payments for which stock by its subscribers and
stockholders constituted, and constitute, tlie iiicans and fund for
the prosecution of the plaintiff's business and the payment of
its debts.
And the plaintiff, being such corporation as aforesaid, the
said defendants as such copartners as aforesaid and under the
said name and style of heretofore, to wit, on the
day of , 19. ., at the county afore-
said, made and entered into an agreement in writing with the
plaintiff, in and by which agreement the said defendants sub-
scribed for, and agreed to and with the plaintiff to take
shares of the capital stock of the plaintiff', and to pay for the
same in the manner following, that is to say, per
centum of the par value thereof at the time of making said agree-
ment, and- the balance of the said par value thereof, to wit, of
dollars, upon each of said sliares so subscribed
for and agreed to be taken by said defendants as aforesaid, from
time to time, as the directors of the plaintiff should order. And
the plaintiff further avers, that it was in and by said agreement
provided that no one of the several orders, so to be made in pur-
suance thereof as aforesaid should direct or call for the payment
of any sum of money in excess of the sum of upon
each and every of the said shares so subscribed and agreed to
be taken as aforesaid.
And the defendants thereby, for a valuable consideration,
undertook and promised to pay to the plaintiff, for each and
every share so subscribed for by the defendants, as aforesaid,
the sum of dollars (except per centum of
the said amount, which was payable, by the terms of said agree-
ment, at the time of the making of the same^, in such instal-
ments and at such times as said defendants might he lawfully
called upon and required to pay the same, and according to tlie
legal tenor and effect of the said agreement.
And the plaintiff further avers that the said defendants have
heretofore paid to the said plaintiff the sum of
dollars and cents, upon each and every of the said
shares so subscribed for and agreed to be taken by them as afore-
said, or a total sum of dollars upon all of said
shares, but that the said defendants have never heretofore paid
to the plaintiff any other or further sum than as aforesaid upon
the said shares or either of them, so that there was on and pre-
vious to the day of , 19 . . , a balance
unpaid upon said shares of dollars and upon each
and every of said shares, and which was then liable to be called
for and ordered and required to be paid under and by virtue of
the terms of said agreement.
And plaintiff further avers that a large number of other per-
ASSUMPSIT 525
sons than said defendants subscribed for and agreed to take
other shares of said capital stock, and to the extent and amount,
including those subscribed for and agreed to be taken by the
defendants, as aforesaid, of all the shares into which said capi-
tal stock was divided ; that the several agreements, by which said
other persons agreed to take said other shares, were similar in
all respects to the said agreement of the defendants, except as
to the name of the subscriber, his residence, date of his subscrip-
tion, aiid number of such shares agreed to be taken; that each
and all of the said subscriptions and agreements were entered
into and made, to wit, in the years ; that the sev-
eral persons, including said defendants who so subscribed for
and agreed to take the shares of said capital stock, as aforesaid,
thereby became stockholders of the plaintift", and subscribers to
its capital stock ; that they number more than dif-
ferent persons, and are widely scattered, and reside in more
than different states and territories of the United
States of America, and in other countries; that the names and
residences of many of them are unknown to the plaintiff.
That a certain suit was begun on or about the
day of , 19. ., in the court of
county, in the state of Illinois, on the chancery side thereof,
wherein one and certain other persons, stockhold-
ers of the plaintiff, were complainants (and which suit was so
commenced on behalf of said and said other per-
sons, and all others similarly situated), and also wherein the
plaintiff and others were defendants, and in which suit the plain-
tiff was duly summoned, and appeared and submitted to the
jurisdiction of the said court ; and which suit has been ever since
its commencement, and now is, pending and undetermined in
said court; that certain proceedings were afterwards therein
had; that the said court did therein, on, to wit,
the day of , 19. ., take jurisdiction
and control of the plaintiff and its powers, property and affairs,
and did appoint a receiver for the plaintiff, and conferred upon
him all the powers and duties usually granted and imposed upon
receivers in such cases; and which order of appointment has
never been heretofore revoked, vacated, annulled nor set aside;
and the plaintiff' avers that its business, powers, and duties, and
the powers and duties of the board of directors of the plaintiff
have been thereby vested in, and exercised, managed and con-
trolled, by the said court and said receiver, at all times hereto-
fore and from the time of said appointment, of all of which
the said defendants had notice ; that the said is
the receiver of the plaintiff' appointed as aforesaid, and has been
such for many years continuously last past, and as such receiver
is in possession of and entitled to receive the property and effects
of the plaintiff.
Plaintiff further avers, that previous to the day
of , 19. ., it had become and was justly indebted
526 ANNOTATED FOKMS OF PLEADING AND PRACTICE
to various and sundry persons in a large amount, to \vit, in the
sum ot" dollars, and which indebtedness has never
been paid; that the whole of said indebtedness accrued a^^ainst
said plaintiff subsecjuent to the making and entering into the
said contract of subscription and agreement to take and pay
for the said shares, by the said defendants; that on the said last
mentioned date, and for a long period previous thereto, the plain-
tiff had no property, real or personal, with which to pay the
said indebtedness or any part thereof, except the amounts un-
paid upon the shares of its capital stock, subscribed for and
agreed to be taken by the defendants and by its other stockhold-
ers and subscribers to its capital stuek as aforesaid; that previous
to said last mentioned date, a small numbt-r of said stockholders
had paid to the plaintiff* dollars upon each of the
shares of said capital stock subscribed for by them respectively,
and the par value and in full for the same; that the balance and
remainder, and the others of said stockholders and subscribers,
have not now, and had not previous to said last mentioned date,
nor have any of them paid more than the sum of
dollars upon each and every of the shares of said capital stock
severally subscribed for, or held by them; that many of them
have never paid more than the sum of cents upon
each and every of such shares severally subscribed for by them ;
that there was on said last mentioned date, a balance and amount
unpaid upon each and every of the shares of said capital stock
(excepting those which have been paid for in full as aforesaid),
including the said shares subscribed for by defendants as afore-
said, of not less than dollars, and which the said
stockholders, including the defendants, were on said last men-
tioned date liable to be severally called upon and ordered to
pay according to the terms of the said agreements of subscrip-
tion ; that it therefore became and was necessary that the said
stockholders and each of them (except those who had paid in
full) and including the said defendants, should severally be
ordered to contribute and pay a certain portion pro rata, of the
par value of the shares of said capital stock subscribed for by
them, to be used and applied in payment of the said indebted-
ness, and the expenses of said receiver, incurred in and about
the affairs of the plaintiif.
And plaintiff further avers, that all of said stockholders of
plaintiff were not made parties to said suit and proceeding in
said court of county, and that it
was impracticable to nuike them such parties ; and plaintiff fur-
ther avers, that certain other proceedings were therein in said
suit had; that the said court, having then and there full and
competent jurisdiction, power and authority in the premises, did,
on said day of , 19 . . , make and ren-
der therein a certain decree, and did in and by said decree, find
and declare, order and decree, as follows, to wit : That the plain-
tiff is a corporation and was duly organized in the year ,
ASSUMPSIT 527
under and by virtue of a law of the state of Illinois, providing
for the establishment of telegraphs, which was enacted and went
into effect in the year ; that the said suit was commenced
in the year , against the plaintiff and certain other per-
sons, who were each duly served with process, and appeared in
said suit in person and by counsel, and that said suit has ever
since been and is now pending and undetermined in said court ;
that a receiver was appointed in said suit of and for the plain-
tiff and its property, both real and personal, on the
day of , upon supplemental bill of complaint filed
in said suit, and on account of mismanagement and malfeasance
of the then officers of the plaintiff' and as alleged and set forth
in said supplemental bill, and as well by consent and stipula-
tion of the plaintiff and the other parties to said suit; that said
receivership has never since been discontinued; that the plain-
tiff is largely indebted and to the extent of more than
dollars, and which indebtedness is in the form of judgments and
decrees rendered against the plaintiff; that about two-thirds of
said indebtedness accrued against the plaintiff, and was created
previous to the day of , and on account of the
construction of its telegraph lines and other property, and ma-
terial furnished and labor performed and money advanced in
and about such construction, and in and about the operation of
the lines of plaintiff; that a large portion of this two-thirds of
said indebtedness was and is for money loaned and advanced
to the plaintiff, and which was used by it in the construction
and operation of its telegraph lines and other property; that
said court had, before said day of ,
by reference had for that purpose in said suit, determined and
found the entire indebtedness of the plaintiff, and the name of
each creditor of the phiintiff", and the amount due each, and that
the same- then appeared by the records in said suit ; that each
and all of said creditors did, under the orders of said court in
said suit, make proofs before said court of their several claims,
judgments and decrees against the plaintiff, and did thereby
make themselves parties to said suit; that all the property of
the plaintiff had before said last mentioned date been sold and
disposed of, under the orders of said court in said suit, subse-
quent to the said appointment of the receiver as aforesaid, and
the proceeds therefrom distributed to the creditors of the plain-
tiff; that on said last mentioned date the plaintiff had no prop-
erty, real or personal, except as thereinafter stated in said de-
cree, with which the said indebtedness or any part thereof could
be paid ; that the only means or resources that the plaintiff had
on said last mentioned date for the payment of said indebted-
ness were and are the balances and amounts remaining unpaid
and due from its stockholders upon their several subscriptions
to its capital stock, and the amounts unpaid upon the capital
stock of the plaintiff ; that there are about stock-
holders of the plaintiff, who are widely scattered through more
528 ANNOTATED FORMS OP PLEADING AND PRACTICE
than different stales and territories of the United
States, and in other places, and the larger portion of whom live
at great distances from the place of holding said court, and from
said county of , while the residences of many of
them are entirely unknown to said receiver or his solicitor, al-
though diligent inc^uiry liad been made by tiiem in reference
thereto, and that it was therefore impracticable that all of the
said stockholders should be made parties to said suit and pro-
ceeding; that the said subscriptions to the sliares of said capital
stock were made principally in the years ; that
many of the stockholders of the plaintiff have become insolvent
or have died since their subscriptions were made ; that a few of
said stockholders have paid the full par value of the shares of
said stock subscribed for or held by them, namely, the sum of
dollars on each and every share thereof ; that some
of the said stockholders have paid per cent of such par
value, or dollars on each share subscribed for or
held by them; that many of said stockholders have paid only
cents upon each share subscribed for by them ;
that all of said stockholders excepting those who have paid
dollars on each of the shares of said stock sub-
scribed for or held by them respectively, now owe and are liable
to the plaintiff for an unpaid balance upon their several sub-
scriptions to such stock of not less than dollai-s on
each share, or per centum of the par value thereof ; and
that many of them owe thereon much more than per
centum of the par value thereof ; that the liability of the stock-
holders to said company is based upon and controlled by con-
tracts of subscriptions made with said company and in
and by which contracts the said stockiiolders agree to
take the number of shares subscribed for by them, and pay
for the same in instalments, as follows : per centum
of the par value thereof at the time of the making of their re-
spective subscription therefor, and the balance of said par value
as the directors of the plaintiff from time to time should order ;
that the said stockholders who have not paid in full, as afore-
said, are severally liable to the plaintiff for the balances now
unpaid upon the shares of such stock subscribed for or held by
them, being the difference between the amounts actually paid
thereon, and the par value thereof ; that the said unpaid balances
still remain liable to be called for, and ordered, and required
to be paid by the said subscribers, stockholders, and their as-
signs; that the collection of whatever sums are required to be
paid by said stockholders, in order to pay the said indebtedness,
is likely to be attended with great difficulty, labor and expense ;
that it was, therefore, necessary and proper that per
centum of the par value of each share of the capital stock sub-
scribed for and agreed to be taken or held by said stockholders,
and not paid for in full, should be called for and required to
be paid by them and their assigns, for the purpose of paying
ASSUMPSIT 529
said indebtedness; and which said findings and declarations by
said court in said decree, plaintiff avers, were and are true.
Plaintiff further avers that the said court did, for the pur-
pose of paying the said indebtedness of the plaintiff, also, in
and by said decree order, adjudge and decree as follows, to wit :
that a call or assessment be made upon the stock and stockhold-
ers of the plaintiff (excepting those who have paid in full),'
their legal representatives and assigns, of per centum of
the par value of the shares of said stock subscribed for or held
by them, being dollars and cents
on each and every share thereof, and that the stockholders of
the plaintiff', and each and every one of them (excepting those
who have paid dollars on each and every share
subscribed for or held by them), and their legal representatives
and assigns pay to the receiver of the plaintiff, the said ,
the several amounts so called for and assessed and required
and ordered to be paid, namely, dollars and
cents on each and every share subscribed for or
held by them respectively; and that the same be paid upon the
demand of said receiver or his agent, and that the said receiver
should at once proceed to collect the sums so ordered paid by
said decree, and make all necessary demands for such payments,
employ such assistance and counsel, take such action and insti-
tute such suits and proceedings in the name of the plaintiff,
and in such jurisdictions as the said receiver should be advised
or deem expedient or proper, and for the purpose of enforcing
the payment of the said sums ordered paid as aforesaid; which
said decree was fully entered of record in said suit on said
day of ; of all of which the said de-
fendants had notice. And plaintiff also avers that said defend-
ants as such copartners as aforesaid and under the said name
and style and on and before the said last mentioned date, be-
came and were parties to said chancery cause and are bound by
said decree so made and entered as aforesaid.
And the plaintiff avers that thereupon, and from the time
of the making and entering of the said decree as aforesaid, and
thereby, the said defendants as such co-partners became in-
debted to the plaintiff, and were liable to pay to the plaintiff
the sum of dollars and cents upon
each and every of the said shares so subscribed for by them as
aforesaid, to wit, the sum of dollars and
cents, upon and according to the demand of said
as receiver of the plaintiff.
And the plaintiff further avers that the said ,
as such receiver, and in pursuance of the terms of said decree,
did, on, to wit, the day of , 19 . . , at,
to wit, the county aforesaid, make demand upon the said de-
fendants as such copartners as aforesaid and under the said
firm name and style that they pay to him as the receiver of
the plaintiff the said sum of money last above mentioned, within
530 ANNOTATED FORMS OF PLEADING AND PRACTICE
days from the said last mentioned day, at the
Office* of him,' the said , at room . . . ., number . . .
street, in the city of , in said county,
and also did at the same time give notice to the said defendants
of the making and entering of said doi-ree.
And the plaintiff avers, tliat although often requested, the
defendants or either of them have not paid the said sum of
money or any part thereof, but to pay the same have neglected
and refused, and still refuse, to the damage of the plaintiff in
the sum of dollars.
1099 Taxes, Narr. (District of Columbia)
For that the said plaintiff, by its proper officers and agents,
duly valued the gross earnings of the said defendant in the sum
of dollars for the fiscal year ending ,
and assessed thereon as a tax against the said defendant the sura
of dollars as the tax for the year ending ,
as provided by the Act of July 1, li)U2, and the amendment
thereto of April 28, 1904, on which said tax there has accrued
penalties of dollars for failure to pay the said
tax when and as the same became payable; that the said sum
of dollars became due and was payable before
the first day of June, , but the same was not paid or any
part thereof, nor have the said penalties or any part thereof
been paid, although retiuests have repeatedly been made for both
of the said tax and the penalties thereon. Wherefore, etc.
Affidavit
District of Columbia, ss. :
, being duly sworn says that he is the collector
of Vaxe'sfor the District of Columbia; that by reason of his offi-
cial position as such tax collector he knows that the defendant
herein, , was duly taxed in the year , the
sum of dollars for the fiscal year ending ,
the same being per cent of its gross earnings for the
preceding fiscal year ending , assessed at
dollars ; that the said tax was not paid before the first of June,
, and that the penalties for such nonpayment accrued
thereon amounting to dollars ; that said tax is car-
ried on the personal tax ledger of the District of Columbia m
the name of said defendant ; that neither said tax nor penalties
nor any part of either has been paid ; that said tax and penalties,
amounting to dollars, are now justly due and
owing to the said District of Columbia from the said defendant,
, exclusive of all set offs and just grounds of de-
fense.
Collector of taxes.
Subscribed, etc.
ASSUMPSIT 531
(Maryland)
For that heretofore, to wit, on and after the day
of , 19 . . , there was in the ownership and pos-
session, or custody, of said defendant, in the city of ,
state of , barrels of distilled spirits, upon
which there was duly made by the State Tax Commissioner of
Maryland, an assessment of $ per barrel, amount-
ing in the aggregate to $ , for purposes of state
and city taxation, for the 3'ear 19. ., upon which said assess-
ment as aforesaid there was lawfully levied by the mayor and
city council of , by ordinance No , approved
, 19. ., a tax of $ per $100 for city
purposes, for the year 19. ., said tax upon said total assessment,
including interest and penalties to the date of the institution
of this suit, amounting to $ , which said amount
is now due and payable by said defendant to the plaintiff, and
the defendant, though often re(iuested so to do, has failed and
refused to pay said tax, or any part thereof, and still fails and
refuses so to do.
I hereby authorize the institution of the above suit.
]\Iayor.
1100 Taxes paid under protest, action
A drain tax paid under protest cannot be recovered back
under section 4359, Comp. Laws, on the ground that there was
no proper release of the right of way in the proceedings to ac-
quire it.^^^
1101 Taxes paid under protest, Narr. (Miss.)
In the northern suburbs of of is
situated a college, or institution known as college.
The land upon which the same is situated is a part of (Describe
property), according to the official map of , and
is described in the deed from to ,
which deed is of record in the office of the chancery clerk at
On said lands are certain buildings and improve-
ments, erected exclusively for the purpose of conducting a col-
lege, and not adapted for any other purpose. In the main build-
ing are class rooms, recitation rooms, a dining hall, a chapel, a
dormitory for pupils who board at the institution, and rooms
i<5 Eannev Eefrig. Co. v. Smith,
157 Mich. "302, 305 (1909). See
Section 1056.
532 ANNOTATED FORMS OF PLEADING AND PRACTICE
for the teachers. There is also a president 's home or residence,
in which there is a reception room, an oiiiee, and bed rooms for
the president and his family. The institution is designed and
has been conducted throughout all the years of its existence
as a college, or a boarding school for young ladies. Throughout
such existence, said institution has had a president, a regular
corps of instructors, constituting the faculty, plaintiff being now
the president It has a high curriculum and grants diplomas in
the arts and sciences and various branches of learning taught
therein.
Said college was established and successfully conducted for a
number of years by , who died some years ago.
After his death the college was conducted by his family and
representatives until the year , when negotiations were
had with plaintift", a professional educator, who then resided at
, looking to a sale of the property to him, and
a continuation of such college under his direction. These nego-
tiations resulted in the purchase of the property by plaintiff,
who later removed his family to and took charge
of and continued to conduct said institution of learning. Since
he has had charge of the same he has improved the property
and its e(iuipment with a competent faculty, and has continued
to conduct said institution for the education of youth up to the
present time. The property, since plaintiff has ac(|uired control
thereof, has been used solely and exclusively for the purpose of
such institution for the education of youth, and for no other
purpose, and it is now being so used. Said property consists
of the grounds and buildings thereon and the personal effects
situated in the buildings constituting a part of the e(iuipment
of said college, all being used directly and exclusively for the
education of youth and for no other purpose.
Under the opinion of the attorney general of this state, said
property has been held to be exempt from taxation and has not
been assessed for state and county taxes. But at the end of
, plaintiff learned, to his great surprise, that the
said property had been assessed for taxation by the authorities
of said Plaintiff at once protested against the
legality of this assessment, claiming that under section 4251
of the Code of 1906, the said property, being used directly and
exclusively for the education of youth, was exempt and could
not be taxed by said municipality. But the offtcers of said
municipality, by , insisted on the payment of such
taxes and informed plaintiff that unless the taxes so assessed
were paid, said property would be subjected to sale therefor.
Thereupon, on the day of , plaintiff
paid to the city tax collector of said
of , the taxes on said property demanded by the
officials of said municipality, namely : the sum of
dollars, and received from said tax collector the tax receipt for
ASSUMPSIT 533
the amount. A copy of said tax receipt with the endorsements
thereon is filed as exhibit "A" to this declaration.
Plaintiff shows thai at and before the time of the payment of
such taxes, he earnestly protested against the payment of the
same, urging that under the facts hereinbefore stated that the
property was exempt and not liable to taxation. But that the
said tax collector persisted in his unlawful purpose and stated
that he would subject the property to sale if the taxes were not
paid. Being thus coerced, to avoid the evident purpose of said
tax collector to subject said property to sale, plaintiff paid the
said sum of money to the said tax collector under protest, and
the fact that the same was paid under protest was, by said tax
collector endorsed on the said receipt. Plaintiff assumes and
therefore charges that the amount so collected as a city tax
claimed to be due on said property has been paid into the city .
treasury by said collector, except, however, a certain part thereof,
retained by him as commissions. Plaintiff avers that said amount
was wrongfully and unlawfully collected and was paid under
protest as above set forth. He shows that the property was
exempt from taxation and that the said tax collector was with-
out authority to collect the same, and that the payment thereof
into the said treasury was wrongful and unlawful. Plaintiff
therefore, asks judgment against the defendant for the said sum
of dollars, with interest and costs.
1102 Taxes paid under void sale, action
A tax-buyer, under the Illinois statute may, in an action of
assumpsit recover back from the owner the amount of his bid
and any taxes he has paid upon the land purchased to protect
the purghase, where land is sold, which is not subject to taxa-
tion, where the taxes have been paid prior to the sale, or
where the taxes for which the sale was made arose from double
taxation, where the real estate was so imperfectly described as
to render the sale void so that the purchaser obtained nothing
by virture of his purchase.^^*'
1103 Telegraph service, Narr. (Miss.)
That the plaintiff, , is a corporation doing busi-
ness in the city, district, county and state aforesaid and is en-
gaged in the transmitting and receipt of messages to and from
various parts of the United States ; that theretofore, to wit, from
day of , 19 . . , to the
day of , 19 • • , inclusive, at the special instance and
146 Joliet stove Worts v. Kiep, 230
m. 550, 557 (1907).
534 ANNOTATED FORMS OF PLEADING AND PR.VCTICE
request of the defendant, plaintiff transmitted messages to va-
rious parts of the United States, antl received mcssagi'S directed
to the defendant, tlie tolls and cluirt,'es of which amount hi agge-
gate to the sum of dollars, which said sum del end-
ant promised to pay when requested so to do hy plaintitf; and
plaintiff avers that defendant has not paid plamtitV said sum of
money, or any part thereof, although often requested to do so;
whereliy an action hath accrued to said plaintiff to have of siiid
defendant the sum of dollars.
Affidavit
(Venue) .
personally appeared before the undersigned,
notary i)uhlie of manager of
who, after being bv me duly sworn, states on oath that the al)0ve
account against .* of dollars is just.
due and unpaid.
Witness mv hand and notarial s.al this day ot
., 19--
1104 Tenants in common, action
A co-tenant may he sued in assumpsit for the value of a pro-
portionate share in per.sonal pro|)erly held by him in common,
by treating the retention of the property as a conversion by
sale. 1-1 7
1105 Transportation; failure to provide, Narr. (Miss.)
That plaintiff operates and conducts throughout the Ignited
States an itinerary show; that it owns its private sleeper and
private baggage car, carrying or more persons;
that it applied to the railroad company, defend-
ant herein, at , to be transported to the city of
, on its itinerary, giving to , assist-
ant general passenger agent a list of the engage-
ments of said company, plaintiff herein, for the month of ,
; whereupon, the said , acting for said defend-
ant and having full authority to do so, agreed on behalf of said
defendant to convey the said cars of the plaintiff from
to the various points in , at which places plaintiff
desired to exhibit its shows in accordance with the schedule fur-
nished to the said defendant's general passenger agent; that a
copy of said agreement is hereto attached and marked exhibit
"A," and it is asked to be considered as if set out in full in
words and figures ; that after the execution of said agreement,
147 Fiquet v. Allison, 12 INIich.
328, 332 (1864) ; Williams v. Rog-
ers, 110 Mich. 418, 423 (1896).
ASSUMPSIT 535
the defendant inspected the plaintiff's ears, and pronounced
the same perfectly satisfactory to its operating department, and
moved the plaintill' with comparative safety in accordance with
its agreement with plaintiff, reaching on the day
of , 19..
That after its performance at , the plaintiff de-
sired to be transported to the town of , the point
of its next engagement; that defendant's agents and servants, in
violation of the express contract entered into with the plaintiff,
neglegently and willfully refused to transport the plaintiff' and
willfully and negligently refused to carry out said contract of
transportation Muth the plaintiff', although the plaintiff offered
to do and ttMidered performance of everything required of it
under said contract, at all times being ready and willing to pay
the compensation provided under said contract, until the
day of , 19. ., when the said defendant moved the
plaintiff" company to , en route to ,
moving the plaintiff's private sleeper car, but willfully and neg-
ligently refusing to move the plaintiff" "s baggage car.
Plaintiff alleges and avers that it lost all of its engagements
from until its engagement at , on
the day of , 19 . . ; that said delay
and loss was sustained and occasioned solely and only by the
utter disregard exhibited by the defendant for the rights of the
plaintiff under said contract ; that there was an utter and willful
failure ui)un the part of defendant's agents and servants to
comply with said contract; that said refusal to move said car
and to comply with said eontract was either the result of will-
fulness or utter disregard of conse(|uences.
The plaintiff alleges and avers tiiat by reason of the failure
on the part of the said defendant company , said
plaintiff sustained actual damages in the sum of
dollars; tiiat the defendant refuses to pay said sum or any part
thereof, although often demanded, wherefore, etc.
1106 Trespass on land, action
An action of assumpsit which arises from the waiver of a
trespass or injury to land rests upon the fiction of an implied
indebtedness to pay the damages which have accrued by the
commission of the wrong. ^"^^
1107 Trespass on land, declaration, requisites
In an action of assumpsit, under ^lichigan statute, for a tres-
is Bradley-Watkins Co. V. Kala- 146 (1906); (11207), (11208), C.
mazoo Circuit Judge, 144 Mich. 142, L. 1897 (Mich.)
536 ANNOTATED FORMS OF PLEADING AND PRACTICE
pass on lands, the declaration must show the damages to have
accrued out of the trespass. ^^"
1108 Use and occupation, generally
An action for use and occupation is maintainable at common
law for land occupied by a party, when the relation of land-
lord and tenant can be established by the permission and assent
of the owner to the occupation, by an express or implied promise
to pay a certain sum in satisfaction of such use, or by a de-
mise. ^^" This action is also maintainable against a vendee for
his occupation of premises after notice of the vendor's abandon-
ment of the contract for its purchase, and for the occupation of
premises during the existence of a contract for its purchase, If,
the vendee has abandoned the contract without the vendor's
fault.151
By special statutory provision, which was passed to remedy
certain hardships resulting from a previous statute, an action of
debt or assumpsit for use and occupation is maintainable in Illi-
nois against the vendee who has unjustly occupied premises
under a contract of purchase which he refuses to perform. ^^2
No implication of a contract to pay for use and occupation
arises if the land is held adversely to its owner and all the
world. 1^2 This is so, notwithstanding the Michigan statute which
authorizes the bringing of an action of assumpsit for trespass
on timber land. The action thus authorized being intended to
be one for damages sustained by the trespass and not for use and
occupation.i^^
Use and occupation, under Michigan practice, may be sued
for generally or specially, without reference to the form of the
lease.^'"^^
An action for use and occupation is not confined to the recov-
ery of rent for the period the premises were actually occupied,
but may cover the rent due for the entire period until the rela-
149 Lockwood V. Thunder Bay i53 Chicago Terminal Transfer R.
River Boom Co., 42 Mich. 536, 540 Co. v. Winslow, 216 111. 166, 171
(1880); (11207), C. L. 1897 (1905); Lockwood v. Thunder Bay
(Mich.). River Boom Co., 42 Mich. 539; Ward
150 Ward v. Bull, 1 Fla. 278; v. Warner, 8 Mich. 508, 520 (I860).
Lockwood V. Thunder Bay River i54 Lockwood v. Thunder Bay
Boom Co., 42 Mich. 538. River Boom Co., 42 Mich. 540;
isiDwight v. Cutler, 3 Mich. 566, (11207), C. L. 1897 (Mich.)
575 (1855). i55Conkling v. Tuttle, 52 Mich.
i52Hadlev v. Morrison, 39 111. 630, 632 (1884).
392, 398 (1866).
ASSUMPSIT 537
tion of landlord and tenant has been legally terminated by no-
tice.^"^
1109 Use and occupation, life and sub-tenant, death of life
tenant, proportiomnent of rent, action
At common law, the death of a life tenant terminated the
sub-tenancy, and no rent could be recovered from the sub-ten-
ant for the time he occupied the premises previous to the death
of the life tenant, because the rent could not be apportioned.
By Illinois statute, rent which is due at the death of a life tenant
may be apportioned and recovered in an action against the sub-
tenant.^^'^
1110 Use and occupation, Narr. (111.)
For that whereas, to wit, on the day of ,
19.., at, to wit, the city of , in the county of
aforesaid, the said defendant was indebted to the
plaintiff in the sum of dollars for the use and
occupation by defendant, at the special instance and request
of defendant, of certain premises of the plaintiff, which said
premises the defendant, by the sufferance and permission of
the plaintiff, had for a long time prior thereto held, used, occu-
pied, possessed and enjoyed, which said mentioned sum of money
was to be paid to the plaintiff by the defendant on retjuest ; and
being so indebted tiie said defendant, in consideration thereof,
afterwards, to wit, on the day and year last aforesaid, at the
city of , in the county aforesaid, undertook and
then and there faithfully promised the said plaintiff to pay to
the plaintiff the said last mentioned sum of money when the
defendant should be thereunto afterwards requested. Yet, the
defendant, although often requested so to do, has not paid to
the plaintiff the said sum of money so due as aforesaid, or any
part thereof, but so to pay has wliolly refused and still does re-
fuse, to the damage of the plaintiff'.
b
For that whereas, at and during the time wherein the cause
of action herein set forth accrued, the said defendants were
partnei-s, doing business under the name of "B," in the busi-
ness of catching fish in Lake Michigan, and selling and disposing
of the same in the state and county aforesaid. That upon the
; day of , the said defendants entered
into a verbal agreement with plaintiff. . for the use and occu-
pation of certain premises in the city of , state of
, known as , to be used by the said
156 Huntington v. Parkhurst, 57 453, 455 (1911); Par. 35, c 80,
Mich. 38, 46, 48 (1891). Hurd's Stat. 1911, p. 1458.
157 Wilson V. Hagey, 251 111. 452,
538 ANNOTATED FORMS OP PLEADING AND PRACTICE
defendant for storage and dock in the presecution of said fish
business, for which said use and occupation tlie said defendants
agreed to and with this plaintitf to pay . .h. . the sum of
($ ) dollars per month, in advance, coniiiiencing on the
day of antl continuing from montii
to month. That said defendants' use and occupation aforesaid
continued from the day of , until
the day of That plaintiff agreed
to allow defendants a credit of ($ ) dollars,
to be credited on the ($ ) dollars due for
the month of , in consideration of certain repairs
to be made on the premises by defendants, but plaintiff.,
allege., that said repairs were never in fact made, and said
agreement for credit is nnd was canceled, and there is still due
plaintiff. ., from defendants, ($ ) dollars,
for- the month of aforesaid. That the money due
for the months of , ,
as aforesaid, became due and payable upon the of
each said month, making a total sum due and payable from said
defendants, to plaintiff. ., for the aforesaid months,
on the day of , of ($ . . )
dollars; and being so indebted, the defendants, in consideration
thereof, then and there promised the plaintiff., to pay ..h..
the saicl sum of money on request. Yet, the defendants, though
requested, have not paid the same or any part thereof to the
plaintiff, but refuse so to do ; to the damage of the plaintiff of
($ ) dollars, and therefore . .he. . bring. .
this suit.
1111 Wages, demand
To :
You are hereby notified that the sum of dollars
and cents is now due me from you for wages as
; that I hereby demand of you payment of said
sum; and that if default is made in its payment for three days,
I shall commence suit for the recovery of said sum and the stat-
utory attorney's fees.^'"'^
Dated, etc. (Add affidavit of service)
1112 Water, failure to supply, Narr. (Miss.)
That the said defendants are indebted to the plaintiffs in the
sum of dollars for supplying defendants' tank,
near , with water, from the day of
, 19 . . , to the day of ,
19. ., at their request; and being so indebted, the defendants, in
consideration thereof afterwards, to wit, on the date and year
last aforesaid, then and there undertook and faithfully promised
158 Par. 13, c. 13, Hurd's Stat.
1909.
ASSUMPSIT 539
the plaintiffs to pay them said sum of money when they, the
defendautfc., should be thereunto afterwards requested.
2. And that, on the day and year last aforesaid, in consid-
eration of the plaintilt's, at the like special instance and request
of the defendants, had before that time supplied defendants'
tank, near , with water, from the
day of , 19 . . , to the day of ,
19. ., they, the defendants, undertook and then and there faith-
fully promised the said plaintiffs to pay them so much money
as they therefor reasonably deserve to have of the defendants
when they, the defendants, should be thereunto afterwards re-
quested; and plaintiffs aver that they therefor reasonably de-
serve to have of the defendants, the further sum of
dollars, of which the defendants had notice. Yet, the defend-
ants, although often requested, have not paid the plaintiffs the
said several sums of money, or either of them, or any part
thereof.
COMMON COUNTS
1113 Generally; common and special counts
Common assumpsit counts or indebitatus assumpsit will sus-
tain a recovery upon an express contract which has been fully
or substantially performed and nothing remains to be done but
to pay the amount due under it.^^'-* The common counts are in-
.suflficient to permit proof of an excuse of the non-performance
of a condition precedent ; as a recovery upon a contract with
condition precedent can only be had on a declaration which
states the reason for a failure to comply with the cx>ndition.^*'"
In assumpsit, the common counts and a count upon a special
contract, are distinct and different causes of action, where the
basis of recovery is different under each.^^^
1114 Award
An award of arbitrators may be relied upon under the count
of accounty stated, or under the common assumpsit counts.^'^^
159 Evan3 V. Howell, 211 111. 85, ico E.xpanded Metal Pireproofing
92 (1904); Olcese v. Mobile Fruit Co. v. Bovce, 233 111. 284, 289
& Tradincr Co., 211 111. 539, 545 (1908), overruling Foster v. Mc-
(1904); Bauer v. Hindley, 222 111. Keown, 192, 339 (1901) as to scope
319, 322 (1906); Peterson v. Pusey, of common counts.
237 III. 204, 207 (1908), Rubens v. lei Richter v. Michigan Mutual
Hill, 213 111. 523, 536 (1905); Con- Life Ins. Co., 66 111. App. 606, 608
cord Apartment House Co. v. (1896) ; Gorman v. Newaygo Cir-
O'Brien, 228 111. 360, 369 (1907); cuit Judge, 27 Mich. 138 (1873).
Preston v. Smith, 156 111. 359, 363 102 Maedonald v. Bond, 195 111.
(1895). 122 (1902).
540 iUSfNOTATED FORMS OF PLEADING AND PRACTICE
1115 Building contract
The common counts are insufficient to sustain a recovery upon
a building contract which recpires the obtaining of an archi-
tect's certificate as a condition precedent to the right of pay-
ment. In an action upon a buikiing contract the declaration
must set out the contract, aver performance as to tlie furnishing
of material and the performance of work, and state tlie reason
for the failure to satisfy the condition by furnishing the archi-
tect 's certificate. 1*^^
1116 Fraud
A party who furnishes material and labor upon fraudulent
representations that he is obliged to do so may, after the dis-
covery of the fraud, recover the value of the material and labor
under the common counts.^^^
1117 Gaming
In an action of assumpsit to recover money lost at gaming, it
is sufficient to count upon money had and received by the de-
fendant to the plaintiff's use.^*^^ The common counts, without
the conclusion, "contrary to the form of statute" {contra for-
man statuti) will support the recovery of money deposited for
gaming purposes, if no objection, based upon the want of the
allegation, is made to the declaration before judgment. ^'^'^
1118 Insurance policy
The common counts are insufficient to support a rccoveiy up-
on a policy of insurance. ^'^'^
1119 Money had and received
Money had and received may be recovered under the common
counts for money had and received.^®** Money obtained un-
justly and inequitably retained by a person may be recovered
from him under the common counts. ^'^'^ No contractual relation
is necessary to support a count for money had and received, if
163 Hart V. Carsley Mfg. Co., 221 iso Parmalee v. Rogers, 26 111. 56
111. 444, 446 (1906); Expanded (1861).
Metal Fireproofing Co. v. Boyce, 233 i''" Heffron v. Eoehester Geriran
111. 289, overruling Foster v. Me- Ins. Co., 220 111. 514, 517 (1906);
Keown, 192 111. 339. Eichter v. Michigan Mutual Life
iG* Citizens' Gaslight & Heating Ins. Co., 66 111. App. 607.
Co. V. Granger & Co., 118 111. 266, les Chemical National Bank v.
270 (1886). City Bank, 156 111. 149, 154 (1895).
165 Zimmerman V. Wead, 18 111. ic9 Donovan v. Purtell, 216 111.
304 (1857). 629, 642, 643 (1905).
ASSUMPSIT
541
it can be shown that the money sued for legally belongs to the
plaintiff, i""^
1120 Money paid out for the defendant
An action under this count is sustainable only where the
money was paid upon a request, express or implied, for the de-
fendant, under an express or implied contractual relation. ^^^
1121 Money paid under protest
The common counts are sufficient to sustain an action against
a municipality for the recovery of money paid to it under pro-
test.172
1122 Payment in articles
The common counts are sufficient to sustain a recovery on an
agreement to pay a certain sum in specified articles of personal
propertv, at an agreed price, on a particular day, or within a
reasonable time, and there is a failure to deliver the articles;
because in such case the non-deliver>' of the articles in accord-
ance with agreement converts the transaction into a money
obligation.i"^
1123 Promissory note
A promissory note is admissible under the common counts
although it is inadmissible on the ground of variance under a
special count.i'^ A joint promissory note is by Illinois statute
joint and several and is admissible in evidence under common
counts which declare jointly and severally.i^^
1124 Special assessment
Under a Michigan statute a common count for money paid
is sufficient to support an action by a city for the collection of a
special assessment. ^^"^
170 Highwat Coniinissior.er3 v. i" McKinnie v. Lane, 230 HI. 544,
Bloo^inlton, 253 111. 164, 177 547^(1900.^^ ^ ^^^^^^^^^ ^3 ^^
iTrciiicaeo V Chicago & North- 155, 158 (1867). a
western Ry^ Co., 186 111. 300, 303, ^r.-^.^'l'Tniu^^^ ^ ^^'
on4 MQfin'^ HI- 512, 51b (1911).
''t^/Sgo V. Northwester. Mu- x- (3220), C. L. 1897 (M.ch.).
tual Life Ins. Co., 218 lU. 40
(1905).
542 ANNOTATED FORMS OF PLEADING AND PKACTICE
FORMS
1125 District of Columbia
The plaintiff sues the defendant for money payable by the
defendant to the plaintiff for goods sold and delivered by the
plaintiff' to the defendant.
And for work done and materials provided by the plaintiff
for the defendant at his request.
And for money lent by tlie phiintiff to tlie defendant.
And for money paid by the plaintitf for the defendant at
his request.
And for money received by the defendant for the use of the
plaintiff.
And for money found to l)e due from the defendant to the
phiintiff on account stated between them.
And tlie plaintiff claims the sum of dollars
with interest from the day of , until
paid, according to the particulars of demand hereto annexed.
Against administrator
For work done and materials provided by the plaintiff for
the defendant's intestate durinj,' his life time at lii.s rei|Ui'st ;
and for money paid by the plaintiff' for the defendant s intes-
tate during his life time at his recjuest; and for money found
to be due from the defendant's intestate during his life time
to the plaintiff on account stated between them.
1126 Florida
For that, on day of , 19 . . , the
defendant was indebted to the jilaintiff in the sum of
dollars :
1. For money payal)le l)y the defendant to the plaintiff for
goods bargained and sold by the plaintiff to the defendant.
2. For materials furnished by the plaintiff to the defendant
at his request.
3. For money lent by the plaintiff to the defendant.
4. For money paid by the plaintiff for the defendant at his
request.
5. For money received by the defendant for the use of the
plaintiff.
6. For money found to be due from the defendant to the
plaintiff on accounts stated between them.
7. For interest and divers sums of money due to the plain-
tiff by the defendant, foreborne to the defendant, at his request
by the plaintiff before this time. "Wherefore, etc.
ASSUMPSIT 543
1127 Illinois; goods sold and delivered, generally
For that whereas, heretofore, to wit, on the
day of , 19 , . , at , to wit, at the
county aforesaid, the said defendant became and w. . . . indebted
to the said plaintiff. . in the sum of dollars, in
lawful money of the United States of America, for divers goods,
wares, merchandise, and chattels, by the said plaintiff. . before
that time sold and delivered to the said defendant. . at . .h. .
special instance and recjuest; and being so indebted, . .h. . the
said defendant.., in consideration thereof, afterwards, to wit,
on the day, year and place last aforesaid, undertook, and then
and there faithfully promised the said plaintiff. . to pay . .h. .
the said last mentioned sum of money, when the said defend-
ant should be thereunto afterwards requested. (Yet, etc.)^^'^
1128 Illinois ; goods sold and delivered, quantum valebant
And whereas also afterwards, to wit, on the day and year
last aforesaid, at the place aforesaid, in consideration that the
said plaintiff. . had before that time sold and delivered divers
other goods, wares, merchandise, and chattels to the said defend-
ant.., at ..h.. special instance and ref|uest, said defendant.,
undertook, and then and there faithfully promised said plain-
tiff. . to pay . .h. . so much money as the last mentioned goods,
wares, merchandise, and chattels, at the time of the said sale
and delivery thereof were reasonably worth, when said defend-
ant. . should be thereunto afterwards re(|uested: and the plain-
tiff. . aver.., that the said last mentioned goods, wares, mer-
chandise and chattels, at the time of the said sale and delivery
thereof, were reasonably worth the further sum of
dollars, of like lawful money, to wit, at the place aforesaid,
whereof the said dofondant.., afterwards, to wit, on the day
and year last aforesaid, there had notice. Yet, etc.^"^
1129 Illinois ; work, labor and material
And whereas also afterwards, to wit, on the day, year and
place last aforesaid, the s<ud defendant., became and w....
indebted to the said plaintiff. . in the further sum of
dollars, of like lawful money of the United States for
work and labor, care, and diligence of the said plaintiff. . by
the said plaintiff. . before that time done, performed and
bestowed, in and about the business of the said defendant . .
and for the said defendant., at h. , special instance and re-
quest, and also for divers materials and other necessary things
by the said plaintiff. . before that time found and provided, and
177 2 Chitty 's PI., pp. 55, 37 (star i78 2 CLitty 's PI., p. 38.
paging).
544 ANNOTATED FORMS OF PLEADING AND PRACTICE
used and applied, in and about that work and labor for the said
defendant.., and at ..h.. like special instance and request;
and being so indebted, the said defendant.., in consideration
thereof, afterwards, to wit, on the day, year and place afore-
said, undertook and then and there faithfully promised to the
said plaintiff., to pay . .h. . the said sum of money in this
count mentioned, when the said defendant. . should be there-
unto afterwards requested. Yet, etc.^^^
1130 Illinois; money counts
And whereas also afterwards, to wit, on the day, year and
place last aforesaid, the said defendant. . became and w. . . .
indebted to the said plaintiff. . in the further sum of
dollars, of like lawful money of the United States :
For so much money by the said plaintiff'. . before that time
lent and advanced to the said defendant . . , at . . h . . special
instance and request.
And also for so much money by the said plaintiff. . before
that time paid, laid out, and expended, to and for the use of
the said defendant. ., at . .h. . special instance and request.
And also for so much money by the said defendant . . before
that time had and received to and for the use of the said
plaintiff. . .
And also for so much money before that time due and pay-
able from the said defendant. . to the said plaintiff. ., for inter-
est upon and for the forbearance of divers large sums of money
before then due and owing from the said defendant to the said
plaintiff. ., and by the said plaintiff. . forborne to the said
defendant. ., for divers long spaces of time, before then elapsed,
at the like special instance and request of the said defend-
ant . . .
And being so indebted, the said defendant. ., in consideration
thereof, afterwards, to wit, on the day, year and place afore-
said, undertook and then and there faithfully promised the
said plaintiff., to pay ..h.. the said several sums of money
in this count mentioned, when he the said defendant. . should
be thereunto afterwards requested. Yet, etc.^^°
1131 Illinois; account stated
And whereas also afterwards, to wit, on the day and year
last aforesaid, at aforesaid, the said defendant. .
accounted with the said plaintiff. . of and concerning divers
other sums of money from the said defendant.., to the said
plaintiff. . before that time due and owing, and then in arrear
and unpaid, and upon such accounting the said defendant . .
i79 2Chitty'sPl., p. 74. iso 2 Chittj's PI., pp. 87, 88.
ASSUMPSIT 545
w then and there found to be in arrear and indebted to
the said plaintiff. . in the further sum of dollars
of like lawful money, and being so found in arrear and indebted,
the said defendant . . , in consideration thereof, afterwards, to
wit, on the day and year last aforesaid, at afore-
said, undertook, and then and there faithfully promised the
said plaintiff to pay . . h . . the said last mentioned sum of money,
when the said defendant . . should be thereuntoi afterwards
requested. Yet, etc.^^^
1132 Maryland
For money payable by the defendant. . to the plaintiff. .
1. For goods bargained and sold by the plaintiff'., to the
defendant . . .
2. And for \vork done and materials provided by the plain-
tiff for the defendant at . .h. . request.
3. And for money lent by the plaintiff. . to the defendant. . .
4. And for money paid by the plaintiff. . for the defend-
ant. ., at . .h. . request.
5. And for money received by the defendant. . for the use
of the plaintiff. . .
6. And for money found to be due from the defendant. .
to the plaintiff.., on accounts stated between them.
7. And for that the defendant . . , on the day
of , 19. . by . .h. . promissory note now overdue,
promised to pay to the plaintiff. . $ after date, but
did not pay the same.
And the plaintiff. . claim $
Against executor
For money payable by the defendant to the plaintiff
1. For goods bargained and sold by the plaintiff to the
defendant's testator.
2. And for work done and materials provided by the plain-
tiff for the defendant's testator at his request.
3. And for money lent by the plaintiff to the defendant's
testator.
4. And for money paid by the plaintiff for the defendant's
testator, at his request.
5. And for money received by the defendant's testator for
the use of the plaintiff.
6. And for money found to be due from the defendant's
testator to the plaintiff, on accounts stated between them.
And the plaintiff claims $
i8i2Chitty'sPl.,p. 90. In prac- mencing with "yet" or "neverthe^
tice, Sections 1127 to 1131 inclusive, less" is inserted only at the end of
are combined in one declaration; in the declaration,
which case, the common breach com-
546 ANNOTATED FORMS OF PLEADING AND PRACTICE
1133 Michigan
For that whereas, the said defendant. . heretofore, to wit, on
the day of , 19 . . , at the
of , in said county of , indebted to
the plaintiff. . in the sum of dollars, for the price
and value of goods then and there sold and delivered by the
plaintiff. . to the defendant. ., at re(iuest.
And in a like sum for the price and value of work then and
there done, and materials* for the same, provided by the plain-
tiff. . for the defendant. ., at request.
And in a like sum for money then and there lent by the plain-
tiff. . to the defendant. ., at request.
And in a like sum for money then and there paid by the plain-
tiff. . for the use of the defendant. . at request.
And in a like sum for money then and there received by the
defendant. . for the use of the plaintiff. , .
And in a like sum for money then and there found to be due
from the defendant, .to the plaintiff., on an account stated
between them.
And thereupon, the said defendant . , afterwards, and on the
day and year aforesaid, in consideration of the premises respec-
tively, then and there promised the plaintiff. . to pay
the said several sums of money respectively, on request: Yet
the said defendant. . (although often requested so to do) ha. . .
disregarded said promises and ha... not paid
any of the sums of money, or any part thereof, to the plaintiff. .
damage of dollars, and therefore
bring. . suit, etc.
1134 Virginia
For this, to wit, that heretofore, to wit, on the
day of , 19. ., the defendant. . w. . . . indebted to
the plaintiff. . in the sum of $ for the price and value
of goods then and there sold and delivered by the plaintiff. .
to the defendant . . at request.
And in the sum of $ for the price and value of other
goods bargained and sold by the plaintiff. . to the defendant. . at
request.
And in the sum of $ for the price and value of work
then and there done by the plaintiff. . for the defendant. . at
request.
And in the sum of $ for materials furnished then
and there by the plaintiff. . to the defendant. . at
request.
And in the sum of $ for money then and there lent
by the plaintiff. . to the defendant. . at request.
And in the sum of $ for money then and there paid
by the plaintiff. . for the use of the defendant. . at
request.
ASSUMPSIT 547
And in the sum of $ for money then and there received
by the defendant. . to the use of the plaintiff. . .
And in the sum of $ for money found to be due from
the defendant., to the plaintiff., on account then and there
stated between them.
And the defendant. . afterwards, to wit, on the day and year
aforesaid, in consideration of the premises respectively, then
and there promised to pay the said several sums of money respec-
tivelv to the plaintiff. . on request. Yet the defendant. . ha. .
disregarded the said promises, and ha., not paid any of the
said several sums of money, or any or either of them, or any
part thereof, but to pay the same ha. . hitherto wholly failed
and refused, and still refuse. ., to the plaintiff. . damage $. . . .
And therefore . .he. . bring. . . .h. . suit.
p- q-
AFFIDAVIT OF CLAIM
1135 District of Columbia
Before me , a notary public in and for the Dis-
trict of Columbia personally appeared , who being
first duly sworn, deposes and says: that he is the plaintiff in
the a))Ove entitled cause; that the said defendant. . owes and is
justly indebted to said plaintiff in the full sum of
dollars for groceries and cash furnished by him to said
at his special instance and reciuest; that the said pro-
visions and cash were furnished said for the pur-
pose of enabling him to carry on a certain contract entered into
between the said and the said '^^^^^
construction of a certain portion of said ; that the
annexed account is just and true and is referred to and made
a part of this affidavit ; that the prices therein charged are reason-
able and just and that agreed upon by the said ;
and that there is due to said plaintiff, the aforesaid amount ot
dollars exclusive of all set offs and just grounds of
defense, with interest thereon from
Subscribed, etc.
1136 Illinois
(Venue) , -,-14.
being first duly sworn deposes and says that
he is'sec'retar'y of "A," a corporation organized and doing busi-
ness under the laws of the state of , and as such
is authorized to make this affidavit; that the demand of the
plaintiff. . in the above entitled cause is for the amount due
on a certain bond, a copy of which is fully set forth in the fore-
going declaration, and that there is due to the plaintiff from
548 ANNOTATED FORMS OF PLEADING AND PRACTICE
the defendants, after allowing all just credits, deductions, and
set offs, ($ ) dollars, with interest on that
amount according to the terms of said bond, from the
day of 19...
Subscribed, etc.
1137 Maryland
(Venue)
I hereby certify, that on this day of ,
19. ., before me, the subscriber, a of the said state,
in and for the city aforesaid, personally appeared phiin-
tiff. . and made oath in due form of law, {ivho being conscien-
tiously scrupulous of taking an oath), did solcmnhj, sincerely and
truly declare and affirm, on the five books of Moses, (he being an
Israelite), that there is justly due and owing by
the defendant. . in the said case, to the plaintitf . . on annexed
(the cause of action in said cause), the sum of
dollars and cents, (with interest
from ) over and above all discounts, to the best
of his knowledge and belief.
And he further swears that he is the agent of the said plain-
tiff. . and duly authorized to make this affidavit, and has per-
sonal knowledge of the matters therein stated.
"Witness, etc.
(Official character)
1138 Michigan
In actions upon an open account or an account stated, the
plaintiff may annex to his declaration or process whereby his
action is commenced, a copy of the account and an affidavit
made by himself or by anyone in his behalf, of the amount due,
as near as can be estimated over and above all legal set offs. If
the account is so annexed and the affidavit is made, a copy of
each must then be served upon the defendant with the declara-
tion or process. 18- The treasurer of a mercantile corporation
is presumed to have authority to make an affidavit of the
amount due the corporation on an open account for the pur-
pose of basing an action thereon.^^^
1139 West Virginia
(Venue)
and having been duly sworn say
that they are the plaintiffs mentioned in the foregoing declara-
182 (11191), C. L. 1897 (Mich.). v. Winter, 64 N. W. 1053 (Mich.
183 Forbes Lithograph Mfg. Co., 1895).
ASSUMPSIT 54:9
tion and that there is, as they verily believe due and unpaid
fZi the defendants to the plaintiffs upon the demands statea
[nsTid declaration, including pnneipal -^V.^hv te delndtts"
ing all payments, credits and set offs made by the defendants
and to which they are entitled, the sum of cloilars
and cents at this date.
Taken and sworn, etc.
Notary Public.
SPECIAL DEFENSES AND PLEAS
1140 Acceptance of bill of exchange; denial, pleadings
The denial of an acceptance of a bill of exchange must be by
plea and oath, or by verified plea of non-assumpsit. ^^^
1141 Accord and satisfaction, plea (111.)
1S5 That after the making of the several promises in the said
declaration mentioned and before ^e eom_r^^^^^^^
S r \h:defendantVpaid'to the plaintiff, and the plaintiff
accepted from him, the defendant, divers moneys amounting
?ri larse su^n to wit, the amount of all the sums of money
in the said declaration mentioned, in full satisfaction and dis-
charS of all the said several promises and all the sums of money
fast !?oresl and this the defendant is ready to verify; where-
fore he prays judgment, etc., when, etc.
Replication
Slf 5s=r :s3! r=S"^ :s
defendant has above in that plea alleged.
1142 Agister's lien; plea requisites
A plea which claims an agister's lien under the Illinois stat-
ute should allege the substance of the contract by J-^-f which
the animals were placed in the agister's keeping to show the ex-
istence of a statutory lien, and the amount thereof.
.s. Peoria Sc Oq.awl.a E. Co. v. ^-Comrnence and coBclude as in
Neill, 16 111. 269 270 (1855); See. Sect.on^9.8^^^^^ ^ ^^^^.^^ ^^^
52, c. 110, Kurd's Stat, uuy, p. ^^^ ^^^ (1896); Par. 3, c 82,
''?8\- Commence this and subsequent Hu^d's Stat. (1909).
pleas as in Sections 885 to 889 in-
clusive.
550 ANNOTATED FORMS OF PLEADING AND PRACTICE
1143 Bona fide defense, failure to make; plea (111.)
That the said , sheriff, as afore-
said, did not interpose a hona fide defense to said suit of
against him, the said sheriff, l)ut colluded
and conspired with the said and , to allow
and permit the said to obtain said judgment set
forth in said count against him, the said, sheriff as
aforesaid, the said not having at the time a bona
fide claim and demand against the said as against
these defendants; and tliis the defendants are ready to verify,
wherefore they pray judgment, etc.
Replication
That the said , sheriff, as afore-
said, did interpose a bona fide defense to said suit of
against him, and that the s<iid sheriff as aforesaid,
did not collude and conspire with the said to
allow and permit the said to obtain said judg-
ment set forth in said count.
1144 Commission, real estate broker; bad faith
A real estate broker is not guilty of bad faith in affecting a
sale by exhibiting to a purchaser the principal's property to-
gether with property belonging to others and listed with tlie
broker for sale.^*^
1145 Commission, real estate broker; license, want of, plea (111.)
That at the time of the making of the several supposed prom-
ises and undertakings in the said declaration mentioned, if
any such were or was made, the said plaintiff was carrying on
and exercising, within the corporate limits of the city of
, in said county, to wit, at the county of ,
the business of a real estate broker; and the said defendant in
fact avers that at and prior to the time aforesaid there was
and had been and from thence hitherto has been and still is in
full force and effect, in said city of , in the county
of aforesaid, an ordinance theretofore duly passed
by the city council of said city of , duly approved
by the mayor of said city and duly published according to law,
in the words and figures as follows: (Set out ordinance in haec
verba).
And the said defendant further avers that at the time of
the making of the said several supposed promises and under-
188 Lemon v. Macklem, 157 Mich.
475, 478 (1909).
ASSUMPSIT 551
takings in said declaration mentioned, the said plaintiff had not
obtained and did not then, nor theretofore nor tiiereafter, have
tlie license specified in said ordinance or any other license author-
izing him to exercise such business so by him carried on, as real
estate broker, within the city of , in said county of
; but on the contrary thereof, the said plaintiff then
was, theretofore had been and still is exercising the said busi-
ness as real estate ))roker within the said city of ,
without having obtained any li(;ense therefor, and in. violation
of the i)rovisions of said ordinance.
And the defendant further avers that the sum or sums of
money sought to be recovered in this action by said plaintiff
from this defendant is alleged to be due to said plaintiff from
this defendant for commission or compensation, alleged to have
been earned by said plaintiff' as a real estate broker, in the sale
of certain real estate for this defendant and at her alleged
request, within the said city of , at the time afore-
said; and this the said defendant is ready to verify, wherefore
she prays judgment if the said plaintiff' ought to have the afore-
said, action against her, etc.
Replication
That at the time of the making of the promises by the defend-
ant, as in plaintiff's said declaration mentioned, he, this plain-
tiff, was not, for connnission or other compensation, engaged
in the selling of or negotiating sales of real estate belonging to
others, or obtaining or placing loans for others on real estate
in the city of or elsewhere, in manner and form
as the defendant has above in her plea alleged.
1146 Contract; mutuality, test
Unilateral contracts are void for want of mutuality. A con-
tract is unilateral where the (juantity and the quality of the sub-
ject matter of the contract are made to depend solely upon the
demand and the satisfaction of one of the parties which might
render the cai'rying out of the contract by the other impractic-
able or impossible.^^^
1147 Contract, termination
A contract is terminable at the will of either party when it
has no definite period of duration. ^''**^
issJoliet Bottlincf Co. v. Citizens loo Joliet Bottling Co. v. Citizens
Brewing Co., 254 111. 215, 219 Brewing Co., supra.
(1912).
552 ANNOTATED FORMS OP PLEADING AND PRACTICE
1148 Conversion by sheriff, plea (111.)
That the said , sheriff, did not pay to
the defendants out of the proceeds of said sale averred in
said count to be sufficient to satisfy the judgrmeut
of the defendants against the so recovered in said
attachment suit, or any part thereof, but converted the same
to his own use and benefit ; and this the defendants are ready
to verify, wherefore they pray judgment, etc.
Replication
That the said , sheriff, as afore-
said, did not convert the proceeds of said sale averred in said
count to be the sum of , to his, the
said own use and benefit.
1149 Delivery of goods by sheriff, without consent; plea (111.)
That part of the goods, chattels and property so seized and
taken possession of by the sheriff as in said count mentioned
were delivered, surrendered and released to
with the consent of said and the remain-
der thereof sold and the proceeds of the same derived there-
from by the said , sheriff aforesaid, were paid
over to in full settlement, satisfaction and dis-
charge of all claim of the said against him, the
said , sheriff, and no part of said proceeds was
paid to the defendants to satisfy their said demand against
; and this the defendants are ready to verify,
wherefore they pray judgment, etc.
Replication
That no part of the goods, chattels and property seized and
taken possession of by the said , sheriff as
aforesaid, was delivered, surrendered or released to said
wdth the consent of said and the remainder thereof
sold and the proceeds derived therefrom by the said ,
sheriff as aforesaid, paid over to said in full sat-
isfaction, release and discharge of all claims against him, the
said , sheriff.
FIRE INSURANCE
1150 Additional insurance, substituted policy
The substitution of one policy for another of the same amount,
although of a different company, does not constitute additional
insurance when the original policy is canceled after the issuance
of the substituted policy. ^^^^
191 Hartford Fire Ins. Co. v. Red-
ding, 47 Fla. 228, 250 (1904).
ASSUMPSIT 553
1151 Arbitration agreed to after loss, pending; plea (111.)
Aud for further plea in this behalf the defendant says that
the plaintiff ought not to have his aforesaid action against it,
the defendant, because it says that among the provisions of the
policy sued upon in this case, which provision was a part of
the consideration of the said policy, was one providing * that the
amount of loss, if any loss should occur under the policy, shall be
ascertained and estimated by appraisers chosen as provided in
said policy, and that no suit or action shall be maintained until
the amount of loss is so ascertained and estimated by such ap-
praisers. And this defendant avers that after the alleged loss by
fire of the property named in the said policy occurred, that this
defendant and the plaintiff herein mutually agreed that the
amount of such loss should be ascertained by appraisers as pro-
vided in the said policy, and that said appraisal should have no
effect upon the other provisions of said policy nor waive the
rights of either party in the premises. And the defendant fur-
ther avers that appraisers were chosen by each party as pro-
vided by the terms and conditions of said policy, and that said
appraisal without any fault on the part of this defendant was
still pending and undetermined at the time this suit was brought.
(Pray judgment)
Eeplication
That he did not, after the alleged loss by fire of the property
in question, make the agreement with the defendant as stated
in said plea that said loss should be ascertained by appraisers
as provided in said policy, and that said appraisal should have
no effect upon the other provisions of said policy; nor did he
agree that the rights of either party in the premises shall be
waived. And plaintiff denies that under any such agreement
appraisers were chosen by each party as provided by the terms
and conditions of said policy, and that said appraisal was pend-
ing and undetermined at the time suit was brought, without
any fault on the part of defendant.
1152 Arbitration under policy pending; plea (111.)
^^- That the company shall not be liable beyond the actual
cash value of the property at the time any loss or damage occurs,
that the loss or damage shall be ascertained or estimated accord-
ing to such actual cash value with proper deductions for depre-
192 Commence as in Section 1151
to star.
554 ANNOTATED FORMS OP PLEADING AND PRACTICE
eiations, however caused, and shall in no event exceed what it
would then cost the insured to repair or replace the same with
material of like kind or quality; that such ascertainment or
estimate shall be made by the assured and this company, or if
they differ, then by the appraisers therein provided; that in
the event of a disagreement as to the amount of loss the same
shall be ascertained by two competent and disinterested apprais-
ers, the assured and this company each selecting one and the
two so chosen to select a competent and disinterested umpire;
that the appraisers shall then estimate and appraise the loss
stating separately sound value and damage, and failing to agree
shall submit their difference to the umpire, and the award in
writing of any two shall determine the amount of such loss;
that the company shall not be held to have waived any provision
or condition of this policy or any forfeiture thereof for any
requirement, act or proceeding on its part relating to the
appraisal, or of any examination therein provided for, and that
the loss shall not become paya])le until days after
the notice, ascertainment, estimate and satisfactory proof of
the loss so required have been received by the company, includ-
ing an award by appraisers when appraisal has been required;
that no suit or action on said policy for the recovery of any
claim shall be sustained in any court of law or equity until
after full compliance by the assured with all the rcfiuirements
of the said policy, among which requirements is the one above
referred to providing that the amount of loss shall be ascer-
tained by appraisers in case of disagreement between the insurer
and the insured.
And this defendant avers that after the alleged loss by fire
to the property named in the said policy, the insurer and in-
sured endeavored to agree between themselves as to the amount
of such loss, but this defendant avers that said parties were
unable to agree upon the same, and that thereupon this defend-
ant demanded that the amount of such alleged loss be ascer-
tained by appraisers as provided in said policy.
And the defendant further avers that on, to wit, the
day of , 19 . . , the plaintiff and this defendant
each selected an appraiser as provided by the terms and condi-
tions of the said policy, and agreed that said appraisers might
fix the amount of the alleged loss. And tliis defendant further
avers that without any fault whatever upon the part of this
defendant, and without any connivance or collusion on the part
of this defendant, the said appraisers were unable to agree upon
the amount of the said loss up to the time of the bringing of
this suit, and that the said appraisal was still pending and unde-
termined at the time said suit was brought, and still is pending
and undetermined. (Pray judgment)
ASSUMPSIT 555
Replication
That after the making of the agreement between the defendant
and the plaintiff to appraise said loss as is in said plea alleged,
the said defendant was not without fault, connivance and col-
lusion in being unable to agree upon the amount of said loss
up to the time of beginning this suit, but the plaintiff avers
that the said defendant, refused without good and sufficient
cause to go on and complete said appraisement, and by neglect,
delay and unfair action defeated such appraisement and the
object and purpose for which said agreement for an appraisal
of said loss was made, and that said appraisal was not still
pending and undetermined at the time said suit was brought,
and is not now still pending and undetermined for the reason
aforesaid.
Pleah
That the said policy of insurance set out in said declara-
tion herein contains certain conditions and provisions which
are in the words and figures following: (Insert conditions relat-
ing to additional insurance and arbitration).
And the said defendant avers that at the time of the said
alleged loss by fire, there was in force other insurance covering
the said property in said policy described, to wit: a certain
policy of insurance issued by the , insuring said
property against loss or damage by fire, to an amount not exceed-
ing dollars, and a certain other policy issued by
the against loss and damage by fire, to an amount
not exceeding dollars ; which said policies and
each of them were issued to the said F and N, the owners of
said property in said policies described, which was the same
property covered by the said policy in said declaration men-
tioned. ■
And the said defendant further avers that, after the happen-
ing of the said supposed loss or damage by fire, as in said declara-
tion alleged, a disagreement arose between the said assured and
the said defendant, as well as the said other insurance compan-
ies above mentioned, as to the amount of the said loss and dam-
age to the property in said policies described; and thereupon,
in pursuance of the terms of the said policy, the said insured,
on, to wit, the day of , 19 . . , made
and entered into a certain agreement in V\'riting with the said
defendant, joined by the said other insurance comanies, wherein
it was agreed that the said differences between the said insured
and the said insurance companies, including this defendant,
should be and were thereby submitted to arbitration, in accord-
ance with the terms of the said policies, and that one D, and
one S were therein named as the persons chosen and selected
by the said parties who, together, should choose a third per-
son to act with them before entering upon the appraisement of
556 ANNOTATED FORMS OP PLEADING AND' PRACTICE
the said property and the said supposed damage thereto, and
that the said appraisers and umpire so appointed and selected
should, thereupon, together, proceed to appraise said property
and to ascertain and fix the immediate damage thereto caused
by said alleged fire, as will more fully and at large appear from
the said contract or agreement, bearing date the day last afore-
said.
And the said defendant further avers that afterwards, to wit,
on the day last aforesaid, the said D and S made and entered
into a certain agreement in writing, wherein it was mutually
agreed that one L should act as the third person to be chosen
by them, as provided by the said agreement hereinbefore referred
to; and afterwards, to wit, on the day and year last aforesaid,
in pursance of the said agreement, the said D, S and L appraised
the said property and made, executed, declared and published
their certain award in writing, wherein and whereby the said
damage upon said property in said policy described was fixed
at the sum of $ , and it was in and thereby adjudged
that said insurance companies and the said defendant should
pay to the insured the said sum of ($ )
dollars in pursuance of the said policies, as by the said agree-
ments and each of them, bearing date, to wit, the
day of , 19 . . , and the said award bearing date,
to wit, the day of , 19 . . , reference
thereto being had, will more fully and at large appear.
And the said defendant avers that the said property so as
aforesaid covered by said policy of insurance in said declara-
tion mentioned, or any part thereof, was not totally destroyed
by the said alleged fire, but, on the contrary, avers that none
of said property, or but a very small portion thereof, was dam-
aged or destroyed by said fire, and that the said appraisement
and award fixed and determined the w^hole amount of the loss
and damage to all the property covered by the said policy of
insurance, to wit, , at the time when, etc., to wit,
at the county aforesaid, and so the said defendant says that
the said appraisement and award fully and fairly fixed and
determined the whole amount of the loss and damage sustained
by said plaintiff on account of the said alleged fire.
And the said defendant further avers that due notice of said
award was afterw^ards given to the said insured and to said
defendant and to the said other insurance companies by said
appraisers. That the said defendant, at all times had been
and now is ready and willing to pay to the said F and N or
to their legal assignee, its just proportionate share of the said
award, in accordance with the terms of the said policy, to wit,
the sum of dollars, and that the said award still
remains and is in full force and ef^'ect, of all of which the said
F and N and their assignee, the said plaintiff, have at all times
had due notice : (Pray judgment).
ASSUMPSIT
Replication
557
That the appraisement and appraisal and award mentioned
in said count in said defendant's plea, was m all respects
irregular and improper, and that the same is a fraud either in
fact or in law, and that it was made either fraudulently or with
fraudulent intention, and works a fraud and injustice by reason
of the gross errors committed by the appraisers therein, tor the
plaintiff says that unknown to the plaintiff the appraisers wero
guilty of fraudulent and unwarranted action in appraism?
(Describe property). That the (Describe property) damaged
and appraised by the appraisers in this case was worth m the
market at that time and that all the witnesses called
before and examined by the said appraisers, being ...... .per-
sons well versed in the kind, quality and market price ot the
said goods, testified before the said appraisers that the goods
which they were then appraising were, at the time of the said
fire worth in this market, and that there were no
other witnesses iDefore the said appraisers who testified differ-
ently and that after hearing said testimony, said appraisers,
through fraud or mistake, fixed the value of said goods so by
them appraised, at And plaintiff further avers
that said appraisers were incompetent and were wholly unad-
vised as to the value of (Describe property) except from the
evidence of the said witnesses given to the said appraisers as
above set forth. And the plaintiff further says that said
appraisement and appraisal and award, though fixed by the
said appraisers and arbitrators, does not show in any measure
or fix any price upon the amount of goods that was totally lost
or consumed by fire, and that the said appraisal and award
was only made and intended to apply and did apply to the
goods in sight and which had been damaged by fire, and had
no reference whatever to the goods totally destroyed And the
plaintiff further says that when the said F and N and the plain-
tiff their assignee, discovered the fraudulent, irregular and
improper character of the appraisal and award, they forthwith
rightfully and properly refused to abide by the same, and there-
upon gave notice to the defendant of said fact and made imme-
diate demand for another and proper and just appraisal, which
was by the said defendant refused and denied; and therefore
the said appraisement and award does not remain m full force
and effect, and the plaintiff and the assured justly refused to
accept from the defendant its proportionate share ot the said
fraudulent and irregular award ; and this the plaintiff is ready
to verify, wherefore he prays judgment.
1153 Cancelation of policy, plea
That it is provided in said policy of insurance set out in
plaintiff's declaration, among other things, as follows: This
558 ANNOTATIOD FORMS OP PLEADING AND PRACTICE
policy shall be canceled at any lime at the request of the insured
or ])y the cornpfiny by ^ivirif,' days' notice of such can-
celation. Jf this policy shall be canceled as hereinbefore pro-
vi(l(!(l or become void or cease, the premium having,' been paid,
tli(! urKiarned portion shall be returned on surrc^nder of this
policy or last rr^Ktvval, this company njtainin.L,' the customary
short-rates; excepting that when this poli(;y is canceled by this
company by giving notice, it shall retain only the pro rata i)rem-
ium." And defendant avers that it did by and through its
duly authorized agent, , give days' notice
of the cancelation of the policy numtioned in plaintiff's said
d(!rl;iration, and did cancel said policy by a letter or notice in
writing in the following words and figures, to wit: (Set out
notice or letter).
And defendant further avers that said notice bearing date
, 19 . . , was directed to , at
, , as aforesaid, who was then and there
the agent and bi'oker of the plaintiff and at that time and for
a p(!riod long i)rior thereto, had in charge plaintiff's said insur-
ance, and was <luly aniliorized to attend to cancelation of said
I)laintiff's insurance, had fi-("(|ueJitIy prior to the cancelation of
this policy acted for and in b(;half of the plaintiff in receiving
and agreeing to the cancelation of other policies of insurance
taken out by the said plaintiff through the said .,
wliil(! acting as agent and broker as aforesaid of the said plain-
tiff, all of which acts of the said the plaintiff and
th(! defendant both had knowledge; that said notice, so directed
\o said aforesaid, th(!reby notified the plaintiff
that tlu! dcr(!ndant had canceled the said policy of insurance;
and that said hitter or notice was placed in an envelope, which
said envelope was plainly addressed to said ., at
, , duly stamped and placed in the
United States mail, wliich said letter or notice, in due course
of mail, was recciviid by the said , broker and agent
of tlic plaintiff as aforesaid. And the defendant further avers
that because of such hitler or notice in writing, as aforesaid,
sent as aforesaid, by the duly authorized agent
of the j)laintiff, and by the said duly received
in due course of mail, said policy of insurance mentioned in
plaintiff's declaration was then and thereby canceled; and that
again, on, to wit, , defendant notified plaintiff
eonlii-ming said cancelation and demanded a return of said
policy. And defendant further avers that plaintiff never paid
to defetulant or any of its duly authorized agents, any part of
the i)rcmiums in said policy mentioned, and that there was no
unearned pi-emium in the hands of the defendant to be returned
to |)Iaintiir, and therefoi-e no lender of any was recpiired. By
reason whereof, defendant avers that plaintiff has no cause of
action against defendant under said policy in said plaintiff's
ASSUMPSIT 559
declaration mentioned, for the loss of the property therein set
forth; all of which defendant is ready to verify, etc.
1154 Causing fire, pleading
In Florida, an insurer has a right to plead that the fire was
caused by criminal conduct of the insured or that the fixing of
the insurable value was procured by fraud, notwithstanding the
act of 1899 ; as the principal object of that act is merely to
fix the measure of damages to be recovered in case of partial or
total loss.i«3
In Michigan the destruction of premises by the insured can-
not be shown, unless specially pleaded or noticed.^^*
1155 Causing fire, plea (District of Columbia)
That the plaintiff wilfully and fraudulently caused the fire
which damaged and destroj'ed the personal property covered by
the policy of insurance set out in plaintiff's declaration.
1156 Forfeiture, waiver
No new consideration is necessary to support the waiver of
the right to forfeit an insurance policy; nor is it essential that
the facts relied upon as a waiver shall constitute an equitable
estoppel.^^^
1157 Incumbrance, plea (Md.)
And for a plea to the count of the
plaintiff's declaration that the policy of insurance herein sued
on contained a condition as follows:
"This entire policy shall be void if the insured had concealed
or misrepresented, in writing or otherwise, any material fact
or circumstance concerning this insurance or the subject thereof;
or if the interest of the insured in the property be not truly
stated herein."
And that the interest of the plaintiff was not truly stated
therein, as the said policy insured only the plaintiff, and prior
to the time of the execution of said policy, the plaintiff had
executed a mortgage on said property, to wit, a certain deed of
193 Hartford Fire Ins. Co. v. Hannawold, 37 Mich. 103, 106
Redding. 47 Fla. 235; c. 4677 Laws (1877).
1899 (Fla.). i95Tillis r. Liverpool & London
19* Marlev v. Liverpool & London & Globe Ins. Co., 46 Fla. 268, 280
& Globe Ins. Co., 92 Mich. 590, 592 (1903),
(1892); Eesidence Fire Ins. Co. v.
560 ANNOTATED FORMS OP PLEADING AND PRACTICE
mortgage in the amount of ($ ) dollars,
dated , 19 . . , and executed by and
his wife, and said mortgage ever since said time has been upon
said property ; and the said plaintiff concealed from the defend-
ant and misrepresented to the defendant said fact, at the time
of the execution of said policy and prior thereto, and the defend-
ant has not waived its rights thereunder, nor has any one
authorized so to do, done so on behalf of' said defendant.
Eeplication
That the mortgage referred to in said plea covers acres
of land and was given when there were no improvements on said
land, and the existence of said small mortgage was not a material
fact or circumstance to the risk of this insurance ; and that the
plaintiff did not conceal the existence of said mortgage or make
any misrepresentation concerning the same ; and that there was
attached to said policy a rider which contained the following
provision: "Loss if any payable to assured as interest may
appear."
1158 Iron safe clause, pleading
A breach of the iron safe clause in a policy is a matter of
affirmative defense and must be specially pleaded. ^^*^
1159 Limitation, waiver, proof
"Waiver of a limitation clause in a policy is provable under
the general issue where the declaration avers that the insurer
by fraud or holding out reasonable hopes of an adjustment de-
terred the plaintiff from commencing his suit.^^^
1160 Overvaluation, plea (District of Columbia)
That in and by the policy of insurance set out in plaintiff's
declaration it was provided that it should be void in case of any
fraud or false swearing by the insured touching any matter
relating to the insurance, or the subject thereof, whether before
or after a loss; and the defendant says that said plaintiff, on
or about the day of , . . . . ,
nearly months after date on which it is alleged the
aforesaid personal property was destroyed by fire, appeared
before one , a notary public in and for the District
of Columbia and falsely and fraudulently made oath that the
aforesaid personal property alleged to have been destroyed or
damaged by fire, was of the value of , knowing
196 Tillis V. Liverpool & London i97 Illinois Live Stock Ins. Co.,
& Globe Ins. Co., 46 Fla. 279. v. Baker, 1.53 111. 240, 241 (1894).
ASSUMPSIT ^61
full well at the time that said personal property was not worth
r, r-alr^ rthfpr ^f'tsurr: oMainea .0. the
defendant.
Pleah
That it was provided in and by the policy of insurance set
out in P aint'l's declaration that it should be void if any mate-
E!fh°:.=rraleT:r"Sfre;!i^^^^^^^
fauduknt representation was a material and essenfal induce-
ment to the issuance of said policy of insurance.
1161 Proof of loss, plea (District of Columbia)
That the plaintiff did not furnish proof of^said los^s on^or about
Suutrfo?Sa»^^^^^
count of plaintiff's declaration.
Pleab
That in and by the policy of insurance set out m Plaintiff s
decla?at on^t was provided that should a fire occur, the plam-
iff .houM 'wdthhi days thereafter, unless such a time
be extSdVn writing by the defendant, render a statement to
defendant, s^ed and sworn to by the plaintiff, stating hs
knowledge and belief as to the time and origin of the fire; his
Lterest and that of all others in the property ; the cash value
of each item and the amount of loss thereon; al mcumbrances
?hereon aToUier insurance, whether valid or not, covering any
of ^Dronerty. a copy of all the descriptions and schedules
■I a^poSTa^ny ^^ ^^^^^-^X"^^^
rel?ed"bvlid\UhL,':nd^^^^ time limited for the render
iSof same has expired and was not extended, m writing or
otherwise, by the defendant.
562 ANNOTATED FORMS OF PLEADING AND PRACTICE
(Illinois) Flea
i^s That if fire occurs the insured shall within days
after the fire, unless such time is extended in writing by the com-
pany, render a statement to the company, signed and sworn to by
said insured, stating the knowledge and l)elief of the insured as to
the time and origin of the fire; the interest of the assured and
all others in the property ; the cash value of each item thereof,
and the amount of loss thereon; all incumbrances thereon; all
other insurance, whether valid or not, covering any of said
property; a copy of all the descriptions and schedules in all
policies; any changes in title, use, occupation, location, posses-
sion, or exposure of said property since the issuing of said policy ;
by whom and for what purpose, any building described in said
policy, and the several parts thereof, were occupied at the time
of the fire; and said policy further provides that no suit or
action thereon for the recovery of any claim shall be sustainable
in any court of law or eciuity until the full compliance by the
assured with all the requirements of said policy, among which
requirements is the one recpiiring the above statement to be
rendered within days after the fire. And the defendant
avers that the plaintiff" did not within days after the
alleged fire render such statement to this defendant; and it
further avers that the time for rendering said statement was
not extended in writing by this defendant. (Pray judgment)
Replication
That true it is that he did not render to said company the
said statement in said plea mentioned within days
after the fire, because he says that before the expira-
tion of the said days from the said fire
the company sent its adjuster to investigate said loss,
and that the said adjuster did proceed to and enter
upon the adjustment of said loss with the plaintiff, and con-
tinued in an effort to settle and adjust such loss with plain-
tiff until after the expiration of the said days, to wit,
on the day of , 19 . . , and that there-
upon the said defendant requested of the plaintiff that
he furnish defendant such proof of loss as mentioned
in said plea and that thereupon, and within
days thereafter, to wit, upon the day
of , 19 . . , said plaintiff furnished to said
defendant in pursuance of such request, such proof of loss, and
that then and there the said defendant received and accepted
the same as satisfactory and has since retained the same with-
out objection, and now has the same; wherefore the plaintiff
198 Commence as in Section 1151
to star.
ASSUMPSIT 563
avers that the said defendant by reason thereof, waived the
presentation of said statement within the days succeed-
ing the said fire.
(Maryland) Plea
And for a plea to the count of the plain-
tiff's declaration, that the policy of insurance sued on contained
a condition requiring the insured, within sixty days after the
fire, unless such time is extended in writing by the company,
the defendant herein, to render a statement to the company
signed and sworn to by the plaintiff, stating the knowledge and
belief of the insured, the plaintiff, as to the time and origin
of the fire; the interest of the insured and of all others in the
property; the cash value of each item thereof, and the amount
of loss thereon; all incumbrances thereon; all other insurance,
whether valid or not, covering anj^ of said property; a copy
of all the descriptions and schedules in all policies ; any changes
in the title, use, occupation, location, possession, or exposures
of said property since the issuing of this policy sued on; by
whom and for what purpose any building described in the pol-
icy sued on, and the several parts thereof, were occupied at the
time of the fire; but the phiintiff did not, within sixty days
after the fire, nor did anyone in his behalf, render a statement
signed and sworn to by him, containing the things as above
stated required to be therein, nor any statement whatsoever,
and the said time of sixty days was not extended in writing by
this defendant, and the rendering of such statement has not
been waived by this defendant, or by anyone in its behalf author-
ized so to do; and by said policy the rendering of said proofs
to it as so provided for was made a condition precedent to any
suit or action thereon, and the amount of the defendant's lia-
bility, if any, was to be determined from, the said proofs of loss,
and said amount of liability, if any, was to be payable not until
sixty days after the defendant had received satisfactory proofs
of loss as herein referred to, and as referred to in said policy.
Replication
1. That the plaintiff was prevented from furnishing and fil-
ing the proofs of loss or statement referred to in said
plea by the acts and conduct of the defendant and its adjuster.
2. That the filing of the proofs of loss or written statement
referred to in said plea was waived by the acts
and conduct of the defendant and its adjuster.
1162 Refusal, reasons
In defending an action on a policy, the insurance company
is not limited by the reasons assigned in its refusal to pay, if the
564 ANNOTATED FORMS OF PLEADING AND PRACTICE
plaintiff has not been misled or influenced to his or her injury by
the omission or failure to set forth otlier reasons. ^ '•''•'
1163 Suspension of policy, plea (Md.)
That it does not owe the said sum of ($ )
dollars or any part thereof, to the plaintiff, because one of the
conditions upon which the said defendant insured the property
of the plaintiff, under its said policy No , as will appciir
by reference to said policy, was that the plaintiff should pay in
advance the annual interest on a certain note of hand, dated
the day of , . . . . , referred to in
the plaintiff's declaration, said payment to be made within
days after the in , in
each and every year while the policy was in force ; and upon tlie
further condition that in default of such payment the said
policy should be suspended and not be considered as binding
on the defendant, until the payment of said interest be made
by the plaintiff; and the defendant says the plaintiff did not
pay, within days after the in
of the year . . . ., nor has he at any time paid, the said annual
interest on the said note of hand for the year . . . . ; by reason
of which the said policy was at the time of the destruction of
the said insured property, suspended and not binding on the
defendant.
Beplication
That said defendant does owe the said sum of
($ ) dollars or any part thereof to the plaintiff because
there are conditions in said policy No that modify the
alleged effect of the one condition in said policy referred to by
the defendant in said plea, as will appear by reference to said
polic}', and said policy never was suspended and always was
and still is binding on the defendant ; and the plaintiff says
that he or his agent did within days after the
day of in the year 19 . . , or at some
time did pay the said annual interest on the said note of hand
for the year 19 . . , and that at the time of the destruction
of the said insured property said policy was not suspended and
was binding on the defendant.
1164 Unconditional ownership, plea (111.)
200 That the entire policy unless otherwise provided by agree-
ment endorsed thereon or added thereto, should be void if the
interest of the assured be other than unconditional and sole
199 Weston V. State Mutual Life 200 Commence as in Section 1151
Assurance Co., 234 111. 492, 501 to star.
(1908).
ASSUMPSIT 565
ownership in the property covered by the policy; and this de-
fendant avers that the plaintiff herein was not the sole and un-
conditional owner of the property named in the said policy at
the time said policy was issued or at the time of the alleged
loss; and it further avers that this defendant did not at any
time by agreement endorse upon said policy or add thereto
assent to the said policy applying to a less interest of the plain-
tiff than unconditional and sole ownership. (Pray judgment)
Replication
That at the time of issuing the said policy of insurance, and
at the time of the loss thereunder, as aforesaid, he was the sole
and individual owner in fee simple of the premises on which
said building was situated, except as to deed of trust thereon
then known to the defendant as being thereon and recognized
in said policy of insurance, and that said policy was so issued
to the plaintiff by the defendant then knowing that said trust
deed then covered said premises and was a lien thereon.
Plea h
That it is further provided in said policy of insurance, set
out in said declaration, among other things, as follows: "This
entire policy, unless otherwise provided, by agreement endorsed
hereon, or added hereto, shall be void * * * if the interest
of the insured be other than unconditional and sole ownership."
And the said defendant avers that unknown to it at the date
of the issuance of the policy in said plaintiff's declaration men-
tioned, the ownership of the said defendant in and to the prop-
erty in said declaration mentioned, was not that of unconditional
and sole ownership, but on the contrary thereof, the ownership
of said property in plaintiff's declaration mentioned, at the
date of said policy, and since, was and is encumbered, in and
by a certain instrument in writing made and executed and de-
livered by said plaintiff, on, to wit, , between said
plaintiff and one , and said ownership was and is
thereby liable in and by the terms of said instrument, to be
changed upon the happening of certain events and upon certain
conditions; and defendant avers that afterwards, to wit,
, said took possession of the prem-
ises and property in said policy mentioned, and remained in
possession thereof, until its destruction by tire ; by reason
whereof, defendant avers, that under the provisions of said
policy in said plaintiff's declaration set forth, said policy be-
came void and said plaintiff has no cause of action against de-
fendant under said policy, for the loss of the property therein
set forth ; all of which defendant is ready to verify, etc.
566 ANNOTATED FORMS OP PLEADING AND PRACTICE
Beplication
That at the date of the issuance of the said policy, in the said
declaration set forth, the interest of the said plaintitf in the
property insured was that of unconditional and sole ownership.
(Maryland) Pica
And for a plea to the count of
the plaintiff's declaration, that the policy of insurance sued on
herein contained a condition as follows:
"This entire policy, unless otherwise provided by agreement
endorsed hereon or added hereto, shall be void if
the interest of the insured be other than unconditional and sole
ownership."
And that the interest of the insured m said buildings cov-
ered by said policy of insurance was other than unconditional
and sole ownership, in that the plaintiff owned the property
with his wife, , as joint tenants, or tenants in
common, or tenants by the entireties, and it was not provided
otherwise by any agreement endorsed on said policy or added
thereto, and the defendant has not waived its rights hereunder,
nor has any one authorized so to do, done so in its behalf.
Replication
That the defendant's agent who secured said insurance and
wrote said policy asked no cpestions about the ovvnersiiip of
the property, and the plaintiff made no representation about
the same. That while it is true that the ground belongs to the
plaintiff and his wife as tenants by the entireties that the im-
provements thereon, the houses, were erected with this plamtitf's
money, and the policy contains the following endorsement:
"Loss if any payable to assured as interest may appear."
1165 Vacant and unoccupied, plea (111.)
That at the time of the alleged loss by fire to the property de-
scribed in the policy set forth in the declaration herein, the
building described in said policy was vacant and unoccupied,
and so. remained unoccupied for days prior to the
alleged loss.
Beplication
That the policy in said plea mentioned, as set out in said
declaration, shows that said insurance was placed on an ice
house of the plaintiff, and the plaintiff avers that the said de-
fendant, when it issued and placed said policy on said ice house,
understood that it only required such occupancy of said build-
ing as pertained to the ordinary use of the building m the
ASSUMPSIT 567
manner and for the purpose for which it was designed to be
used; that the said building, when destroyed by fire, as afore-
said, was used as an ice house, and that it was occupied in such
manner as pertained to the ordinary use of buildings used for
ice purposes, and as the same by the intent of said policy was
designed, by the said plaintiff and defendant to be used when
said policy was placed thereon.
(Maryland) Plea
And for a plea to the count of
the plaintiff's declaration, the defendant says that the policy
of insurance sued on in this case contained a condition as fol-
lows:
"This entire policy, unless otherwise provided by agreement
endorsed hereon or added hereto, shall be void * * * if
a building herein described, whether intended for occupancy
by owner or tenant be or become vacant or unoccupied and so
remain for ten days."
And the defendant says that the building described in the
policy of insurance mentioned in the plaintiff's declaration was
a dwelling house which became vacant or unoccupied, and so
remained, for more than ten days prior to its destruction by
fire, and said building was vacant or unoccupied at the time of
its destruction by fire; whereby the whole policy was rendered
void, there being no provision to the contrary by agreement
endorsed on or added to the policy.
Replication
That the building described in the policy of insurance men-
tioned in the plaintiff's declaration did not become vacant or
unoccupied and did not remain so for more than ten days prior
to its destruction and was not vacant or unoccupied at the time
of its destruction by fire as said defendant has in its
plea alleged.
Plea h
And for a plea to the count of
the plaintiff's declaration that the policy of insurance sued on
by the plaintiff herein contained a condition as follows :
"This entire policy, unless otherwise provided by agreement
endorsed hereon or added hereto, shall be void
if the building herein described whether intended for occu-
pancy by owner or tenant be or become vacant or unoccupied
and so remain for ten (10) days."
And a further condition as follows:
"And warranted by the assured that this building shall be
occupied by a family during the life of this policy, which shall
not be construed as meaning the occupancy of an apartment
568 ANNOTATED FORMS OP PLEADING AND PRACTICE
or apartments by a man or men and which, however, shall not
prejudice assured 's right to the ten (10) days' vacancy per-
mitted by the conditions of this policy."
And that while the said policy was in force the buildings
described therein were vacant and unoccupied and remained so
for more than ten (10) days and the said buildings were not
occupied by a family or families, and had never been occupied
by a family or families as required by said clauses in said pol-
icy, and it was not provided otherwise by any agreement en-
dorsed on said policy or added thereto, and the defendant has
not waived its rights hereunder, nor has any one authorized so
to do, done so in its behalf.
Replication
For replication to the plea, the plaintiff says,
that the houses covered by the policy of insurance sued on in his
case were in course of construction at the time the policy was
issued; that the defendant's agent saw them and knew it, and
there was no misrepresentation in regard thereto ; and that the
fire occurred before they were completed and ready for occu-
pancy, and the policy contained the following endorsement:
"Permission to make alterations, additions, completions and
repairs and this policy to cover materials on premises for mak-
ing same."
1166 Warranties, pleading
All promissory warranties and conditions subsequent are mat-
ters of defense which must be pleaded by the defendant if re-
lied upon ; as it is not necessary for the plaintiff to anticipate
such defenses and to negative them.^oi An iron safe clause
in a policy is a promissory warranty in the nature of a condi-
tion subsequent within the meaning of the foregoing rule.202
1167 Indemnity bond obtained by false representations; plea
(111.)
That at the time of the giving by said defendants to said
, as sheriff, of the said indemnity undertaking in
said count mentioned, it was represented by the said^ ,
sheriff, as aforesaid, to the defendants, that he, the said ,
as sheriff of the county of , in the territory of
, had by virtue of a certain writ of attachment for
the sum of , issued in a suit then pending in the
201 Tillis V. Liverpool & London 202 Tillis v. Liverpool & London
& Globe Ins. Co., 46 Fla. 278. & Globe Ins. Co., supra.
ASSUMPSIT 569
district court for the judicial district within and
for the said county of , territory of ,
wherein these defendants were plaintiffs and the said ,
co-partners trading as , were defendants, had seized
certain personal property, dry-goods, and clothing, of about the
value of , for the purpose of selling the same and
satisfying said debt, and that claimed to have the
right of possession to said property by virtue of a chattel mort-
gage thereon, and had demanded the delivery of the same to
him; that said indemnity undertaking in said count mentioned
was executed and delivered by the defendants to said
in consideration of the truth of such statements, and for the
purpose of indemnifying the said sheriff from loss by reason of
his retaining possession of such personal property, dry-goods and
clothing, and selling the same under proceedings in said suit
against said , and paying the proceeds of such sale
over to the defendants in satisfaction of their said debt.
And these defendants further aver that the said statements
and representations upon which the delivery of said indemnity
undertaking was conditioned, were not true in this, that said
, sheriff, had not seized and did not have in his
possession certain personal property, dry-goods and clothing of
the value of under said writ of attachment issued
in favor of the defendants, but on the contrary did have in his
possession certain personal property, dry-goods and clothing of
the value of, to wit, , seized and taken possession
of by the said , as sheriff, under a writ of attach-
ment in favor of and against said ,
issued out of said district court for the judicial
district within and for the county of , and territory
of ; nor did the said , as such sheriff,
sell said certain personal property, dry-goods and clothing rep-
resented by him to have been seized and in his possession under
the writ of attachment in favor of the defendants and against
, of the value of about , and pay the
proceeds of the same to the defendants in satisfaction of their
said debt against , although such proceedings were
had in said suits of the defendants against that
the defendants obtained judgment against for the
amount of their said debt and judgment sustaining their said
attachment writ against said , but wholly failed
so to do; that the defendants have not received from the said
, sheriff, or from anyone in his behalf, any part
or portion of the proceeds of any sale of such goods, nor has any
part or portion of their said claim and demand against
been satisfied by the said , sheriff, by virtue of such
sale and such application of the proceeds thereof or otherwise ;
nor did said pay any judgment, interests, cost or
expenses by reason of retaining possession of and selling any
570 ANNOTATED FORMS OF PLEADING AND PRACTICE
goods or merchandise under proceedings instituted by defend-
ants wherein said supposed indemnity set forth in plaintiffs'
amended count was given, (Pray judgment)
Replication
That at the time of the giving by the said defendants to said
, as sheriff, of the indemnity undertaking in said
count of said declaration mentioned, it was not rep-
resented by said , sheriff', as aforesaid, to the defend-
ants that he, the said , as sheriff", by virtue of a writ of
attachment issued in a suit then pending in the district court for
the judicial district within and for said county
of , territory of , wherein the said
defendants were plaintiff's and said and ,
co-partners trading as , were defendants, had seized
personal property, dry-goods and clothing of about the value
of ; that the said did not make any
untrue statements and representations upon which the delivery
of said indemnity undertaking was conditioned ; and that said
, sheriff, as aforesaid, did not have in his posses-
sion certain personal property, dry-goods and clothing of the
value of, to wit, , seized and taken possession of by said
, as sheriff, under a writ of attachment in favor
of and against , issued out of said
district court for the judicial district, within and
for the county of , territory of ; that
said , sheriff, as aforesaid, did pay a judgment,
interest, costs and expenses by reason of retaining possession of
and selling the goods and merchandise seized under the proceed-
ings instituted by the defendants herein, wherein said indemnity
undertaking set forth in said count of the declara-
tion herein, was given.
1168 Indemnity bond obtained by fraud; plea (111.)
That the said indemnity undertaking in said count mentioned
was obtained from these defendants by the said ,
sheriff, as aforesaid, by fraud and circumvention, that is to say,
colluding and conspiring to injure and defraud these defend-
ants, before the execution of the said writing, to wit, on the
day of , . . . . , in the county afore-
said, the said , sheriff, as aforesaid, falsely and
fraudulently then and there represented to these defendants that
he then held and had in his possession certain dry-goods, cloth-
ing and personal property of about the value of ,
under and by virtue of a certain attachment writ issued in the
case of these defendants against and ,
co-partners trading as , for the purpose of satisfy-
ing the debt of the defendants against said ,
ASSUMPSIT 571
amounting to the sum of , and that the said goods
were then claimed by under and by virtue of a
chattel mortgage, and that he had demanded a delivery of the
said goods to him, the said , and that he, the said
, sheriff, should deliver the same to said
unless the defendants should execute and deliver the said indem-
nity undertaking in said count mentioned ; and these defendants
confiding in the false and fraudulent representations aforesaid
then and there executed and delivered to the said
the said indemnity undertaking, conditioned on the premises
aforesaid and without any other consideration whatsoever.
Defendants further aver that the said , sheriff,
did not then and there have and retain possession of dry-goods,
clothing and personal property of about the value of ,
but did have in his possession and had levied on, contrary to the
instructions and without the knowledge or consent of the de-
fendants, a large amount of property greatly in excess of the
value of , and pretended to hold a portion thereof
under and by virtue of other attachment writs in his possession,
and that all the said property so held by said sheriff as afore-
said, was of the value of, to wit, , which said sum
was more than sufficient to have satisfied in full the debts for
which attachment proceedings were brought and the said claim
of said ; but, said sheriff", colluding and conniving
with the said and the said , without
the knowledge or consent of said , did release and
surrender to said an amount of property largely
in excess of the amount sufficient to satisfy the debt of the de-
fendants, to wit, the amount of the value of , and
did thereafter fail and refuse to satisfy the debt, or any part
thereof, of these defendants, from the proceeds of any of the
goods and merchandise retained by him in his possession as
such sheriff, although the defendants obtained judgment sus-
taining their attachment for the amount of their said debt
against (Pray judgment).
Replication
That said indemnity undertaking in said count
mentioned was not obtained from the defendants by the said
, sheriff, as aforesaid, by fraud or circumvention,
and that he did not collude or conspire to injure and defraud
the defendants before the execution of said writing, to wit, on
the , 19 . . ; that the said , sheriff, as
aforesaid, did not make any false and fraudulent representations
to the said defendants ; that the said did not then
and there levy on any property of the said con-
trary to the instructions and without the consent of the defend-
ants ; that the said , sheriff, as aforesaid, did not
collude and connive with the said , and that the
572 ANNOTATED FORMS OF PLEADING AND PRACTICE
said , sheriff as aforesaid, did not unlawfully re-
lease and surrender any property to said with
the consent of said
1169 Indemnity bond, sheriff's failure to follow instructions;
plea (111.)
That at the time of the delivery by the defend-
ants to the said , as sheriff, of the supposed indem-
nity undertaking in said count set forth, the said ,
as sheriff', had in his possession a stock of goods consisting of
dry-goods, clothing and sundries, which said stock of merchan-
dise the said , as sheriff*, under and by vii-tue of
the laws of the then territory of , had caused to
be inventoried and appraised at the sum of, to wit, ,
and said merchandise was then and there of that value ; that
said stock of merchandise which the said , as such
sheriff', held in his possession at the time of the giving of said
indemnity undertaking in said count mentioned, had been pre-
vious thereto, and on, to wit, the seized and taken
possession of by the said , as such sheriff, under
and by virtue of writ of attachment issued out of the district
court for the judicial district of the county of
, in the territory of , in favor of
against ; that afterwards and on,
to wit, the , there was issued out of said district
court for the judicial district within and for the
county of , in the territory of , an-
other writ of attachment for in favor of these
defendants and against the said , which said writ
was also delivered to the said , as sheriff, and a
levy endorsed thereon on certain of the property then in his
possession as aforesaid.
Defendants further aver that the said indemnity undertaking
in said count mentioned and described was given to said
, as sheriff, solely and only for the purpose of
Indemnifying the said , as sheriff, from such claims,
costs, charges, trouble and expense, as he should be put to by
reason of the levy upon or sale of about worth of
said merchandise so in his possession, which he was then and
there directed to separate and hold as security for the payment
of the attachment writ in favor of the defendants against
, as aforesaid, and to discharge and release and
surrender all the remainder of said merchandise from any claim,
demand or lien whatever of the said defendants by reason of
their said attachment writ.
Defendants further aver that the said , as sheriff,
instead of setting apart merchandise of the value of about
, as directed and instructed, to secure the demand
of the defendants and against , and after judgment
ASSUMPSIT 573
in favor of the defendants and against upon said
demand which was afterwards entered in said court, and in-
stead of selling the goods so selected and paying the proceeds
thereof to the defendants, the said , as sheriff, in
violation of his instructions and the condition upon which the
said undertaking indemnity was executed and delivered to him,
retained in his possession the entire stock of goods and mer-
chandise so seized by him originally under the writ of attach-
ment in favor of and sold same under that writ ;
that the said judgment in said count mentioned as having been
entered in favor of and against the
was a judgment rendered by the district court for the
judicial district within and for the county of ,
territory of , for and costs, that
being the amount of the lien claimed by the said
upon said stock of goods ; that said , as such sher-
iff, violated the said conditions upon which said undertaking
of indemnity was delivered to him, by the defendants, and re-
tained possession of the entire stock of goods in his hands of
his own wrong and not by reason of said indemnity undertaking,
and did not account to or pay to defendants any of the proceeds
from the sale thereof by him. (Pray judgment)
Replication
That at the time of the delivery by the defendants to said
, as sheriff, of the indemnity undertaking in the
count of said declaration mentioned and set
forth, the said , as sheriff, did not have in his
possession a stock of goods which the said sheriff had caused
to be inventoried and appraised at the sum of, to v/it, ;
nor did the said , sheriff, as aforesaid, have in his
possession any stock of merchandise on the date aforesaid of
the value of said sum of ; nor was any such stock
seized by the said sheriff, as aforesaid, on the day
of , by virtue of a writ of attachment issued out
of the district court for the judicial district of
the county of , in the territory of ,
in favor of and against ; that the
said indemnity undertaking in said count of said
declaration mentioned and described was not given to said
, as sheriff, solely and only for the purpose of in-
demnifying said , as sheriff, from such claims,
costs, charges, troubles and expense as he should be put to by
reason of the levy upon or sale of about worth
of said merchandise ; that said , sheriff, as afore-
said, was directed by the defendants to levy on goods, wares
and merchandise to an amount greatly in excess of said sum of
, to wit, the sum of ; that he was not
then and there directed to separate and hold said merchandise so
574 ANNOTATED FORMS OF PLEADING AND PRACTICE
levied upon by him for the payment of the attachment writ in
favor of the defendants and against ; and the said
, sheriff, as aforesaid, was not instructed to dis-
charge, release and surrender any part of tlie stock of said
from any claim, demand or lien whatever of said
defendants by reason of their said attachment writ; that said
, as sheriff, as aforesaid, did not retain in his pos-
session the entire stock of goods and merchandise of said
; and that said entire stock of goods and merchan-
dise of said was not seized by him, said ,
as sheriff, as aforesaid, nnder writ of attachment in favor of
; and that said as such sheriff, did
not violate the conditions upon which said undertaking of in-
demnity was delivered to him.
1170 Joint liability; denial, plea (111.)
That he is not, nor ever was jointly liable with the said
• . . in respect of said several supposed causes of action
in the said declaration mentioned or either of them in manner
or form as the plaintiff has above in that Ix-lialf alleged; ami of
this he, the said , puts himself upon the country .2'^ »
1171 Joint liability or partnership; denial, plea (111.)
That . .he not, or ever w partner. . with,
and jointly liable with the said C in respect of the said cause
of action in the said declaration mentioned in manner and form
as the plaintiff. . ha. . above in that behalf alleged ; and of this
. .he. ., the said D, put sel upon the country, etc.
(Venue)
The said D, defendant, make., oath and say., that the last
foregoing plea is true in substance and in fact.
Subscribed, etc.
LIFE INSURANCE
1172 Beneficiary, warranty
The statement that a beneficiary bears a certain relation to
the insured is not a warranty, but it is merely a direction for
the payment of the insurance money.^^^
1173 Deductions
An insurer has no right to deduct a general indebtedness of
the insured from a policy which provides that "any indebted-
ness to the company will be deducted in any settlement," as the
203 Add verification.
204Cunat V. Ben Hur, 249 HI.
448, 450 (1911).
ASSUMPSIT 575
indebtedness wMeh is deductible under the provision is that
which arises by virtue of the terms of the policy itself.^os
1174 Execution of assured
The execution of the assured for crime is no defense against
an action by his legal representative, upon a life insurance pol-
icy held by the person executed, in the absence of a stipulation
exempting the company from liability for a death from this
cause.^^^
1175 False representations, generally
To avoid a contract of insurance on the ground of false swear-
ing to a statement, the statement must have been made know-
ingly and intentionally with the knowledge of its untruthful-
ness, or it must have been so stated as a truth when the party
did not know it to be true and had no reasonable grounds for
believing it to be true and must have been made with the pur-
pose to defraud.207
1176 False representations, plea (111.)
That prior to the making of the policy referred to in the
declaration, and as an inducement thereto, said
made to said defendant, liis application for insurance in writing,
a copy of which application is appended to said policy, and tlie
defendant refers to the copy of said application annexed to the
plaintiff's declaration herein, and by express reference makes
it a part of this plea.
Defendant further avers that the statements in said appli-
cation were false in this, that said had suffered
at divers times preceding the making of said application, from
and other serious ailments, which fact was then
and there known to said
Defendant further avers that it relied upon the statements
in said application for insurance and was induced thereby to
issue said policy ; by reason whereof defendant says said policy
became and was null and void. (Pray judgment)
RcpUcaiion
That the said statements in the said application in said plea
mentioned were fairly and honestly made by the said ,
according to his best knowledge and belief and were true in
205 Anson v. New York Life Ins. 207 German Union Fire Ins. Co.
Co., 252 111. 369, 372 (1911). V. Cohen, 114 Md. 130, 137 (1910).
206 Collins V. Metropolitan Life
Ins. Co., 232 111. 37, 48 (1908).
576 ANNOTATED FORMS OF PLEADING AND I'KACTICE
fact and were not false or untrue and were not known to the
said to be false or untrue and vvert' not i-elicd
upon by the said defendant as in said plea of the said defend-
ant mentioned in manner and form, etc.
(Maryland) Pica
(Precede this by general issue and proper commencement.)
That , the insured, induced the defendant to
issue the policy which is the cause of action in this case by
falsely and fraudulently representing at the time of his appli-
cation therefor that he was in good iiealth, when in truth and
in fact he was not tiien, nor wlien the policy was issued in good
health, but was at those times, as well as for some time prior
thereto afflicted with disease, a disease which tends
to shorten human life.
And for a plea says :
That the said made other false and fraudulent
representations in the written application made by him as an
inducement to issue the policy wliich is the cause of action in
this case, which representations were matters material to the
risk assumed by the defendant in issuing said policy.
(Virginia) Pica
That at and before the time of delivery of the policy sued
upon, it was understood and agreed between the insured, and
the defendant in a certain contract in writing, called applica-
tion, signed by the insured, that the statements and answers
contained in said application were correct and wholly true, and
that they formed a basis of the contract of insurance, and that
if they were not correct and wholly true the policy should be
null and void. And the defendant says that the applicant did
fraudulently and knowingly make a false statement in said
application in this, to wit, that he was then in sound health, and
that he had no physical or mental defect or intirmity of any
kind. And the said defendant says that the said statement was
wilfully false and was fraudulently made in this, that the said
applicant had at that time and prior to hereto been afflicted with
a disease of the kidneys and had been treated therefor ; that the
said statement was material and caused the company to issue
the policy sued upon, and that but for such statement the policy
would not have been issued ; and the defendant had no knowl-
edge of the falsity of said statement.
And the said defendant is ready to verify.
(Venue)
I, , a notary public in and for the corporation
aforesaid, in the state of , do hereby certify that
, superintendent of , the defendant
ASSUMPSIT 5^'
in the above styled suit, appeared before me m my corporation
and sta?e aforesaid and made oath that the statements contained
herein are true to the best of his knowledge and belief.
Given, etc,
1177 Forfeiture, waiver
A cause of which the insurer had knowledge at the time the
policy was issued cannot be made the basis of a forfeiture of
the policv after it had been issued.^^^ The acceptance of pay-
ment of a premium after it has become due waives the insurer s
ric^ht to insist upon a forfeiture of the policy for failure to pay
pr^omptly, and restores the parties to the contract as it was orig-
inally made without creating a new contract between them.
This is the rule in Georgia, Illinois and Iowa, but not in New
York and Tennessee.^«»- A forfeiture of a policy may be pleaded
in an action thereon, although there is no declaration of forfeit-
ure as no notice of forfeiture is required to be given.2i«
A tender, under a denial of all liability, of all unearned pre-
mium does not invalidate the tender, but the insured is bound
to accept such a part of the tender as the insurer can lawfully
An insurance company does not waive its right to insist upon
a forfeiture of the policy for a breach of a condition in it by the
mere failure to return the unearned premium after the forfeit-
ure has occurred, unless a demand is made upon the insurance
company for a return of such premium and the insured has of-
fered, at the same time, to surrender the policy.^i^
1178 Good standing
In an action on a certificate of life or accident insurance under
the assessment plan, the question whether the assured was in
^ood standhig in' the' original company at tbe time of a transfer
or in the transferee company at the time of his death, is a
matter of defense.^is
,r u *.*„« nf* So 162- 45 So. 835 (Miss. 1907,
208 Peterson v. Manhattan Life oO- A''-'
Life Ins. Co., 242 111. 488, 493 So^^^l|2-^^^ ^ ^j^tual Eeserve
''t?!Le V. Mutual Life Ins. Co., Tun.Ufe Assn., 224 111. 576, 578
240 111. 45, 54 (1909). (1907).
211 Aetna Ins. Co. v. Mount, 44
578 ANNOTATED FORMS OF PLEADING AND PRACTICE
1179 Incontestability
A policy is incontestable from the date of its issuance under a
provision declaring the policy incontestable from the date thereof
and a later clause providing that the policy shall not be in
force until actual payment of the initial premium and the de-
livery of the policy. This is so on the principle that between
two conflicting provisions that construction of them will be
adopted which is more favorable to the insured.- ^^
1180 Limitation, plea (111.)
That it, the said defendant, is a voluntary, mutual associa-
tion organized under that certain law of the state of Illinois,
approved on the day of , 19 . . , on-
titled: "An act to provide for the organization and manage-
ment of corporations, associations or societies for the purpose of
furnishing life indemnity or pecuniary benefits to the beneficiar-
ies of deceased members, or accident or permanent disability in-
demnity to members thereof;" that the members of said associa-
tion receive no money as profits, and the funds for the payment of
all benefi+s and indemnities promised and paid by s<iid associa-
tion are raised entirely by assessment upon the surviving mem-
bers ; that said association has no authority to insure any person
or to promise any benefit or indemnity to any person not a
member of said association; that said association is by law and
its charter authorized to issue, and does issue to its members
only, certificates entitling its said members to receive benefits
in case of certain accidents only, and upon certain conditions
only; that by the acceptance of such certificates and the pay-
ment therefor of the sum or sums recjuired by said association,
the party so accepting said certificate and paying said sum or
sums becomes and is a member of said association, and subject
to all the rules and regulations lawfully governing the members
of said association; that for the purpose of defining said acci-
dents and fixing said conditions and otherwise regulating and
prescribing the business of said association, and the relations of
its said members to said association and to each other, the said
members of said association have duly adopted certain rules,
limiting and defining the accidents for which indemnity pay-
ments shall be made by said association, and assessments levied
upon its said members, and fixing the conditions upon which
said payments shall be made, and otherwise regulating and pre-
scribing the business of said association and the relations of
its said members to said association and to each other, which
said rules so adopted by the members of said association are
21* Monahan v. Fidelity Mutual
Life Ins. Co., 242 111. 488, 492
(1909).
ASSUMPSIT 579
known as the by-laws of said association; that in and by said
bvTaws so adopted by the members of said association as afore-
said it is prov^ed as follows, to wit : (Set out by-law restnct-
^^i:.^^trJ^TdXnd\nt Ive^'that the said by law hereinbe-
fore set out was duly adopted by the members ot said associa-
tion on or before the day of ..... •• , -L^- -
and is and has been ever since said day or ... . .... -^ ,
19 and particularly on, to wit, the /•;•;•.• ?/ a
! . '.'. . . ., 19. ., in full force and effect. And this defend-
ant avers that on, to wit, the day of ...... . • .
19 the said F made his application for membership in said
accident association in words and figures as follows, to wit:
•'lU'sliT&tnl- avers that said F signed said application
and caused the san. to be delivered to the said clefemlant^o^^
on said' ' * ■ ::'.:*.'. . . .day o'f" :::'.'.'* , 19. ., the said de-
fendant, in consideration of the warranties and agreements con-
tained in said application, issued to said F its certihcate of
membership in slid association, in and by which certificate it
^•as provided as follows, to wit: (set forth certificate) ; and
said defendant then and there thereby received the said F into
membershi in said association, and the said F thereby became
a member of said association and entith^l to all the rights and
benefits and subject to all the duties, obligations and liabilities
o members of said association. In and by said certificate it
was further provided as follows, to wit: (Set out provision).
Indsad defendant avers that said certificate, together with
faM aTp ication and said by-laws, is the only eertificate ever
iiued by said defendant to said F, and is the only pohey of
insurance or contract of any sort ever entered into by sa d de-
f ndant with said F; and said defendant avers that said con-
tract was made and said certificate was so issued and said F
became a member on said day ot . . . • ' • ; '
and while said bv-law above set out was m full force and effect.
And said defendant avers that on to wit. the ••;•••••••••
, . 19 .^ it, the said defendant, duly and ex-
plicitly 'refused 'to entertain the claim of said plaintiff, and
on aS date last before mentioned, duly notified said p ainti^
?hatT the said defendant, refused to entertain the said claim
o said plaintiff. And said defendant avers that the said plaintiff
did not commence her said suit against it, the said defend,
ant within thirtv days of said date of said refusal as aforesaid,
but not until, to wit, ^he .^^^^.^^.••••^day^o ^^-^ v^- -^^^^^^^j
as 'a'foresaid 'in'mamier and form as the plaintiff has above com-
patd against it, the defendant; and this the defendaM ^
readv to verifv, wherefore it prays judgment if the plaintitr
ought to have her aforesaid action against it, etc.
580 ANNOTATED FORMS OF PLEADING AND PRACTICB
Replication
And the plaintiff as to the special plea of the defendant by it
secondly above pleaded says that there never was auy such by-
law in force or effect as stated by the said defendant in the
said plea. And that said defendant did not reject the claim of
said plaintiff and refuse to pay the same as stated in defend-
ant's said plea; and of this the plaintiff' puts herself on the
country.
b
And for a further special reply the plaintiff says that she,
by reason of anything in that pica alleged, ought not to be
barred from having her aforesaid action, because, she avers, if
ever there was any such by-law as stated in the saitl amended
plea, she was prevented by the fraud and false representations
of the defendant by its servants from bringing her action within
the time prescribed by the said alleged by-law, as stated in the
said plea, and she was also prevented by the fraud, covin and
concealment of the defendant from obtaining any knowledge
of the said alleged by-law. That is to say, that before the com-
mencement of this suit, to wit, the of
19.., the plaintiff went to the office of the said defendant and
requested the said defendant to furnish her with blank forms
to make proof of loss and also with a copy of the by-laws; but
this the defendant refused to do. And the defendant then and
there by its servant, with the intention of deceiving the plain-
tiff, falsely and fraudulently stated to the plaintiff that she
had three months from the date of the death of said F to bring
suit. And the plaintiff avers that she never saw any by-law of
the said defendant until long after this action was commenced.
And she further avers that she believed the statement of the
defendant, wherein it stated by its servant that she had three
months to bring her suit, and relying on this statement, she
brought her suit on the day of , 19 • • ,
as stated in said plea, and which was within three months of
the death of the said F. And the plaintiff further says that
the statement of the defendant was falsely and fraudulently
made, and made for the purpose of deceiving her and that it
did deceive her. (Pray judgment)
1181 Medical attention, plea (Md.)
And for a plea, that the plaintiff, in his appli-
cation for the issuance of the policy of insurance mentioned in
the declaration, made the statement that he had not received
medical attention within two years preceding the making of
said application, which said statement said plaintiff warranted
to be true, and which said statement was expressly made a part
of the contract of insurance and was relied on by the defendant ;
ASSUMPSIT 581
whereas, in fact, the said plaintiff had received medical atten-
J^on within two years preceding the mak ng of said application,
as ^le well kne^^^ And this defendant further says that these
facts constitute a breach of warranty as to a matter material
to the risk and avoid the policy.
Replication
That he had not received medical attention within two years
preceding the making of said application, and that he had made
no statement in his application for the issue of the policy ot
insurance mentioned in the declaration which would constitute
a breach of warranty as to a matter material to the risk and
in avoidance of the policy.
Rejoinder
The defendant, the of • .,
for rejoinder to the plaintiff's replications to the
and pleas, says :
That it joins issue on the same.
1182 Murder of insured, plea (111.)
That the plaintiff, A, was the son and beneficiary of B, de-
ceased the insured, in the beneficiary certificate issued by the
defendant upon the life of the said B, and that on, to wit, the
day of , , at, to wit, the county
of . and state of , the plaintiff, A, killed
and murdered the insured, B, by reason of which the said plain-
tiff then and there forfeited and lost all rights as a beneficiary
under the beneficiary certificate described in said plaintiffs
declaration. (Pray judgment)
Replication
That the said A, the son and beneficiary of B, deceased, did
not murder the said B on the • ^ay of . • . • • • • .,
19 !; but avers that the said A did kill the said B on that day
while he, the said A, was insane.
1183 Occupation different, plea (HI.)
That the alleged bodily injuries from which the said J died
were received while he, said J, was engaged in an occupation or
exposure classed by the defendant at the date of the policy of
insurance set forth in said count of said declara-
tion higher than the premium paid for the said policy of insur-
ance to wit, the occupation of a weaver, which occupation was,
at the date of said policy, classed by this defendant as ordinary,
and the annual premium for which was, to wit, • • • •
dollars per thousand dollars of insurance. (Pray judgment)
582 ANNOTATED FORMS OF PLEADING AND PRACTICE
Replication
That the bodily injuries from which the said
died, as set forth in tlie (first, second, etc.) counts of the plain-
tiff's declaration were not received wliile the said
was engaged in the occupation of a weaver or in an occupation
or exposure classed by the defendant at the date of the policy
of insurance set forth in said (first, second, etc.) counts of tiie
phiintilf's declaration higher than the premium paid for the
policy of insurance, as the defendant has above in its said plea
alleged. (Conclude to the country)
1184 Suicide
No recovery can be had under a life insurance policy which
invalidates the instrument upon the insured's dying by his own
hand, whether sane or insane, and the action is for insurance
upon the person thus insured and dying. In such a case the
degree of insanity is unimportant.^'^
1185 Suicide, plea (111.)
That the alleged bodily injuries from which the said J died
were intentionally inllicted upon himself in violation of the
terms of the said policy of insurance as set forth in the
count of said declaration. (Fray judgment)
Replication
That the bodily injuries from which the said
died, as set forth in the (first, second, etc.) counts of said decla-
ration, were not intentionally inflicted upon himself in violation
of the terms of said policy of insurance, as the defendant has
above in its said plea alleged. (Conclude to the country)
1186 Ultra vires, plea (111.)
That it is, and was on and prior to the day of
, 19. ., a fraternal beneficiary order or society in-
corporated by and under the laws of the state of ,
and was on and prior to said date doing business as such fra-
ternal beneficiary order and society; that it had at all times
since its said incorporation and has now a lodge system with
ritualistic form of work and representative form of government,
and is an association formed, organized and carried on for the
sole benefit of its members and their beneficiaries and not for
profit.
215 Seitzinger v. Modern Wood-
men, 204 111. .58, 68 (1903).
ASSUMPSIT 5^3
Said defendant further alleges that on, to wit, the
dav of , 19. ., at, to wit, the county of . ..... • • ■ • -,
« nd state of . . . . , E, who is described in plaintiff 's dec a-
ration as the L^iher of the plaintiffs, made and delivered to de-
fendanra partly printed and partly written application signed
by himself in which application said E applied for membership
in Home Tribunal Xo."^ .... of the defendant order and or
benefits therein to the amount of $ m dass A That de-
fendant, at the time said application was made to it as atore-
^^1r:;i:;n:? b^fieiary-o;ganiz^Sn\soci;iy' W
hv the state of , and doing business as such, and
?^en and^here had authority to receive aPP|i-nts a^ m mbe^
and to insure them and their lives by graiiting to the"i bene
ficiarv certificates. That Home Tribunal No. .... ^^as a local
lodge or tribunal of the defendant Supreme Tribunal and as
suc-h local tribunal received the said application of the said E
and theieupon caused the said E to be examined by the medical
examiner o'f said Home Tribunal, which it was its duty o do
A coDV of said application made by said E is attaclied to cie
fendant's pleas marked exhibit "A," and made a part of this
^^Defendant alleges that said E in his said application among
other things stated that he was born on the . . aay oi
. . . ., in the year 19. ., and that he was ... . . . . >ears
Am Vt his nearest birthday and that he warranted the truthtui-
ness of the state'Ln ts in iiis said application and consented and
agreed at any untrue or fraudulent statement made therein
P ,\ 1 fn flit ill the rights of himself and his family or depend-
:' ;i a 1 b n it aVa P^ of said membership ; reference
said application marked exhibit "A," being here^ made for
areater certainty as to the statements made by sad E in his
Jaid aDDlication to said Home Tribunal as aforesaid. ,
DefSn further alleges that said Home Tribunal received
said E into membership in said Home Tribunal and forwarded
his said appHcation to the defendant Supreme Tribunal as it
^^s?ts duU to do; and said Supreme Tribunal thereupon, hav-
hic fuU ah and Confidence in the truth of the statements made
by sa^d E in his said application as to his age, issued and caused
to be delivered to him a beneficiary certificate in the defendant
to oe aeiiveieu which certificate was afterwards
^t'ndTred^^ aid' I'io defend'' a"d the beneficiary cer.if-
k^te sued on in this ease issued and delivered to sa.d E mthe
plaee and stead thereof by agreement between the sa.d E and
^'DeSanfalleges that said E, when he made said appUea-
^^a^'in ;;uiiran'/in"faet mo;e than '''." . ■ ' ' : ■ ^^^^^^'^
iHrf:i^^^:nd-^:^i^s^--"^^^
584 ANNOTATED FORMS OF PLEADING AND PRACTICE
By reason of which false and untrue statement of the date of
his birth and age the said E forfeited all rights of himself and
his family in said last named beneficiary certitic-ate, as well
as in said first beneficiary certificate. Defendant further alleges
that said E well knew when he made said statement in his said
application that he was not born on the day of
, 19 . . , and that his age was not yt'ars
at his nearest birthday, and that said statement was false and
untrue; and defendant further alleges that said E made said
false statement for the purpose of defrauding and deceiving this
defendant by causing it to issue to him the beneficiary certifi-
cate sued on in this case And defendant further alleges that
it had no knowledge that said E was more than
years old when he made said application until since the death
of the said E.
Defendant therefore avers that said beneficiary certificate sued
on in this case is void and not binding on this defendant. (Pray
judgment) '^^^
1187 Loss of goods, express company; validity of statute
Clause 10, section 1294c of the Virginia statutes regulating
common carriers is not in conflict with the Federal laws con-
cerning commerce.21^
1188 Non-performance, plea (Md.)
And for their plea, the defendants say that the
plaintiff has not fulfilled all the terms of the agreement between
the plaintiff and the defendants on his part to be fulfilled, and
has not always held himself ready and willing to perform all
of the terms of the agreement aforesaid, and that the defend-
ants have not wrongfully refused and still refuse to pay to the
plaintiff the sums due him by reason of the agreement afore
mentioned.
PROMISSORY NOTES
1189 Accommodation maker, plea (HI.)
That said note in said count of said declaration
specified and said to have been given by said defendant to said
plaintiff, was made and entered into without a good or valuable
consideration, and that the same is entirely without considera-
tion; and said defendant shows to the court that said note was
given by said defendant to said plaintiff as an accommodation
216 Steele v. Fraternal Tribunes, lottesville Woolen Mills, 109 Va. 1,
215 111. 190 (1905). 4 (1908).
217 Adams Express Co. v. Char-
ASSUMPSIT '^°^
said note whatever and the ««.™«XntTff me efore%aid de-
eration. (Pray judgment) -'^
1190 Assignment, practice
In order to put in issue, in Illinois, the assignment of a promis-
sory no, under the general issue, it is necessary to make and
m with the plea an affidavit stating, specifieally, that the payee
did not assigi the note, or that the signature to the assignment
is not his.2'9
1191 Consideration, want or failure, generally
At eommon law failure of coiisideration could not be pleaded
intn action upon a promissory note."- In lUinors the ru^ ha
been changed by statute in actions upon notes, bonds bills or
other written itLruments, allowing the pleading of three dis-
: net defenses; want of consideration, total failure of considera-
ion and partial failure of consideration, requiring eaeh de-
tos'e to be specifically and separately_pleaded or notice given
iinrlpr the ffeneral issue, and proved.^^i ,,. , .
S roe the adoption of Circuit Court Rule 7c in Michigan,
the facts upon which the defense of failure or want o consid-
eration of a written instrument or of '' P-"--"^ °°' 7^f,
constitutes the basis of the action, must be plainly set forth m a
notice added to the plea."^
A defendant may show the want of consideration for the
Jin. of the note without specially pleading that defense when
the plaintiff introduces the note under the common counts. -
Th defense of failure of consideration is not available in an
action upon a promissory note brought by an assignee, unless
..Peaboay .. Munso-, 2n lU. |;8,/20 0900, ; riftk Ave^u^U-
324(1904). „ , ., 56''79 (1908): (10074), C.L. 1897
^i.Templeton V Hayward, 65 56, 59 (19U ), ( ^^J^ ^^^^ ,
lU. 178, 179 (1872). PerkiM V- Bro»ii, 115 Mich. 41, 43
220 Wadhams v. S«aii, 109 111. 46, PerKms ^^^ ^ ^^^^ ^„,^. jjey.
61(1884). stone Mfs Co. V. Forsyth. 126 Mich.
s:r7TZ' nnr,^sAiMlt- 9r%of(1891.1901), obviated by
Boae 'v. Mo'rtimer, 17 111 475 "^^g (.'"'^i^ ^. Nevrton, 235 111. 530,
222 Walbridge v. Tuller, 125 Mich-
586 ANNOTATED FORMS OF PLEADING AND PRACTICE
the assignment was made after maturity, or the assignee had
notice of the defense at the time of the assignment. 22^
1192 Consideration, failure; plea, requisites
A plea of failure of consideration must set forth what the
consideration was,--^ and it must he specitieally averred wherein
the consideration has failed. 2-«
1193 Consideration, partial failure; plea, requisites
A plea of part failure of consideration must set forth in what
the failure consists and the extent thereof.227
1194 Consideration, total failure; plea, requisites
A plea of total failure of consideration must set forth in what
manner the consideration has failed.^'^s A defendant will not
be permitted to show a partial failure under a plea of a total
failure of consideration. 2-"
1195 Dilig-ence, failure to use; demurrer (111.)
And the said defendant C by ., his attorney,
comes and defends, when, etc., and says that the
count of the said declaration, and the matters therein contained
in manner and form, etc., are not sufficient in law for the plain-
tiff to maintain his aforesaid count, and that he. the defendant,
is not bound by law to answer the same, and he shows to tiie
court here the following special causes of demurrer to the said
count, that is to say, the same on its face shows that the plain-
tiff did not use due diligence by the institution and prosecution
of a suit against the said P, maker of said note, for the recov-
er}' of the money or property due thereon or damages in lieu
thereof. For that said note was past due upon and by the
day of , 19 . . , and sundry and divers
terms of the court of the court of said county,
and the court of said county, and of the
court of said county thereafter commenced and were held, and
had prior to the one at which said suit recited in
224 Harlow v. Boswell, 15 111. 56 228 Sims v. Klein, Breese. 302;
(1853). Parks v. Holmes, 22 111. 522, 524
225 Vanlandingham v. Ryan, 17 (1859); Sec. 9, c. 98, Hurd's Stat.
111. 25, 28 (1855). 1909.
226 Wisdom V. Becker, 52 111. 342, 229 Wadhams v. Swan, 109 111.
345 (1869). 61.
227 Sims V. Klein, Breese, 302
(1829); Sec. 9, c. 98, Hurd's Stat.
1909.
ASSUMPSIT 587
said count was instituted, and to which said plaintiff could
have brought suit upon said note against said P, but tailed so
to do; and said count fails to show or to allege that such suit
if so brought, would have been unavailing; and also that sucii
count is in other respects uncertain, informal, and msutticient.
Affidavit of merits
^ C^being first duly sworn, on oath says that he is the defendant
in the above entitled cause ; that he makes special his affidavit
of merits on file herein; that the plaintiff wholly failed and
neglected to institute suit with due diligence against the maker
of the notes in question ; and that he denies that the said maker
at the maturity of the said notes or note in question was insol-
vent and unable to pay the said note or notes m question or
any part thereof, as in the declaration is alleged.
Subscribed, etc.
1196 Notice of defense
A general allegation of an assignee's notice of existing de-
fenses against a promissory note, is insufficient. The averment
of notice must be specific and must show that the assignee had
notice at or before the time the note was assigned to him.^^'^
1197 Ownership, proof
A plea of general issue in an action of assumpsit upon a
promissory note entitles the defendant to show that the plaintiff
did not own the note at the time he commenced the action.^^i
1198 Surrender to maker, pleading
The surrender to the maker of an unpaid promissory note
"stamped paid" to enable him to present it to a surety for the
purpose of obtaining a surrender of collateral securities, must
be specially pleaded.-^-
1199 Recoupment
In an action for rent, the defendant may recoup any damages
which he might have sustained as a result of the landlord's
,n^. '• ^^""' ''" ""' '''' V. MaSr23fm 119, 'l2r(So^):
231 Keynoids v. Kent, 38 Mich,
246, 247 (1878).
588 ANNOTATED FORMS OF PLEADING AND PRACTICE
wrongful act or omission whereby the beuelicial enjoyment of
the premises was diminished.^^a
1200 Redemption, failure; plea, requisites
In an action of assumpsit for the value of property that has
been taken under a contract of bailment and converted, a plea
which relies upon the failure to redeem must allege the giving
of notice to the bailor of the time and place of the sale and the
taking place of the sale at public auction; unless the contract
of bailment authorizes a private Sale and without notice.^^*
1201 Res judicata, replication (111.)
That prior to the commencement of this suit the said plaintiff
herein commenced an action of assumpsit against the said de-
fendant C, in the court of county,
and procured service of process upon the defendant in said
cause in which said action said plaintiff filed his declaration and
bill of particulars declaring and counting upon the identical
and same cause of action and claim in said additional counts and
each of them set forth, and to which said declaration said C,
defendant herein, appeared and pleaded the plea of general
issue thereto; that thereafter issue being joined in said action,
trial was had by the court upon the said claim of said plaintiff
against the said defendant, and in and about which said trial
of said cause the said defendant was fully and completely ad-
vised and apprized of said plaintiff's claim and cause of action
so sued upon, and in which action after a hearing by the court,
said plaintiff upon his motion submitted to a nonsuit for want
of sufficient evidence, and then and there notified said defend-
ant that another action would be brought against said C for the
same claim, of which said defendant had due notice ; and plain-
tiff avers that immediately thereafter, to wit, on the
day of , said plaintiff commenced the above
entitled action in the circuit court of county
against said defendant C, and filed in the same his declaration
upon the identical claim so prosecuted against him in the
court ; and plaintiff further avei-s that said de-
fendant C at the time of the commencement of this suit, and
since then and now has knowledge or notice of the fact that
this action, to wit, the above entitled action, was brought upon
the same and identical claim set forth and insisted upon in said
action commenced and prosecuted in said court
above set forth, and that the said claim in said additional counts,
and each of them mentioned, filed herein by leave of court, con-
233 Rubens v. Hill, 213 111. 523, 234 Cushman v. Hayes, 46 HI. 145,
541 (1905). 153, 154 (1867).
ASSUMPSIT 589
stitutes the claim for which said plaintiff intended to bring the
above entitled action, and not otherwise, and of this said de-
fendant C had notice, to wit, at the county aforesaid; and this
he is ready to verify, wherefore, etc.
1202 Set-off, advance money
In an action of assumpsit upon a contract for the sale of
land, the defendant may claim the advance money as a set-off,
where he has rescinded the contract for the vendor's failure to
perform it.-^^
1203 Set-off, general plea (Fla.)
That the said , the plaintiff's testator, was in
his life time and at the time of his death indebted to the de-
fendant in an amount equal to plaintiff's claim, for money pay-
able by the said to the defendant for work done by
the defendant for the said at his request ; and for
money received by the said for the use of the de-
fendant ; which amount defendant is willing to set off against
the plaintiff's claim.
(Illinois)
That the plaintiff. . w. . . . before and at the time of the com-
mencement of this suit and still . . . ., indebted to . .h. . . ., the de-
fendant. ., in the sum of dollars for divers goods,
wares and merchandise by said defendant., before that time
sold and delivered to said plaintiff.., at the special instance
and request of said plaintiff. . ; and in the like sum of
dollars for money before that time lent and advanced by said
defendant., to said plaintiff.., at the request of said plain-
tiff. . ; and in the like sum for money by said defendant. . before
that time paid, laid out and expended for the plaintiff. ., at the
request of said plaintiff. . ; and in the like sum for other money
by said plaintiff. . before that time had and received to, and
for the use of said defendant. . ; and in the like sum for other
money before that time then due and owing to the defendant . .
for interest upon, and for the forbearance on divers other sums
of money before that time due and owing from said plaintiff. .
to said defendant. . ; and in a like sum upon an account stated
between the said plaintiff., and said defendant.., and agreed
upon between them; and in a like sum for money before that
time due and owing from said plaintiff. . to said defendant..,
and being in arrear and unpaid, and upon which said defend-
ant., and plaintiff., had an accounting and upon which ac-
236 Conway v. Case, 22 111. 127,
140 (1859).
590 ANNOTATED FORMS OF PLEADING AND PRACTICE
counting said plaintiff. . then and there w. . . . found to be in
arrears and indebted to the defendant..; and said plaintitT. .
being so indebted in the sums above mentioned, and in the man-
ner set forth, then and there promi.sed to pay the said money
to the said defendant. ., but notwithstanding . ,h. . . . said prom-
ises, said phuntiff . . ha., refused, and still refuse., so to do,
which said sum and sums of money so due from the plaintiff. .
to the defendant. ., as afore.said, exceed the damages su.staint'd
by the plaintiff. ., by reason of the non-performance by the de-
fendant. . of the several supposed promises in said declaration
mentioned, out of which said sum of money said defendant..
.... ready and willing, and hereby offer. . to set off and allow
the full amount of said damages; and this .said defendant.,
ready to verify, wherefore . .he. . . . pray. . judgment, etc.
Replication
That the said plaintiff. . w. . . . not nor .... indebted to the
said defendant., in manner and form as the said defendant.,
ha. . above in . .h. . . . said last plea in that behalf alleged.
(Maryland) Pica
And the said , defendant in this action, by leave
of the court first had and obtained, for a addi-
tional plea says :
That the plaintiffs are indebted to the defendant in an amount
greater than the plaintiffs' claim, for money payable by the
plaintiffs to the defendant.
1. For goods bargained and sold by the defendant to the
plaintiffs.
2. For money lent by the defendant to the plaintiffs.
3. For money had and received by the plaintiffs for the use
of the defendant.
4. And for money paid by the defendant for the plaintiffs
at their request — a statement of which said claims is hereto at-
tached — which said amount the defendant is willing to set off
against the plaintiffs' alleged claims.
1204 Set-off, special plea (111.)
That at and prior to the time of bringing suit herein, the said
plaintiffs were indebted to these defendants in the sura of
dollars under and by virtue of a certain agree-
ment or contract entered into betw^een the plaintiffs and these
defendants on or about the day of ,
19. ., whereby the plaintiffs for a certain consideration named,
agreed to furnish all material and do all labor in the construc-
tion of the concrete work at the building of the defendants on
the corner of and
ASSUMPSIT ^^^
ZS^La speemeaUons sa.a plaintiffs ^- toJu.n.sU and .t
cement vault lights, steel trap doors and springs, . . . . • • • • • • • •
cemeni v ^^ ^^^.^^^ ^^.^ ^^^^^ ^^^^^^ ^^ ^^^ of the best
auaiitv'-'also'one inch star solid coal hole cover and thim-
We also all steel "I" beams necessary for such construction
a 1 beams to be placed on the street side of said
building to be .... inch beams of lbs. vj^ight per foot,
and on 'the street side of said building sa.d plain-
tiffs ^vere to use in said construction .......... ^ fteeii
hpams weiffhinff lbs. per foot ; said steel i beams
^v^re to eftend from the curb wall to the building wall, sup-
ported b^piers of the same size and quality of the beams, and
Raid steel beams for said sidewalk on both the • ' • • V /°
said steel ^^^am^^^^^^ ^.^^ ^^ ^^.^ ^^^^.^^^.^^ ^^.^^.^ ^^ ^^ ^^^ ^
and'one-half'feet apart, and the concrete work was to cover the
:ntire basement area of said building, also the entire sidewalk
space from the east line of said building at street
around to the south line of said building on . \ I
and wa to run from the wall of said building out and do^m
?o the curb stone at said line and form a comple e concrete
l^ewalk around said building; and the said plamtil^s were also
?o use in the construction of said concrete sidewalk and con-
crete basement the best «,uality of clean, sharp torpedo sand
the best <iuality of imported German Portlan.l cement and firs
ckss crushed limestone, the said concrete work in said basemen
to be four inches in thickness, laid m timber forms, and to be
n all strictlv first class and pitched and drained as directed;
and the said plaintiffs in said contract .^f^^ to construct said
sidewalk in arch shape between the said steel I beams the
same to be aid inches thick at the edge of the
''r ' beams and inches thick at the cro^yn of the arch
all to be constructed in a first class manner and in accordance
with the citv ordinances; and the said plaintiffs then and there
n said contract agreed and ^laranteed said work to be strictly
first class in all particulars, and guaranteed the same not to
crTck scale or break for a period of ten years, and to be com-
pleted Tn all respects to the satisfaction of these said defend-
^"^And the defendants aver that the plaintiffs did not nor
would although often requested so to do, furnish to these sa d
defendants a concrete sidewalk and basement in accordance with
sai^ agreement and specifications; that the steel^I" beams and
iron ^vork necessary in the construction of ^-^ eone^ ^e sid -
walk and basement were not in accordance with the said speci-
fications; that the said steel "I" beams were not of the desig-
592 ANNOTATED FORMS OF PLEADING AND PHACTICE
nated size, but of a much smaller size and much lighter weight ;
that said concrete sidewalk was not pitched in accordance with
the city ordinances, and that siiid concrete basement was not
pitched and drained in accordance with the directions of these
defendants given then and there to the s<iiil plaintitVs; that the
concrete used in the construction of said sidewalk and said
basement was not composed of clean, sliarp torpedo sand, nor of
the best quality of imported German Tortland cement and clean
crushed limestone, but was composed of an inferior (juality of tor-
pedo sand and a cheap and worthless grade of cement ; and said
concrete in said basement is not four inches in thickness as speci-
fied in said agreement ; nor is said concrete sidewalk and
inches thick at the edge of the "I" beams, but is about
inches thick at the edge of the "I" beams; nor was said
sidewalk so constructed as to be inches thick at the
crown of the arch as specified in said agreement, but is in many
places less than inches thick at the crown of the
arch ; nor was said concrete mixed in accordance with said speci-
fications; and said sidewalk and basement have cracked, scaled
and broken and are not a first class job in all particulars; and
said work was not completed by the said plaintiffs in all details
to the entire satisfaction of these said defendants as provided
in said agreement.
Wherefore the defendants aver that on account of said de-
fective material used in the construction of said concrete side-
walk and basement, and on account of the defective construction
of said sidewalk and basement, the same have cracked, scaled
and broken in many places and are crumbling and falling to
pieces and are filled with holes and crevices, and the said work
so finished and completed by the plaintiffs as aforesaid is prac-
tically worthless and within a few years will have to be re-
moved and taken entirely out, to the great damage of these de-
fendants, and -will necessitate these said defendants expending
the sum of $ to complete said work in accordance with
said contract, and the default of the said plaintiffs in this regard
as aforesaid has put these said defendants to great expense and
inconvenience in carrying on the business of these said defend-
ants to facilitate which said concrete sidewalk and basement
w-ere desired by these defendants, as the plaintiffs w^ell knew ;
whereby these said defendants have sustained damages to the
amount of $ , which said sum of money so due from
the plaintiffs to these defendants as aforesaid exceeds the dam-
ages, if any, sustained by the plaintiffs by reason of the non-
performance by the defendants of the several supposed promises
in said declaration mentioned, and out of which said sum of
money the defendants are ready and willing and hereby offer
to set off and allow to the plaintiffs the full amount of said dam-
ages. (Pray judgment)
ASSUMPSIT 593
(Maryland)
That the plaintiff, , is indebted to the defend-
ants in an amount equal to or greater than the plaintiff claims,
for that the plaintiff and the defendants, on the
day of , in the year 19. ., entered into a written
agreement, signed and sealed by the said plaintiff and said de-
fendants, under which the said plaintiff bound himself to erect
for the said defendants in county a certain church
building to be known as , exclusive of all masonry
work, within months from the said
day of , 19 . . , according to the plans and specifica-
tions set forth in or made a part of said agreement, and that the
defendants duly performed all the conditions thereof on their
part, but that the plaintiff did not comply with his part of
said agreement, in that he did not complete the said church
within the time specified, and in that he did not complete said
church according to the plans and specifications, and in that
he used improper materials and his work was so defective that
the roof sagged and leaked, and the church has been badly dam-
aged by reason thereof, whereby the defendants were greatly
damaged and claim therefor the sum of $ , which amount
the defendants are willing to set off against the plaintiff's claim.
As in duty, etc.
(Virginia)
The said defendant by his attorney comes and says: That
before and at the time of the commencement of this action and
of the filing of this plea the said plaintiff was and still is in-
debted to the said defendant in a large sum of money, to wit, the
sum of dollars, which said amount is justly due
to the said defendant by the said plaintiff and which amount is
made up of the following items, to wit: (Itemize and explain
each transaction, if more than one).
And the said defendant avers that the said sum of money,
so due and owing to the said defendant from the plaintiff is in
arrear and unpaid ; and he, the said defendant, is ready and
willing and hereby offers, according to the form of the statute
for such cases made and provided, to set off and allow same
against the sum of money asserted and claimed in a certain
warrant in this action mentioned.
And this the said defendant is ready to verify, etc.
12C5 Special assessment
In an action of assumpsit for the collection of a special as-
sessment no irregularities or informalities can be urged in its
defense.236
236 (3221), C. L. 1897 (Mich.).
594 ANNOTATED FORMS OF PLEADING AND PRACTICE
1206 statute of frauds, plea (111.)
That each and every one of the several supposed promises in
the said declaration mentioned was a special promise to answer
for the debt of another person, to wit, the said F, and that
none of said supposed promises was or is in writing, or was or
is signed by the defendants, or either of them, or by any other
person or persons thereunto by them, or either of them, law-
fully authorized, and that no memorandum or note of any of
said supposed promises was or is in writing, or was or is signed
by the defendants, or either of them, or by any other person
or persons thereunto by them, or either of them, lawfully author-
ized, according to the form of the statute in such case made and
provided. (Pray judgment)
1207 Statute of limitations, plea, requisites
A plea which sets up the statute of limitations should not
contain an allegation that the supposed causes of action con-
tained in certain counts were separate and distinct causes of
action from those alleged in other counts, because such a state-
ment is a conclusion of the pleader and is of no binding force.-^'''
1208 Statute of limitations; plea (111.)
That the several supposed causes of action in said common
counts of said declaration mentioned, did not, nor did any or
either of them, accrue to the plaintiff or to said
during his life time, at any time during the five years next
preceding the commencement of this suit, in manner and form
as the plaintiff has above complained against them, the defend-
ants. (Pray judgment)
Replication
That the said several causes of action set forth in the com-
mon counts part and parcel of said declaration, and each and
every of them did accrue to him and to the said
during his lifetime within five years next before the commence-
ment of this suit, in manner and form as he has above com-
plained against the defendants.
Plea h
That the supposed cause of action in plaintiff. . declaration
mentioned, did not accrue to the plaintiff. . at any time within
ten years next before the commencement of this suit in manner
and form as plaintiff. . ha. . above alleged. (Pray judgment)
237 Fish V. Farwell, 160 111. 236,
243 (1896).
ASSUMPSIT
Replication
595
That the said cause of action did accrue to it within ten years
next before the commencement of this suit in manner and form
as it, the plaintiff, has above complained against the defendant.
b
That the said promises of the defendant, in said declaration
referred to, were in writing, and that the said several causes ot
action, and each of them, did accrue to them within ten years
next before the commencement of this suit, in manner and form
as they have complained against the defendant. (Fray judg-
ment)
Rejoinder
That the said alleged promises of the defendant, in said decla-
ration referred to, if such promises were in fact made, were not
in writing ; and of this the defendant puts itself upon the coun-
try, etc.
(Virginia) Pica
That the said several supposed causes of action in said declara-
tion mentioned, if any such there were, or still are, did not nor
did any or either of them accrue to the said plaintiff at any
time within years next before the coimneucement
of this suit in the manner and form of this suit, in the manner
and form as the said plaintiff hath in his declaration complained
against it, the said defendant. (Pray judgment)
1209 Subscription to shares of capital stock, fraud and circum-
vention; plea (111.)
That the contract of subscription in the plaintiff's decla-
ration set forth was obtained to be made and executed by de-
fendant to the plaintiff because of the false, fraudulent and de-
ceitful statements and representations of the plaintiff on its
own behalf and motion and by its president, secretary, treasurer,
officers managers, directors, canvassers and agents made to the
defendant before and at the time the said alleged contract was
made and executed as aforesaid in this, that said contract of
subscription was made and executed by defendant to plaintiff
upon the statement and representation of the plaintiff, its presi-
dent secretary, treasurer, officers, managers, trustees, canvas^s-
ers and agents then and there made, that the capital stock of the
plaintiff had not before that time been fully subscribed and
taken and that it was then ready, able and willing to deliver said
capital stock to this defendant, as in the said contract of sub-
scription set forth, which said statement was wholly false, as
596 ANNOTATED FORMS OF PLE-VDING AND PRACTICE
the plaintiff well knew at the time it was made. Yet the defend-
ant then and tiiere fully relying on said statement and represen-
tation made by and on behalf of the plaintiff, entt-red into the
aforesaid contract, said plaintiff well knowing that its capital
stock had before that time been wholly subscribed and allotted,
and that none of its capital stock could be delivered by it on
its contract with defendant. (Pray judgment)
Replication
That the said contract of subscription was not obtained to be
made and executed by the defendant, by the fraud or circum-
vention of the plaintiff and its officers, etc., and in manner and
form as the said defendant, , has above in that
plea alleged, but that the same was obtained fairly.
1210 Tender of admitted part, plea (111.)
And as to the said sum of dollars, parcel of
the said several sums of money in the said declaration mentioned,
the defendant says that the plaintiff ought not to have his afore-
said action against him, the defendant, to recover any greater
damages than that sum of money, because he says that after
the making of the said several promises in the said declaration
mentioned, as to the said sum of dollai-s, parcel,
etc., and before the commencement of this suit, to wit, on the
day of , 19 • • , he, the defendant, was
ready and willing and then and there tendered and offered to
pay to the plaintiff the said sum of dollars, to
receive which of the defendant the plaintiff then and there
wholly refused ; and the defendant further avers that since the
making of the said several promises as to the said sum of
dollars, he has been and still is there ready to pay
to the plaintiff the said sum of money ; and the defendant now
brings the same into the court here, ready to be paid to the
plaintiff, if he shall accept the same; and this the defendant is
ready to verify ; wherefore, he prays judgment if the plaintiff
ought to have his aforesaid action to recover any greater sum
than the said sum of dollars, parcel of the said
several sums of money, etc.
Replication
And as to the plea of the defendant by him above pleaded as
to the said sum of dollars, parcel, etc., and num-
bered plea, the plaintiff says that he ought not,
by reason of anything in that plea alleged, to be barred from
having his aforesaid action to recover further damages than
that sum of money, because he says that the defendant did not
tender or offer to pay to the plaintiff, the said sum of
ASSUMPSIT 597
dollars, parcel, etc., in manner and form as the defendant has
above in that plea alleged; and this the plaintiff prays may be
inquired of by the country, etc.
1211 Tender under compromise, plea
The plaintiff ought not to have or maintain his aforesaid
action thereof against him, the said defendant, to recover any
more or greater damages in this behalf than the sum of ,
because he says that the defendant, on, etc., at, etc., was in-
debted to the plaintiff by virtue of the said several promises and
undertakings in the said declaration mentioned, in the sum of
, and no more, and that he, the said defendant,
afterwards and before the commencement of this suit, to wit,
on, etc., at, etc., was also indebted to divers other persons, to
wit, etc., etc., in certain other large sums of money respectively,
and the defendant being so indebted as aforesaid, the defendant
was then and there unable to pay them, his said creditors, the
full amount of the said several debts, whereof the said plaintiff
and the said several other creditors of the said defendant then
and there had notice; and it was then and there computed and
agreed, upon an investigation then and there had, by, between,
and amongst the plaintiff and the said several other creditors
of the defendant, that the estate and effects of the said defen-
dant would not extend to pay dollars on the
amount of the debts due and owing by the said defendant, of
which the plaintiff and the said several other creditors also
then and there had notice: whereupon, it was then and there
proposed and agreed, by, between, and amongst the plain-
tiff and the said several other creditors of the defendant, and
also by , by the procurement of the defendant,
and at the request of the plaintiff, that the said
should and would pay out of his own proper moneys to the
plaintiff and the several other creditors of the defendant, a
sum of money equivalent to dollars on the
amount of their respective debts, in full satisfaction and dis-
charge thereof; which said sum of money they, the plaintiff,
and the said several other persons, creditors of the defendant,
should and would severally accept and receive in full satisfac-
tion and discharge of their said respective debts; and the said
agreement being so made as aforesaid, to wit, on, etc., at, etc.,
in consideration that the said defendant, and also the said
by the procurement of the defendant, and at the
request of the plaintiff, had then and there undertaken and
faithfully promised the plaintiff to perform and fulfil all things
in the agreement contained on their respective parts to be
performed and fulfilled, the plaintiff and the said several other
creditors of the defendant undertook and then and there faith-
fully promised the defendant to perform and fulfil all things
in the said agreement contained on their parts and behalfs to
598 ANNOTATED FOKMS OF PLEADING AND PRACTICE
be performed and fulfilled; and the defendant avers that in
consideration and in pursuance of the said agreements after-
wards and before the commencement of this suit, to wit, on, etc.,
at, etc., the said tendered and offered to pay, out
of his own proper moneys, for and on behalf of the defendant,
to the plaintiff, the sum of dollars, bcinj,' so much
as amounted to dollars upon the said sum of
dollars, the said amount of the said debt, so as
aforesaid due and owing from the defendant to the plaintiff
and which said sum of money so tendered and offered to be
paid as last aforesaid, the plaintiff then and there refused to
accept. And the defendant further says, that the said ,
from the time of making of the said agreement, always hitherto
hath and still is ready to pay the said sum of money to the
plaintiff, to wit, at, etc. ; and the said sum of
dollars, so tendered as aforesaid, is now brouglit into court
here, ready to be paid to the plaintiff", if he will receive the
same; and this the defendant is ready to verify: wherefore he
prays judgment if the plaintiff ought to have or maintain his
aforesaid action thereof to recover any more or greater dam-
ages than dollars in this behalf against the de-
fendant. '-^^s
1212 Trust and monopoly, plea (111.)
That the said cause of action in said declaration mentioned,
and all the causes of action therein set forth, originated in the
following manner and none other, that is to say. tiiat the said
l)hiintitf, being a corporation, had before the making of tiie al-
leged promises by the said defendants set forth in said declara-
tion, created, entered into and was at said time, a combination
existing for the purpose of regulating, fixing and establishing
the price of milk to be sold within the corporate limits of the
city of by producers, shippers and wholesale
dealers to the city dealers and retail dealers within said city,
and for the purpose of fixing and limiting the amount and (juan-
tity of milk to be supplied and sold within the corporate limits
of the city of by producers, shippers and
wholesale dealers to the city dealers and retail dealers within
said city; that pursuant to the purpose of sach combination,
and before the making of the alleged promises and undertakings
of the said defendants, set forth in said plaintiff's declaration,
said plaintiff became a party to an agreement and combination,
confederation and understanding, with divers persons, to w'it:
in number, who w^ere then and there stockholders
in the said corporation and who were then and there producers
of milk living and being in the vicinity of said city of ,
238 Anstey v. Marden, 1 Bos. &
Pul. N. E. 124 (1804).
ASSUMPSIT 599
and with divers and sundry other persons, to regulate, fix and
establish the price at which milk should thenceforth be supplied
and sold within the corporate limits of the city of
by the said plaintiff and the persons so named as aforesaid, to
the city dealers and the retail dealers of milk in said city ; and
the said plaintiff", before the making of the alleged promises
and undertakings set forth in said plaintiff" 's declaration, had
also entered and become a party to an agreement, contract,
combination and confederation to fix and limit the amount and
quantity of milk to be supplied and sold within the corporate
limits of said city ; that pursuant to the said unlawful agree-
ment and combination, the said plaintiff afterwards caused the
said defendant, , who was then and there a re-
tail dealer in milk in said city of to enter into the
said unlawful combination by executing and delivering to said
plaintiff (jointly with his said co-defendant), the contract or
agreement in writing, set forth in said plaintiff"s declaration,
and after the execution thereof, the said plaintiff delivered to
the said defendant, certain hirge quantities of milk
to be by said defendant again sold and retailed to the customers
of said defendant in said city of , and for which
the said defendant, had in said undertaking and writing, then
and there agreed and promised to pay the said plaintiff the price
as fixed and determined by said phiintiff, and the said combina-
tion hereinbefore referred to, contrary to the law in such case
made and provided ; and the said plaintiff avers that the said
goods and mercliandise by the said plaintiff' alleged in said dec-
laration to have been sold and delivered to the said defendant,
were none other and different than the said milk so delivered
as above set forth, and that the said agreement and undertaking
of the defendants set forth in said declaration, were none other
and dift'erent than the agreement and undertakings of the de-
fendants to pay the said plaintiff the said unlawful price for
the said milk as above set forth. (Pray judgment)
Ee plication
That the said several causes of action, and each and every
of them originated in manner and form as it has above com-
plained against the defendant, and that it, said plaintiff, is not
nor was a corporation organized and created for the purpose of
regulating, fixing and establishing the price of milk to be sold
within the corporate limits of the city of by pro-
ducers, shippers and wholesale dealers to the city dealers and
retail dealers, nor for the purpose of fixing and limiting the
amount and ciuantity of milk to be supplied and sold within the
corporate limits of the city of by producers, ship-
pers and wholesale dealers to the city dealers and retail dealers;
that it did not before the making of the promises and undertak-
ings of said defendants, set forth in its, said plaintiff's declarar
600 ANNOTATED FORMS OF PLEADING AND PRACTICE
tion, enter into and become a party to an agreement, combina-
tion, confederation and understanding with and
divers and sundry other persons, or any persons whatever, to reg-
ulate, fix and establish the price at which milk should tlience-
forth be supplied and sold within the corporate limits of the
city of by itself and said persons, so named as
aforesaid, or any persons whatever, to the city dealers and retail
dealers of milk in said city; that it had not, before the making
of the promises and undertakings set forth in its, said plaintilf's
declaration, or at any time, entered into and become a party to
an agreement, contract, combination and confederation to fix
and limit the amount and ([uantity of milk to be supplied and
sold within the corporate limits of the city of ;
that the said several causes of action, and each and every of them
did not accrue to it, said plaintiff, pursuant to an unlawful
agreement, combination, confederation, and understanding what-
ever, but did accrue to it, said plaintiff, in manner and form as
it has above complained against these defendants.
GENERAL ISSUE
1213 Nature and scope, generally
In assumpsit the general issue, in effect, denies the existence
of every material fact, or state of facts, which constitutes the
plaintiff's cause of action declared upon.--»» Under this issue,
the defendant, at common law may avail himself of any matter
which shows that the contract is illegal, by reason of infancy,
lunacy, coverture at the time the contract was entered into,
gaming and usury.-'*'^ The defendant may also show that the
contract set up by the plaintiff is not the contract that was
actually entered into; 24 1 or he may urge anything which goes
to show that the plaintiff is not etiuitably entitled to the amount
of his claim, except when it arises from intricate and disputed
accounts between various parties.-*-
Any matter which shows that the defendant was not indebted
to the plaintiff at the time of the commencement of the action
is admissible under the general issue. Thus the release or the
discharge of a surety by a valid extension of time agreed to
239 Wilson V. Wagar, 26 Mich. 452, 155, 164 (1867) ; c. 68, Hurd 's Stat.
455 (1873). 1909. p. 1240.
240 Stockham v. Munson, 28 111. 241 Weaver v. Eichards, 156 Mich.
51, 53 (1862); Snyder v. Willey, 320, 323 (1909).
33 Mich. 483, 489 (1876); Hill v. 242 Leigh v. National Hollow
Callaghan, 31 Mich. 424, 425 Brake-Beam Co., 223 111. 407, 409
(1875) ; Streeter v. Streeter, 43 111. (1906).
ASSUMPSIT 6^1
between the principal debtor and the creditor, without the
surety's assent may be shown under the general issue.-
1214 Delivery
Formerly, in Michigan, a plea of the general issue admitted
proof of the delivery of a different article from that which was
purchased-- but now it is doubtful if this defense or the de-
fense of non-delivery, is provable under that issue.^^^
1215 Fraud
Fraud practiced in the procuring of the acceptance of a draft
which is the subject of the suit, may be proved under the genera
issue in Marvland.^^*^ It is doubtful if the defense of fraud is
provable under the general issue in Michigan.^^^
1216 Nonjoinder of proper plaintiffs
The nonjoinder of proper plaintiffs may be shown under the
plea of the general issue.^"
1217 Partnership
By Illinois statutory provision a plea of the general issue in
actions upon contracts, although verified, does not put the part-
nership of the plaintiff or the defendant in issue.^^o
1218 Payment
Payment was formerly admissible in Michigan under the
general issue j^^*^ but now this defense should be set up in a
notice added to the plea.^^^
1219 Performance
Noncompletion of a contract forming the basis of an action
of assumpsit may be shown under the general issue.-
a.3 Harrison v. Thackaberry, 248 ^^-HelnU v. Cabn, 29 111. 308,
111. 512, 516 (1911)- 397 ^^Voicott" v. Hanson. 12 Mich.
244Gneb V. Cole, 60 Mich. 397, 454 (i864); Brennan v. Tiet-
402 (1886 . , ^ , „, sort 49 Mich 397, 398 (1882).
2.5 Circuit Court ^ue 7c ^^^.'.g.filt Court Rule 7c.
.-.. firnoin^- 252 Brown v. Kriser, 129 Mich.
'''^TCiUJ'SlVt Rule 7c. 448,450(1902).
248 Lasher v. Colton, 225 111. 234,
236 (1907).
602 ANNOTATED FORMS OF PLEADING AND I'KACTICE
1220 Practice
The pleas of non assumpsit and mil lid corporation are of the
same general nature pleas in bar, and under Illinois practice,
may be pleaded at the same time.-'''
253
FORMS
1221 District of Columbia
1. For a plea to the plaint ilT's declaration, defendant says
that it never promised as allegi-d.
2. And for a further plea to plaintiff's, etc. (Add special
matter)
B\j executor
That the said did not. in his life time, undertake
and promise in nuiuner and form as is in said declaration alleged.
1222 Florida
, defendant, says that he was never indebted as
alleged.
1223 Illinois
And the said defendant, , by , h . . . .
attorney, , come., and defend., the wrong and
injury, when, etc., and say (as to the amended declaration) that
he did not (neither did either of them) promise and undertake
in manner and form as the plaintiff., ha.... above thereof
complained against ..h....; and of this ..he.... put
sel upon the country, etc.
Admitting part of claim
(Commence and conclude as in Section 1223) That as to all
the several supposed promises in the said declaration mentioned,
except as to the sum of dollars, parcel of the sev-
eral sums of money in the said declaration mentioned, says that
he did not promise in manner and form as the plaintiffs have
above complained against him, the defendant.
1224 Maryland
1. That the defendant never promised as alleged.
2. And for a second plea, the defendant says that he was
not indebted as alleged.
253Hoereth v. Franklin Mill Co.,
30 111. 151, 157 (1863); Sec. 46,
Practice act 1907 (111.).
ASSUMPSIT 603
1225 Mississippi
Comes the defendant, , and for a plea to the
declaration filed against him in above styled cause says that he
did not undertake and promise and is not indebted to the plain-
tiff as alleged in said declaration ; and of this he places himself
upon the country.
1226 Virginia
And the said defendant, by its attorney, comes and says, that
it did not undertake and promise in manner and form as the
said plaintiff* hath above complained. And of this the said
defendant puts itself upon the country.
1227 West Virginia
The defendant, , comes and defends the wrong
and injury when, etc., and says that he did not promise in the
majiner and form as the plaintiff has above thereof complained
against him; and of this he puts himself upon the country.
P- d.
NOTICE WITH GENERAL ISSUE AND GROUNDS OP DEFENSE
1228 Check, plaintiff not innocent holder, notice (111.)
The phiintiff. . luMvin will take notice that upon the trial of
this cause the defendant. . will offer proof of the following facts
as a part of defense under said general issue ;
that at the time of the drawing of said check in said declaration
mentioned on C, bankers, the defendant. . w. . . . a general de-
positor. . in said bank, and had sutHcient moneys therein to pay
said check ; that for convenience caused said
check to be certified by said C, which was done by said bankers
and then and there, on the day of ,
19. ., delivered said certified check to D, of in
payment of accepted draft drawn upon
for the sum of dollars, which draft was in the
hands of said D for collection against this defendant.
This defendant. . further say. . that on the and
days of there was what is known
as a clearing-house association for banks in the city of
through which various checks drawn upon various banks
doing business in the city of , were cleared and
paid; that the plaintiff... A, was a member of said clearing
house a.ssociation, and as such for a sufficient consideration
had contracted with said C, non-member. . of said clearing-
house association, to act as their clearing house agents, and
to pay all such checks as would be drawn against said C, by
its depositors, among others, this defendant. . ; that in accor-
604 ANNOTATED FORMS OF PLEADING AND PRACTICE
dance with this arraugemeiit said D in due course of ch-aring-
house business, on said day of , pre-
sented said check for payment at said clearing-house, and the
said check was paid to said D in due course of clearing-house
business by said C, on behalf of said H, and so stamped as paid ;
and this defendant. . in due course of business received from
said D the accepted draft for which said check was delivered to
it by this defendant . . .
That at no time did said check become the property of said
plaintiff. . ; that when said check thereafter remained in the
possession of said plaintiff. . it held it, not as holder or owner
thereof, but as the custodian of said paid check for C ; and
this defendant. . says that at the time of the payment of
said check by said plaintiff. . on behalf of said C, there was
still sufficient money on deposit for the use of tiiis defendant
to pay for said check, and that as to the extent of the amount
represented by said check, said plaintiff. . has the right to
demand from said C the amount represented by said check;
that said plaintiff. . is not an innocent holder of said check,
but received and paid the same as the agents of C, and now
hold., the same as creditors of said C, without any liability
accruing to it from this defendant... Wherefore, this defen-
dant. . prays judgment on . . behaJf, etc.
1229 Grounds of defense (Va.)
The said defendant by his attorney, at the request of the
plaintiff, files this, his statement of grounds of his defense
to this action.
1. The defendant is not liable in any amount whatever
to the plaintiff
2. The plaintiff proposed to build a in
question within days from the day of
and the purchase price of dollars was to be
liquidated at the rate of per month beginning
with the delivery of , and the plaintiff was to
furnish all materials, and labor for the construction of the
same, and was to submit before beginning work on said
to the defendant, for his approval and accep-
tance, specifications and plans ; all of which the plaintiff utterly
and wholly failed to do.
And other grounds which may be assigned at the trial.
Dated, etc.
By
his attorney.
ASSUMPSIT 605
INSURANCE
1230 Generally
In Michigan a special rule of court requires the defendant
company to give notice of all misrepresentations or warranties
not contained in the policy of insurance that it expects to urge
in defense on the trial; and if no such notice is given, the de-
fense is waived.-^^ A defendant insurance company must con-
fine itself to the specific fraud that is alleged in its notice of
special defense.-^^
1231 Cancelation and other defenses, notice (Mich.)
To the above named plaintiff, and to his attorney:
You will please take notice that on the trial of the above
entitled cause, the defendant will give in evidence, and insist
in its defense, under the general issue above pleaded, the
following facts and circumstances, tending to show and show-
ing that the policy mentioned in plaintiff's declaration was
canceled and null and void before the occurring of the fire
and loss mentioned in said declaration, and for the following
among other reasons:
1. Because said policy numbered of
, of , was ordered canceled, and was
canceled, on or about the day of ,
19..; that verbal notice of such cancelation was served upon
said , plaintiff, of , by special
agent, representing the defendant company,
prior to the time above mentioned, and said verbal notice
was confirmed by notice in writing sent to said
by registered mail, and of the receipt of which said written
notice this defendant, by its agents, hold the post office re-
ceipt of the said Said notice having been given
pursuant to the provisions of the policy following: "This
policy shall be canceled at any time, at the reriuest of the
insured; or by the company, by giving five days' notice of
such cancelation. If this policy shall be canceled as herein-
before provided, or become void, or cease, the premium
having been actually paid, the unearned portion shall be re-
turned, on surrender of this policy, or last renewal, this com-
pany retaining the customary short rates; except that when
this policy is canceled by this company, by giving notice, it
shall retain only the pro rata premium."
2. That said policy at the time of the fire was null and
void, not only because it had been duly canceled, but because
254 Home Ins. Co. v. Curtis, 32 Pro. Assn., 118 Mich. 431, 432
Mich. 402, 403 (1875); Hann v. (1898); Circuit Court Rule 7d.
National Union, 97 Mich. 513, 521 -'55 Panfjborn v. Continental Ins.
(1893); Baker v. Michigan Mutual Co., 62 Mich. 638, 640 (1886).
606 ANNOTATED FORMS OF PLEADING AND PUACTICE
no consideration whatever, was ever received by the defendant
company for it, and that the company never received any
premium on account of the issuing of said policy.
3. That said policy was null and void because the same
was fraudulently issued, and the issuing and delivering thereof
w'as procured by means of fraud and deceit ; that one ,
who had been agent for other insurance companies, and who
had issued policies and collected premiums for such com-
panies, and who had not remitted to his companies, procured
himself to be appointed agent for this defendant, and also for
the , of , , and then
fraudulently and deceitfully conspiring with the agents of
said former companies, canceled said first policies and rewrote
the risk aforesaid in defendant company, without remitting
any jDremium therefor to defendant company ; and that as
soon as the matter came to the knowledge of defendant com-
pany, by its agents at said policy was canceled
as set forth in the special notice above mentioned; and said
had full notice of said cancelation, and con-
sidered and treated said policy as null and void, and took other
insurance instead.
4. The defendant will also show under the general issue
above pleaded, that the alleged proofs of loss were incomplete,
as they do not show a detailed statement of the loss, nor does
the same contain a certificate of the magistrate or notary public,
and also that the amount of the loss is not truly stated therein.
5. The defendant will also show under the general issue above
pleaded, that said property mentioned in said policy was fraudu-
lently, grossly overinsured, and even had the policy not been
canceled it would have been null and void.
Yours, etc.
Attorneys for defendant,
1232 Cause of fire, notice (Mich.)
You will please take notice that on the trial of this cause,
the said defendant will give in evidence under the general issue
above pleaded and insist in its defense that if the property
mentioned in the said plaintiff's declaration and for the re-
covery of which this suit is brought, was damaged or destroyed
by fire and which said property it is alleged was insured against
loss or damage by fire by the said defendant, that said fire was
caused, started and set, either by the said defendant or at his
instance or request, and that said property if it was damaged
ASSUMPSIT 6*^ '
nr destroyed by fire, was damaged or destroyed for the reason
?hat the p^lalntiff either set fire to it or caused the same to be set.
Dated, etc
To • • •
Attorneys for planititt.
1233 Increased hazard, etc., notice (Mich.)
You will please to take notice that on the trial of this cause
the said det-endant will give in evidence and insist under the
leneral issue above pleaded that at the time said Proper y for
wS the plaintiff seeks to recover in this case and which it is
Til ged in the declaration of said plaintiff --^^--^^'me^,
^n id defendant, against loss or damage by fire at the time it
"s so deloyed,!f it ever was so f «tro>.d, said plain^^^ was
illegally engaged in the business of a retail l^^l^^^^^^^^^^^^^^i^^
ra?v to the laws of the state of Michigan and contrary to the
erms of the policy which it is alleged the plaintiff had upon
sad property at the time it was damaged and destroyed by fire,
or upon^a large portion of said property, whereby, said insur-
ance policy upon^vhich this suit is brought, If there ever was
anv such policy, had become and was absolutely null and void
onri nf nn force or effect whatsoever. . , <• xu-
2 You wilTplea^^^ take further notice that on the trial of this
cause the sad defendant will give in evidence and insist under
Se^enmd issue above pleaded, that a large portion of the prop-
erty wli the plaintiff seeks to recover for in this case, was
distilled brewed' fermented and malt \'^ ^;^: ^
ihit said plaintiff was a retail iKiuor dealer undei tne laws
o the United States and that the special tax under the laws of
?he United States upon the business of retail li-iuor dealers,
become due and pa^'^lble on the first day of July of each year
and Xt s'id plafntiff failed and neglected to pay said special
tax which became due and payable on the first da> ot • • • ,
19 and that therefore, being engaged in the business of a
retail Uquor dealer as aforesaid, said plaintiff was carrying on
sad business unlawfully, at the time said property ^^ as
destroyed by fire as alleged in the declaration of said p aintiff
fn his cause if it ever was so destroyed. By reason whereof,
the hazard of insurance against loss or damage by fire upon
said property was increased, contrary to a condition m said
nolcy'vS provides, -Or if the hazard be increased by any
means w in [he control or knowledge of the insured, ' and that
Taid hazard was increased by means within the control or knowl-
edge of the said plaintiff. ^Vherefore said policy became and
ir entire'v nul and void at the time said property was
destroyed as alleged in the plaintiff's declaration m this cause,
if it ever was so destroyed. . . ,
3 You will please to take further not.ee that on the tnal
of this cause, the^aid defendant will give m evidence and insist
608 ANNOTATED FORMS OF PLEADING AND PRACTICE
in its defense under the general issue above pleaded, that if
said defendant ever made and delivered to the said plaintitf
the insurance policy mentioned and described in said plaintilf's
declaration in this cause, the same was made and delivered by
the said defendant upon the express condition therein set forth,
that, "This entire policy shall become void if the hazard be
increased by any means within the control or knowledge of
the insured." That at the time said policy was issued and
delivered by the said defendant to the saitl i)laintiff, if any
such policy was ever issued and delivered, as aft)resaid, the said
plaintiff was engaged in the business of a retail dealer of spirit-
uous or intoxicating liquors and brewed malt and fermented
liquors and was selling and disposing of said li(iuors by the
drink and in quantities of three gallons or less or one dozen
quart bottles or less at any one time, at the village of
in said county. That all the property mentioned and described
in the declaration in this cause and which is averred to have
been insured by said insurance policy, was then situate in the
building in which said retail li(iuor business was carried on by
said plaintiff as aforesaid, and in the adjoining and connecting
additions thereto, mentioned in said plaintiff's declaration in
this cause, Avhich said building and tiie ailjointing additions
thereto were then occupied by said plaintiff as a sidoon in whicii
said liipior business was carried on by him and as the dwelling
house of said plaintiff. That on, to wit, the day of
, 19.., the said plaintiff neglected, failed and
refused to pay the annual tax upon said business of retail lifjuor
dealer at the village of , aforesaid, and said annual
tax upon sjiid business of retail li(|Uor dealer was not paid by
the said plaintiff' but was still unpaid at tiie time the said plain-
tiff alleges that said property was burned, consumed and
destroyed by fire, to wit, on the day of 10. . .
By reason whereof, the hazard assumed and undertaken by
said defendant when said insurance policy w-as issued and deliv-
ered, was increased by means within the control or knowledge
of the said plaintiff and without the knowledge of the said
defendant, and said insurance policy if any was ever issued by
the said defendant to the said plaintiff, became and was void
at the time said property in said policy of insurance mentioned,
was burned, consumed and destroyed as averred in said plain-
tiff's declaration in this cause, to wit, on the
day of ,19...
1234 General defenses (fire insurance) notice (111.)
The plaintiff in the above entitled cause will take notice, that
the defendant, under the plea of the general issue, will rely
on and prove the following matters of defense, namely :
1. That the plaintiff did not at the time of the beginning
of this suit have any right, claim or demand of any kind or
ASSUMPSIT 609
description whatsoever against the defendant, except whatever
right, claim or demand the plaintiff then had, if any, against
the defendant under and by virtue of a certain policy of insur-
ance issued by the defendant to the plaintiff, bearing date the
day of ,19...
2. That the plaintiff did not have any interest in the prop-
erty insured by the said policy, or any part thereof, at the time
of the fire mentioned in the declaration in said cause.
3. That the due proportion of the loss or damage sustained
by the assured, provided by said policy to be paid by the defend-
ant did not and does not exceed the sum of dollars.
4. That the amount of loss or damage to the plaintiff by
reason of such fire, estimated according to the actual cash value
of the insured property at the time of the fire, did not exceed
the sum of dollars, and that the amount it would
then cost to repair or replace the same, deducting therefrom a
suitable amount for deterioration from use or otherwise, did not
exceed the sum of dollars.
5. That the said plaintiff, did not give notice in writing
to defendant of the said loss, immediately after the said fii-e,
and did not render to the defendant a particular account of said
loss in writing precisely stating the time, origin and circum-
stances of the fire, the occupancy of the building insured, or
containing the property insured, other insurance, if any, and
the copies of all policies and the value and ou-nership of the
property, or the amount of loss or damages, according to the
terms, conditions and provisions of said policy.
6. The said plaintiff did not, according to the terras of said
policy, place the property damaged by the said fire in the best
possible order, and make an inventory thereof, naming the
quantity and cost of each article; and no appraisement was had
or requested by the said plaintiff' as re(iuired ])y said policy.
7. The said"^ loss and damage to the plaintiff by the said fire
was caused by the neglect of the said plaintiff to use all prac-
ticable means to save and preserve the insured property from
damage at and after the said fire, and by the neglect and fail-
ure of the plaintiff to observe the laws and ordinances made
to prevent accident by fire.
8. The said loss and damage to the plaintiff by the fire afore-
said, was caused and produced by the working of carpenters
or other mechanics in the said building, altering or repairing
the said premises without the permission of the defendant for
the doing of such work being first endorsed in writing on the
said policy.
9. That said policy of insurance was canceled and annulled
by the defendant under the terms and provisions of said policy
prior to said fire.
10. That the said plaintiff in his application for the said
policy, made erroneous representations as to the said insured
property, which were then untrue, and also omitted to make
610 ANNOTATED FORMS OF PLEADING AND PRACTICE
known to the defendant facts within his knowledge material to
11. After the issue of the said policy the plaintiff obtained
other insurance on the said insured property without the con-
sent of this defendant endorsed on said policy.
12. Said risk was increased after the issue of said policy by
means within the control of the said plaintiff.
13. The premium mentioned in said policy was never paid
by the plaintiff, and the defendant never waived such payment.
14. Before said fire, the defendant demanded of plaintiff
the return of said policy for cancelation, and offered to pay the
return premium due, upon such cancelation, according to the
terms of said policy : but said plaintiff refused to comply with
such a demand.
15. After the issue of the said policy, and before the said
fire, the title to the said insured property, and the possession
thereof, were changed by legal process, judicial decree and
voluntary transfer or conveyance ; and at the time of said fire,
said property was not owned by the plaintiff.
16. After the issue of the said policy and before the said
fire, the title, interest, location and possession of said insured
property was changed in divers ways other than succession by
reason of the death of the assured.
17. The said policy was assigned by the plaintiff prior to
the said fire without the consent of the defendant endorsed
thereon.
18. At the time of the issue of said policy and also at the
time of the said fire, the said plaintiff was not the entire and
sole owner of the said insured property.
19. At the time of the issue of the said policy, and at the
time of the said fire, the plaintiff was not the owner in fee simple
of the land on which said insured building then stood.
20. At the time of the issue of said policy, the said insured
property was mortgaged without notice to this company, and
without the consent of the defendant endorsed on said policy.
21. After the issue of the said policy the said property became
mortgaged without notice to this defendant and without the
consent of this defendant endorsed on said policy.
22. The said insured property was at the time of the issue
of said policy a manufacturing establishment, and so remained
to the time of said fire, and the same was run by the plaintiff
after the issue of said policy over time and extra time without
special agreement therefor endorsed on the said policy.
23. After the issue of the said policy and before said fire,
gun powder, fire-works, phosphorus, camphene, naphtha, ben-
zene, benzole, chemical, crude and refined coal oils, and earth
oils, or one or more of the said articles were kept and used by
the plaintiff on the said insured premises without the written
consent of the defendant, contrary to the provisions of the said
policy.
ASSUMPSIT 611
24. After the issue of the said policy and before the said
fire, said plaintiff used unclosed kerosene lamps on the said
premises, and the same were so used on and in the said prem-
ises by the plaintiff without the knowledge or consent of the
defendant.
25. The said insured premises became vacated after the issue
of the said policy without notice to the defendant and without
its consent endorsed thereon,
26. The plaintiff did not furnish to the defendant at its
office, notice and proof of the said loss sixty days prior to the
beginning of this suit.
27. Said plaintiff failed to comply with the provisions of
said policy concerning the giving and furnishing of notice and
proofs of loss.
28. The said plaintiff wholly failed to keep and perform or
comply with the terms, conditions and provisions of the said
policy and every of them on his part to be kept and performed
or complied with.
29. No notice of loss under the said policy was received at
the office of the said defendant as much as sixty days before
the beginning of this suit.
30. No proofs of loss under said policy were received at the
office of this defendant as much as sixty days before the begin-
ning of this suit.
31. The said insurance was terminated at the request of this
defendant, before said fire.
32. The said insurance was terminated at the option of this
defendant, and notice of such termination Avas given to the
defendant by the plaintiff, before the said fire, and the defend-
ant before the said fire tendered the ratable proportion of the
premium for the unexpired term of the policy.
33. The said policy was canceled at the option of the defend-
ant, and notice of such cancelation was given to the plaintiff
by the defendant before said fire, and the defendant was ready
at the time of such cancelation to refund to plaintiff a ratable
proportion of the premium for the unexpired term of the said
policy and then desired so to do, but was then unable after dili-
gent effort to find the said plaintiff' for the purpose of refund-
ing or tendering such ratable proportion of such premium.
34. The plaintiff has not complied with the terms, conditions
and provisions of the said polic}^ of insurance or any part thereof
constituting conditions precedent to the liability of this defend-
ant under said policy.
35. The interest of the said plaintiff in the said insured
property was at the time of the issue of the said policy less
than the entire and sole ownership thereof, which fact was not
made known to the defendant, and was not waived by the
defendant.
36. All and every of the contingencies expressed in said
policy as contingencies or events under which the defendant
612 ANNOTATED FORMS OF PLEADING AND PR-\CTICE
should not be liable thereon, or thereunder, happened or occurred
prior to the beginning of this suit.
37. No notice of such loss or damage by tire, or of said
fire was given in writing, or otherwise, to the defendant within
sixty days after said fire.
38. None of the terms, conditions or provisions of said poliey
have been waived by the defendant.- ^«
(Michigan)
To
Attorney for plaintiff.
Sir: Please to take notice that on the trial of this cause the
above named defendant will give in evidence, under the gcntral
issue above pleaded, and insist in its defense, that the interi'st
of the insured in the property mentioned in policy No ,
agency at , Michigan, amount of policy $ ,
expiring , VJ.., is and was other than uncon-
ditional ajid sole ownership.
2. And the said defendant will further give in evidence
and insist on said trial that the subject of insurance and the prop-
erty covered by said policy after the issue thereof, became incum-
bered by cliattel inortgafre and otlierwise without the consent
or knowledge of the company.
3. Defendant will further show that there was a change in
the interest, title and possession of the subject of insurance
without the consent or knowledge of the company.
4. Defendant will further give in evidence and insist in its
defense, that the insured concealed and misrepresented material
facts and circumstances concerning the insurance, both before
and after the loss.
5. Defendant will further show that there has been false
and fraudulent swearing concerning and touching matters and
things relating to the loss sustained by the insured.
6. Defendant will further show that the insured made false,
fraudulent and dishonest representations and statements, in
regard to the property covered by the policy, and the loss sus-
tained thereunder.
7. Defendant will further show that no correct proof of loss
has ever been served upon the company.
Dat€d
Yours, etc.
2S6The reforegoing notice is re- policy: the modern tendency is to
produced merely to give au idea of plead and urge only such defenses
the possible defenses that might be as are strictly applicable to the par-
raised in an action on an insurance ticular case.
ASSUMPSIT ^1*^
1235 Other insurance, notice (Mich.)
To
^"pieWe-totaUe.notieethatonthe ^loftus^au^^^^^
defendant wi 1 give "^^'."f J^VeTeSrt ■ ade and delivered
tZ s-; d tl iu'^ il -e .t/ant '/o.icy mentioned -^ described
Si^eSd deS^ ^^'^r^'^^vB
?W ''This entire policy unless otherwise provided by a^iee
,„,,, .,u.,-eof in a„ot.,e.. "^:^^^:::;I^Z;X^;.:i^ poUey
Vasupon said property for tl.e P-'n--'',";' •;;;;»''--V,;;rdTnd
thereon, at the time the same was burned, consumeu ami
.^troved bv fire, if it was ever burned, consumed and de-
ri w^s wtlb uull and v^i,! and of no validity whatever.
1236 Set off, notice (111.)
And the said defendant. . hereby give, notice that under the
abov^ plea . will also oiler evidence of the tollowmg claim
against the plaintiff. .. ^^^
sa'l pLuu'i" .tnd'lhe said-difendanr' entered into the-writ-
ten agreement which is set out as a contract m wTitmg in the
ten agreemt ^^^^^^ ^^ ^^^^ declaration herein, as follows, to wit ;
^'lirin ThT^oiitruction of the said plant mentioned in
thi said contract the said plaintiff .. represented and stated to
tie sad defendant., that the operations and efficiency ot the
a d plant^uld be greatly P™»<"<^d,-;J,,^»/f ;^,^,^i,f ^/e^
"^^-^^Treta^d"^'^''""" J~ec«lwi«:^^^^^^^
"aid p ant was to be ru„:-ana thJt such active co-operation, as-
G14 ANNOTATLI* I'ORMS OF PLtL\DlNG AND PRACTICE
sistance and good will of said brew master would he scciirod by
the payment to said brew master of the sum of one-eighth of
one cent per pound for each pound of carbonic acid gas manu-
factured and sold from the brewery of the said brewing com-
])any in , , and that if the said auiounts
should be delivered to . .h. ., the said plaintiff. ., . .he. . would
as the agent of said defendant. ., deliver the same to the said
brew master.
That the said defendant. . thereupon relying upon said state-
ment of the said j)laintitl'. . delivered to tlie said plaintilf. . in
addition to the compensation of one-cpiarter of one cent i)er
pound for each pound of carbonic acid gas sold from the said
brewery, provided for in said above written contract to be paid
to plaintiff.., the further sum of one-eighth of one cent per
pound to be paid and delivered by said plaintiff. . as its agent
to said brew master.
That said deliveries of said amounts aforesaid began in the
month of , and thereafter the said defendant. .
continued to deliver money to the amount of one-eighth of one
cent per pound until and including the month of
That on the day of , the said brew
master, theretofore employed at said brewery ceased to be longer
employed at the said brewery and another brew master was
thereafter employed, but the said defendant., continued to
deliver to the said plaintiff. . the said sum of one-eighth of one
cent per pound upon each pound of carbonic acid sold from said
brewery, and from the date last aforesaid, to wit, ,
the said plaintiff. . having as the agent of said defendant. . as
aforesaid, received the additional sum of one-eighth of one cent
per pound upon said carbonic acid gas sold by said brewery,
for the purpose of delivering the same to the said brew master,
nevertheless did not deliver the same to said brew master, but
instead thereof appropriated the same to . .h. . own use. That
the said brew master had no contract or aerreement of any nature
whatsoever with the said defendant. . for any payment to
of said amounts, and tiie same were delivered to said
ptaintiff . . by defendant. . with the belief on the part of the de-
fendant. . that said sums were being paid merely as a gratuity
to said brew master.
That the items and account of said deliveries of money by
said defendant. . to said plaintiff. . and the amount thereof
are as follows: (Set forth account).
That during all the period aforesaid the said plaintiff. ., well
knowing that the said amounts of one-eighth of one cent per
pound were being delivered to . .h. . by said defendant. . with
the belief on part that said amounts were being paid
by plaintiff. . as agent to said brew master, nevertheless
concealed from said defendant., the fact that ..he., w....
not paying and did not deliver said amounts to said brew master,
and the defendant. . did not discover that said plaintiff. . had
not delivered said amounts, but had appropriated the same to
ASSUMPSIT
615
. .h. . own use, until, to wit, the month of .......... , 19. ., and
thereupon the said defendant, .demanded of the said plaintitt. .
that repay to said defendant. . the amounts so retained
by plaintiff.., but the plaintiff., refused so to do, claiming
that ..he., w the owner., of said amounts and entitled
to retain the same. . -, i.x j ^ xu -^i
That the said plaintiff. . thereby became indebted to the saia
defendant. . for money had and received to and for the use of
the said defendant . . in the sum of dollars, and
beint' so indebted the said plaintiff. . became obligated to pay
the 'same to the said defendant.., but the said plaintiff..,
although heretofore often requested to pay the same to said
defendant.., ha., not paid the same nor any part thereof to
said defendant. ., and retain. . the said amounts in . .h. . own
hands, to the damage of the defendant. . in the sum ot
dollars. , , • -,
Wherefore the said defendant. . pray. . that the said amount
may be set off and allowed to the said defendant. . as against
anv sum found due to the plaintiff. ., if any be found, and m
satisfaction thereof, and that for the excess of said set off over
any sum found to be due to the plaintiff. . from the defendant. .
the said defendant., may have judgment against plaintiff..,
with costs herein incurred.
(Michigan)
Please to take notice, that the said defendant. . will, on the
trial of this cause, insist upon and give in evidence under the
general issue above pleaded, that before and at the time ot the
commencement of this suit, the said plaintiff and
still indebted to the said defendant. . in the sum
of .' ' '.". . . dollars, for the price and value of goods before
then "sold and delivered by the defendant., to the plaintiff..
at request. And in a like sum for the price and value
of work then done, and materials for the same provided by the
defendant. . for the plaintiff. ., at re<iuest ; and in a like
sum for the price and value of work then done by the detend-
ant for the plaintiff. ., at request; and in a like sum
for the money then lent by the defendant. . to the plaintiff. .,
at request; and in a like sum for money then paid by
the' defendant., for plaintiff.., at request ; and in a
like sum for monev then received by the plaintiff. . for the use
of the defendant.*. ; and in a like sum for money then found
to be due from the plaintiff. . to the defendant. ., on an account
stated between them ; and in a like sum for the use of money
then due from the plaintiff., to the defendant.., and by the
defendant., forborne to the plaintiff.., at request
Which said several sums of money, or so much thereof as wiU
be sufficient for that purpose, the said defendant . . will set off
and allow to the plaintiff. . against any demand or demands of
GIG ANNOTATED FORMS OF PLEAUINU ANi> I'KALTlCi:
said plaintiff. . to be proved by on said trial, and
have the balance certilied in favor.
Dated, the day of , 1
Yours, etc.,
Attorney for defendant . .
To
Attorney for plaintiff.--'''
1237 Use and occupation
Under the general issue to tlie common counts for use and oc-
cupation, the defendant may slunv the suljstitution of a new
agreement for the one sued upon. In .Michigan, if daiiiiig.-s
are claimed by way of recoupment, notice of such a claim must
be added.-^* So, the defense that the premises were untenant-
able cannot be shown in that state under the general issue
alone.-^*^
AFFIDAVIT OF DEFENSE Oil MERITS
1238 Illinois, necessity
A plea may i)e stricken from the lihs for want .if an atVi-
davit of merits; and in ease tlir plea is stricken from the liles,
the plaintiff is entitled to judgment by di-fault.-'^^'
1239 Illinois, affidavit
(Venue)
that . .he
being first duly sworn depose., and say.,
the defendant. . in the above entitled cause.
257 In case of sot off founded >ipon
an open account or account stated,
the defendant may annex to his
plea or notice of set off, a copy of
the account and may make an affi-
davit, by himself or by someone in
his behalf, showing the amount or
balance claimed by him, or that
such amount or balance is justly
owing and due to him, or that he
is justly entitled to have such ac-
count or balance set off against the
claim made by the plaintiff; a copy
of which account and affidavit, with
a copy of the plea and the notice,
must be served upon the plaintiff
or his attorney. (10191), C. L.
1897 Mich.
Upon the making of the forego-
ing alTi<lavit, the [dnintiff, or some-
one in his behalf must, within ten
days after service of a copy of the
defendant's plea and affidavit, in
circuit courts, and before trial in
other cases, make an atlidavit de-
nying said set otf or any portion
thereof and his indebtedness or li-
ability thereon, and must serve a
copy of sui'h affidavit upon the de-
fendant or his attorney. (10191),
C. L. 1897 (Mich.).
25'*Conkling v. Tuttle, 52 Mich.
6:!0. 6.32 (1884).
259 Holmes v. Wood, 88 Mich.
435, 438 (1891).
260 New York National Exchange
Bank v. Keed, 232 111. 123, 125
(1908).
ASSUMPSIT ^1^
and that . .he. . verily believe. . that . .he. . ha. . a good defense
upon the merits as to the whole of the said pla.ntitt. . demand.
Defendant.
Subscribed, etc.
Notary Public.
Co-defendant
(Venue) ^^,^^ ^^^^ ^^^^^^ ^^^^^^^ deposes and says that
he "is one of 'the defendants in the above entitled cause and makes
this affidavit for himself and for and on behalt ot and at the
special reciuest of his said co-defendant, ...........; attiant
further savs that he verily believes that he and said . . . .....
and each of them have a good defense on the merits to the whole
of the said plaintiff's demands.
Subscribed, etc.
1240 M?.ryland
I hereby certify that on this clay of . • ,
19 before me, the subscriber, a justice ot the peace ot the
site of Maryland, in and for county, personally
nnneired , administratrix c. t. a. ot • .,
deceased' and' made oath in due form of law that every plea
so pTeldea by her is true, and that she does not adniit the plain-
tifrs claim, 'or any part of the same, to be due and owing and
that the whole amount of said claim is disputed; that she has
a bona tide intention of making defense and contesting the right
of the plaintiff to judgment in this cause; that she does not
r sis th ntry of judgment for delay or for the purpose of
givingpriority to others, and that she is advised by counsel to
tile said pleas.
Justice of the peace.
Counsel's certificate
This is to certify that I advised to make the
foregoing oath, and to tile said plea.
Defendant's attorney.
618
ANNOTATED FORMS OF PLEADING AND PRACTICE
i-i ^
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S
Co-defendant
(Venue)
On this clay of . , 19 . . , before ine,
the subscriber, a of the state of Maryland, in
and for county, personally appeared ,
one of the above named defendants and made oath in due form
of law, that every plea above pleaded is true, that no i>art of
the plaintiff's demand is admitted to be due or owing, but that
the whole of plaintitf's claim is disputed; and further that he,
the affiant, believes the defendants will be ai)le at the trial of
the cause to produce sufficient evidence to support the said plea
and that he is advised by counsel to file said plea.
(Official character)
Counsel's certificate
I hereby certify that we advised the defendants making the
above oath and tiling said plea to the same.
Attorneys for defendants.
Corporation
(Venue)
On this day of , 19 . . , before me,
the subscriber, a notary public, in and for the city and state
aforesaid, personally appeared , president and
agent of the defendant corporation in the above entitled cause,
and made oath in due form of law that every plea so pleaded
by the defendant is true ; and further, that neither the defend-
ant nor himself as president and agent of said defendant cor-
poration admits any part of the plaintiff's claim to be due
and owing, but disputes the whole of said claim; and further,
that he, the affiant, verily believes that the defendant will be
able at the trial of said cause to produce sufficient evidence to
ASSUMPSIT 619
support the said pleas as to the whole amount of the plaintiff's
claim disputed by the defendant and himself as president and
agent as aforesaid ; and further, that the defendant and him-
self as president and agent as aforesaid are advised by counsel
to file the said pleas ; and he further swears that he is the presi-
dent and agent of the defendant corporation and is duly author-
ized to make this affidavit, and has personal knowledge of the
matters tlierein stated.
Witness my hand and notarial seal.
(Seal)
Notary Public.
CounseVs certificate
I hereby certify that I advised the defendant corporation
and the president and agent thereof in the above entitled cause
to file the foregoing pleas and to make the foregoing affidavit.
Attorney for defendant.
1241 Michigan, necessity
In actions upon open accounts, or accounts stated, the de-
fendant must file with his plea an affidavit made by himself or
his agent, denying the amount claimed to be due; and he must
serve a copy thereof upon the plaintiff, or his attorney, if the
plaintiff has filed with his declaration or process an affidavit
of amount due and a copy of the account and has duly served
them upon the defendant. 2°^
1242 Mississippi
(Venue)
Personally came before me the undersigned officer in and
for county in the state of Mississippi, ,
the defendant in the above styled cause who makes oath that
the account sued on in this cause is not correct in that (Set
forth special matter constituting the errors).
Sworn, etc.
1243 Virginia
(Venue)
being first duly sworn, deposes and says that
he is the president of the defendant in the above
261 (10191), C. L. 1897.
620 ANNOTATED FORMS UK I'l.K ADING AND I'KACTICT.
entitled action, and its duly authorized agent in this behalf,
and that he is familiar with all the transactions between the
plaintift' and defendant in said action, and that he verily believes
that the plaintiff is not entitled to recover anythinf? from the
defendant on the claim asserted in said action.
Subscribed, etc.
1244 West Virginia
(Venue)
, being first duly sworn, says, that he is the
defendant in the above styled action and that there is not. as
he verily believes, any sum due from him to the said plaintilf
upon the demand or demands stated in the said plaintiff's
declaration.
Taken, subscribed and sworn to, ete.
BILL OP PARTICULARS
1245 District of Columbia
Dr.
To
To (Give itemized statement of account or demand),
1246 Illinois
To Dr.
To money paid to satisfy judgment for damages in the case
of ' V
Interest on money paid to satisfy said judgment
after, etc.
Total
Plaintiff's attorney.
1247 Maryland, demand
The defendants by their attorney demand the
particulars of the plaintiff's claim,
1248 Maryland, cross-motion
The plaintiff by his attorney, moves that the
defendant's demand for a bill of particulars be not received,
because the declaration in this case is based on an agreement
under seal which is embodied in the same, and for other reasons
to be made known at the hearing.
ASSUMPSIT
621
1249 Michigan, demand
Now comes the above named defendant by , its
attorney, and demands a more specific bill of particulars ot
plaintiffs' claim for the recovery of which suit is brought.
Attorney for defendant.
Dated, etc.
To > .
Attorneys for plaintiffs.
1250 Michigan, notice and particulars
To the above named defendant :
Take notice, that a bill of particulars of the demands of the
plaintiff under the money counts is given below.
Plaintift"s attorney.
To Dr , 19. . .
To money paid under protest upon a pretended tax, to release
property of said company from a levy made for the collection
of said tax $
Interest thereon from
1251 Mississippi, application
(Venue)
Personally appeared before me the undersigned authority
who makes affidavit in the above styled cause
that for the purpose of defense and the trial of said cause, it
is necessary that the plaintiff be more specific in his bill of par-
ticulars and items going to make up the damage of
dollars for which plaintiff is suing. He, therefore, prays that
the court mav require plaintiff to file a more complete bill of
particulars specifying the items, facts and circumstances relied
upon to show that defendant failed or refused to carry out and
complete his contract, specifying time and places where the
repeated demands alleged to have been made on defendant were
made; that the plaintiff file a more complete bill of particulars
for what work plaintiff had to pay the dollars
alleged to have been paid for completing the work on said
building ; a more complete bill as to the labor
for which said dollars, or any part thereof was
paid ; and a more complete bill of materials for which the
622 ANNOTATED FORMS OP PLEADING AND PRACTICE
dollars, or any part thereof was paid. (Set forth as
many other points upon which information is desired as the
case is susceptible).
Defendant.
Sworn, etc.
1252 Mississippi, particulars and affidavit
(Set forth account in the usual form which verify as follows) :
(Venue)
Personally appeared before me the undersigned, a notary pub-
lic of said city, county and state agent for
, who being duly sworn, says that the account hereto
attached for dollars is a true statement of the
amount paid out by this affiant, as agent for
on the contract of and that the same is correct
as stated, and that the said sum is due from the party against
whom it is charged, and that no part of it has been paid.
Sworn, etc.
1253 Mississippi, counter-affidavit
(Venue)
Personally appeared before me the undersigned authority,
who makes affidavit that he is in no way indebted
to for any of the sums set out in his bill of par-
ticulars in the above styled cause ; that he does not owe the
amount therein set out, to wit (enumerate items not owing.)
Affiant further says that he is not indebted to the said
in any sura whatever, that the above set out account is
in every particular incorrect, and that he does not owe any or
either of the items therein mentioned.
Sworn, etc.
VERDICT
1254 Florida
We, the jury, find for the plaintiff and assess his damages
at dollars with interest from
till date, and in addition thereto the sum of
dollars as a reasonable attorney's fee.
So say we all.
Foreman.
ASSUMPSIT 623
1255 Illinois, requisites
In assumpsit it is not necessary that a verdict should be in
writing, but the same may be announced by word of mouth
in open court, by the foreman of the jury .262
1256 Michigan, variance
Under Rule 27 (c) the jury may disregard a misjoinder of
defendants where the proof shows that the contract alleged
to have been made jointly by all of the defendants was, in fact,
made by less than all; and they may render a verdict against
those who made the contract, or those who remain liable upon
it, the variance between the proofs and the declaration being
considered as an unessential technicality.-*^ ^
1257 Mississippi
We, the jury, find for the plaintiff in the amount of
dollars.
b
We, the jury, find for the defendant.
1258 Virginia
We, the jury, on the issue joined, find for the plaintiff, and
assess the damages at dollars and
cents ($ ) with interest from
We, the jury, find for the plaintiff and assess its damages
at dollars with interest thereon from the
until paid, subject to credits as follows; credit by
dollars as of and dollars
as of
Foreman.
c
We, the jury, ascertain the amount due the plaintiff to be
dollars to be deducted from
dollars the amount we find due the defendant, and after deduct-
ing the sum allowed plaintiff from the amount ascertained for
the defendant, we find a verdict for the defendant for the bal-
ance of dollars.
Foreman.
262 Elinois, la. & Minn. Ey. Co. ton Salt Assn., 140 Mich. 441, 444
V. Powers, 213 111. 67, 68 (1904). (1906).
283 Root & McBride Co. v. Wal-
624 ANNOTATED FORMS OF PLEADING AND PRACTICE
1259 West Virginia
We, the jury, find for the plaintiff and assess its (kmages
at dollars.
JUDGMENT
1260 Generally; amount, interest
A judgment in assumpsit should be for a certain amount as
damages, and not for debt and damages.-"'* The recoveiy of in-
terest depends entirely upon statute. At common law, no in-
terest was recovered in any case.^"^ Under Illinois statute, inter-
est at a rate exceeding five per cent per annum can be recovered
only by virtue of a contract.^o*^ Interest is not chargeable upon
an open account when some of the items in it are disputed.^"^
1261 Motion for judgment (District of Columbia)
Comes now the plaintiff by his attorney and
moves the court for a judgment against defendant for want of
a sufficient affidavit of defense.
Attorney for plaintiff.
1262 Judgment (Mississippi)
(For commencement and conclusion see Chapter XCV) It
is therefore hereby considered by the court that the plaintiff
take nothing and that he pay all costs in this behalf expended
to be taxed, and the defendant do have and recover of and from
said plaintiff all such cost so expended in this cause, for which
let execution issue.
(Virginia)
Therefore it is considered that the plaintiff recover against
the defendant dollars, with interest thereon after
the rate of per centum per annum from the
day of , 19- •, until paid, and h. . costs by . .h. .
about . . h . . suit in this behalf expended. And the said defend-
ant in mercy, etc.
264 Lyon V. Barney, 1 Scam. 387 see Sehwitters v. Springer, 236
(1837). 111. 271, 275 (1908).
285 Illinois Central E. Co. v. 267 Flake v. Carson, 33 111. 518,
Cobb. Blaisdell & Co., 72 111. 148, 526 (1864); Sec. 2, c. 74, Hurd's
152, 163 (1874). Stat. 1909, p. 1358.
CHAPTER XXII
CASE
IN GENERAL
§§
1203 Case and trespass, distinction,
joinder
1264 Remedial statute
DECLARATION REQUISITES
1265 Time, videlicit
1206 Duty, contractual
1207 Damages, time
1268 Special damages, proof
SPECIAL CAUSES OF ACTION
AND DECLARATIONS
1209 Alienating husband's affec-
tions, Narr.
1270 Alienating wife's affections,
Narr.
1271 Bridge unrepaired, Narr.
1272 Cable slot, defective construc-
tion, Narr.
1273 Cattle,, diseased running at
large, action
1274 Cattle-guards, action
1275 Cattle-guards, Narr.
1276 Cattle killed, declarations, re-
quisites
1277 Cattle killed, Narr.
1278 Change of grade, action
1279 Change of grade, Narr.
1280 Collateral note, wrongful sur-
render, Narr.
1281 Condemnation, abandonment,
action
1282 Condemnation, abandonment,
Narr.
1283 Collision with wagon, Narr.
1284 Conspiracy conc-erning local
improvement, action
1285
1286
1287
1288
1289
1290
1291
1292
1293
1294
1295
1296
1297
1298
1299
1300
1301
1302
1303
1304
1305
1300
1307
Conspiracy concerning local
improvement, Narr.
Conspiracy in restraint of
trade, action
Conspiracy in restraint of
trade, Narr.
Conspiracy to alienate wife's
affections, Narr.
Dishonoring check, Narr.
Drainage inadequate, action
Drainage inadequate, Narr.
Drainage unsanitary, Narr.
Exc-essive levy, Narr.
Explosion of powder maga-
zine, Narr.
False return, Narr.
Fencing railroad near depots
Fraud and deceit, action
Fraud and deceit ; declaration
requisites
Fraud and deceit; collusion
between defendant and real
estate agent, Narr.
Fraud and deceit; incum-
brance, nonresident, Narr.
Fraud and deceit; infringe-
ment of patent, Narr.
Fraud and deceit; insurance
policy, surrender, Narr.
Fraud and deceit; notes se-
cured by bogus trust deed
on leasehold, Narr.
Fraud and deceit; oil stock,
Narr.
Fraud and deceit; shares of
capital stock, Narr.
Fraud and deceit ; unrecorded
trust deed, Narr.
Highways and bridges; ac-
tion, parties
625
626
ANNOTATED FORMS OF PLEADING AND PRACTICE
§§
1308 Hotel and Inn-keepers, stolen
property, action
1309 Inadequate fire protection, ac-
tion
1310 Infectious premises, Narr.
1311 Interference with public sale,
declaration requisites
INTOXICATION
1312 Nature and scope of action,
parties
1313 Principal and surety, action
1314 Joinder of causes
1315 Declaration requisites, joint
liability
1316 Brotber's intoxication, Narr.
1317 Husband's intoxication, Narr.
1318 Parent's intoxication. Narr.
1319 Son's Intoxication, Narr.
LIBEL
1320 Malice, proof
1321 Joinder of counts
1322 Declaration rcHiuisltes
1323 Campaign contribution sought
by official, Narr.
1324 Financial responsibility, Narr.
1325 Hatred, contempt and ridicule,
action
132G Hatred, contempt and ridicule,
Narr.
1327 Minister's conduct, Narr.
1328 Pleadings, libelous matter, ac-
tion
1329 Pleadings, libelous matter,
Narr.
1330 Privileged communications
proof
MALICIOUS PEOSECUTION
1331 Nature and scope
1332 Declaration requisites gener-
ally
1333 Abuse of process, action
1334 Abuse of process, declaration
requisites
1335 Attachment, action
1336 Attachment, Narr.
§§
1337 False imprisonment, action
1338 False imprisonineut, Narr.
1339 Injunctiuii, action
1340 Replevin, Narr.
1341 Malpractice as physician,
Narr.
1342 Nuisance private; action,
notice, damages
1343 Nuisance, public; action
1344 Nuisance, declaration requi-
sites
1345 Obstructing navigation,
bridge ; action
1346 Obstructing navigation,
bridge; declaration requi-
sites
1347 Obstructing public street, rail-
road ; action
1348 Obstructing public street, rail-
road ; declaration requisites
1349 Overflow of lauds, dam across
slough, Narr.
1350 Overflow of lands, ditch im-
prui)orly c<iustructed, Narr.
1351 Overflow of lauds, drainage
channel, action
1352 Overflow of lands, drainage
channel, Narr.
1353 Overflow of lands, embank-
ment ; action
1354 Overflow of lands, embank-
ment, Narr.
1355 Overflow of lands, levee con-
struction ; action
1356 Overflow of lands, levee con-
struction, Narr.
1357 Overflow of lands, notice, req-
uisites
1358 Overflow of lands, sewer in-
sufficient, Narr.
1359 Public improvement, action
1360 Reple\-iu bond, insufficient,
action
1361 Reversion, action
1362 School schedule, refusal to
certify, declaration requisites
1363 Seduction, action
1364 Seduction, parties
CASE
627
§§
1365 Seduction, joinder of counts
13(J6 Seduction, declaration req-
uisites
SLANDER
1367 Action, nature and scope
1368 Parties
1369 Declaration requisites, proof
1370 Larceny, Narr.
1371 Perjury, Narr.
1372 Woman's character, Narr.
1373 Sparks from locomotive, Narr.
1374 Sparks from traction engine,
Narr.
1375 Strikes, action
1376 Strikes. Narr.
1377 Telegrams, negligent trans-
mission, action
1378 Telegrams, negligent trans-
mission, Narr.
TEANSPORTATION
1379 Bill of lading, limitation
1380 Jurisdiction
1381 Cattle, feeding and watering,
action
1382 Cattle, injured and lost, Narr.
1383 Goods damaged, Narr.
1384 Goods. lost in transit, Narr.
1385 Vicious animals, action
1386 Vicious animals, declaration
requisites
1387 Vicious animals, Narr.
1388 Water supply cut off, Narr.
1389 Wrongful discharge effected
by employer's liability in-
surer, Narr.
SPECIAL DEFENSES AND
PLEAS
1390 Accord and satisfaction,
pleading
1391 Accord and satisfaction, plea
1392 Arrest without warrant, pub-
lic officer
§§
1393 Conspiracy between con-
tractor and improvement
board
1394 Foreign laws and decisions,
pleading
1395 Fraud and deceit ; inquiry,
failure to make
1396 Fraud and deceit; statute of
frauds, general issue
1397 Intoxication, death unforeseen
1398 Intoxication, life insurance
1399 Intoxication; regulation and
prohibition, scope
LIBEL
1400 Demurrer
1401 Denial of justification, proof
1402 General issue, scope
1403 Justification ; plea, requisites
1404 Justification ; notice, requi-
sites
1405
1406
1407
1408
1409
1410
MALICIOUS PROSECUTION
Attachment, waiver
False imprisonment, res judi-
cata
Justification ; res judicata,
plea, requisites
Justification, res judicata,
plea
Probable cause, law and fact
Probable cause, pleading,
proof
1411 Ordinance, pleading
1412 Ownership of property, de-
nial ; plea
1413 Release, pleading
1414 Seduction, chastity
SLANDEB
1415 Generally
1416 General issue, proof
1417 Justification ; plea or notice.
nature
628 ANNOTATED FOKMri 01-' TLEADING AliD I'KACTIC2
1418 Justification ; burden of prool', VERDICT
practice
1410 Justification; plea, reiiuisites "^"^-^ ,,\ .'^
1420 Justification; notice, sulh- ' ^ " f
142 ( lUuKiis, general
cieucy , . ^ . „ . . . .
1428 .Mississippi
1421 Statute of liiuitations, plead- ^"^-^ Virginia
jf,„ 1430 West Virginia
1422 Statute of limitations, plea ,^,^ „
.... JUDGMENT
and replication
1431 Requisites
GENERAL ISSUE 14.. p^,^
1423 Nature and effect 1433 Appeal
1424 Forms
IN GENERAL
1263 Case and trespass, distinction, joinder
The distinction between trespass and case clearly appears
where there is a disturbance of the possession and damage to
real estate that is held by two distinct ownerships, that of the
owner and that of the lessee, the latter occupying the premises.
In the event of damage, the lessee alone has a right to an action
of trespass, while the owner has a right of action on the case
for the damage to his reversion.^ Case, and not trespass, is
maintainable for an injury produced by a cause that is knowTi
to the wrongdoer to be of a dangerous nature or character.^
At common law different causes of action cannot bo joined in
one declaration or suit. Therefore, counts in case could not be
joined with counts in trespass. By Illinois statute, the technical
distinction between the forms of actions of trespass and actions
on the case has been abolished, and the joinder of counts in the
two forms of action is permissible. But the statute does not
affect the substantial rights or liabilities of the parties, and the
averments and the proofs necessary to sustain either cause of
action are the same as at common law.^
1264 Remedial statutes
A party who has sustained damages by a breach of a remedial
statute may bring an action on the case for their recovery, unless
the statute requires the bringing of a different form of action."*
1 Halligau v, Chicago, Eoek Island s Chicago Title & Trust Co. v.
Ry. Co., 15 111. 558, 560 (1854). Core, 223 EI, 58, 63 (1906).
2 Stumps V. Kelley, 22 111. 140, * Mount v. Hunter, 58 111. 246, 248
143 (1859). (1871).
CASE 629
DECLARATION REQUISITES
1265 Time, videlicit
A plaintiff is not confined to the exact time that is alleged in
his declaration, if the time is stated under a videlicit. The of-
fejise charged may be shown to have been committed upon any
day within the period of the statute of limitations.^
1266 Duty, contractual
In an action on the case for a violation of a contractual duty
it is sufficient to state in substance only so much of the contract
as has been broken.^
1267 Damages, time
In an action on the case it is not necessary that the declara-
tion should state the time or times when the damages were sus-
tained, as the legal effect of the allegation of damages is that
they were sustained when the wrongful act of the defendant
was committed and on divers other days between that time and
the commencement of the suitJ
1268 Special damages, proof
An averment of special damages must be specific and not gen-
eral.** The allegation of special damages is a matter of aggrava-
tion- as a substantive allegation of fact, and not an inference of
law resulting from facts antecedently stated.^ Without proof
of actual damages, a plaintiff cannot, at common law, recover
substantial damages.^*^
SPECIAL CAUSES OF ACTION AND DECLARATIONS
1269 Alienating husband's affections, Narr. (111.)
^^ For that whereas, the defendant, contriving and ^^^ckedly
intending to injure the plaintiff and to deprive her of the so-
ciety and assistance of , the husband of the plain-
tiff, on, to wit, the day of , 19 . . ,
5 Johnston v. Disbrow, 47 Mich. s Grand Eapids & Indiana R. Co.
59, 61 (1881); Toledo, Peoria & v. Soiithwick, 30 Mich. 444, 447
Warsaw Ry. Co. v. MeClannon, 41 (1874).
111. 238, 240, 241 (1866). 9 McConnel v. Kibbe, supra.
8 American Express Co. v. Pinck- lo Raisor v. Chicago & Alton Ry.
Dev, 29 111. 392, 407 (1862). Co., 215 111. 47, 57 (1905).
^ McConnel v. Kibbe, 33 111. 175, n See Section 211, Note 60.
179 (1864).
630 ANNOTATED FORMS OF PLEADING AND PRACTICE
and on divers other days between that time and the commence-
ment of this suit, in the county of , and state of
Illinois, did wilfully and maliciously destroy and alienate from
the plaintiff the aifection then and there had by the said
, then and there the husband of the said ,
for the said , the said in no wise
consenting thereto: by means whereof the plaintiff has from
thence hitherto wholly lost and been deprived of the society,
affection, assistance and comfort of the said , lu-r
said husband, in her domestic affairs, which the plaintiff during
all of said time ought to have had. To the damage, etc.
By criminal means
For that whereas, the defendant, contriving and wickedly
intending to injure the plaintiff and to deprive her of the so-
ciety and assistance of , the husband of the plain-
tiff, and to alienate and destroy his affection for the phiintiff,
on, to wit, the day of , H) . . , and
on divers other days between that day and the commencement
of this suit in county, Illinois, and in the city
of , Illinois, defendant wrongfuly and wickedly
debauched and carnally knew the said , tiien and
there and still being the husband of the plaintiff, and thereby
the affection of the said for the plaintiff" was tiien
and there alienated and destroyed; and also, by means of tiie
premises, the plaintiff has from thence hitherto wliolly lost
and been deprived of the society and assistance of the said
, her said husband in her domestic affairs, which
the plaintiff during all that time ought to have had, and might
otherwise and would have had: To the damage, etc.
1270 Alienating wife's affections, Narr. (Mich.)
For that whereas, the said plaintiff was in the year
. . married to one and as the result of said
marriage there was born to said parties children, to
wit : , aged years, and aged
years, both of whom are now living.
That this plaintiff and the said always lived
in happiness, peace and comfort together until on or about
the day of , 19 . . , when the said de-
fendant wrongfully and wickedly intending to injure the plain-
tiff and to deprive him of the affection, comfort, fellowship,
society and association of the said and their said
children and of the aid and assistance of the said ,
and to alienate and destroy the affections of her the said
for the plaintiff, heretofore, to wit, on the day and year
last aforesaid, and on divers other days and times and times
between that day and the time of the commencement of this
CASE 631
action at, to wit, in said county
and in various other places, carried on a secret correspondence
with the said and cajoled and flattered her, the
said and made her many promises of love and
held various clandestine meetings with her and gave her various
presents and things of value, and by various arts and schemes
and devices, he, the said defendant,i2 (alienated and destroyed
the affections of her, the said , for this plaintiff
and induced her to leave this plaintiff and to take with her the
said children and refuse longer to give him her affection, com-
fort society, fellowship, aid and assistance which the said plain-
tiff had possessed and enjoyed before the committing of said
wrongful acts by the said defendant). , .., ^ i,
Bv means whereof the plaintiff from thence hitherto has
whoilv lost all the affection, comfort, fellowship, society aid
and assistance of the said wife and the comfort, society and tel-
lowship of his said children and was and is caused to suffer
great mental anguish, distress and pain, and great annoyance
and suffering in his household and was and is wholly humiliated
among his neighbors and acquaintances and friends, and has
been otherwise damaged.
1271 Bridge unrepaired, Narr. (Md.)
For that the plaintiff had a contract with the M to construct
for it certain concrete piers in river or the abut-
ting shores thereof in county, in he construction
of which piers certain lumber, sand, cement and other material
were needed and which material the plaintiff was obliged under
said contract to provide and convey to the place where said
piers were to be constructed as aforesaid. That said contract
was in writing and dated the .... day of • ,
19 and that bv the terms thereof plaintiff was required to
commence work on said piers within .... ... ..... ^^^s t^ra
said date, and was required to complete said piers according
to the specifications in said contract set out within •.••••.•
working davs from the date of said contract, and in said con-
tract was further provided a penalty of ............ aoiiars
per day to be paid by the plaintiff for every day beyond said
neriod of working days required for the comple-
?k)n of said piers as aforesaid. That preparatory to carrying
out said contract on his part, the plaintiff provided lumber.
12 To charge alienation by means the said whereby
of aduUeTolnit matt betwe n pa: and by means of ^^•hich arts, schemes.
n?h ^"andtsTrfiLtead this? devices, el-destine --t .ngs. prom-
"wrongfully debauched and car- ises of love, giving ot preM
nally kn°ei tVe said • • '^V'^rT^J '
then and there and still being the fection of the said
'X ZSnZ "^a^:^^ for the said plaintifE was alienated
intercourse with her, the said and destroyed.
and did commit adultery with her,
632 ANNOTATED FORMS OF PLEADING AND PRACTICE
cement and other material and deposited the same at or near
station on said M line of railroad, commonly
known as " " and provided also saud a short dis-
tance below station, all of wliich material the
plaintiff was prepared to haul from said points to the point
where said piers were to be constructed, said haul to be over
the county public road there situate leading from the points
above described through the property of one K and thence across
an arm of river by a public county bridge to
the lands of one L, through whose lands the plaintiff
had made arrangements to haul said material for the pur-
poses aforesaid. That said public county road through the
lands of K and the said public county bridge, which was then
and there part of the public highway as aforesaid over said arm
of river was the only county public road afford-
ing access from said station and its neighborhood
to the place where said concrete piers were to be constructed
as aforesaid by the plaintiff and the plaintiff had no other access
by the public highway for himself, his servants and agents, his
beasts, carts and wagons to transport the said material from
station as aforesaid to the said place where said
piers were to be constructed as aforesaid. And the plaintiff
further said that relying upon the said county public road and
bridge as the means of access to said place of constructing said
piers as aforesaid, he did enter into said contract to construct
said piers, and did lay out and expend large sums of money
in the purchase of said lumber and cement and other materials
and in providing sand as aforesaid and in depositing the same
at or near station as aforesaid to be from there
transported as aforesaid by way of said county road and bridge
to the said place of constructing said piers.
That said bridge over said arm of river was suf-
fered and permitted by the defendant to become wholly impass-
able, although the defendant had the custody and control thereof
and was responsible for the proper maintenance thereof for
public travel, and the defendant unmindful of its duty in the
premises, and with notice of the bad condition of said bridge,
suffered and permitted the same to become and to remain out
of repair and broken down, so that it was impossible to pass
over said bridge with carts and wagons and to transport over
said bridge the aforesaid material prepared for the construc-
tion of said piers as aforesaid. That the situation of the plain-
tiff in the said regard was peculiar and different from the sit-
uation of others in respect to said road and bridge and the use
thereof, in that the plaintiff was under contract to construct
said piei-s as aforesaid, and could not provide and transport
to the place where said piers were to be constructed material
other than that already provided as aforesaid within the time
required by said contract and for many days thereafter, and
could not transport by any public highway the material already
CASE 633
provided for said purpose to the said place of construction, and
was by reason thereof required to lay out and expend large
sums of money in and about the transportation of said material
to the place of constructing said piers greatly in excess of the
cost of hauling the same over said public road and bridge as
the plaintiff was entitled and expected to do when he entered
into said contract.
And the plaintiff saith that he hath not sustained a loss in
common with the other citizens of the county there inhabiting
and residing, but that he hath sustained and suffered a distinct
and peculiar loss by reason of the action of the defendant in
the premises as herein before set out.
W heref ore the plaintiff brings this suit and claims
dollars damages.
1272 Cable slot, defective construction, Narr. (Md.)
And for that the defendant corporation maintains and oper-
ates for its own uses and purposes a line of street railways in,
along and upon the streets of the city of over
which it operates and propells cars by electricity and other
force and power, that among the streets so occupied and used
by the defendant at the time of the happenings and wrongs
and grievances hereinafter complained of was
street then and there a public highway between
street and street likewise public highways of said
city. That in the construction of its tracks and appliances for
the propulsion of its cars, it constructed what is known as a
cable slot in the bed of said street, which con-
sisted of a slot three-fourths of an inch wide on the straight
track and seven-eighths of an inch wide around the curves of
said track, which slot opened into an underground conduit or
ditch about twelve feet in circumference, in which a moving
cable was operated to propell its cars, and that w^hen kept in
the condition as originally planned and in accordance with
the plans and specifications filed in the city commissioner's
office, there w^as no damage to the traveling public who used
said highways with their teams drawn by horses, but when
allowed to become out of repair and wider than originally con-
templated, the same became a nuisance to the traveling pub-
lic and dangerous to life and property ; and that the defendant
in total disregard of its duty to the traveling public, allowed
said cable slot, situated as aforesaid in the center of each of
its east and westbound tracks to become more than three-
fourths of an inch wide and so wide that the wheels of an ordi-
nary vehicle which is usually used for the conveyance of pas-
sengers and drawn by a horse or horses could drop into the
said slot ; and that on or about , 19 • . , the plaintiff,
while exercising due care and driving in his buggy, drawn by
his horse, on said street, between
634 ANNOTATED POEMS OF PLEADING AND PRACTICE
and streets, by reason of the negligence of the
defendant in allowing said slot to become a public nuisance and
to become out of repair and not as originally shown hy llie plans
and specifications filed \\'ith the city commissioner, the wheels
of his buggy dropped into said slot and became caught, whereby
said buggy was demolished, the horse thrown and injured se-
verely and permanently, and re(juired the sei*\'ices of a veteri-
nary surgeon and medicines and attention, and the harness was
broken and torn to pieces requiring repairs; for all of which
the plaintiff has been put to great costs and ex{)ense, and the
plaintiff is otherwise injured and damaged; anil the plaintiff"
says that all of said injuries to his horse, harness and l)uggy
were directly caused by the negligence and want of care of
the defendants, its agents and servants in the premises and
without negligence and want of care of the plaintitf directly
thereunto contributing. Wherefore this suit is brought. And
the plaintiff" claims $ as his damages.
1273 Cattle, diseased running at large, action
An action on the case is maintainable for causing a person's
cattle to become infected by permitting diseased sheep, or do-
mestic animals, to run at large. ^^
1274 Cattle-gnards, action
It is the duty of a railroad company, under the Illinois Rail-
road Fencing act, to enclose the fenced portion of its right of
way by suitable and sutlficicnt wing fences and cattle-guards
whenever it is the duty to fence ends, regardless of whether
another railroad company owes a similar duty and neglects to
perform it. For a failure to perform this duty a railroad com-
pany is liable for damages resulting therefrom.**
1275 Cattle-gnards, Narr. (Miss.)
The plaintiff is a railroad company, incorporated under the
laws of IMississippi and engaged in the business of operating a
railroad, and has now and had at the times hereinafter set out
a railroad running from to , Mis-
sissippi ; that said railroad enters enclosed land near
....... Mississippi in which inclosure plaintiff has land, the
point at which said railroad enters said enclosed land being at
the first cattle gap south of said station of ; that
it was the duty of the defendant where its line of railroad so
"Mount V. Hunter, 58 111. 247; i< Illinois Central R. Co. v. David-
Sec. 258, c. 38, Kurd's Stat. 1909, p. son, 225 HI. 618, 624 (1907).
803.
CASE 635
entered the said enclosed land to construct and maintain a
necessary and proper stock gap cattle-guard; that defendant
in the years wholly disregarded its duty in the
premises and refused to erect and maintain such cattle-guard
and stock gap, the one hereinbefore mentioned being improper
an entirely insufficient to keep cattle and other stock out of said
enclosed land.
Plaintiff alleges that during the years , plaintiff
was damaged by cattle and stock coming into said enclosed
land over said defective cattle gap and eating and destroying
his crops of cotton, corn and peas, said damages appearing
fully by a bill of particulars filed herewith as a part hereof as
exhibit "A" hereto attached, showing damages in the sum of
dollars.
1276 Cattle killed, declaration, requisites
In an action on the case against the railroad company for kill-
ing plaintiff's cattle, the declaration need not aver that the kill-
ing was done on defendant's railroad track, because the gist of
the action is the mismanaging of the locomotive engine, which
may be done in any place.^^
1277 Cattle killed, Narr. (W. Va.)
For that heretofore to wit, on the day of
, 19. ., at the county of aforesaid, the said
plaintiff owned and was possessed of a horse of great value, to
wit, of the value of dollai'S; and the said defend-
ant was then and there the owner, and possessed of a certain
railway in the said county of , which it used and
operated with its locomotive engines and cars under the care,
management and direction of its servants and agents in that
behalf. Nevertheless the said defendant, then and there, by its
said servants and agents, so improperly and negligently used,
managed, ran, and operated its said locomotive engines and
cars, that by and through the negligence, carelessness, and im-
proper conduct of the said defendant, by its servants and agents
in that behalf, the locomotive engine and cars of the said defend-
ant, then and there, ran upon and over the said horse of the
said plaintiff, and thereby, and then and there broke the leg
of the said horse, and the said horse of the said plaintiff, thereby,
then and there became and was rendered of no use or value
to the said plaintiff', to wit, on the day and year aforesaid at
the county aforesaid, wherefore, etc.^^
15 Baylor v. Baltimore & Ohio R. le Blaine v. Chesapeake & Ohio B.
Co., 9 W. Va. 270, 280, 281 (1876) ; Co., 9 W. Va. 252, 261 (1876).
Housatonic R. Co. v. Waterburj, 23
Conn. 101, 108 (1854).
636 ANNOTATED FORMS OP PLEADING AND PRACTICE
For that the said defendant heretofore, to wit, on the
day of , 19. . , at tlie county aforesaid, was
a corporation, and owned and operated a certain railroad called
the running from the city of , through
the county aforesaid to the city of , and on the
said day of , 19 . . , at the county
aforesaid, the said defendant negligently, carelessly and wrong-
fully caused a train of cars upon its said railroad and under
said defendant's control to be propelled and driven with great
force in and upon the fat cattle of the plaintilf, whereby
of said fat cattle were instantly killed, and several others
were greatly bruised, wounded and injured, witliout the fault
or negligence of the plaintiff, and solely by the said negligence
and carelessness of the said defendant in tiiis, that the said
defendant seeing the plaintiff' 's said fat cattle upon its said
railroad, and well knowing that the said cattle were upon said
railroad without any fault, negligence or carelessness of the
plaintiff, the said defendant recklessly, carelessly, negligently
and wrongfully propelled and drove its locomotive engine and
train of cars upon and over said fat cattle, and did not sound
the whistle of said locomotive engine nor slack the speed of
said train of cars, nor use other precaution or means to prevent
the injury aforesaid, but on the contrary, the said defendant
did wantonly, carelessly and negligently commit the injury
and wrong aforesaid, in manner aforesaid; by reason whereof
the plaintiff' says he is greatly injured (said cattle which were
then and there killed as aforesaid being of the value of
dollars, and the said cattle injured and
wounded as aforesaid being of the value of dol-
lars), and hath lost said cattle, and is damaged to the extent
of dollars, and therefore brings this suit, etc.^'^
1278 Change of grade, action
A municipality, and anyone acting under its authority, is
liable in damages caused by a change of grade of a street whereby
access to private property is obstructed, or the property has
been substantially depreciated in value. This right of action
does not necessarily arise from a wrongful act of the munici-
pality; but it rests upon the constitutional provision that no
private property shall be taken or damaged without just com-
pensation.^^
"Hawker v. Baltimore & Ohio E. Staunton, 246 111. 394, 397 (1910);
Co., 15 W. Va. 628 (1879). Grant Park v. Trah, 218 111. 516, 519
isShrader v. Cleveland, Cincin- (1905) ; Sec, 13, art. 2, Const. 1870
nati, Chicago & St. L. Ey. Co., 242 (111.).
HI. 227, 229 (1909); Chapman v.
CASE 637
1279 Change of grade, Narr. (111.)
For that whereas heretofore, to wit, on the day
of 19 . . , and for years prior thereto, the
plaintiif was, and still is, the owner and in possession of the
premises known and described as (Insert legal description) in
the , county and state of Illinois,
together with the appurtenances thereunto belonging.
And plaintiff avers that prior to and at the time of the acts
herein complained of, a certain street in said , to
wit, street, extended along the south side and ad-
joined the said premises thereof for a distance of, to wit,
feet, and another certain street, to wit, street,
in said , extended along the east line adjoining
said premises for a distance of, to wit, feet. That at the
time last mentioned there were situate on said premises certain
buildings belonging to said plaintiff, to wit : one large
story brick building, adjoining and fronting upon
said street, located west of said
street a distance of, to wit, feet ; one other certain
building, located on said premises fronting and
adjoining upon said street, and located west of
said street, a distance of, to wit, feet
(Describe any other, if any, and give building location). All of
which said buildings then and there had basements thereunder
and had been erected tliereon, to wit, years prior to the
commission of the acts herein complained of, and were at said
last mentioned time, and had been, used for business purposes,
and during said times all of the said buildings then and there,
had direct and convenient access to and from said streets for
air, light, persons and vehicles to pass to and from the same.
That at the time said buildings were erected, the grade of said
streets was level, and said buildings were constructed with due
regard to the grade then existing, that is to say, the foundation
of each of said buildings and the ground floor was erected and
carried above the grade of said streets, a distance of, to wit,
feet.
That afterward, to wit, on the day of ,
19,,, while plaintiff was in possession and enjoyment of his
said premises as aforesaid, said defendant, regardless of the
rights of said plaintiff and without the knowledge or consent
of plaintiff, wrongfully and negligently, built and constructed
and caused to be built and constructed, certain public sidewalks
of cement and other permanent walks, upon and along the north
side of said street, adjoining said premises and
buildings of said plaintiff fronting on said street,
and also along and upon the west side of said street,
adjoining said premises, and the buildings fronting thereon,
belonging to said plaintiff, which said sidewalks constructed as
aforesaid, were then and there of great height, to wit, of the
638 ANNOTATED FORMS OF PLEADING AND PRACTICE
height of feet above the original and natural grade of
said streets, so that the surface of said sidewalks extended up
the walls of said buildings and above the public and private en-
trances thereof and above the floor of the first story of said
buildings, a distance of, to wit, inches, by means where-
of a free and convenient access of air, light and travel to said
premises from said streets, and the free communication there-
tofore existing between said premises and said streets were then
and there cut off and destroyed ; that said premises were there-
by rendered unfit for the uses to which they had been and were
best adapted, and for which they were most valuable; that
water flows from said walks unto said premises and into said
buildings, thereby causing said premises to become unwhole-
some and unfit for habitation, and the basements under said
buildings and foundation walls thereunder, became and are de-
stroyed ; that the construction of said walks as aforesaid, water
will continue to flow from said walks unto said premises as
aforesaid; that it became and is dangerous to pass to and from
said buildings by the usual modes of ingress and egress there-
from ; that the reasonable use and enjoyment of said property
has been destroyed, and the market value of said property has
been depreciated in the sum of dollars, and
said premises have been rendered unfit for use as business build-
ings and the rental value thereof destroyed; that plaintiff has
been deprived of the uses, rents, and profits of said proerty;
and that said defendant has not taken any steps to ascertain
the said damages to the plaintiff and said defendant has not
compensated said plaintiff in any way for said damages so done
to his said property, but refuses so to do : and so plaintiff says
that he has been damaged as aforesaid in the sum of
dollars, and therefore he sues.
h
For that whereas, on the day of ,
19. ., the plaintiff was possessed of and the owner of lot number
(Describe the property) in the county of and
state of Illinois, and has since that time, hitherto, remained
possessed of and the owner of said real estate, and did at that
time and has continuously, since, occupied the same as a place
of residence and as her home. And at that time had a con-
venient, safe, and level grade outlet into street
and street in said city, and safe and convenient
access to and from her said house until the committing of the
said several grievances herein mentioned, had a good and safe
outlet for the water falling upon said premises and passing over
the same. And whereas, the railway company
are possessed of and operating certain railway tracks and right
of way across street in said city near and adja-
cent to the premises of the plaintiff aforesaid, and the north
and west line of plaintiff 's said premises ; and whereas, the said
CASE 639
defendant did on the day of , 19 . . ,
erect and maintain a certain overhead bridge over and above
its said tracks on said street and across its said
right of way and tracks there, it became and was the duty of
the said defendant to so erect and maintain the approaches to
said bridge as not to injure, impede, and inconvenience the
access of the plaintiff from her residence aforeiSaid, to and from
said and streets, and so as not to
impede check or diminish the flow of water from off the prem-
ises of the plaintiff aforesaid and to furnish and place suitable
and sufficient drains or culverts under and through said bridges
to permit water falling upon or passing over the premises of
the plaintiff aforesaid, to be carried away and off her premises ;
and it became and was the duty of the defendant to so erect
said approaches as not to in any way damage or injure the
market value of said premises or in any way to damage or
injure her in the use of the same as a residence and home. And
the plaintiff avers that the defendant disregarding its duty in
the premises did on, to wit, the day of ,
19.., unlawfully negligently, carelessly and recklessly, build
and erect, and has since until now, unlawfully negligently,
recklessly and carelessly maintained on said streets
adjacent to the front of plaintiff's premises aforesaid, and the
residence house thereon, a very high, narrow and steep approach
made of dirt only and has placed therein no drains or culverts
by means of which the water can run or be carried away ; by
means of which said approach so negligently, carelessly unlaw-
fully and recklessly built and erected as aforesaid, the water
which falls upon or passes over the plaintiff's premises aforesaid
has been dammed up and remains on said premises, and is pre-
vented from running or being carried away and off plaintiff's
premises, causing said premises to become a lake or pond,
greatly damaging and injuring its use and enjoyment by said
plaintiff, and greatly diminishing its market value, to the dam-
age, etc.^^
(Virginia)
For this, to wit, that during the year 19. ., the said plaintiff
owned in fee simple, and occupied a home and lot, on the corner
of street and avenue, in the town
of , Virginia, that the dwelling house on the said
lot was erected by the plaintiff many years ago, and was occu-
pied by her, her husband and family. That she laid out a beau-
tiful lawn on the north side of her house which faces on
street, and on the ........ side of her dwelling
house which faces on avenue, and made and laid
19 Shrader v. Cleveland, Cincin-
nati, Chicago & St. L. Ry. Co., 242
111. 232.
640 ANxVOTATED FOBIJS OF PLEADING AND PRACTICE
out the same in conformity to the then natural and existing
grades. That she planted the lawns in grass, shrubbery and
shade trees, that she also laid out a back yard, wood lot and
garden and built a carriage house and other out houses, the
outlet to the same being on avenue, this avenue
running north and south along the full length of her premises.
And the plaintiff planted fruit and shade trees and berries and
vines on said lot in conformity to the then existing grade, and
also erected upon the said lot fences and cross fences, all of
which improvements with the dwelling house are worth at least
5^ , and on these premises the plaintiff with her family
had lived in peace and quiet for years, when the defend-
ant during the year 19. ., came upon avenue with
shovels, picks, plows, carts, teams and laborers, etc., and dug
down said avenue or street and dug down the grade of the same
along her entire lot, so that the cut in said street at the east
gate of the plaintiff's lot in her yard is about four feet and
about the same depth below the entrance to the back yard and
wood yard, making entrance to the lot very difficult, the lot
unsightly and will result in the destruction of the trees and
fences of the said plaintiff on the said street. That there is no
way to give plaintiff an outlet to said avenue except by cutting
down the east side of her lot, destroying her fruit and shade
trees, her vines and shrubbery and her lawns, etc., and injuring
her garden, so that the consequential damages to her lot is very
great from the grading down of the said street. And that she
has only a front entrance to her lot and no available entrance
to her back yard and garden.
By means of which several premises the said plaintiff hath
been and is greatly injured and damaged; by the deterioration
of the value of her said lot, lying on the corner of
street and avenue, at , Virginia, and
also by the damage to her dwelling, out-houses, yard, lawn, shade
trees, shrubbery, back yard, wood lot, fences, vineyard, garden,
fruit, fruit trees and fruit vines, etc., standing and being on
said lot. To the damage of the said plaintiff of $
1280 Collateral note, wrongful surrender, Narr. (111.)
For that whereas, heretofore, to wit, on the
day of , 19 . . , to wit, at the county of
aforesaid, the said plaintiff and said , in considera-
tion of a loan of money then and there made by said bank to
the said plaintiff, executed and delivered to the said bank a
certain note in writing, commonly called a promissory note,
dated the day of , ,
whereby said plaintiff and said days after the
date of said note, jointly and severally promised to pay to the
order of the said bank, dollars, at the office of
said bank, with interest at per cent per annum after
CASE 641
due until paid, in and upon which note the said was
then and there a surety only, and the said plaintiff was then
and there the principal maker; and the said plaintiff at the
said time of the execution and delivery of said note to said
bank, to wit, on the said day of ,
to wit, at the county of aforesaid, delivered to
said bank and said bank then and there accepted from the said
plaintiff', in the pledge and as collateral security for the said
note so made by said plaintiff and said to said
Ijank, a certain other promissory note in writing then owned
and possessed by said plaintiff, dated the day
of made by one , whereby said
promised to pay to the order of ,
year after the date thereof, the sum of dollars,
with interest at the rate of per cent per annum, which
said note so made by said had before said delivery
thereof to said bank been endorsed in blank, without recourse,
by said , and delivered to said plaintiff, and was
at the said time of the delivery thereof to said bank of great
value, to wit, of the value of dollars. And the
said plaintiff further avers, that upon the delivery of said note
so made by said to the said bank as aforesaid,
to wit, on said day of • . , , and
at the county aforesaid, it became and was the duty of said
bank to safely keep the same and to have the same ready to
return to the said plaintiff upon the payment by said plaintiff'
of the said note made as aforesaid by said plaintiff and said
to said bank ; yet, the said bank and the said
other defendants herein, well knowing the premises, contriving
and intending to injure the said plaintiff in this behalf and to
prevent the said plaintiff from having and repossessing him-
self of the said note made by as aforesaid, on, to
wit, the day of , 19 . . , to wit, at
the county of aforesaid, and before the maturity
of the said note made as aforesaid by said plaintiff and said
to said bank, and while said bank still held said
note, so made by said , of and for said plaintiff
in pledge as collateral security as aforesaid, did wrongfully take
and surrender and deliver the said note, so made as aforesaid
by said , to the said and did convert
and dispose of the same to their own use ; whereby the same be-
came and is wholly lost to said plaintiff, and whereby the said
plaintiff has been and is greatly injured, to wit, at the county
aforesaid. To the damage, etc.^o
20 Post V. Union National Bank,
159 111. 421, 426 (1896).
642 ANNOTATED FORMS OP PLEADING AND PRACTICE
1281 Condemnation, abandonment, action
A petitioner in a condemnation suit is liable for damages re-
sulting from a failure to elect to pay the judgment or to aban-
don the condemnation proceedings within a reasonable time of
the rendition of the judgment. These damages accrue and are
payable to the person who owns the property at the time the
wrongful delay takes place.^i
1282 Condemnation, abandonment, Narr. (111.)
For that whereas, on, to wit, the day of
, 19 . . , the plaintiff was, to wit, in said county, the owner
of certain real estate, situated in said county, which was then
and there known and described as follows, to wit: (Insert
description of land) ; that said land was, at the time and place
aforesaid situated within the corporate limits of the city of
, in said county ; that said city of
had become prior to the day of ,
19. ., and then was, to wit, in the county aforesaid, incorporated
under an Act of the general assembly of the state of Illinois,
entitled "An Act to provide for the incorporation of cities and
villages" in force July 1, 1872; that the common council of said
city of , had, prior to the day of
19. ., passed an ordinance providing for the opening of an
alley from street to street, between
street, all of which streets were then and there
in said city of , which ordinance was, at the time
and place aforesaid, in full force and etf ect ; and that said ordi-
nance provided that said alley should pass over the west
feet of the east of lot addition to
owned by the plaintiff as aforesaid.
And plaintiff avers that said city of , did, on
to wit, the day of , 19 . . , in pursu-
ance of said ordinance, file in the circuit court of
county, its petition praying that the just compensation to be
made for private property to be taken or damaged for the pur-
pose specified in said ordinance shall be ascertained by a jury ;
but that the defendant, although it well knew that plaintiff was
the owner of said land, did not name him as a party thereto ; that
the said petition was then and there an incumbrance upon said
west feet of said east half of said lot owned by
the plaintiff as aforesaid and also a damage to the remainder
of the east of said lot not intended to be taken for
said purpose; and that by means of the premises it then and
there became and was the duty of said defendant to prosecute
21 Winkelman v. Chicago, 213 111.
360, 363, 365 (1905).
CASE 643
said petition to a judgment with all promptness which was
reasonably possible, so as to save the plaintiff harmless from
all unnecessary damage accruing from the continuance of the
incumbrance of the said petition, or otherwise in case the
defendant should elect to abandon the purpose of opening said
alley.
Yet the defendant although it (defendant herein) had the
right to obtain a hearing of said petition within six months
after the time the same was filed, utterly disregarded its duty
in the premises and negligently and wrongfully failed for, to
wit, over years to bring said petition to trial, although
it had caused to be tried before the trial of the petition above
mentioned over, to wit similar petitions filed in
said court, commenced subsequently to the filing of said peti-
tion, and did not bring said petition to a trial until, to wit,
,19...
And the plaintiff avers that upon said trial a jury was em-
paneled and sworn to ascertain the compensation to be paid
for land taken or damaged by the opening of said alley, and
after hearing evidence, said jury on, to wit, , 19 . . ,
in the county aforesaid returned their verdict finding that com-
pensation should be made to the owner of the west feet
of the east of said lot of dollars,
and that compensation should be made to the owner of the
remainder of said east of lot not taken for
damages thereto occasioned by the taking of said west
feet of dollars ; and said circuit court, on, to
wit, the day of , 19. ., to wit, in said county, ren-
dered judgment upon said verdict, which judgment still remains
in full force and effect.
And the plaintiff avers that said defendant did, on, to wit,
the day of , 19 . . , in the county
aforesaid, elect to abandon said improvement and has abandoned
the same.
And the plaintiff avers that by reason of the pendency of
said petition from the date of its filing until the time when
said improvement was abandoned, as aforesaid, said east half
of said lot became unsalable, and the sale thereof at
its cash value prevented ; of all which defendant then and there
had notice.
And plaintiff avers that at the date of the filing of said peti-
tion said land was of the fair cash market value of
dollars per front foot and said land was then and there ^
feet wide in front, and that during the pendency of said peti-
tion there was a steady decline in the value of real estate in the
city of , of which defendant then and there had
notice; and the said land of this plaintiff shared in said decline,
so that at the time of the abandonment by defendant of said
improvement as aforesaid, it was, and still remains of the fair
cash market value of, to wit, dollars per front foot, and
644 ANNOTATED FORMS OF PLEADING AND PRACTICE
not more, against the loss to plaintiff occasioned by said decline,
he might but for his being therefrom prevented by the pendency
of said petition, have saved himself by sale of said land, of whicli
the defendant then and there had notice. But the plaintiff
avers that, by reason of the pendency of said petition and the
abandonment thereof as above set forth, tlie plaintiff has sus-
tained a loss of dollars on each front foot of
said east of said lot , and that by means of
the premises his private property has been damaged for a public
use without just compensation.
And the plaintiff avers that by reason of the filing of said
petition, he was obliged in order to meet the issues therein i)re-
sented to and did employ counsel and obtain the attendance
and the testimony of expert witnesses to testify to the value
of said land and to the fact that the part thereof not proposed
to be taken would be damaged by taking from its original width
of feet, said west feet, and the plaintiff was also
thereby obliged to and did obtain the services of a stenographer
to take stenographic notes of the proceedings at, and the evi-
dence given upon said trial, and produce a transcript of such
notes; of all of which the defendant then and there had notice.
And the plaintiff avers that the fair and reasonable value and
customary charges of such counsel, witnesses, and stenographer
for services and attendance upon such trial was then and there,
to wit, dollars, which the plaintiff has paid.
And the plaintiff avers that by reason of the abandonment
of said improvement the plaintiff has been deprived of the
pecuniary benefits of said trial and said dollars
has been thereby taken from him by defendant's action without
just compensation.
Wherefore, etc.
1283 Collision wagon, Narr. (Md.)
For that the plaintiff at the time of the injuries complained
of was a merchant dealing in ; that the defendant
was at the same time operating a system of street railway cars
in the city of ; that on the day of
, 19 . . , at about o'clock in the
noon a horse and w^agon containing goods of said plaintiff and
driven by plaintiff's servant while attempting to cross . .
street at the intersection of street in said
city, were, without fault or negligence on the part of said plain-
tiff or his servants, struck violently by a car of said defend-
ant driven recklessly and at high rate of speed by one of its
servants and that said hoi-se and wagon were thereby badly
injured and the plaintiff suffered grave loss to his goods and
trade. And the plaintiff claims $ therefor.
CASE 645
1284 Conspiracy concerning local improvement, action
A contractor and local improvement board who enter into a
conspiracy to construct an inferior improvement from the one
specified in the contract and ordinance, are personally liable to
a property owner who is specially injured by the carrying out
of the conspiracy. This is so with reference to public officers,
because they owe a duty, ministerial in its character, to the in-
dividual property owners along a public improvement to com-
ply with, and enforce compliance with, the ordinance and con-
tract for the purpose of benefiting and increasing the value of
each owner's property, at least, to the extent of the assessment
laid upon it; and this duty is different from the general duty
the officers owe to the public generally. --
1285 Conspiracy concerning local improvement, Narr. (111.)
For that whereas heretofore, and at the time of the commit-
ting by the defendants of the grievances hereinafter mentioned,
the plaintiff was, and from thence hitherto has been and still
is, the owner of a certain parcel of land situate in the village
of in the county aforesaid, described as (Insert
description of property) ; and the defendants, G and C, were,
and each of them was, then and there acting as members of the
board of trustees of said village and also acting as members of
the board of local improvements of said village, and the defend-
ant M was a contractor exercising and carrying on the busi-
ness of building, and improving roads and pavements; and
whereas, also, on, to wit, the day of ,
1...., the president and board of trustees of said village, in
pursuance of a resohition adopted by the board of local im-
provements of said village, passed an ordinance for the improve-
ment, by special assessment, of a certain system of streets con-
sisting of avenue and certain portions of
street and the intersections thereof with other streets
and alleys in said village, by grading, filling, curbing, gutter-
ing, macadamizing and otherwise improving said streets and
portions thereof, in accordance with certain plans and specifi-
cations therein contained, in such manner that the roadway
upon said system of streets should, when completed, be smooth,
hard, solid and unyielding throughout; which said ordinance,
plans and specifications are now here presented to the court
and ready to be produced upon the trial hereof or as the court
may direct. And the plaintiff avers that in pursuance of said
ordinance, certain lands and lots along the line of said improve-
22 Gage V. Springer, 211 111. 200,
204 (1904).
646 ANNOTATED FORMS OF PLEADING AND PRACTICE
niciit which would be specially benefited by the construction of
said improvement in accordance with the said ordinance, plans
and specitications, including the said parcel of land so owned
by the plaintiff, which the plaintiff avers would also have been
specially benefited thereby, were assessed to pay the cost thereof,
and a petition for the confirmation of said assessment was, on,
to wit, , filed in the county court of said
county, and was afterwards, on, to wit,
confirmed by said court; all of which will more fully and at
large appear from the records and proceedings of said court in
the matter of said petition, ready to be produced on the hear-
ing hereof or as the court shall direct.
And the plaintiff avers that the amount so levied as special
benefits against the said lands and lots, to pay for the construc-
tion of said imi)rovenu'nt, was the sum of, to wit, $ , and
that the amount levied and assessed as special benefits against
the said parcel of land so owned by the plaintiff, was the sum
of, to wit, $ ; and the plaintiff's said parcel of land was
then and there of great value, to wit, $
And the plaintiff further avers that the said ordinance for
said improvement so passed by the president and board of trus-
tees of said village, provided that the work upon said improve-
ment should be done under the direction, inspection and super-
vision of the board of local improvements of said village; that
the cost thereof should be paid for by special assessment in
accordance with an Act of the general assembly of this state
entitled, "An Act Concerning Local Improvements," approved
, and all amendments thereto, and that of the
amount of said assessment the sum of $ should be
applied to the payment of the expenses attending the proceed-
ings for making said improvement and the cost of making and
collecting said assessment ; that the aggregate amount levied for
said improvement and each individual assessment so levied
and assessed should be divided into ten instalments, the same
to be due and payable, respectively, on the day
of , in each year following the confirmation of said
assessment until all should be paid, each instalment, except the
first, to bear interest at the rate of per cent per annum
from the date of such confirmation. That for the purpose of
anticipating the collection of the second and succeeding instal-
ments of said assessment, said ordinance provided that bonds
should be issued, payable out of said instalments, bearing in-
terest at the rate of per cent per annum, payable an-
nually, and that said improvement should be so constructed
that the various parts thereof should be joined and connected
in such manner as to make the whole work uniform and com-
plete and a connected system.
And the plaintiff further avers that after the passage of said
ordinance, as aforesaid, and, on, to wit, the day of ,
1,..., the said G and C, who were then and there acting as
CASE 647
members of the board of local improvements of said village, did,
in pursuance of the authority conferred upon said board of
local improvements by said ordinance and the said Act of the
general assembly, undertake the direction and supervision of
the construction of said improvement, and said G and C,
together with one F, who were then and there acting as the
board of local improvements of said village, did then and there
enter into a certain agreement in writing with the defendant,
M, for the construction of said improvement for the contract
price of, to wit, $ , the same to be paid to said M in
bonds and vouchers, payable out of the special assessments so
levied as aforesaid, which said agreement in writing provided
for the construction of said improvement in substantial com-
pliance with the terms and provisions of said ordinance, and
provided that all the work upon said improvement should be
executed in the best and most workmanlike manner and no im-
proper materials should be used, but that all materials of every
kind should fully answer the specifications therefor; which
said agreement, together with the specifications therein referred
to and made a part thereof, are ready to be produced upon the
hearing hereof or as the court shall direct.
And the plaintiff further avers that the said M, in pursuance
of said agreement in writing, then and there undertook the con-
struction of said improvement and did, then and there and
thereafter, make and construct upon said system of streets so
ordered by said ordinance to be improved, as aforesaid, a cer-
tain pretended pavement which was not made and constructed
in accordance with the terms of said ordinance and said con-
tract, but was different from and inferior in quality to, and
cheaper in cost than the said improvement so provided by said
ordinance; and the said G and C, acting at the time aforesaid
as, and constituting a majority of, the said board of local im-
provements, and colluding and conspiring with the said M,
and contriving and unjustly intending to injure the plaintiff
and the plaintiff's said property, and conspiring and intending
to injure the said owners of the property so specially assessed,
as aforesaid, improperly, unlawfully, wantonly and maliciously
permitted said M to construct said pavement in a manner differ-
ent from and inferior to and cheaper in cost than the improve-
ment so provided for by said ordinance, and acquiesced in, and
encouraged the construction thereof as the same was constructed,
and afterwards wantonly and maliciously and in bad faith
accepted, in violation of their duty to the plaintiff, the said dif-
ferent and inferior and cheaper improvement as a compliance
by said ]\I with the terms of said ordinance and the provisions
of said written agreement ; and thereafter, to wit, on the
day of , 1 , the said defendants, G
and C, conspiring with the said M to injure the plaintiff and
the plaintiff's property, and the owners so assessed for said
improvement, as aforesaid, wantonly and maliciously and in
C48 ANNOTATED FORMS OP PLEADING AND PRACTICE
bad faith, caused to be issued to said M, bonds for the payment
of the contract price of sa'ul iinprovcincnt and hir^'ly in rxci-ss
thereof, such excess ainounlinj? m the aggregate to a large sum
of money, to wit, the sum of $
And the plaintiff further avers that the roadway so by said
ordinance ordered to be improved upon said systt'in of stn*ets,
was not, nor was any portion thereof, when completed, smooth,
hard, solid and unyielding thi-oughout, but was rough and un-
even, soft, muddy, yielding and ineapable of sustaining the
ordinary and usual traflie; that the cost of said improvement,
as the same was constructed and accepted, was very nuuh less
than and not to exceed, to wit, per cent of the amount
of the assessment so levied, as aforesaid ; and the said variances
from Jind disregard of the terms and provisions of siiid ordinance
and contract were occasioneil by a wilful, wanton and malicious
disri'garil of the re<iuirem«'nts of said ordinance and contract
by the defendants and were the result of a combination and
collusion among them for the pun^o^e of injuring the i)laintitT
and others assesseil to pay for said improvement, and for the
purpose of wrongfully and unlawfully increasing, in favor of
said M, the proportion of money over the expense of construct-
ing said improvement, to the damage and in fraud of the rights
of the plaintitT; all of wiiich matt«'rs and things were, at the
times of the making and doing thereof, respectively, well known
to the defendants.
And by reason of the committing of the Siiid several griev-
ances by the defendants, the plaintitT has not received the bene-
fit of the improvement for which the plaintiff's said land was
.assessed, and the pretended improvement as constructed and
accei)ted is an injury to the plaintitT and a detriment to iier sai<l
property, and the plaintiff's said property is greatly depre-
ciated in value thereby. And the plaintiff was al.so then and
there compelled to, and did lay out a large sum of money, to
wit, the sum of $ , so assessed against the plaintiff's
said land, in order to prevent the sale thereof under and by
virtue of the revenue laws of the state of Illinois; and also
therein- the plaintitf's said property became and was and is
encumbered aud subject to a lien for the amount so a.s.se.ssed
against it as aforesaid, with interest thereon, to wit, the sum
of $ ; and the plaintiff has otherwise been greatly
thereby injured in her property and estate. And other wrongs
the defendants to the plaintiff then and there did. To the dam-
age, etc.
1286 Conspiracy in restraint of trade, action
Any person or combination of persons who directly or indi-
rectly cause injury to a person's lawful business by their wilful
interference therewith are liable for all damages sustained by
CASE 649
hira.-3 All parties to a conspiracy to ruin the business of
another are liable for all overt acts illegally done pursuant to
the conspiracy and for a consequent loss, whether they were
active participants or not.^^
1287 Conspiracy in restraint of trade, Narr. (111.)
For that whereas, for a long space of time, to wit,
years next prior to the committing by the defendants of the
several grievances hereinafter mentioned, the plaintiff was a
manufacturer of and dealer in bricks, and was the owner and
l)Ossessed of certain lands and buiUlings at , in the
state of Illinois, which were in use by him as such manufacturer,
which said lands and buildings were then and there fully
adapted to and equipped for said business ; and the plaintiff had
then and there expended large sums of money, to wit, the sum
of ($ ) dollars, in acquiring and equipping
the said land and premises for the manui'acture of bricks as
aforesaid in his said business, and was then and there, to ^^^t,
during the said period of time, engaged in the manufacture
of bricks, and in selling the same in the county of ,
and state of Illinois, and the sale of such bricks was then and
there, to wit, during said period, almost exclusively in the
county of aforesaid ; and the plaintiff was then
and there, to wit, during said period, in the receipt of large
I)i'ofits and gains from his said business, and especially from
having a market for bricks in the said county of ;
and the siiid business was then and there, to wit, during the
period aforesaid, of great value to the plaintiff, and would have
so continued to be, except for the several grievances against
him by the defendant committed, as hereinafter set forth.
And the said plaintiff avers that on the day and year first
aforesaid, and thenceforth until the commencement of this
suit, there was in the said county of a certain
corporation organized and existing under the laws of the state
of known as C, one of the defendants herein,
which said association has for a long space of time, to wit, from
the date first aforesaid and since hitherto, comprised and had
among its members a large proportion, to wit, two thirds of all
the persons and firms who, during said space of time, have been
engaged in the said county of in the business of
constructing brick and mason work, and in purchasing and
obtaining supplies of brick to be used in said county, which
said membership of said corporation has, during the said space
of time, comprised substantially all the responsible and reliable
persons or firms engaged in said business of constructing brick
23 Purington v. Hinchliff, 219 HL «* Purington v. Hinchliflf, supra.
159, 166 (1905).
650 ANNOTATED FORMS OF I'LEADINQ AND PRACTICE
and mason work in said county, and in purcliasiug and obtain-
ing supplies of brick to be used in said county.
And the phiintift" avers that for a long period, to wit,
years prior to the day and year tirst aforesaid, the nieiubers of
said association constructeii a large portion, to wit,
per cent of the brick and mason woik in siiid eounty of
and during the saiii ptriod the jjlaintitt made sales of substan-
tially all of the brick of his manufacture, and all that could
be manufactured at his aforesaid plant, to the members of said
C, from which sales he derived large protits and gains, to wit,
the sum of ($ ) dollars annually, for a
long space of time, to wit, prior to the date first aforesaid, and
during said pei-iod of years.
And said plaintitT further avers that at the date lirst afore-
said, and thereafter, up to the time of the bringing of this
suit, there was in said of a certain
voluntary organization or association of individuals known as
B of , which said association then and there
comprised and had among its members a large proi)ortion, to
wit, per cent of the manufacturers of brick in said
county, the members of which said association were manufac-
turers of and dealers in and sellers of brick in sjiid county.
And the plaintill" avers that the defendant, I), was then and
there, to wit, at the date aforesaid, and since hitherto has been,
and still is, a member of, and the president of said C, and the
defendants, P, W, A and L, were then and there, to wit, dur-
ing said pt-riod, and still are. members of the said H. and
engaged in the business of numufacturing and selling brick; and
that there existed at the date tii-st aforesaid, and since hitherto
has existed, a certain organization. Iieing a voluntary associa-
tion of individuals, which association has been and still is known
as the U No of the I U, otherwise called and known and
hereinafter designated as X, which said organization or associ-
ation comprises and contains among its membership a large per-
centage, to wit, per cent of the competent brick layers
of said county.
And the plaintitf further avers that while he, the said plain-
tiff, was lawfully and peacefully conducting his business as a
manufacturer of and dealer in brick as aforesaid, to wit, at the
date tirst aforesaid, and since hitherto, the said defendants,
well knowing the premises, and wrongfully and unlawfully
conspiring, combining, confederating and contriving to injure
the said plaintiit" in his aforesaid business, and to deprive him
of the legitimate protits which he would otherwise have derived
therefrom, wrongfully and corruptly conspired and agreed
among themselves, and caused to be agreed by said C and the
members thereof, that such members should not purchase, nor
be permitted to purchase, any brick to be used l\v them, or
any of them, from any person, firm or corporation except such
as had subscribed to the rules and regulations of the said C, to
CASE 651
which said rules and regulations the said plaintiff had not then
and there subscribed, and to which rules and regulations the
said plaintitr was then and there under no obligation to sub-
scribe; all which the said defendants then and there well knew.
And the plaintiff further in fact says that the said B wrong-
fully and corruptly took action, assuming to bind and pledge
its members, and each of them, not to handle or lay any brick
manufactured by any person who had not subscribed to the
said rules and regulations of the said C, which said rules and
rt'gulations were then and there inimical to the legal rights of
the said plaintiff' in his business aforesaid, and were then and
there calculated and intended to injure, prejudice and inter-
fere with the plaintiff's said business, and wrongfully and un-
lawfully to deprive hira of the legitimate gains and prolits of
his said business, and to destroy the said business of the said
plaintiff, which said action or pledge was then and there, and
since thereto has been accepted and acted upon by said mem-
bers and by the said defendants, severally and respectively, to
wit, at the county aforesaid.
And the said plaintiff further avers that after the making of
the said supposed agreements and pretended pledges as afore-
said, and with the unlawful and corrupt purpose of injuring,
y)reju(li('ing and interfering with the j)liiintiff's said business
in that behalf, and of preventing and precluding him from con-
<lueting said business in said county of , with any
advantage or protit whatever, the said defendants, to wit, on
the day and year first aforesaid, and at divers other times, to
wit, at said county of , procured sundry persons
to go to the customers of the plaintiff, and to attend at the
place and places where bricks of the plaintiff were bought to
be used in the construction of sundry buildings in said county
of , and then and there wrongfully and corruptly
represented to the siiid customers and to the workmen who had
then and there been engaged or were employed to lay and
work with the bricks of the said plaintiff, that if they, the said
customers, or they, the said workmen, should purchase or use
the bricks manufactured by the plaintiff, such customers, and
such workmen would be prevented and hindered from complet-
ing or proceeding with any building or structure in said county
upon which it was proposed to use the bricks of the plaintiff;
and at divers times and places in said county, from the date
first aforesaid, and since hitherto, said defendants, in further-
ance of their unlawful conspiracy and combination in that
behalf, have by divers wrongful threats, including the imposi-
tion of fines upon persons dealing in or using the bricks of said
plaintiff in said county, in fact prevented sundry customers of
the plaintiff from purchasing bricks from the plaintiff, and
from completing with such bricks the contracts in which such
brick would have been used, and have also wrongfully and un-
lawfully prevented workmen upon sundry buildings and struc-
652 ANNOTATED FORMS OP PLE.VD1NG AND PRACTICE
tures in said county from using or laying Ww brirks of the
plaintiff; and the defendants then and there niade divi-rs wrong-
ful, unlawful and malicious threats in the pn-niist'S, and caused
such wrongful, unlawful and malicious threats to become gen-
erally known among the persons who would otherwise have
been customers of said plaintitT for bricks, so that many of such
customers have been wrongfully deterred from buying or using
the bricks of the plaintiff as they would then and there have
done but for the wrongful, unlawful and malicious conduct of
the defendants as aforesaid.
And that by means of the several supposed agreements here-
inbefore mentioned, and of the aforesaid wrongful, unlawful
and malicious acts and interferences of the defendants, and the
aforesaid unlawful conspiracy in that behalf, the plaintiff has
been and still is entirely and wholly deprived of the benefit
of sales of bricks in said county, which, but for the aforesaid
wrongful, unlawful and malicious agreements and acts of the
defendants, he would have had and enjoyed; that the plaintiff
has been and still is unal»le to sell or dispose of bricks in said
county, as he might and otherwise would have been able to do,
and has lost and been deprived of divers large gains and profits
which he might and would have acquired from such sales in
the county aforesaid; and that the business of the plaintiff haa
been and is greatly damaged, injured and rendered much less
profitable than the same would otherwise have been, and the
value of his said lands and buildings used as aforesaid in the
manufacture of bricks has been greatly depreciated and injured.
And other wrongs the said defendants to the said plaintiff
then and there did. To the damage, etc.
1288 Conspiracy to alienate wife's affections, Narr. (Mich.)
For cause of action said plaintiff avers that she was married
to said defendant , on or about ,
19. ., and that he is a son of the defendants, and
; that prior to said marriage, said plaintiff lived
for a long period of time with her parents in the city of ,
and that shortly after said marriage she took up her abode with
her said husband, and kept house at , Michigan,
where her husband was engaged in the general mercantile busi-
ness with the defendant, , under the firm name of
, and in which business her said husband owned
and held a large interest, to wit, $ and upwards.
That her married life was happy until said defendants,
and , undertook to intermeddle in
the relations existing between herself and her husband, and to
dominate and control his treatment of her.
That having acquired a dislike to the plaintiff, the said
and undertook to bring about a
separation of the plaintiff and her husband, and to accomplish
CASE 653
which purpose alienated her husband's affections, and induced
him to commence and prosecute a divorce suit against the plain-
tiff in the circuit court for the county of , which
occasioned the plaintiff much mental anguish and sufferings,
and loss of support of her husband, to recover which she sued
the said defendants, and , in this
court.
That while the said suit and the divorce suit was pending,
the said defendants, and , made a
settlement with the plaintiff of the loss involved in said suit,
and as part consideration therefor they agreed to and did deed
to her certain real estate in the city of of the
value of, to wit, $ , and promised and assured plaintiff*
that if she would forgive her husband for his alleged miscon-
duct in the premises and would again live and cohabit Avith
liim, that the said defendants, and ,
would in no manner intermeddle in their marriage relations,
or attempt to influence her husband to her detriment or disad-
vantage, and that her said husband should and would close out
his interest in the business at and remove to and
reside at , and remove his household effects thereto,
and there live and keep house with the plaintiff, and that her
said husband would engage in business with the plaintiff's
father, in which he would be enabled to earn more than suffi-
cient to meet the wants and requirements of said plaintiff' and
her husband.
That believing that said defendants, and
, would in good faith refrain from molesting said
plaintiff, and from interfering or intermeddling with her or
her husband's affairs, and from influencing her husband to
her detriment, and would not thereafter seek to alienate her
husband's affection that she would again regain by living and
cohabiting with him, said plaintiff consented to and did dis-
continue her suit against the defendants, and
aforesaid, without costs, and released them from
her claims involved in said suit, and consented to the with-
drawal of the divorce suit by her husband -without costs, and
again lived and cohabited with her husband, and together they
planned the establishment of their home at , and
rejoiced in the outlook for a bright and happy future, and
plaintiff again regained and was possessed of the affection of
her husband, and but for the committing of the grievances by
defendants, hereinafter alleged, would be still living happily
with her said husband in their home at the city of
Plaintiff further avers that upon said adjustment, her said
husband provided her with temporary moneys for her support,
together with his assurance that she would be properly and
regularly cared for by him, and soon thereafter went to
with the intention and purpose of closing out
his interest in the business of said , and removing
654 ANNOTATED FORMS OF PLEADING AND PRACTICE
the plaintiff's household furniture and effects to .,
which were at a former home in , and shortly join
her there and begin housekeeping.
Plaintiff further avers that the defendants,
and , were very much wrought up at their being
obliged to transfer to plaintiff in the settlement aforesaid, the
real estate hereinbefore mentioned, and on frequent occasions
thereafter importuned her to re-deed it to them, and then and
there in various ways and by divers pretexts hampered her in
the use and occupation thereof and in obtaining the rents accru-
ing therefrom, and well knowing that plaintiff would not be
moved by their importunities to comply with their wishes, they
became very much embittered towards her, and determined to
coerce her into re-transferring the said property to them, or
either of them, and, if necessary, in the accomplishment of such
purpose to estrange her from her husband, and deprive her of
her home, her husband's affection, society and support.
Thereupon said defendants, and ,
conniving with and acting in concert with the defendant,
, who was a close friend and adviser of theirs,
determined to force the plaintiff to re-deed the property, and
in the accomplishment of which purpose, said defendants con-
spired to bring about a separation between plaintiff and her
husband, and to alienate his affection from her, and to induce
him to withhold from her his society, a home and support.
That said defendants, in pursuance of such plan and scheme,
acting jointly and severally, well knowing tbat the said de-
fendants, and , dominated and con-
trolled her husband's mind and will, and could easily influence
his actions in the premises, on, to wit, the day of
, 19. ., and upon divers days and times between
that date and the time of the commencement of this action at,
to wit, the city of and various places, jointly and
severally, wrongfully and wickedly carried on a secret corre-
spondence with her said husband, and held various clandestine
meetings with him, and by means of false reports of and con-
cerning the plaintiff, communicated by them, or some of them,
and by various other arts and devices, did wrongfully and
wickedly alienate and destroy her husband's affections for her,
which she had heretofore gained and was possessed of, and then
and there induced and persuaded him to refuse to longer give
her his affection, comfort, fellowship, assistance or support, and
poisoned his mind against plaintiff, caused and procured her
husband to fail and neglect to furnish her with the means of
support, well knowing that she was at without
means of support, and that it was her husband's intention to
send her moneys weekly therefor, and caused and induced her
husband to refrain from writing to her, or answer her letters
to him, and from furnishing her with means to go to ,
in order that she might visit her husband and use her wifely
CASE 655
influence to awaken him to an appreciation of his duties and
obligations in the premises.
That in order to more effectively carry out their said plans
and to completely dominate and influence her husband in his
conduct towards plaintiff, the said defendants,
and , gave up their residence in ,
where they had lived for a great many years, only making occa-
sional trips to , removed to and established their
residence at aforesaid, and have since continued
and still reside there.
That in further pursuance of said plans and schemes, and
in order that the plaintiff would be deprived of her support,
they, said and , have caused and
procured plaintiff's husband to make fictitious transfers of his
interest in said business and certain real estate which was sit-
uated in the city of and elsewhere, and of which
he was heretofore the owner, to divers persons unknown to
plaintiff, and caused a report to be circulated and published at
and aforesaid that her said hus-
band had no longer any interest in the business, and was with-
out means, and then and there persuaded her husband to with-
hold all financial support and assistance to the plaintiff", thereby
subjecting her to much humiliation, shame and disgrace, and
causing her to deny herself of the comfort she had enjoyed,
and would have enjoyed in the society, home, support and pro-
tection of her husband, but for the misconduct and wrongful
acts of said defendants in the premises.
Plaintiff further avers that on or about the day
of , 19. ., believing that if she went in person to
, she might by her wifely influence convince her
husband of the great wrong and injustice he was doing to her
in allowing himself to be influenced, dominated and directed
by his said parents, and induce him to come to
with her to live, and in furtherance of such purposes to assist
her in removing the furniture and effects, vnth. which their
former home at was furnished, and, accompanied
by her father, she went to , for the expense of
which trip she was obliged to borrow the money, and saw her
husband, and entreated him to go and live with her at ,
and get away from the domination and influence of his parents
as aforesaid, and where they would be happy and enjoy their
married life.
Plaintiff further avers that said defendants,
and , had so completely alienated her husband's
affection and regard for her, that he would not give ear to her
entreaties, and refused to go or live with her, or assist her in
sending her furniture and effects to , or provide
her with maintenance and support; and finding that her hus-
band was still under the domination and control of said defend-
ants, and would not be influenced by her or comply with her
656 ANNOTATED FORMS OF PLEADING AND PRACTICE
wishes, she prepared to pack and ship her household furniture
and effects to , and upon investigation found tliat
in furtherance of said plans liereinbi'fore mentioned, tiie said
defendants, and , had induced her
husband, without her knowledge or consent, to sell and dispose
of a large and valuable portion of plaintiff's household furni-
ture and effects, and to secrete others and withhold them from
her; and that in further pursuanee of said phiiis and purposes,
in order to bring plaintitf into disrepute in the eommunity
at , among her friends and actpiaintances, where
she had always enjoyed a good reputation for honesty, integrity
and womanly conduct, the defendant, , pursued
plaintiff' upon the public street at , and without
cause or provocation, in the presence of a number of good and
worthy people living at , , in a loud tone of voice.
called plaintitT a rol)ber and tliief. and other vile names, and
publicly threateiunl plaintiff that unless siie would give back
the property which she had stolen (meaning the real estate
whicli defendants, and , had deeded
her), she would make plaintiff's life miserable, and on another
occasion on the same day, at , , said
defendant informed plaintitT that she would not permit her son
to live with such a wife who had robbed them (meaning her
and her husband) of their property, and that she would do all
the harm and mischief she could; all of which plaintiff avers
was in furtherance of the plans and schemes of the defendants
aforesaid ; and then and there and in other ways, and on other
occasions, said defendant , in pursuance of said
plans and schenu's, by subtle pretexts and in ilivers ways, sub-
jected plaintiff to much humiliation, public scandal and dis-
grace in the conununity at ; and in conse(|uence
of said defendants' conduct in the premises, plaintiff was obliged
to return to without her husband and a consider-
able portion of the household furniture and effects, and without
the home he was to provide for her, and be without his support,
society and affection, and has by the acts and misconduct of
said defendants, jointly and severally, lost the affection of her
husband, and been deprived of a home, and its comforts, and
his support and financial assistance and his society and protec-
tion, and has suffered much shame, humiliation and disgrace.
Plaintiff further avers that it is the purpose and intention
of said defendants, and , in further-
ance of said plans and purposes, to continue to keep the said
plaintiff and her husband apart and to continue to deprive her
of her home, society, affection, support and protection of said
husband, and to continue to harass and annoy plaintiff, and
to scandalize her in the community of ,
and elsewhere, and to bring her into disrepute among her
friends, relations, neighbors and others, whereby she has suf-
CASE
657
fered and still suffers great damage ; wherefore because of the
grievances herein set forth she claims damages m the sum of,
to wit, $
1289 Dishonoring check, Narr. (D. C.)
For that heretofore, to wit, at the time of the happening
of the cause of action hereinafter set forth, the defendant cor-
poration was engaged in doing a general banking business in
the city of , District of Columbia. That the plain-
tiff was engaged in business as proprietor and owner of a
in the city of , District of Columbia,
and as .... .' in ^°^ ^^'^^ ^"^ ^^^ ^^^°
for a long time prior thereto a depositor in said defendant cor-
poration bank, having on deposit with said defendant corpora-
tion from time to time divers large sums of money, and at the
time of the happening of the grievance herein mentioned, a
sum in excess of dollars. That it therefore be-
came the duty of said defendant corporation to honor any and
all checks of the plaintiff out of any cash balance payable to
the plaintiff that might be in its hands, and to pay the same
when a written order was drawn against the said money on
deposit and presented for payment in due course of business.
Tiiat on the plaintiff gave a check or order on
defendant corporation, in writing, for the sum of •
dollars to , ^vhich check or order was presented
for payment in due and usual course of business at the banking
house of the defendant corporation on to wit ,
during usual business hours. That at the time said check or
order was presented for payment and payment demanded, the
plaintiff had sufficient and ample funds deposited in said bank to
the credit of the plaintiff to pay said check or order, and it was
then and there the duty of said defendant corporation to honor
said check or order. Yet the defendant, well knowing the prem-
ises did wilfullv, wrongfully and unlawfully refuse to pay said
check or order and dishonored the same and returned the same to
the said payee with the statement that there were not sufficient
funds to pay said check or order, said statement being made
in the presence of a number of persons who heard the said
statement, and it was believed by those who heard said remark
that the plaintiff had drawn a check or order when he did not
have sufficient funds on deposit in said bank to pay the same.
That in consequence of the wrongful, wilful and unlawful acts
of the said defendant corporation, the plaintiff was greatly in-
jured in his credit and reputation, and that by reason of the
premises the plaintiff has sustained damages in the sum ot
dollars. Wherefore, etc.
658 ANNOTATED FORMS OF PLEADING AND PRACTICE
1290 Drainage inadequate, action
An action on the case will lie against drainage commissioners
for their failure or neglect to furnish adequate drainage by a
plan which is practical.-^
1291 Drainage inadequate, Narr. (111.)
For that whereas the plaintiff, heretofore, and at the time
of the committing of the grievances hereinafter mentioned, was
and from thence hitherto has been, and still is, lawfully pos-
sessed of the following described real estate, to wit : (Set forth
description of same) in said county, Illinois, with
the appurtenances, which said lands and premises the plaintiff
before, and at the time, used and enjoyed, and of right ought
to have used and enjoyed, and still of right ought to use and
enjoy, to wit, in said county; that the lands of the plaintiff
aforesaid heretofore, and at the time of the committing of the
grievances hereinafter mentioned, were, and from thence
hitherto have been a part and portion of the lands contained
in and composing drainage district No ,
counties, a certain drainage district located and being in the
southern portion of said county and in the county of
, next adjoining, and which said ,
drainage district No , counties, was
long prior to the committing of the grievances hereinafter
mentioned, organized, adopted and maintained for the pur-
pose of furnishing and insuring adequate and complete
drainage for the lands located therein, including lands of plain-
tiff, and which said drainage district No ,
counties, and the benefits accruing therefrom to the lands of
the plaintiff, the plaintiff, before and at the time, used and
enjoyed, and of right ought to have used and enjoyed, and
still of right ought to use and enjoy, to wit, in said county;
that the said defendants, heretofore and prior to the committing
of the grievances hereinafter named and mentioned, were, on,
to wit, the day of , 19.., duly
appointed by the county court of said ...••• county,
commissioners in and for said drainage district No ,
counties, duly qualified and, from thence hitherto,
and still are, acting as such commissioners, as is more fully
shown by the records of said county court ready to be produced
on the hearing of this cause; that the said defendants, hereto-
fore, and at the time of the committing of the grievances here-
inafter mentioned, were and from thence hitherto, have been
and still are by virtue of the law in such case made and pro-
25 Binder v. Langhorst, 234 111.
583, 586 (1908); Sec. 50, Levee act
(111.).
CASE 659
vided, invested and clothed with full power and authority to
alter, change, repair, regulate and maintain said drainage dis-
trict No , counties, and the drains and
ditches contained therein, in such manner and to such extent
as will give and afford all the lands embraced and contained
in said drainage district, full, adequate and complete drainage,
including the lands of the plaintiff, which said rights and bene-
fits of drainage so accruing to the lands of the plaintiff, the
plaintiff before and at the time used and enjoyed, and of right
ought to have used and enjoyed, and still of right ought to
use and enjoy, to wit, in said county; that, heretofore and at
the time of the committing of the grievances hereinafter men-
tioned, and from thence hitherto, and at the time of the bringing
of this suit, by virtue of the statute above mentioned and by vir-
tue of their said office as such drainage commissioners, it was the
duty of said defendants, and each of them, to so alter, change,
repair, regulate and maintain said drainage district No ,
counties, and the drains and systems of drainage con-
tained therein, in such manner and to such extent as to give and
afford all the lands embraced and contained within said district
full, adequate and complete drainage, including the lands of the
plaintiff, which said rights and benefits of drainage so accruing to
the lands of the plaintiff, the plaintiff before and at the time
used and enjoyed, and of right ought to use and enjoy, to wit,
in said county; and that, heretofore and at the time of the
committing of the grievances hereinafter mentioned, and from
thence hitherto, and at the time of the bringing of this suit,
the laws of the state of Illinois, in such case made and provided,
made and constituted the said defendants liable and responsible
for all loss and damages accruing to the plaintiff on account of
the refusal, faihire or neglect of said defendants to make such
alterations, ' changes, repairs and regulations in said drainage
district No , counties, and the drains and
ditches therein, as may be necessary to afford ample and com-
plete drainage for all the lands contained in said drainage
district.
Nevertheless, the said defendants, acting at the time afore-
said, and long before and hitherto have acted, and are stdl
acting as such commissioners of drainage district No ,
counties, as aforesaid, having full power and
authority to alter, change, repair, regulate and maintain said
drainage district No , counties, and the
drains and ditches contained therein, contrary to the law as
aforesaid, contriving and unjustly intending to injure the plain-
tiff in the possession, use, occupation and enjoyment of his said
lands and premises, and to render the same incommodious and
unfit for tillage and of little or no use or value to the plaintiff,
and also to hinder same from becoming commodious and fit
for tillage and of use and value to the plaintiff while the plain-
tiff was so possessed thereof and so used and enjoyed the same.
660 ANNOTATED FORMS OF PLEADING AND PRACTICE
on, to wit, the clay of , 19 . . , in said
county, wrongfully and unjustly and unlawfully, failed, refused
and neglected to alter, change, repair, regulate or maintain said
drainage district No , counties, or the
drains or ditches contained therein, and on divers times and
occasions thereafter have also failed, refused and neglected to
alter, change, repair, regulate or maintain said drainage dis-
trict No , counties, so as to give and
afford the plaintiff any adequate or sufficient drainage for
his said lands in said drainage district, contrary to the law
in such case made and provided ; and said commissioners
wrongfully and unjustly built thereupon, made and erected and
permitted to be made and erected thereupon, certain grades,
ditches, embankments, culverts and bridges, near to the lands
and premises of the plaintiff, in so careless, negligent and im-
proper manner, and have kept and continued said grades,
ditches, embankments, culverts and bridges for a long space of
time, to wit, from thence hitherto, that by reason of the afore-
said wrongful and unjust and unlawful actions of the said de-
fendants, afterwards, to wit, on the day and year aforesaid and
on divers other times thereafter, and before the commencement
of this suit, divers large quantities of rain water and surface
water and standing water remained standing upon said land,
and ran and flowed from said ditches through said culverts and
bridges and along said grade, and backed up by said bridges
and other wrongful obstructions in said ditcli. ran and flowed
down to, upon, against and unto the lands of the said plaintiff,
regardless of the diligent efforts of the plaintiff" to remove and
prevent the same, and flooded the crops, fences, soil and other
parts of the plaintiff's lands, and thereby greatly damaged the
said lands and premises of the said plaintiff, and the said crops,
fences, soil and other parts thereof, and by reason thereof the
said land and premises of the said plaintiff became and were,
and are damaged, wet, swampy and unfit for use, occupation,
cultivation and tillage. And also by reason of the premises,
the rain water, surface water and standing water aforesaid ran
and flowed in different directions or channels and with greater
force and increased velocity and impetuosity than it of right
ought to have and otherwise would have done, into, upon and
against the lands and premises of the plaintiff, and the crops,
fences, soil and other parts thereof were damaged and destroyed
on account thereof. To the damage, etc.
1292 Drainage unsanitary, Narr. (Miss.)
That the said , for the purpose of conveying
away the surface drain and water from its streets and else-
where, has constructed a number of open ditches in different
portions of said city ; that one of said ditches has been dug by
defendant on the side of street, and
CASE 661
xi 1 +^ street, tlience on the
continues southward to • • • ;• ' f 'r"' '
side of street for about
feet, wiiere it crosses said street to tlie
side ; and thence down the • • side ol • • • • ■■
to street and thence on the side oi
street in a southward course.
■ "ThaV said ditch is about feet deep and from
inai sdiu u^^ ^^.^^^ ^^^ .^ j^^p^ ^pg^ without
covering or"lining;* that the bottom of said ditch is uneven and
broken that in manv places there are holes washed out in the
bo?tom;so that the contents emptying into said ditch are greatly
obstructed in passing through said f ^^'^Z/^' 5'. . r thP sole
That said ditch or sewer was dug by defendant for the sole
r>nrnose^f drainin- off of the surface water that falls m times
^f rdn and thai it'is the duty of the defendant to see that the
same is used for no other purpose, and to keep the ditch ma
^e^sonably sanitary' condition, so that private property abutting
on the streets traversed by said ditch will not be injured by
ovprflow or accumulation of filth. .
That plaintiir is the owner of (Set forth legal description of
property), the same being a lot fronting on • and
^ . . . . streets and in the survey of said
city of , and has houses located
thereon, one fronting on and one on . ..... .... .■
streets The first was built to be occupied by the plaintiff as
a residence for himself and family, the other tor a tenant ; and
that the said ditch nins in front of both of said houses and
within a few feet of the front porches of each.
Plaintiff avers, that notwithstanding the fact that said ditch
was dug by defendant for the purpose of surface drainage alone
said defendant has permitted the use of it tor the deposit of
all kinds of filth and sewerage and that this use has continued
for years; that defendant negligently permits the
of' said ditch for emptying therein all manner of slop and
use
filth . th-it within hundred feet of the plaintiff's
sa ^pi!^>pertf ^^^^^^^^^ a ...story hotel a boarding
house a barber shop, a drug store, bank and a dental office, all
emptying their slops and sewerage into said ditch by means of
pipes running from said places and emptying directly into said
d ch- that all of the slop from the kitchen, from the wash
ba^ns, bath tubs and . . .^ of said hotel are emptied
into said ditch ; that the story of said hotel is
l^sed as a lodge hall, and that different lodges
use it as a regular monthly meeting place, and a unnal is
attached to said lodge hall and used by the members during
their meetings, and at certain times during these meetings there
is a steadv flow of urine into said ditch and withm a few feet
of plaintiff's said property. That all the slop and waste water
from said barber shop is conveyed directly into said ditch;
that said drug store discharges all the foul and noxious water
662 ANNOTATED FORMS OF PLEADING AND PRACTICE
and gases resulting from the washing of bottles and compound-
ing of prescriptions, and from a large soda fount directly into
said ditch; that all the foul sint'lling water and excrement fnjin
said dental office and bank, and all slops from the kitchen siidc
of said boarding house also run directly into said ditch or open
sewer.
Plaintiff further avers that all of the above mentioned foul
smelling and noxious matter tlows into said ditch only a few
feet of plaintiff's said property, and makes its
way slowly down the saitl ditch next to said property; that in
dry weather it fre(iuently puddles and stands in holes and low
places in the bottom of said ditch just opposite said property,
and always gives off such a stench that it renders said property
unfit for habitation ; that during the spring and summer months,
and especially in dry weather, there is such a foul, putrid odor
and stench arising from said ditch ])ecause of said filth, slops
and excrement j)ermitted i)y the defendant to fiow therein that
it is impossil)le for persons to sit on the front porches of said
houses, and that if the windows or doors of the rooms be left
open at night, a person cannot sleep in the rooms without being
constantly disturbed by said stench.
Plaintiff avers further that he tried to live in said residence
with his family some years apro, and during the
whole time he occupied the same he and his family were con-
stantly annoyed by said stench ; that it was not only unpleas-
ant and disagreeable, but memliers of his family were almost
constantly sick as a result of said unsanitary condition of said
ditch; that upon the advice of his physician he moved his family
away from said premises; and that he has been advised by his
physician that it will not be safe to return to the place so long
as said ditch remains in the said condition.
Plaintiff further avers that because of said unsanitary con-
dition of said ditch, he has been unable to rent said property
for the past years except for a short while at a
time; that tenants will not rent the property because of the
disagreeable scent arising from said ditch ; that a reasonable
rental value of said property for the past years
would be dollars ; and that plaintiff has lost that
sum because of the unsanitary condition of said ditch.
Plaintiff further avers that said property has been greatly
reduced in value, in fact, so much so, that it is practically w^orth-
less so long as said ditch remains in its present condition.
Plaintiff further avers that said ditch has been so used by
said parties for the past years or longer, and
that said unsanitary condition and said stench and disagree-
able odor w^as fully known to the defendant; that said parties
used said ditch for the purposes aforesaid with the full knowl-
edge and consent of the defendant; and that the plaintiff often
requested said defendant either to place tiling in said ditch
or to stop the use of it by said parties for the deposit and dis-
CASE
663
charge of said slop, filth and excrement ; but that the defendant
has wholly failed to do either and has continued to permit the
use of said ditch for said purposes; all to the plaintiff's dam-
age in the sum of dollars. Wherefore, etc.
1293 Excessive levy, Narr. (111.)
For that whereas, on, to wit, the day of ,
19. ., said plaintiff was indebted to the defendant on
promissory notes in the sum of dollars, said
notes having been originally given for about the sum of
dollars, on which the plaintiff was then and there entitled to a
credit i'n the sum of dollars ; and the defendant,
well knowing the premises, wilfully and maliciously, and for
the purpose of oppressing and wronging the plaintiff and in-
juring him in his credit, but by virtue of the power of attorney
attached to said notes, procured a judgment in the
court of the county of , and state aforesaid,
against the plaintiff upon said notes, in the sum of
dollars, without notice to the plaintiff; and then and there
caused execution to be issued on said judgment, and placed the
said execution in the hands of the sheriff of said county. And
further, in pursuance of said purpose to wrong and oppress the
plaintiff, and to injure him in his aforesaid standing and credit,
the defendant wilfully and maliciously directed and caused the
sheriff' aforesaid to levy said execution upon all and singular
of the goods and chattels of the plaintiff of the value, to wit,
dollars, and wrongfully and maliciously di-
rected the sheriff to take and hold said goods and chattels, and
all of the same, by virtue of said levy and execution; and
then and there caused the said sheriff to hold all of said goods
and chattels for a long time, to wit, for the space of .
months next thereafter; by reason of which said levy the plain-
tiff was unable to have or use said goods and chattels, and was
thereby greatly damaged in his credit and financial standing,
and was then and there put to great expense, to wit, the sum of
dollars, in setting aside said judgment and in
defending said suit.
Plaintiff further avers that the said judgment for
dollars in said court was set aside and this plaintiff was per-
mitted to make his defense of payment of all that was due on
said notes, excepting dollars, and that said suit
was fullv terminated before the commencement of this action.
Plaintiff further avers that he was also then and there thereby
greatly hindered and prevented from transacting his ordinary
affairs. To the damage, etc.
1294 Explosion of powder magazine, Narr. (111.)
For that whereas, on, to wit, the day of ,
19. ., in the county of aforesaid, the plaintiff was
664 ANNOTATED FORMS OP PLEADING AND PRACTICE
the owner of and possessed of a certain lot of household furni-
ture (Describe furniture) then located and being on tiie follow-
ing described premises, to wit (Describe property), situate in
the said county of ; that he was also the owner
of and possessed of a certain blacksmith shop then located and
being upon the certain lot or parcel of ground next west and
adjoining the premises above described, and the blacksmitii
tools therein contained; and that he was also the owner of and
possessed of a certain other building, to wit, a certain frame
dwelling located and being on the following described premises,
to wit (Describe property), in the in said county.*
And the said defendant, on the day aforesaid, in the county
aforesaid, was possessed of the following described property, to
wit (Describe property), situated in the in the
said county.
And it then and there became and was the duty of the de-
fendant to so use, occupy and conduct the premises so possessed
by it as aforesaid so as not to endanger or jeopardize the build-
ings and property of the plaintiff hereinbefore described, and
not to store upon its said lot or parcel of ground any danger-
ous or explosive substance or compound whereby the property
of the plaintiff might be destroyed by reason of the prenuiture
or accidental explosion of such explosive substance or com-
pound.
Yet the defendant, not regarding its duty in that behalf,
on, to wit, the day aforesaid, in the county aforesaid, kept and
maintained on and upon the premises of the defendant herein-
before described, a certain maga/ine of gunpowder, dynamite,
gun cotton and other dangerous and explosive compounds; and
plaintiff avers that the defendant then and there had stored
in the said magazine upon the said premises a large amount of
gunpowder, dynamite and gun cotton, said gunpowder, dyuM-
mite and gun cotton then and there being higlily explosive ai.d
dangerous substances and compounds.
And plaintiff further avers that, on, to wit, the day aforesaid.
in the county aforesaid, the said gunpowder, dynamite and
gun cotton and other explosives, then and there kept in said
magazine by the defendant, exploded, and by means of such
explosion the material of which said magazine was constructed
was then and there driven with great force and violence upon
and against the property of the plaintiff hereinbefore described,
and a concussion of the air of great force and violence was
then and there caused by said explosion.
2. (Consider first count to star, as here repeated, the same
as if set out in words and figures.)
And then and there was in full force and effect in the said
a certain ordinance known as section .... of
chapter .... of the revised ordinances of the of
, which said section .... was and is as follows,
to wit: (Set forth ordinance).
CASE 665
And then and there, by reason of and in accordance with the
ordinance aforesaid, it became and was the duty of the defend-
ant not to erect or maintain any powder magazine or place used
for storing gunpowder or other explosive material on any lot,
the size or area of which was such that the boundaries thereof
were less than twenty rods distant from the walls of any such
magazine or place.
Yet the defendant, not regarding its duty in that behalf, on,
to wit, the day and year aforesaid, kept and maintained a
powder magazine or place for storing gunpowder or other ex-
plosive material within the of afore-
said, which said powder magazine was located on the following
described premises, to wit (Describe premises), the size or area
of which was such that the boundaries thereof were less than
twenty rods distant from the walls of the said powder maga-
zine or place of storing gunpowder or other explosives, to wit,
on the day and year aforesaid, contrary to the provisions of
the ordinance aforesaid.
And the defendant then and there had and kept in said mag-
azine large quantities of gunpowder, dynamite and gun cotton,
said gunpowder, dynamite and gun cotton being then and there
explosive materials.
And the said plaintiff further avers that, on, to wit, the day
aforesaid, in the county aforesaid, said powder magazine was
then and there struck by lightning, by means whereof raid ex-
plosive materials then and there kept in said magazine by the
defendant exploded, and by means of such explosion the mate-
rial of which said magazine was constructed was then and there
driven with great force and violence upon and against the prop-
erty of the plaintiff hereinbefore described ; and a concussion
of the air of great force and violence was then and there caused
by said explosion.
And the said horse of the plaintiff was then and there struck
with a large stone then and there driven with great force and
violence by reason of such explosion, and was then and there
greatly bruised and wounded, from the effects of which wounds
and bruises the said hoi-se of the plaintiff afterward, to wit, in
one day, died.
And the following property of the plaintiff was hit by rocks
and stones propelled with great force and violence by means
of such explosion, and was wrecked and torn by means of the
concussion of the air then and there caused by said explosion,
and was totally destroyed and lost, and was of great value, to
wit, household furniture of the value of dollars ;
one horse of the value of dollars ; one blacksmith
shop of the value of dollars ; blacksmith tools of
the value of dollars.
And the plaintiff by means of such explosion sustained great
damage to said buggy, wagon and sleigh of fhe plaintiff, and
was obliged to and did lay out and expend in and about repair-
666 ANNOTATED FORMS OF PLEADING AND PRACTICE
ing the same, the sum of dollars ; that the build-
ing of the plaintiff so as aforesaid located and being upon tiie
said lots in said (Describe property) was then and there by
reason of said explosion and the concussion of the atmosphere
caused thereby, greatly torn, wrecked and damaged, and plain-
tiff was obliged to and did then and there lay out and expend
in and about repairing the said building, the sum of
dollars.
And other damage was then and there sustained by the said
plaintiff' by reason of the premises, to the extent of
dollars, by means whereof the plaintiff' has sustained damage
to the sum of dollars.-**
1295 False return, Narr. (111.)
For that whereas, the defendant. . on, to wit, the
day of , 19. ., was sheriff' of the county aforesaid,
and on that day the plaintiff'. . delivered to him a certain writ
of fieri facias or execution issued out of and under the seal of
the court of county, state of Illi-
nois, duly attested by the clerk thereof and dated said
day of , 19.., directed to the sheriff of said
county, commanding him that of the lands and
tenements, goods and chattels of C, trading as ,
in his county, he should cause to be made the sum of
dollars, which plaintiff', . then lately in the court
of county, at a term thereof begun and held at
the city of , in said county on the
Monday of , 19. ., had recovered against the said
defendant therein named C, and which by the said court was
adjudged to the said plaintitf. . for . .he. . . . damages; and also
the further sum of dollai-s which was adjudged
to the plaintiff. . for . .h. . . . costs and charges in that behalf
expended, whereof the defendant therein, C, was convicted, as
appears by the record of said court, and that he
should have those moneys ready to render to the plaintiff. . for
..h.... damages and costs aforesaid and should make return
of the said writ with an endorsement thereon in what manner
he should have executed the same within daj^s
from the date thereof.
Plaintiff. . further aver. . that at the time said execution
was delivered by the plaintiff. . to the defendant as such sheriff
of county aforesaid, said defendant had in his
possession as such sheriff goods and chattels of the said C, in
said writ of fieri facias or execution named as defendant, of
the value of, to wit, dollars ; that the said defend-
ant, B, pretended to then and there hold said goods and chat-
26Laflin & Rand Powder Co. v.
Tearney, 131 111. 322 (1890).
CASE 667
tcls of the said C under certain executions from the
and courts of county, ,
in favor of , as follows: (Give list of executions).
Also under and by virtue of an attachment writ from the
court of county, state of Illinois, in
favor of and against C for the sum of
dollars, all of which said writs came to the hands of said sheriff
on the day of , 19 . . ; but plaintiff. .
aver. . the fact to be that at the time plaintiff. . ' said writ of
fieri facias was delivered to the defendant, the defendant, as
such sheriff, held said goods and chattels under and by virtue
of only said attachment writ and by agreement between said
plaintiff'. . in execution
and the defendant in execution, C, that after receiving and levy-
ing the same the defendant, as such sheriff, advertise to sell
said goods pursuant to law on the day of ,
19. . ; that by agreement between said plaintiff. . and defendant
in said executions and said sheriff, said sale was continued from
that date until the day of , 19 . . , the
same was again continued by agreement as aforesaid between
the said parties until the day of ,
19. ., and that at the time of the delivery of plaintiff. . said exe-
cution to said defendant as such sheriff', he held the said goods
and chattels under and by virtue of said attachment writ and
said agreement between the plaintiff. . and defendant in said
executions respectively, and not under and by virtue of said
executions or any or either of them, and that the same were
then and there not liens upon the property of said defendant in
execution, C, as against the plaintiff. .
Plaintiff. . further aver. . that the time . .he. . delivered said
execution to the said defendant as such sheriff", on, to wit, the
• . . day of , 19 . . , . . he . . instructed
and directed the said sheriff to immediately levy the same upon
any of the property of the defendant in execution, C, to be
found by him in the said county of , and to imme-
diately proceed according to law to sell the same and apply
the proceeds towards the payment of . .h. . said execution.
Plaintiff., further aver., that afterwards, and on, to wit,
the day of , 19 . . , the said
, plaintiff. . in said executions hereinbefore men-
tioned respectively, then and there agreed to and with the said
defendant in execution, C, and the defendant herein, B, sheriff,
to again postpone the sale of said goods and chattels so held in
the possession of the defendant as aforesaid and upon which
the said defendant had levied plaintiff, .s writ of fieri facias
or execution, on, to wit, the day of ._ ,
19. ., without the consent of the plaintiff. ., and the said sale
was then and there again postponed without the consent of the
plaintiff. . and against . .h, . protest until, to wit, the
day of , 19 . . , and on said day of
668 ANNOTATED FOKMS OF PLEADING AND PRACTICE
, 19.., by agreement between the parties afore-
said, without the consent and agaiiist the prote.st of phiintilT. .,
said sale was again postponed until the day of
, 19. ., and as to a portion of said goods so levied
upon as aforesaid, until the day of ,
19...
Plaintiff. . further aver. . that, on, to wit, the
and days of , 19. ., the said defend-
ant as such sheriff sold the goods and chattels of said defendant
in execution, C, so levied upon by him under plaintiff, .s writ
of execution as aforesaid, receiving therefor the sum of, to wit,
dollars.
Plaintiff., further aver., that it thereupon became and wa.*?
the duty of said defendant as such sheriff, to pay to the plain-
tiff. . out of the said money so received from the sale of said
goods and chattels as aforesaid, the amount of ..h.. said writ
of fieri facias or execution, together with interest thereon, after
deducting from said proceeds the costs incurred by the defend-
ant as such sheriff in selling the same and the amount necessary
for him to hold and retain in his possession on said writ of at-
tachment, but that the defendant, not regarding his duty in
that behalf, then and there refused to pay to the plaintiff. .
the amount of ..h., said execution, interest and costs, or any
part thereof, and did wrongfully and falsely return said writ
of execution, on, to wit, the day of ,
19.., with his endorsement thereon that he had applied said
moneys on court execution Nos and
court execution No , after deducting his
costs, and then being unable to find any other property of the
said C in his county on which to levy, he therefore returned said
writ in favor of plaintiff. ., "No part satisfied," the said last
mentioned executioi.s from the and
courts of county being the executions of the said
, above mentioned.
"Whereby, the plaintiff. . aver. . an action has accrued to
. .h. . to demand of the defendant as damages, the amount of
. .h. . said writ of fieri facias or execution, interest and costs as
and for said false return of the sheriff thereon.
1296 Fencing railroad near depots
A reasonable space around station and depots which is ex-
clusively used for public access to the railroad is not required
to be fenced by statute.-^
27 Butler V. Aurora, Elgin & Chi-
cago R. Co., 250 111. 47, 49 (1911).
CASE 669
1297 Fraud and deceit, action
An action on the case is an appropriate remedy to recover
damages for fraud and deceit practiced in securing the execution
of a contract,2 8 as by representing lands to be unincumbered when
they are incumbered.^^ An action on the case in the nature of
deceit is maintainable against a party, who, with a design to
deceive and defraud another, makes a false representation of a
matter required of him, by which a party to whom the repre-
sentation is made, enters into a contract with a third person, and
sustains an injury thereby-^®
The fraud and the deceitful representation which may consti-
tute the ground of an action for deceit must be concerning an
existing fact or facts, and must not be a mere promise to per-
form an act, although accompanied at the time with an inten-
tion not to perform it. Fraudulent representations are action-
able whether verbal or-written.^^ The elements of the cause of
action for fraud and deceipt are representation, falsity, scienter,
deception and injury.32
1298 Fraud and deceit, declaration requisites
In an action for fraud and deceit, the averment that the de-
fendant knew that the representations were false is essential
to the statement of a good cause of action. The fraud and the
scienter constitute the grounds of the action.^^
1299 Fraud and deceit, collusion between defendant and real
estate agent, Narr. (111.)
For that whereas, on, to wit, , the plaintiff was
engaged in the business of a carpenter in the city of ,
county, , and the defendant, D, was
then and there a neighbor of the plaintiff and engaged in the
})usiness of a florist in aforesaid ; that from time
to time during three or four years preceding the above men-
tioned date plaintiff had done and performed work in the line
of his business for the defendant, D ; that in this way and
through these moans the relationship betAveen himself and the
said defendant, D, had become familiar and friendly; that said
defendant, D, had been a resident of the city of
-'X Bates V. Bates Machine Co., 230 si Griibb v. Milan, 249 111. 456,
111. 619, 621 (1907). 463, 464 (1911).
-9 Hahl V, Brooks, 213 111. 134, 139 32 Foster v. Oberreieh, 230 111. 525,
(1904). 527 n907).
ao Weatherford v. Fishhack, 3 '-^ Cantwell v. Harding, 249 111.
Scam. 170, 173 (1841). 354, 357 (1911).
670 ANNOTATED FORMS OF PLEADING AND PRACTICE
for many years, while he, the plaintiff, had only resided here
about years, having come to this country from
, and that by reason of defendant 's superior
means, longer residence in this country and experience in the
business of florist, plaintiff reposed in said defendant much
trust and confidence, particularly with respect to his statements
about the business of a florist ; that during this time the defend-
ant frequently said to the plaintiff, that he, the plaintiff, ought
to buy a small piece of land in the country near the city of
and engage in the business of growing garden
tnick, flowers and vegetables for market ; that he, the defend-
ant, on account of his knowledge of the business, and on account
of the trade he has established, could and would help the plain-
tiff to dispose of his produce in the city of , and
thus aid the plaintiff in making large monetary gains and
profits ; that, on, to wit, , 19 . , , at
aforesaid, the defendant stated to the plaintiff that he, the de-
fendant, knew a man who had a piece of land convenient to
the city and just suited and adapted to the needs of the plain-
tiff, and good for the business that he urged the plaintiff to
undertake, namely, the raising of flowers and vegetables for
market as aforesaid ; and believing that the defendant was solici-
tous only for the welfare of the plaintiff, and that the defendant
was moved only by desire to aid and assist the plaintiff, and
that defendant was acting in perfect good faith and honesty
with the plaintiff, he, the plaintiff, on, to wit, at the time and
place last aforesaid, permitted the defendant, at his request,
to enter into negotiations for a piece of land for the plaintiff,
such as the defendant had informed the plaintitf would be
best suited to the plaintiff's purpose, as above stated, that is
to say, suitable for the raising of flowers and vegetables for
market at a profit.
And plaintiff avers that soon thereafter, in pursuance of the
permission given by plaintiff to defendant, as above stated, the
defendant entered into negotiations with one G, at ,
, for the purchase from said G of a piece of land
for the plaintiff, which piece of land, the defendant informed
plaintiff, was entirely suited to the plaintiff's purpose as above
stated, and was very rich and productive soil; but plaintiff
avers that said statements were false and known to be so by
the defendant when made to the plaintiff. And plaintiff avers
that the defendant then and there obtained from the said G an
offer to sell said land to the plaintiff for the sum of
($ ) dollars, but that he, the defendant, with the purpose
and intent of cheating and defrauding the plaintiff out of the
sum of dollars, requested and instructed said G,
when he, the plaintiff, should call upon him, the said G, with
reference to the purchase of said land, to put the price of
dollars thereon, and to name said sum of
dollars to the plaintiff as the lowest price for which he, the said
CASE 671
G, would sell the same, with the fraudulent intent and purpose,
that he, the said D, might himself receive the difference between
said sum of , if such purchase should be consum-
mated, and the said sum of dollars, for which the
said G was willing to sell said land, which said G then and there
agreed to do.
And plaintiff avers that by reason of the trust and confidence
reposed by him, the plaintiff, in the defendant, as aforesaid,
and by reason of the relation existing between the plaintiff and
the defendant, and the authority and permission so as aforesaid
given by him, the plaintiff, to the defendant, to negotiate in
relation to the purchase of said land, it then and there became
and was the duty of the defendant to act in the premises in
perfect good faith and honesty with him, the plaintiff, and if
it was the desire of the defendant to make any profit or com-
mission or to receive any compensation for negotiating in ref-
erence to the purchase of said land for him, the plaintiff, that
it was the duty of the said defendant, D, to state to the plain-
tiff what compensation, if any, he wished to receive.
And plaintiff avers that after obtaining said offer from said
G to sell said land for dollars, as aforesaid, the
defendant falsely and fraudulently and with the purpose and
design of injuring, defrauding and deceiving the plaintiff' and
cheating him out of the said sum of dollars, on,
to wit, the day of , 19 . . , at the
county aforesaid, represented to the plaintiff that he had re-
ceived from said G an offer to sell said land for
dollars, and that said sum was the least for which the said G
would sell the land; which representations were then and there
false, fraudulent and untrue and known by the defendant at
the time when made to be false, fraudulent and untrue; and
were made by the defendant with the intent of having the plain-
tiff act thereon, and for the purpose of cheating, injuring and
defrauding the plaintiff as aforesaid.
And plaintiff avers that afterwards and some time between
the said day of , 19 . . , he, the
plaintiff, went upon said land and called upon said G at his
residence at , county, ,
who confirmed the statements and representations of said de-
fendant, D, as to the price for which he, the said G, was willing
to sell said land; and that afterwards, and on, to wit, the
day of , 19 . . , plaintiff met said G
at the house of the said defendant, D, and at the request of
said defendant, and while still believing the defendant's state-
ments and representations concerning the quality and desira-
bility of said land and the price therefor all to be true and to be
made in honesty and good faith by the defendant, and in reliance
therein, he, the plaintiff, gave to said defendant the sum of
• • ($ ) dollars to apply upon the purchase
price of said land; and the plaintiff, together with his wife, L,
672 ANNOTATED FORMS OF PLEADING AND PRACTICE
then and there took a conveyance of said land from said G
and S, his wife; and afterwards, to wit, , 19..,
plaintiff executed and delivered to the defendant, D, his promis-
sory note for ($ ) dollars, payable to the
order of said D on or before one year after its date, and secured
the same by chattel mortgage to said defendant, D, on the plain-
tiff's horse and wagon, under which chattel mortgage the plain-
tiff" 's horse and wagon was afterwards, and before the com-
mencement of this suit, sold by the defendant; and afterwards
and, on, to wit, , 19. ., plaintiff' paid to the de-
fendant, D, the further sum of ($ ) dollars
in cash.
And the plaintiff avers that the defendant then and there, to
wit, at the time and place last aforesaid, represented and stated
to him, the plaintiff', that all said last mentioned sums, namely,
said ($ ) dollars cash, the amount of said
note, ($ ) dollars, and said
($ ) dollars cash, had been advanced by the said defend-
ant to said G on account of the purchase price of said land,
which plaintiff avers it was then and there the duty of defend-
ant to have done, and so to do, which said statements made
by the defendant were false and known by him at the time to
be false ; and the plaintiff' avers that said sum of
($ ) dollars was retained by the defendant, and has ever
since been retained by the defendant for his own use and benefit,
and the plaintiff has thereby been by the defendant wrongfully,
wickedly and deceitfully cheated and defrauded out of said sum.
And the plaintiff further avers that by notes and mortgages
executed and delivered by himself and his wife, L, to the said
G, on, to wit, the said day of , 19 . . ,
he, the plaintiff, bound and obligated himself to pay an addi-
tional dollars for said land, which said land is
described as follows, to wit (Insert description). And the plain-
tiff further avers that a suit was instituted in the
court of county, some time in the
month of , 19.., by said G against the plaintiff
and his said wife, L, to foreclose said mortgage and to enforce
a vendor's lien on said premises for the said sura of
dollars, so retained by the defendant, D, as aforesaid, in which
suit a decree was entered on, to wit, the day of
, 19.., foreclosing said mortgage and enforcing
said vendor's lien in favor of said G on said premises.
And plaintiff avers that he has been compelled to lay out
and has laid out and expended a large sum of money, to wit,
the sum of ($ ) dollars in and about de-
fending said suit, and has lost much time, to wit, time of the
value of ($ ) dollars in the premises, and
in moving his family and belongings unto said land and in
removing them therefrom ; and the plaintiff avers that he is
a poor man without pecuniary means, and without sufficient
CASE 673
means to further prosecute or defend said suit or to redeem
said premises from the sale had under said decree, and he, the
plaintiff, has virtually lost all his right, title and interest in
and to said premises; and the plaintiff avers that he was
induced to pay said sum of ($ ) dollars to
give said chattel mortgage and to make said notes and mortgage,
and has been compelled to expend said sums and has lost his
said time by the fraud and deception practiced on him by the
defendant as aforesaid.
Wherefore, plaintiff says that the defendant deceived and
defrauded plaintiff to the damage, etc.
1300 Fraud and deceit; incumbrance, non-resident, Naxr. (111.)
For that whereas, the plaintiff, on, to wit, the
day of , 19. ., entered into negotiations with the
defendants at their request to purchase of them a large tract
of land, to wit, acres lying in county,
, for a certain consideration to be paid by the
plaintiff to the defendants, to wit, dollars, that is
to say, that the plaintiff should turn over to said defendants
(Describe property) belonging to him valued at
dollars and execute a mortgage on the (Describe property) for
the balance of the purchase money, to wit, dol-
lars, and for the purpose of inducing the plaintiff to purchase
said land for said consideration and close the trade in said man-
ner, said defendants then and there fraudulently, falsely and
knowingly represented to him that they owned said land in
fee simple and that their title thereto was free and unincum-
bered with liens of any character. And the plaintiff avers that
said negotiations were carried on in said state of ,
while this plaintiff was temporarily in said state, he being a
citizen and resident of the state of , which was
well known to the defendants, and that he was unfamiliar with
the title to real estate in said state of , and had
no extensive acquaintance with persons in said state of
and before agreeing to take said land at said price and before
agreeing to close the trade in the manner aforesaid, then and
there informed said defendants that he w^ould not take said
land or close the trade until said defendants furnished him
with an abstract of title thereof, which was to be examined by
some reliable attorney to be procured by said defendants, said
attorney to give his opinion thereon. And the plaintiff avers
that said defendants thereupon then and there introduced the
plaintiff to one of said county, and
recommended said to him, the plaintiff, as a re-
liable and competent attorney, who had examined the abstract
of title, and the defendants and said attorney, although know-
ing that said land was incumbered with liens to the extent of,
to wit, dollars, and that said abstract showed said
674 [ANNOTATED FORMS OF PLEADING AND PRACTICE
liens, nevertheless said attorney falsely stated to the plaintiff
as his opinion of said title that said abstract showed good and
valid title in fee simple in said land in them, the defendants,
and that it also showed that the same was free from and unen-
cumbered with liens of any character, whereas, in truth and
in fact, said land as shown by said abstract of title was incum-
bered as aforesaid. The plaintiff avers that by means of such
false and fraudulent representations of the said defendants and
said attorney and confiding and relying upon the same, he was
induced to and did purchase said land and close the trade there-
for, turning over to the defendants said (Describe property)
at said agreed value, and did execute and deliver to the defend-
ants a mortgage on the (Describe property) for
dollars upon the execution and delivery of a deed for said
acres to him. By means whereof the defendants
falsely and fraudulently deceived the plaintiff in the purchase
of said tract of land. To the damage of the plaintiff of
dollars; and therefore, he brings suit.
1301 Fraud and deceit; infringement of patent, Narr. (111.)
For that whereas the plaintiffs were, and prior to, on, to wit,
the day of , 1 . . . , engaged in the
manufacture and sale of a certain device known as the
dryer, which was used for the purpose of drying brick and
tile ; and whereas the defendant, the company,
a corporation, was engaged in the manufacture and sale of a
device used for the purpose of drying brick and tile, in many
respects similar to the device manufactured and sold by the
plaintiffs ; and whereas the said was president
and the said was secretary of the said
company, a corporation, and were both stockholders in the same.
And whereas the plaintiffs and the company
both had their headquarters in the city of , and
were both competitors in the sale of their respective devices,
the plaintiffs allege that the said company,
through its said president and secretary, for the purpose of
increasing the sale of the said company 's device,
and of injuring the sale of the plaintiff's device, wrongfully,
fraudulently and falsely represented and stated to the
company and divers other corporations and persons who were
then and there negotiating with the plaintiffs for the purchase
by each of them of one of the plaintiff's said devices, that the
plaintiff's device was an infringement upon the patents which
they allege the company had from the United
States government covering said device of the
company, and that if they, the company, and the
said divers other corporations and persons or any of them
should purchase and use the plaintiff's said device, that the
company would sue the said purchaser or pur-
CASE 675
chasers for infringement upon the said alleged patents of the
company.
And the plaintiffs further allege that the said
company, and the said and , to more
effectively attain their said object, to increase the sale of their
own device and injure the sale of the defendants, then and
there wrongfully and without just cause, commenced a suit in
the United States court in and for the district
of against the , alleging
that the said company was infringing upon the
said alleged patents of the company, in using a
certain dryer which the company had purchased
from the plaintiffs.
And the plaintiffs further allege that the said device, manu-
factured and sold by them for the purpose of drying brick and
tile, was not an infringement upon any patent or patents granted
by the United States government covering the device manufac-
tured and sold by the company, and the plaintiffs
allege that the said false and fraudulent statements made by the
said officers of the said in its behalf and
the commencement of said suit materially contributed towards
causing the said company and the divers other
corporations and persons aforesaid to refuse to purchase the
plaintiffs' device, and they did so refuse; and the plaintiffs
further allege, that the defendants gave the said false and
fraudulent statements general circulation and publicity, and
that as a result thereof purchasers generally refused to pur-
chase plaintiffs' device, and the plaintiffs allege that by reason
thereof they have been deprived of great gains and profits that
they would have derived and made from the sale of the said
device to the said persons and corporations aforesaid and to
purchasers- generally ; and that by reason of the said false and
fraudulent statements their business has been greatly damaged
and injured, to the damage of the plaintiffs of
dollars. Wherefore they bring their suit, etc.
1302 Fraud and deceit; insurance policy, surrender, Narr.
(111.)
For that whereas, on, to wit, , 19.., one
made application in the county aforesaid to the
of , one of the defendants herein,
to insure his life in the sum of dollars, for the
benefit of the plaintiff herein, who was then the wife of the
said ; and the said , in consideration
thereof complied with all of the terms and requiremnets imposed
or asked by said defendant as conditions precedent to the issu-
ance of said policy, and paid to it the first annual premium
thereon required by said defendant, which payment was accepted
and retained by said defendant; and in consideration thereof
676 ANNOTATED FORMS OF PLEADING AND PRACTICE
the said defendant at the time and place last aforesaid, made
out, in the usual form and delivered to him, the said ,
the said policy of insurance, the amount tliereof by the terms
of said policy being made payable upon the death of said insured,
to his wife, the plaintiff herein, as aforesaid, whicli policy tlie
said tlien and there accepted from said defend-
ant and at once delivered it to the plaintiff who kept and
retained it until as hereinafter stated.
And plaintiff avers that afterwards and on, to wit,
the said who is, and for many years last past,
has been an agent of the Siud of ,
and at its instigation and umler its direction represented to said
plaintiff that lie would loan her the sum ol" dollars
on condition that she would k't him hold said policy of insurance
as security for said loan; and j)laintiff avers that in considera-
tion thereof she accepted from the said , said
sum of dollars and delivered to him said policy
of insurance to hold as security as aforesaid; and plaintiff avers
that as soon as said procured said policy, he, in
collusion with the said of , fraud-
ently and with the sole purpose of cheating and defrauding the
plaintiff' out of said policy and the benelit thereof, returned
the said policy to the said of who
has ever since retained the same and now claims to own it.
And plaintiff avers that on, to wit, , the said
died in , , and that
plaintiff before the commencement of this suit made several
demands upon each of said defendants for said policy and for
the amount due her upon the same and that said defendants
have each refused to surrender or deliver up said policy, or
to pay her any part of the amount due her upon the same,
and that she, plaintiff, after the death of the said
and before this suit was begun, tendered to the said
the sum of dollars in legal tender money of the
United States with legal interest thereon from the time he loaned
her said money as aforesaid, on condition that he would sur-
render to her said policy, which said has neg-
lected and refused to do.
And plaintiff avers that said policy upon the death of the
said was and still is of the value of
dollars and that she has frequently demanded that sum of the
defendants which they have and each of them has refused to
pa}^, in consequence w'hereof she is damaged in the sum of
dollars; wherefore, etc. (Add count in trover).
1303 Fraud and deceit; notes secured by bogus trust deed on
leasehold, Narr. (111.)
For that whereas, on the day of ,
the defendant, D, w^as the owner of a certain leasehold interest.
CASE 677
together with a certain building thereon, upon the following
described real estate, situated in the city of ,
county of , and state of Illinois, to wit, (Describe
real estate) in said city; that the ground rent to the amount
of about ($ ) dollars was past due on said
leasehold, and the owner of the fee was threatening to forfeit
the same, and that said D then and there knew that his interest
in said real estate w'as worthless, and being a man of large
wealth and thoroughly acquainted with real estate values in
, and a cunning schemer, and well knowing that
the general public had little knowledge of leasehold values, he
conceived the scheme of conveying his interest in said real estate
for the fictitious sum of dollars and having the
vendee execute a trust deed to the company, a
corporation and a public trustee, doing a large, reputable and
responsible trust business in said city of , to secure
the payment of certain notes, aggregating the sum of
(lollai"s; and thereby representing through the public records
and abstracts of title to the public that said property had been
sold for the sum of dollars, and was therefore worth
tiiat sum, and thereby impress upon the public that one quarter
of said purchase money had been paid, when in truth and in
fact the said D had no idea that said leasehold interest in said
real estate could be sold to any person knowing the facts for
any sum.
That said defendant D, for the purpose of cheating and
defrauding said plaintiff and others, conspired with one M, a
brother-in-law of said defendant D, and the said defendant C jM,
whereby, on , 1 . . . ., the said defendant D and
his wife conveyed said leasehold interest to said M without any
consideration therefor, and that on, to wit, the
day of , 1 .... , the said M conveyed his interest in
said real estate to the defendant, C M, who was a man of no
financial means or responsibility, the said i\I and the said defend-
ant C ^I, being mere tools in the hands of said defendant D.
That the consideration as stated in said deed from M to said
C M was the sum of dollars, but that in truth and in fact
there was no consideration whatever for said deed ; that on
said last mentioned date, and as a part of the same transaction,
and for the purpose of cheating and defrauding said plaintiff
and others, the said defendant D had the said defendant C M
execute to the said company a trust deed on his
interest in the said leasehold securing the payment of
notes for the sum of dollars each ; ten notes for the sum
of dollars each, all due in one year after date ; and
sixty-two notes for the sum of dollars each, all due in
fifteen months after date; all of which said notes were executed
by the said defendant C M payable to his own order and by him
endorsed, and were then and there, in pursuance of said design
678 ANNOTATED FORMS OF PLEADING AND PRACTICE
to cheat and defraud said plaintiff and others, turned over to
said defendant D.
That said defendant D, for the purpose of carrying out his
said scheme and design to cheat and defraud this plaintiff and
others, caused the said deed so executed by himself, the said
D, and his wife to the said M to be filed for record in the
recorder's office of said county, and for the fur-
ther purpose of defrauding said plaintiff and others caused said
deed from said M to said defendant C M to be filed for record
in the recorder's office of said county, and also
the trust deed from said C M to the said company ;
and that said defendant D caused the said com-
pany to be named as trustee in said trust deed and in said notes
for the purpose of committing a fraud upon the plaintiff and
other parties, who might afterwards, in investigating the value
of said notes and said security, believe that the transactions rep-
resented by said deeds and notes were bona fide transactions,
when in truth and in fact said property was never sold to said
M nor to said defendant C M for any sum.
That said defendant D caused said trust deed from said
defendant C M to the said company to be made
in such a manner that it should appear to be given upon the
said entire premises known as street in said city
of , as security for an indebtedness of
dollars, when in truth and in fact the only interest the said
defendant D, or the said M, or the said defendant C M had in
said premises was a leasehold interest which the said defendant
D then well knew to be of no value, and entirely worthless.
That afterwards said defendant D took possession of said notes
and obtained an abstract showing the title to said property
including the trust deed securing said notes, and well knowing
that said notes had no security, and that said M was utterly
worthless financially and that said defendant C M was utterly
worthless financially, said defendant D placed said notes on
the market in the city of for sale ; and also offered
said notes in exchange for other property.
And the plaintiff avers that subsequently he was desirous of
exchanging acres of land for some good real estate
securities, and that for the purpose of so doing he applied to
the said defendant D in said city of to secure an
exchange of the said acres of land, of the value of,
to wit, dollars, for some good real estate securities, and
that he was thereupon shown two of said dollars
notes which showed that the said notes were secured by trust
deed to companj'-, on building No.
street, in said city of • . . ,
, and which showed that the title to said
street was insured by said company by its policy
of title insurance, the said company being then
also engaged in doing a large, reputable and responsible busi-
CASE 679
ness insuring against defects in land titles; and this plaintiff
avers that he was conducted by said defendant D to a place
within sight of, and in close proximity to said premises located
at said street in said city of ; and
that the said defendant D then and there exhibited to plaintiff
the said premises, and then and there falsely and fraudulently
stated and represented that the said notes were secured by trust
deed on the said premises, and with the intent and design to
deceive and mislead this plaintiff into the belief that the said
notes were secured by trust deed upon the fee in said premises.
That the said defendant D with a design to cheat and defraud
this plaintiff falsely and fraudulently stated to plaintiff that
the notes hereinbefore described were gilt-edged and that the
property at street, securing said notes, was worth
at least twice as much as the incumbrance on it, which was the
trust deed securing these dollars notes, and that
a loan of dollars had been made on said property
at street ; thereby intentionally and designedly
deceiving and misleading this plaintiff into the belief that said
notes were secured by a trust deed upon the fee in said prem-
ises at street, and that said fee was valued at far
more than the amount of the notes named in the trust deed, and
was ample security for the payment of the notes.
That said defendant D, with a further design and intent to
cheat and defraud this plaintiff, then conducted this plaintiff
to one B, who, at the prior instigation of, and then in the pres-
ence of, and on behalf of the said defendant D, falsely and
fraudulently stated and said that others of the said notes so
secured by the said trust deed had been purchased by eastern
capitalists, who had investigated the matter, for eighty-five per
cent of their face, which said statements were false and untrue,
and were then and there known by the said defendant D and
by the said B to be false and untrue; and plaintiff avers that
said false statements and the said misrepresentations were
planned by the said defendant D and were made with the inten-
tion of defrauding and swindling plaintiff out of his said
property.
And that said defendant D represented that the
company was the trustee named in the trust deed for
dollars, and that plaintiff then and there inferred and
believed that the amount stated in said trust deed was correct;
and plaintiff avers that by means of the premises he was thereby
made to believe that the trust deed was upon the said premises
located at number street, in the said city
of ; and that it was ample security to the trustee
or any party owning said notes or any of them as aforesaid.
And the plaintiff avers that the two dollars
notes aforesaid were drawn by the defendant D, or under his
direction, and were caused by the said D to be printed in part ;
and the company named as trustee in said notes, and
680 ANNOTATED FORMS OF PLEADING AND PRACTICE
the name " company, ," printed across
the end of said notes; and the date, to wit, " ,"
printed upon the said notes; and the endoraeraent in handwrit-
ing upon the back of said notes, to wit, "This is one of the
notes referred to in our policy of title insurance No.
, company, by , secretary, ' '
and in order to impress this said plaintiff and others that the
said notes were of great value, and that the transaction was a
legitimate one ; which said notes so sul)mitted to, and which
were afterwards delivered to this plaintiff', are in words and
figures following, to wit: (Insert notes and endorsements) and
plaintiff avers that the said endorsements mentioned last above,
purporting to be of interest paid, were iuadvertentiy made, and
that in truth and in fact no payment of any interest on said
note was ever made by any person.
And plaintiff' avers that relying on the truth of the state-
ments, said representations contained on the face of said notes
and on the back of said notes; and ui)on the statements and
representations made to this plaintiff' by the said defendant
D, and by the said B, he did, on, to wit, , 1 . . . .,
execute a deed for the said acres of land, of the
value of, to wit, dollars, conveying the said land
to, to wit, the said D, and received for tiie said deed the said
dollars notes hereinbefore mentioned.
And plaintiff avers that he resides at ,
, and that afterwards, on, to wit, , 1 .... ,
he was informed, and has long since learned tliat it was the
truth, that the pretended sale by said defendant D to said IM
and to said defendant C M was a bogus trans<iction, and that
the said trust deed to the said company was with-
out consideration, and that the entire transaction from tiie draft-
ing and having printed said notes to the recording of the trust
deed, and to the said false representations of the said defend-
ant D, and of the said B, was a scheme to cheat and defraud
the plaintiff, and done for the purpose of placing upon the mar-
ket notes that were fraudulent and of no value whatever, and
that the said notes so received by this plaintiff were and are
worthless; that the property involved was and is worthless,
and that the leasehold interest of said defendant D was and is
worthless. To the damage, etc.
1304 Fraud and deceit; oil stock, Narr. (W. Va.)
For this, that heretofore, to wit, on the day of
, 19. ., at the county aforesaid, the plaintiff, rely-
ing upon the representations and statements, hereinafter set out,
made to him by said defendants, bargained with the said defend-
ants and at their request, to buy, and did buy of them certain
oil stock in a corporation to be immediately organized and to
be known as the S company, at a certain price, to wit, the sum
CASE 681
of , dollars ; and these defendants did knowingly
and wilfully, then and there, falsely and fraudulently represent
the said stock and the facts connected therewith in this, to wit,
that the said S company should be a corporation of an author-
ized capital of $. . . ., divided into .... (....) shares of $. . . .
each ; that there would be no hold out or promoters' stock ; that
this plaintiff was getting his stock on the same basis and footing,
manner and cost that the said defendants were ; that they, the
said defendants, were paying for, and putting up their money
for all stock they would have, the same as the plaintiff; that
the said leases owned by and upon which the said company
should operate were about acres in county,
West Virginia ; that said leases had been secured by said de-
fendants only a few days prior thereto direct from the owners
of the land ; that the P company had said land leased, and the
said P company by an oversight had allowed the rental to go
over one day, and that said defendants had arrangements made
with the said owners, that if the P company did not pay the rent
on the day it was due that the said defendants should have a
lease on the lands if they would put down a well at once, which
arrangements were made and the said leases then secured direct
from the owners of the land; that said land lay in a solid body;
that said leases were surrounded in close proximity on three
sides by some producing oil wells ; that some of said wells
were witliin .... feet of the line of these said leases ; that the
wells that had come in there had been very large, starting off
with a production of from to barrels per day ;
said defendants then and there sold said stock to the plaintiff,
said plaintiff relying fully upon the said statements made by
said defendants, for the said sum of $ , which has been
fully paid to said defendants as directed by them; whereas, in
truth and in fact, the charter for said S company had, at the
time of making said false statements as to amount of capital
stock and value of shares, been issued on the day of
, 19- M "^^'ith said defendants as incorporators, and
with an authorized capital of $ and divided into
shares of $ each ; that afterwards upon the organization
of said corporation, $ of said stock was held out or taken
from said corporation as promotion stock and divided among
said defendants; that a Yg part of all oil produced from said
leases was over and above the Yg part going to the landowner,
set over, without consideration, to one of the promoters of said
corporation, and likewise divided with said defendants; that
said defendants put up no money whatever for their said stock ;
that said defendants did not secure the said leases direct from
the landowners; that the P company did not have these said
lands leased at that time, nor did they suffer rentals to go un-
paid on them as represented ; that there were not producing oil
wells on three sides of this said property in close proximity;
that there were no oil wells within .... feet of the line of said
682 ANNOTATED FORMS OF PLEADING AND PRACTICE
leases; that no wells of any such production qs represented by
said defendants ever came in that field and in close proximity
to these said leases; and tlie phiintiff says that said defendants,
by means of these premises on the day aforesaid, did knowingly
and wilfully, falsely and fraudulently deceive the plaintilf on
the sale of said stock as aforesaid ; and that said stock thereby
is worthless and that upon the day aforesaid had no value to
this plaintiff and that the plaintiff has suffered great damage
by reason of the money paid out, and the loss of the use and in-
terest of said money and that he is thereby greatly damaged.
2. And also for this that said defendants, ever since the
organization of said S company mentioned and described in the
first count in this declaration, have been officers thereof, to wit:
, president ; , treasurer ; ,
secretary ; and as such immediately after the organization of
said company proceeded to cause a well to be drilled on said
territory of said company ; that said well produced oil, that said
defendants then and for a long time thereafter represented to
this plaintiff' that the said well was producing barrels of
oil daily; and this plaintiff", to wit, on the day of
, 19- •, ai)i)lied to said deft'iulants for information
concerning the production of oil from said well, telling said de-
fendants, at the time, that a party had offered to sell said plain-
tiff some stock in said company, and said plaintiif sought in-
formation upon which to place a value upon said stock ; that
said defendants holding the offices in said company as aforesaid,
did then and there, knowingly, wilfully, falsely and fraudu-
lently tell this i)laintifr that said well was producing
barrels of oil daily, and that it was very valuable ; that the stock
of said company was selling at the price of dollars
for one dollar of the capital stock of said company, and that it
would be worth more.
This plaintiff, relying wholly and solely upon the statements
made to him by these defendants as aforesaid, entered upon the
negotiations for said stock and became the purchaser of a large
amount of stock of the said corporation, for which he paid the
sum of $ in money.
And this plaintiff says that said defendants, by means of these
premises on the day aforesaid, did knowingly, wilfully, falsely
and fraudulently misrepresent the facts and deceive the plain-
tiff' as to amount of production of oil of said well and as to the
value of said stock as aforesaid ; that said stock, thereby, is
worthless and of no value and that upon the day aforesaid had
no value to this plaintiff, and that the plaintiff has suffered
great damage by reason of the money paid out for said oil stock,
the loss and use of said money and the interest thereon and
that he is thereby greatly damaged.
And therefore, the said plaintiff says that by reason of the
premises and the matters and things in the said two counts in
this declaration before mentioned, an action hath accrued to
CASE
683
him to have and to demand of and from the said defendants
for and by reason of the false statements, misrepresentations
and deceit and fraud practiced in said two counts mentioned,
damages to the amount of $ • •
And therefore he brings this suit.
1305 Fraud and deceit; shares of capital stock, Narr. (111.)
For that whereas, on or about the day of . . . ...
19 in the county aforesaid, in consideration that tne
piaintiff at the request of the defendant, would buy of the
defendant, the defendant's shares of capital stock, same being
interest in the , a corporation at a certain
price, to wit, the sum of (••••••) dollars cash
to 'be paid therefor by the plaintiff, the defendant promised the
plaintiff and represented to him that the said • was
a corporation doing a large and remunerative business and that
the same was clearing per year profit; and that he,
the plaintiff, if he purchased said interest, could draw
per year salary for acting as one of the officers of said corpora-
tion • and thereupon the said plaintiff, confiding and relying on
the said promise of the defendant, then and there bought the
said shares of capital stock and interest of the defendant and
paid him the said sum of money. Yet the defendant did not
regard his said promise but thereby deceived and detrauded
the plaintiff, in this, to wit, that the said corporation was not
doing a good and large business, and was not clearing
per year profit, and was not in a position to pay • .
dollars to plaintiff for salary as an officer of said corporation,
but on the contrary said corporation had been insolvent tor a
long space of time, to wit, for year previous to the mak-
ing of said representation and promise and had been doing busi-
ness at a loss; all of which said defendant well knew at the
time of making said representation and promise, whereby said
shares of capital stock and interest in said corporation then
and there became and w^ere of no value to plaintiff ; wherefore
the plaintiff savs he is injured and has sustained damages to
the amount of'. ( ) dollars, and therefore
he brings his said suit.
1306 Fraud and deceit; unrecorded trust deed, Narr. (111.)
For that whereas the defendant at, to wit, the
eiay of , 19. ., in, to wit, the county of ,
and state of Illinois, being an owner and dealer in real estate ;
the plaintiff then and there applied to the defendant and bar-
gained with him for the purchase by the plaintiff from the
defendant of a certain parcel of land situate in, to wit, the city
of , in the county and state aforesaid, to wit,
(Describe real estate) ; that prior to the time of said bargain-
684 ANNOTATED FORMS OF PLEADING AND PRACTICE
ing between him and the defendant for the purt-hase of said
parcel of land as aforesaid, the defendant and his wife,
, on, to wit, the day of , 19 . . ,
executed and acknowledged a certain deed of trust conveying
the said parcel of land, together with certain otlier land, to 1>
to secure the payment of, to wit, ( )
dollars, with interest tliereon, etc. ; that at the time of the said
bargaining between the phtintiff and tlie defendant for the pur-
chase of said parcel of land, as aforesaid, said hist mentioned
deed of trust was in full force and effect and unsatisfied, and
an incumbrance against said parcel of land, had not, at the
time last aforesaid, been i)Iaced on record; that it became and
was the duty of the defendant, at tlie time and place aforesaid,
to inform and notify the phiintitf of the existence of said deed
of trust; that at the time ami place aforesaid, in consideration
that the plaintiff at the reciuest of the defendant would pur-
chase of the defendant the said parcel of land hereinbefore
described at an agreed price of, to wit, the sum of
( ) dollars, to be therefor paid by the plaintiff, the
defendjint, with the intention and for the purpose of inducing
the plaintiff to purcliase said parcel of land wrongfully, injuri-
ously and contriving and intending to deceive, defraud and
injure the plaintiff, fraudulently and deceitfully refrained from
informing the plaintiff of the execution and existence of siiid
deed of trust, or that the same was then, on the day last afore-
said, an incumbrance against said parcel of land.
And the plaintiff further avers that he then and there, at the
time and place last aforesaid, relied upon the silence of the
defendant in regard to the existence of any incumbrance against
said parcel of land as an indication or representation by the
defendant that there then existed no incuml)rance upon said
parcel of land; and that the plaintiff then believed that there
was then no incumbrance or cloud upon the title to said parcel
of land, and that thus relying upon the silence of the defend-
ant and failure to notify the plaintiff of the fact as aforesaid,
the plaintiff then and there purchased from the defendant, and
the defendant then and there deceitfully sold the said parcel
of land to the plaintiff for a large sum of money, to wit, the
sum of ( ) dollars, wliich said sura of money
the plaintiff thereafter, on, to wit, the day of
• • ; , 1 , and before the plaintiff discovered the
existence of said deed of trust and the cloud upon the title of
the defendant to said parcel of land, paid the defendant.
And the plaintiff further avers that at the time he bargained
with the defendant for the purchase of said parcef of land, as
aforesaid, the defendant knew that by his silence and failure to
inform the plaintiff of the existence of said deed of trust as an
incumbrance upon said parcel of land, that the plaintiff would
conclude and believe that no incumbrance or deed of trust existed
CASE 685
as a lien or cloud upon the defendant's title to said parcel of
land.
That the said incumbrance of ( ) dollars
has not been removed from said parcel of land ; but, on the con-
trary, the plaintiff avers that said ( ) dol-
lars then remaining unpaid and due, the then owner and holder
of certain notes evidencing said ( ) dol-
lars indebtedness, to wit, one S, and the said D as trustee, on,
to wit, , 1...., filed their bill in chancery in the
circuit court of county and state aforesaid against
the plaintiff and the defendant and his said wife to foreclose
the said trust deed upon the property in said trust deed to said
D described ; and that such proceedings were thereafter had
in said suit by said S, and said D, trustee, that the said parcel
of land was sold under an order of said circuit court to some
person, or pei-sons, to the plaintiff unknown, but other than the
plaintiff, the said defendant or his said wife, or either of them ;
and that the period of redemption under said sale of said last
mentioned property, by the statute in such case made and pro-
vided, has expired; that no redemption of the parcel of land
has been made ; that the said parcel of land has been taken
from the plaintiff by virtue of said proceedings and said sale
in said circuit court ; and that by reason of the premises the
said parcel of land then and there became and was of no value
to the plaintiff. Wherefore, etc.
1307 Hig^hways and bridges, action, parties
In ^Michigan the overseer of highways of each district, or in'
case of his neglect or refusal, or in case he is himself the offender,
then the commissioner of highways of each district, and not the
township, should bring an action for damages done to highways
and bridges.^*
1308 Hotel and inn-keepers, stolen property, action
Hotel and inn-keepers owe a duty towards their guest's prop-
erty imposed by the common law for a breach of which duty an
action on the case will lie in favor of the guest whose property
is stolen through the inn-keeper's dishonest employees, unless
the guest's carelessness substantially contributes to the theft. ''-^
1309 Inadequate fire protection, action
In Illinois the property owner cannot hold a municipality or
water company liable for loss by fii-e occasioned by the failure
3* Denver Township v. White River 35 Johnson v. Eichardson, 17 111.
T.o£r & Booming Co., 51 Mich. 472, 302 (1885).
473 (1883).
686 ANNOTATED FORMS OP PLEADING AND PRACTICE
of the water company to furnish an adequate supply of water
for fire protection, where the municipality has contracted with
the water company to construct and operate water works for tiie
purpose of furnishing water to the city and its citizens.^"
1310 Infectious premises, Narr. (111.)
For that whereas, on, to wit, the day of
, 19. ., at, to wit, the county aforesaid, and for a long
time prior thereto, the plaintiffs were the owners of and in the
lawful possession of the premises described as follows: (Set
forth description), together with the dwellinj,' house or build-
ing and its appurtenances thereon standing and belonging of
the value of dollars, which said land and prem-
ises said plaintiffs, before and at the time aforesaid, used and
enjoyed, and of right ought to have used and enjoyed, as and
for a home and dwelling house or tenement house purposes, and
still of right ought to use and enjoy as aforesaid; nevertheless,
said defendant, acting at the time aforesaid, and long before
and hitherto has acted, and still acts, by means of a common
council in that behalf, having the care, superintendence and wel-
fare of said city defendant, contriving unjustly and unlaw-
fully to injure plaintiffs in the possession, use, occupation and
enjoyment of said premises, and especially said house and build-
ing thereon standing as aforesaid, and to render said premises
incommodious and unfit for home, dwelling house or tenement
house purposes, and of little or no use to plaintiffs, while said
plaintiff's were so possessed thereof, and so used and enjoyed
the same as aforesaid, on, to wit, the day of
, by its said common council, aforesaid, passed or caused
to be passed and enacted a certain ordinance, to wit, ordinance
number , entitled, "An ordinance to condemn as a nuis-
ance the wooden building known as the , situate on ....
lot, in block . . . . , in that part of the city known as
and to authorize and direct the destruction of the same and
its contents," which ordinance, was approved by the mayor
on the day of , 19 . . , and is hereto
attached, marked exhibit "A," as a part of this declaration,
was and is illegal and void, as an unwarranted and improper
exercise of arbitrary power and discretion, contrary to the con-
stitution and statutes of this state, and otherwise is ultra vires
and illegal.
By means whereof, said defendant then and there arbitrarily
and without lawful authority undertook to declare, and did
declare plaintiffs' said premises, to wnt, the building and house
thereon as aforesaid, by reason of the alleged infectious diseases
36 Galena v. Galena Water Co., 229
111. 128, 132 (1907).
CASE 687
therein, to wit, smallpox, to be a public nuisance, without any-
authoritative investigation or inquisition beforehand, or the
finding of any jury or tribunal that the same was so infected as
to be inimical or a menance to the welfare of the public, and
when the same was not then and there incapable of disinfec-
tion and was not then and there a nuisance or menace to the
public ; and did without notice to plaintiffs, or compensation to
them paid, or any finding or award of damages to plaintiffs,
or any offer by said city in that behalf to reimburse plaintiffs,
by said ordinance proceed to and did condemn said premises,
to wit, the house and building thereon as aforesaid, to be utterly-
destroyed and removed, together with the appurtenances and
contents thereof; and said defendant, by its servants and offi-
cers in that behalf, acting or pretending to act under and by-
virtue of the authority of said ordinance, on, to wit, the day
first aforesaid, at, to wit, the county aforesaid, entered upon
plaintiffs' said premises, and did then and there set fire to,
consume, and utterly destroy said house or building and its
appurtenances, then and there being, of the value, to wit,
dollars ; and did so as aforesaid commit the grievances
complained of, without the leave or license, and against the will
of the plaintiffs, from the time aforesaid, to wit, hitherto, and
without any compensation whatsoever paid plaintiffs, or any
one of them, or anything by way of reward or satisfaction there-
for; and thereby during the time aforesaid, the defendant, by
the means aforesaid, did greatly injure and damage said prem-
ises, and did hinder and prevent plaintiffs from having the
use, benefit and enjoyment thereof, to the amount and extent
so as aforesaid specified, and did thereby deprive plaintiffs
utterly of the use and benefit of said house and building, to
the damage of plaintiffs of dollars.
2. And for that whereas, on, to wit, the day
of , 19.., at, to wit, the county aforesaid, the
plaintiffs were the owners of and in the lawful possession of the
premises hereinbefore described, and commonly known as the
of the value, to wit, of dollars,
which said house and premises the plaintiffs, before and at the
time aforesaid, used and enjoyed, and of right ought to have
used and enjoyed, as and for a home, dwelling house or tene-
ment house purposes, and did have, use and enjoy the rents,
issues and profits thereof, amounting, to wit, the sum of
dollars per annum ; and said plaintiffs being so possessed
of, using and enjoying said property, and the rents, issues and
profits thereof, as aforesaid, the defendant, city of ,
on, to wit, the day of , 19 . . , at, to
wit, the place aforesaid, enacted, or caused to be enacted by its
city council in that behalf, a certain ordinance, to wit, ordinance
number . . . ., entitled, **An ordinance to condemn as a nuisance
the wooden building known as the situate on lot . . . .,
in block . . . ., in that part of the city known as ,
688 ANNOTATED FORMS OF PLEADING AND PRACTICE
and to authorize the destruction of the same and its contents;"
•which ordinance, was approved, by the mayor on the day afore-
said is in the foregoing count set out, attached and marked
exhibit "A," and is hereby made part of this count by refer-
ence ; in which ordinance so passed and enacted it was ordained,
by section , that whereas, said was occu-
pied by a large number of persons infected and suffering witli
smallpox, and whereas, said house was impregnated with the
germs of said disease, and was in sucli condition that it could
not be successfully disinfected, and that necessity reiiuired its
destruction, it was thereby declared to be a public nuisance;
by (section . . . . ) it was required that the health commissioner
of said city remove all occupants of said house to the pest-house
or other place of isolation, etc. ; and (section ) provided
tluit after removal of said occupants, the superintendent of
streets, health commissioner and tire marshal of said city should
tear down said house, and wholly destroy the debris and con-
tents impregnated or exposed to the germs of said disease, and
not capable of disinfection.
The plaintiffs allege that said premises, described in said
ordinance as the was not a public nuisance, or
by reason of the germs of said disease so permeated therewith
as to be incapable of fumigation and disinfection; that said
house then and there was not necessarily a menace or inimical
to the health and welfare of said city and inhabitants; that it
became and was the duty of defendant to deprive the plaintiffs
of said property and destroy the same only by due process of
law ; that said ordinance, so enacted and passed, was an arbitrary
and improper exercise of the power and discretion of said city
council, and illegal and void ; that it became and was the duty
of said city, before proceeding to take, condemn and destroy
said property for the use, benefit and protection of the public,
as by said ordinance claimed and pretended, to ascertain by
some authoritative measures or investigation, by the determi-
nation of inciuisition, by the decision of a jury, or by some
other legal and proper means, that said property was a public
nuisance and detrimental to the safety and welfare of the peo-
ple ; that it became and was the duty of said city, before pro-
ceeding to take, condemn and destroy said property for and
on behalf of the public and its welfare, to institute proceedings
under the law of eminent domain, or, in some legal and proper
method, ascertain the just compensation in damages to be
awarded plaintiffs and to award and to pay the same to them
in money, before taking and destroying the same ; that it became
and was the duty of said city, by its servants in that behalf, not
to destroy said property utterly, but to undertake to, and fumi-
gate and disinfect the same, and to save and keep from destruc-
tion, for and on behalf of plaintiffs, so much thereof as might
be of value or use in the construction of another house or build-
ing.
CASE 689
Yet, the said city of , by its officers and servants
in that behalf, disregarding its duties as aforesaid, under said
ordinance, proceeded to and did condemn the plaintiffs' said
property as a public nuisance, without any lawful or authorita-
tive investigation or determination, beforehand, or judicial pro-
ceedings, or otherwise as aforesaid, that the same was obnoxious
to the public, without notice to plaintiffs, or any proceedings
under the law of eminent domain, or any ascertainment of the just
compensation in damages to be awarded and paid plaintiffs, and
without any other effort or means of protecting the plaintiffs
and their rights in said property, on, to wit, the day aforesaid,
at, to wit, the county aforesaid, proceeded to and did condemn
said property as aforesaid, and by its servants and officers in
that behalf, unlawfully entered upon said premises, tore down
said building set fire to and utterly destroyed the same and its
appurtenances, without the leave or license, and against the
will of plaintiffs from the time aforesaid, to wit, hitherto; and
thereby the defendant, by its servants as aforesaid, did greatly
injure said premises, and did deprive the plaintiffs from the
use and enjoyment of said house and building, and the rents,
issues and profits thereof as aforesaid, so that by means of the
premises the said building was taken and destroyed; to the
great damage, etc.^'
1311 Interference with public sale, declaration, requisites
In an action for damages arising from a wrongful and ma-
licious interference with an administrator's or an executor's
sale, the declaration must specifically allege special damages, how
and in what manner they were sustained, and that the damages
actually and positively occurred in consequence of the defend-
ant's wrongful acts and not in any degree with the plaintiff's
own negligence or omission.^*
INTOXICATION
1312 Nature and scope of action, parties
An action under the Illinois Dram-shop act is civil and not
penal in its nature.^^ Any person who is injured in person,
property or means of support, either by an intoxicated person
or in consequence of the intoxication of any person, has a cause
of action against the person causing the intoxication, regardless
of any business or personal relation between the person injured
and the intoxicated person.^^
37 Sings V. Joliet, 237 111. 300 39 Woods v. Dailey, 211 111. 495,
(1908). 496 (1904).
38 Burnap v. Dennis, 3 Scam. 478, ^o Nagle v. Keller, 237 111. 431,
481 (1842). 432, 433 (1908).
690 ANNOTATED FORMS OF PLEADING AND PRACTICE
A parent who is obliged to support an adult son on account of
his habitual intoxication has a right of action against the person
who caused the intoxication. ^^ This right of action exists under
Michigan Civil Damage act, notwithstanding the absence of an
order of court for the support of a parent. ^2 The wife and the
children may join in a single action to recover damages for the
unlawful sale of intoxicating liquor to the husband and father
where their support was joint, although the wife and the chil-
dren have separate actions for the same lo.ss.^^
A party is liable if he causes in part the intoxication which
produced the injury.^"* Each person who assists in bringing
about an habitual drunken condition of another person is liable,
under the Illinois statute, for the acts of all persons who contrib-
uted by the furnishing of intoxicating liquors in producing that
condition.*^
1313 Principal and surety, action
In Michigan, the principal and his sureties for successive years
are responsible, under the statute, for the entire injury caused
by intoxication, where the damages claimed are not the result
of a specific act of intoxication, but extend through a period of
time and the unlawful acts are permitted after the execution of
the bonds.^^
1314 Joinder of causes
The Illinois Dram-shop act authorizes the bringing of a several
action against each person who violates the act, or the joining
in one suit of all persons, whether sellers of intoxicating liquors
or the owners of the buildings in which the liquor is sold. But
the mere joining of these parties in one suit does not authorize
a recovery against all unless their liability is established by
proof. The right to join two or more violators of said Act in
one suit is merely a question of pleading, and not one of liability
to respond in damages.^^
41 Danley v. Hibbard, 222 111. 88 45 Earn v. Lilly, 217 111. 582, 587
(1906). (1905).
42 Eddy V. Courtright, 91 Mich. 46 Merrinane v. Miller, 157 Mich.
264, 268 (1892). 279, 282 (1909).
43 Helmuth v. Bell, 150 111. 263, 47 Hedlund v. Geyer, 234 111. 589,
267 (1894). 591 (1908).
44 Tripsfs V. Mclntyre, 215 111. 369,
276 (1905).
CASE 691
Under the Civil-Damage laAv of Michigan two different saloon
keepers and the bondsmen of each may be joined in one action,
where several persons, by selling or furnishing liquor, contribute
to an intoxication which results in actionable injuries ; ^^ or
the action may be brought against a surety alone.^^
1315 Declaration requisites, joint liability
The owner of the premises in which intoxicating liquors are
sold unlawfully may be charged jointly with the seller of the
liquors in an action brought against them jointly.^^^
1316 Brother's intoxication, Narr. (111.)
For that whereas the plaintiff is the sister of one N, who died
as hereinafter mentioned, and for a long time past, to wit,
years, has been infirm and of delicate health and
unable to earn a livelihood for herself, and was supported by,
and depended for her support on said N at the time of the com-
mitting of the grievances hereinafter mentioned and for a long
time, to wit, years, prior thereto, and the said N for
a long time before the committing of the grievances hereinafter
mentioned was engaged in the book binding and stationery busi-
ness and derived therefrom a large yearly income, to wit, the
yearly sum of ($ ) dollars, and was also
possessed of moneys and property amounting in value to a large
sum of money, to wit, the sum of ($ ) dol-
lars, and by means thereof was enabled to and did provide a
comfortable and liberal maintenance as well for himself as for
the plaintiff. And the said C D, on, to wit, the
day of , 19 . . , in the city of , county
of , and state of Illinois, in a certain building and
premises known as, to wit, number , street,
by him then and there occupied, did carry on and conduct the
business of a dram-shop, and the said K during a long period,
to wit, years, before that time and then being the
lessor of the said building and premises, and having knowl-
edge that intoxicating liquors were to be and were being sold
therein, there permitted the occupation of the said building and
premises by the said C D for such purpose.
And on the day aforesaid and on divers other days during
a period of, to wit, years before said day, the said C D
there sold and gave intoxicating liquors to the said N, and thereby
caused him, the said N, to become, and he during that time
there was from time to time intoxicated; and so being from
48 Franklin v. Frey, 106 Mich. 76 "9 Scahill v. Aetna Indemnity Co.,
/1895^ 157 Mich. 310, 311 (1909).
^ 50 Helmuth V. Bell, 150 111. 266.
692 ANNOTATED FORMS OF PLEADING AND PRACTICE
time to time intoxicated, he, the said N, in consequence thereof,
during the time last aforesaid, there wasted and S(iuandered
all his moneys and property, and became greatly impoverished,
reduced and degraded, and wholly ruined, as well in his mind
and body as in his estate, and neglected and ceased to exercise,
or attend to the duties of his aforesaid business and calling, or
any other business or calling whatsoever, or in any manner to
earn or provide a livelihood for himself or for the plaintiff;
and in further conseciuence of the intoxication of the said N,
as aforesaid, so by the defendant caused as aforesaid, he, the
said N, on, to wit, the day of , 1 . . . . ,
aforesaid, there died. By means of which premises the plaintiff
has been and is injured in her means of support, and ileprived
of the same. AVherefore, the plaintiff says that she is injured
and has sustained damages to tlie amount of
($ ) dollars, and that by the force of the statute in
such case made and provided an action has accrued to her to
demand and have of the defendants said sum of money; there-
fore the plaintiff brings her suit, etc.
1317 Husband's intoxication, Narr. (W. Va.)
For this, that the plaintiff was on the day of
, 19. ., the lawful wife of , and had
been his lawful wife for a long time prior thereto, aiul con-
tinued to be the lawful wife of the said up until
the day of , 19. . , when he lost his
life as a consetjuence of the unlawful acts of the said defend-
ant, as hereinafter set forth, and that prior to the said
day of , 19 . . , the said , her
husband, had become addicted to drinking intoxicating liijuors
to excess, and prior to the said last mentioned day, and thence
thereafter until his said death occurred, the said ,
had formed and acquired the habit of drinking liquors to intoxi-
cation ; that on the said day of ,
19. ., the defendant was engaged in the business of selling intoxi-
cating liquors in the town of , in said county, hav-
ing a state license so to do, and had been engaged in said busi-
ness at said place, for about years prior to said day,
and is still engaged therein, having all that time such a license ;
that long prior to the said day of ,
19.., the said defendant began to furnish and sell to the said
intoxicating liquors and from the said
day of , 19. ., and up until the death of the said
, continued to sell to the said such
intoxicating liquors while the said W'as in the
habit of drinking to intoxication as aforesaid, and also sold
the said such intoxicating liquors, within the
period aforesaid, when he was in an intoxicated condition ; and
the plaintiff says that all the time aforesaid, when the said
CASE
693
defendant was so furnishing the said mtoxicating
licmors as aforesaid, and while he was in the habit of drinking
to intoxication, and was intoxicated, the said defendant had
reason to believe, and in fact knew that the said ;•••.•••
was intoxicated and in the habit of drinking to intoxication;
but the said defendant, notwithstanding that he had reason to
believe and knew that the said was in the habit
of drinking to intoxication, on the day of ......
19 . . , and after the said defendant had the information
aforesaid, he' the said defendant, in total disregard of his legal
duty under his said license, sold and furnished the said . .
intoxicating liquors, and continued to make such sales
and to so furnish him with such intoxicating liquors from said
last mentioned day up until his said death, and that too while
the said was intoxicated and in the habit of drink-
ing to intoxication, whereby and in conseciuence of such sales
and furnishing intoxicating liquors to the said • ,
the said became and was greatly intoxicated ; and
while so intoxicated, the said neglected his work
and squandered his money, and thereby injured the plaintiff
in her means of support ; and also while so intoxicated injured
the said plaintiff in her person, in this : that he abused, cursed,
ill-treated and threatened the life of the said plaintiff and caused
her great humiliation and grief; and all in consequence of the
unlawful acts of the said defendant in furnishing and selling
to the said intoxicating liciuors aforesaid, whereby
the said plaintiff's husband became and was intoxicated as afore-
said. , , „ .,
And thereupon the said plaintiff says, that by reason ot the
aforesaid premises, an action hath accrued to her, to demand
and have of and from the said defendant, for and by reason of
the said grievances, wrongs and injuries, damages to the amount
of ($ ) dollars. And therefore she sues.^^
1318 Parent's intoxication, Narr. (111.)
For that whereas the plaintiffs, on and before the
day of , 19- •, in the said county, were the chil-
dren of one J H and U H, his wife, the said being
on the day aforesaid about years old,
being about years old, and being
about years old. . ^ „ . . ^ .
And the plaintiffs aver that the said J H, on the day last
aforesaid and for a long time next preceding that day, was
by trade a carpenter and about the age of, to wit,
years, and on or about, to wit, day of , 19 . .,
was strong in body and capable of earning a large yearly income
51 Penninefton v. Gillaspi, 63 W.
Va. 541 (1908).
694 ANNOTATED FORMS OF PLEADING AND PRACTICE
by his trade, to wit, the yearly sum of ($ )
dollars ; and on the day of , 19 . . ,
and on many and divers other days prior thereto for a long
period of time, to wit, for a period of years, the
defendant, G, with knowledge that the said J H was then
and there intoxicated, and a person who was in the habit of
becoming intoxicated, at divers places in said county, in wilful!
disregard of the rights of the plaintiffs herein, sold and gave
intoxicating liquors which caused the intoxication, in whole or
in part, of the said J II, and whereby he became and then and
there was intoxicated; and in conse(iuence thereof said J II
then and there wasted and squandered all his means and prop-
erty and became greatly impoverished, reduced, degraded and
wholly ruined, as well in his mind and body as in his estate
and capability for work, and lost his means of securing work
at his said trade and neglected and ceased to exercise and attend
to the duties of his said trade, or in any manner to provide a
proper livelihood for the plaintiffs herein, his said children.
And the plaintiffs further aver that certain other of said
defendants, to wit, E U and J S, a cori)oration, then and there
owned and rented, leased or permitted the occupation of certain
saloons or dram-shops on premises other than those occupied
by the defendant, G, aforesaid, having knowledge that intoxi-
cating li(|Uors were to be sold therein and knowingly permitted
therein the sale and gift by certain persons, to wit, their ten-
ants, of intoxicating lic^uors which caused the intoxication, in
whole or in part, of the said J II, as aforesaid ; that at the time
of the said sales and gifts the said J II was a person in the
habit of becoming intoxicated and often was intoxicated when
he drank said intoxicating liquors as aforesaid ; that the premises
then and there owned and rented, leased and permitted to be
used for saloons by defendants E U and J S were known and
described as, to wit, (Insert legal description) ; that one L was
in possession of the aforesaid premises as the tenant of said
defendants during the period between and ,
and then and there sold and gave certain intoxicating liquors
that caused, in whole or in part, the intoxication of J H, as
aforesaid; and that the aforesaid sales and gifts were made on
the aforesaid premises repeatedly, frequently and habitually,
to wit, daily throughout said period.
And the plaintiffs further aver that because of the said intox-
ication of the said J H, he, the said J II, then and there failed
to furnish and provide them with sufficient and proper food,
lodging and shelter and clothing.
By means of which premises hereinbefore set forth the plain-
tiffs and each of them have been and are injured in their means
of support, to wit, the services and earnings of the said J H
have been diminished and they have been deprived, among other
things, of their sufficient and proper food, clothing and lodging
or shelter. Wherefore, etc.
CASE
695
1319 Son's intoxication, Narr. (111.)
For that whereas, heretofore, to wit, on , and on, to
wit divers other days, and at divers other times between that date
and the commencement of this suit, at and within the county
of . . . , in the state of Illinois, the defendants, ,
an(i , in certain buildings then and there occupied
by them' 'respectively, did sell and give intoxicating liquors to
one , and thereby caused the said • .
then and there to become habitually intoxicated, and the said
^ by reason thereof, was, during all the times afore-
said, habitually intoxicated. ^ -, . n .u
And the plaintiff further avers that at and during aU the
times aforesaid, the defendants, and •••.•••••••''
were the owners of the building and premises so occupied by the
gai(i , and permitted the occupation of the said
building "and premises so owned by them, by the said . . ... ... .,
then and there knowing, during all the times aforesaid, that
intoxicating liquors were to be sold therein.
And the plaintiff avers that the said ' ' •/ ' --'^ the son
of the plaintiff, and that the plaintiff, during all the times afore-
said was a widow, and a poor person without adequate means
of support, and that she and her said son, during all the times
aforesaid, were then and there living together, and that he was
of age, and able, competent and willing to earn a living for the
plaintiff, and would have done so but for his said habitual
intoxication, and that by reason of such intoxication, caused as
aforesaid the said lias been broken down and
ruined physically and otherwise, and incapacitated for earning
money for the plaintiff's support, and that, by reason of the
foreo-oing premises, the plaintiff has been injured m her means
of support, and that she has been compelled to support her
said son, and during all the times aforesaid her said son wasted
and squandered her means and property, of the va ue of, to wit,
dollars by reason of his said habitual intoxication,
by' reason 'of which premises the plaintiff has been injured in
her property.
2 And whereas also the defendants, .:;••••• • • • • • : • f^^
during all the times aforesaid, had the right to
rent and permit the occupation of the building so occupied by
Jhe said . . . ., and did, during all the times aforesaid
knowingly' pVr'mit the' said •• to occupy the said
last named building, for the purposes of a saloon, m whijh to
sell intoxicating li(iuors, then and there, during all the times
aforesaid, knowing that intoxicating liquors were to be sold
And 'the plaintiff avers that the said and the
plaintiff we?e living together during all the ^"i^s aforesaid
Lrl thnt the said was able, competent and willing
?a earn a living for the plaintiff, and would have done so but
696 ANNOTATED FORMS OP PLEADING AND PRACTICE
for his said habitual intoxication, but that, because of his said
habitual intoxication, caused as aforesaid, he was broken tlown
and ruined physically, during all the times aforesaid, and inca-
pacitated for earning money for the plaintiff's support; tliat
the said , during all the times afon-said, and in
consequence of his said habitual intoxication, caused by the
defendants, as aforesaid, was unable to earn a livelihood either
for the plaintiff or for himself, but was wholly dependent and
helpless in this regard, and for the reasons aforesaid, and dur-
ing all the times aforesaid; that the said , during
all the times aforesaid, was unmarried, and had no child or
children, and that his father, the plaintiff 's husband, had died
prior to the dates and times above mentioned; that the plaintiff,
during all the times aforesaid, being required by the statute
in such case made and provided to support her said son as a
poor person, as aforesaid, did in fact support her said son during
all the times aforesaid, furnishing him food, clothing, medicine
ind other necessities, and that, in so doing, she paid out and
expended for the necessary support of her said son a large sum
of money, to wit, the sum of dollars; and the
plaintiff avers that, during all the times aforesaid, she was a
person of limited means, owning her home, but having no other
property whatsoever except the sum of dollars,
which she had received as insurance on the life of her husband,
and which would have yielded her a small income if she had
been able to retain it, but which she was forced to pay out and
expend, and did pay out and expend, in the necessary sup[)ort
of her said son for the reason and under tiie circumstances
hereinbefore stated; and the plaintilf avers tiiat she had no other
means or source of income, during all the times aforesaid, and
has none now, except as hereinbefore stated, and that she is
impoverished and destitute because of the aforesaid premises;
and so the plaintiff says that, by reason of all the aforesaid
premises, she has been and is injured in her means of support.
To the damage, etc.
LIBEL
1320 Malice, proof
Publications of libel or other than those counted upon, if bear-
ing upon the question of malice, are admissible in evidence in
an action for libel/'^
1321 Joinder of counts
A material alteration in the words published make a different
libel, for which a suit is maintainable or upon which a count
may be joined.^^
52 Whittemore v. Weias, 33 Mich, 53 Ball v. Evening American Pub-
348, 352 (1876). lishing Co., 237 111. 592, 606 (1909).
CASE 697
1322 Declaration requisites, innuendo
In an action for libel upon words which are not libelous per se,
the declaration must bring out the latent injurious meaning of
the words charged by proper innuendo, unless the libelous mean-
ing of the words are so clear without an innuendo that a man of
common understanding may consider them such without diffi-
culty or doubt. ^^ Words published or spoken which do not refer
to the plaintiff by name should be averred that they were spoken
or published of and concerning the plaintiff.^^
1323 Campaign contribution sought by oflBcial, Narr.
For that whereas the plaintiff is and ever has been a good
and lawful citizen, and until the happening of the grievances
hereinafter mentioned has always been considered an upright
and honorable man; and whereas the plaintiff' has been since
the day of , and now is the
for the district of , which said office he holds by
virtue of an appointment by the president of the United States,
by and with the advice and consent of the senate of the United
States; and whereas, as such it is the plaintiff's
duty to present to the grtmd jury in and for said district of
all violations committed in said district of the
laws against crimes and misdemeanors in force in said district,
and to prosecute before the courts of said district in the name
of the United States all persons charged with the violation of
any of said laws ; and whereas, the , a body cor-
porate, owns a race track or course in said district of ,
whereon there are held contests of speed between horses, which
said contests are commonly known as horse races; and whereas,
at the time of the grievances hereinafter complained of, the
said body corporate was duly having take place at its race track
or course aforesaid, contests, or races aforesaid, the same com-
mencing the day of and continuing
daily since until the date of the grievances hereinafter com-
plained, and advertised to continue until the day
of , a period of weeks, which said
period is known as said body corporate 's ; and
whereas during such contests divers persons congregate in,
around and about said race course or track and make bets or
lay wagers upon the result of said races; and whereas if such
laying of bets or making of wagers at such race course or track
constitutes a violation of any of the laws in force in the district
of , it is the duty of the plaintiff to present the per-
5^ Bourreseau v. Detroit Evening 5o Ball v. Evening American Pub-
Journal Co., 63 Mich. 425, 429 lishing Co., 237 111. 599, 600.
(1886).
698 ANNOTATED FORMS OF PLEADING AND PRACTICE
sons laying such bets or making sueli wagers to the grand jury
of the said district for indictment for such violation ; and where-
as, the plaintilf did, on, to wit, day of
present to the grand jury one and charged that said
, iu taking wagers at said race track or course,
was setting up a gaming table contrary to tiie statutes in force
in said district against setting up gaming tables, and said grand
jury, on, to wit, the day of , re-
turned and presented to the court of the district
of an indictment against said ,
charging him with a violation of said statute, to which said
indictment said . , on, to wit, the day
of , interposed a demurrer, which said demurrer
was sustained, on, to wit, the day of
by justice of said court of the dis-
trict of presiding in the criminal branch of said
court, said justice holding that said laying of bets or making
of wagers at said race course or track was not a violation of
any law in force in said district; and whereas, the plaintilf,
as such , as aforesaid, is now engaged in prosecut-
ing an appeal from said decision of said justice to the court of
appeals of said district of for the purpose of hav-
ing said court determine whether sucii laying of bets or making
of wagers, at saitl race track or course, is unlawful and contrary
to the statutes of the district of against crimes
or misdemeanors ; and whereas, pending said determination of
said (luestion by said court of appeals, the plaintiff, conforming
himself as it is his duty to do to the law as judiciallv consid-
ered, as aforesaid by the justice of' the said
court of the district of , has not
ordered the issuance of warrants for the arrest of, or presented
to the grand jury of said district, any persons for laying bets
or making wagers on said contests at said race course or track
as aforesaid; and whereas the said defendant aforesaid,
•. , was, at the time of the grievances hereinbefore
mentioned, and now is, the publisher of a certain paper in the
city of , said paper being called ;
and whereas one was, at the time of the griev-
ances hereinafter mentioned, and still is, a candidate for nomi-
nation by the party for the office of ;
and whereas, the said defendant, , has been pub-
lishing in its said paper, the , for many days pre-
vious to and since the date of the grievances hereinafter com-
plained of, numerous articles or advertisements in support of
the said candidacy of the said ; and whereas, the
said defendant, , in addition to publishing' the
said paper, has sold and circulated the same in the city of
, aJid in the district of , and through-
out the whole of the United States of America, in American
countries adjacent thereto, and in foreign countries ; and whereas,
CASE 699
notwithstanding the fact that the said plaintiff has ahvays con-
ducted himself as an honest, upright citizen and has always
properly conducted himself in his said office as
for the district of , heretofore mentioned ; and
whereas, the said plaintiff' has heretofore and now is performing
the duties as for the district of in
an upright, honest and dignified manner; yet, the said defend-
ant, , well knowing the premises, but maliciously,
wickedly and fraudulently contriving to injure the plaintiff in
his good name, fame and credit, and to bring scorn, public
scandal and disgrace upon him, and to injure him in his office
as for the district of , aforesaid, did
heretofore, to wit, on the day of ,
compose and publish and cause to be composed and published,
of and concerning the said plaintiff, and of and concerning the
said office of the said plaintiff in the said newspaper called
of , date, to wit, , the
same being published in the city of , district of
, and widely circulated among the people of the whole
United States and in the countries aforesaid, and particularly
in the said city of , district of , a cer-
tain false, scandalous, malicious and defamatory libel of the
tenor following, to wit : " political contest. ' *
(meaning thereby the contest of said for said
nomination for the office of , aforesaid).
" " ( meaning thereby ) said
in his great onslaught on Mr (meaning the said
) a few days ago : ' I regard his candidacy as a
joke. If I had a monkey and hand wagon, 1 could get up a
crowd anywhere.)
"This was a fine expression for a statesman (meaning said
,...), by not wanting in dignity so much as a justice,
etc., (meaning thereby the honorable ), who, with
(meaning the plaintiff), went to
(meaning the town of ) , the last
(meaning the day of ) to attend a
conference of (meaning said )
enemies and determine upon what ammunition was needed to
defeat him. The question now is, where does the money come.
from in the contest against Mr ? (meaning the
said ) . IIow about the race track ? ' '
Meaning thereby and intending to convey and actually con-
veying that the said plaintiff entered into a conference with the
said and other persons at the town of ,
at the time mentioned, for the purpose of determining what
funds were necessary, and how same should be raised, to be
used in the campaign on behalf of said against
said for the said nomination for the office of
, as aforesaid, and that the said plaintiff was ob-
taining money or funds for uses in said campaign from the said
700 ANNOTATED FORMS OP PLEADING AND PRACTICE
or persons engaged in niaking bets or laying
wagers at the race track or course aforesaid, or i'roni some other
person or persons interested in said race track or course, or in
laying of bets or the making of wagers at the said race track,
or course, as aforesaid ; and meaning and intending to convey
and actually conveying that the said plaintiff was and is cor-
rupt in the conduct of his official duties as , as
aforesaid, in not presenting to the grand jury and prosecuting
before the court of said , the person or pei-sons
who lay bets or make wagers upon the said contest at the said
race track or course, as aforesaid, in consideration of contribu-
tions of money for use in said contest against the said ,
or some company, person or persons who is or are interested
in the said race track or course, or contest carried on tliereon,
or in the laying of bets or in the making of wagers thereon \ipon
said contest. Which said false, scandalous, malicious and de-
famatory libel was composed and publislied, and was caused
and procured to be composed and published as aforesaid by the
said defendant of and concerning the said plaintiff, said defend-
ant meaning and intending thereby to charge that the said
plaintitf was a corrupt, dishonest and unworthy person, and
was being influenced in the discharge of his duties as .
by the fact that some person or j)ei-sons or company, interested
in said race track or course, or in tiie contests thereon, or in
having betting, wagering and gambling promoted thereon, was
contributing money to be used against the candidacy of the said
for the oflfice of By means of which
said false and scandalous libel the plaintiff has been and is very
greatly injured in his good name, fame and reputation and
brought into scorn, scandal, infamy and disgrace in so much
as divers good and lawful citizens have, by reason of the griev-
ances aforesaid, suspected and believed and still do suspect and
believe the plaintiff to be guilty of the acts set out and charged
and intended to be charged in said publication, and to have been
guilty of bad and improper conduct so charged of and concern-
ing him, and have, by reason of the committing of said griev-
ances from hence until now, believed the i)laintiff to be a dis-
honest and unworthy person and to have been guilty of the
wrong alleged of him as , to the damage, etc.
1324 Financial responsibility, Narr. (Md.)
For that the plaintiff is engaged in business in the city of
, in the state of , as a maker and
dealer in machine and hand cut corks, and imported and do-
mestic bottles, demijohns, flasks, bottle caps, straw covers,
brewer's and bottler's materials and supplies, and has been en-
gaged in said business in said city upon his own account ever
since the year That the defendants are the dis-
trict manager and assistant manager respectively of a tirm
CASE 701
known as company, which firm conducts a mer-
cantile agency with branches throughout the United States, and
publishes and circulates among its several thousand subscribers
a certain book or list of commercial ratings in which are printed
the names and occupations of persons, firms and corporations
engaged in commerce in the several states and cities of the
United States, said names being arranged in geographical and
alphabetical classification, which makes the said book a means
of ready references; that alongside the names published in the
said book or list of commercial ratings there appear certain
letters and numerals, which, according to the key published at
the beginning and at the end of said book, furnish a designation
of the financial worth and reliability as to credit and character
of the persons beside whose names the said letters and figures
appear; and the said firm of company in the con-
duct of its business places copies of its said book or list of com-
mercial ratings with all its subscribers throughout the world.
And the plaintiff says that after he went into business on his
own account in the year , as aforesaid, he was for many
years a subscriber to the said book or list of commercial ratings,
and paid the said company, through its agents,
the defendants, an annual sura of from to
dollars therefor, and that during the time when the plaintiff
was such a subscriber he was rated in said book or list of com-
mercial ratings as having a financial worth of from
to dollars, and as enjoying high credit ; but that
after the plaintiff ceased to subscribe for the said book or list,
and to pay the said annual sum of from to
dollars, although the plaintiff's financial worth and reputation
for business honesty remained as great as it had been prior
thereto, and in fact increased by reason of the plaintiff's strict
attention to business, nevertheless, the defendants maliciously
and without just cause therefor procured the said firm of
company in their edition of the said book or list
of commercial ratings published in the month of ,
19. ., to print the plaintiff's name without any letter or figure of
any kind whatever standing alongside of it, the same being what
is designated in trade circles as a "blank rating;" that such
'"blank rating," according to the aforesaid key published at the
beginning and at the end of said book, is purported to be ex-
plained by the following Avords contained in the said key printed
as aforesaid, to wit, "The absence of a rating, whether of capi-
tal or credit, indicates those whose business and investments
render it difficult to rate satisfactorily. We, therefore, prefer
in justice to these to give the detailed reports on record at our
offices." But that the common acceptation in the trade and
among the many thousands of subscribers to the said book or
list of commercial ratings throughout the United States of such
a blank rating, even though the same is purported to be explained
and modified by the said explanatory statement published in
702 ANNOTATED FORMS OF PLEADING AND PRACTICE
said key, is that the person so rated blank is worthless as to his
fiancial condition, untrustworthy as to his character, and utterly
unworthy of credit in any commercial transaction.
And the plaintiff further says that the defendants falsely and
maliciously and in order to punish the plaintiff for having re-
fused to continue to subscribe for the said book or list of com-
mercial ratings, and for having refused to pay an annual tribute
of from to dollars aforesaid, and
with the malicious intent to injure the plaintiff in his trade or
calling, and to break up and destroy the plaintiff's business and
deprive him of the means of a livelihood did, although knowing
full well that the common acceptation in the trade and among
the thousands of subscribers to the said book or list of com-
mercial ratings throughout the United States of such a blank
rating purported to be explained and modified by the said ex-
planatory statement published in said key is that the person
so rated blank is worthless as to his financial condition, un-
trustworthy as to his character, and utterly unworthy of credit
in any commercial transaction, cause the publication of the
plaintiff's name in said book or list of commercial ratings with
a blank rating as aforesaid, meaning and intending to publish
the plaintiff as a person who is worthless as to his financial
condition, untrustworthy as to his character, and utterly un-
worthy of credit in any commercial transaction.
And the plaintiff' further says that the publication of the said
libel has utterly destroyed the credit which the plaintiff has
heretofore enjoyed, and has caused many of the persons, firms
and corporations from whom the plaintiff has been purchasing
goods to demand immediate payment of the balance due them,
and to refuse to sell the plaintiff goods upon the usual terms of
credit heretofore allowed, so that the plaintiff who but for the
publication of said libel would be in a better condition finan-
cially than he has ever been, is seriously injured in his business,
and has suffered and will suffer a heavy loss and damage in the
prosecution thereof; and that said business has been worth
more than dollars per annum to the plaintiff for
a long period of years.
And the plaintiff claims dollars.
1325 Hatred, contempt and ridicule, action
An action for libel is maintainable for a wrongful and malic-
ious publication of words which tend to bring a party into public
hatred, contempt or lidicule, although the same words, if spoken,
would not be actionable.^^
56 Cerveny v. Chicago Daily News
Co., 139 111. 345, 354 (1891).
CASE 703
1326 Hatred, contempt and ridicule, Narr. (111.)
For that whereas, before and at the time of the committing
by the defendant of the several grievances hereinafter mentioned,
said plaintiff was a person of good name, credit and reputation
in the county of , and state of Illinois, and before
and at the time of the committing by the defendant of the sev-
eral grievances hereinafter mentioned, carried on, and still does
carry on, the trade and business of a merchant in
the city of , in said county of , and
was deservedly held in esteem by his neighbors and those with
whom he had dealings in his trade and business as such
merchant, ^7hereby he acquired great gains in his trade and
business ; and whereas, before and at the time of the committing
by the defendant of the several grievances hereinafter mentioned,
the plaintiff was held in high esteem by his neighbors and ac-
quaintances, as a patriotic, law-abiding and law-respecting citi-
zen of said county, and as to his political views, tenets and opin-
ions he was, and for a long time prior thereto had been, a mem-
ber and adherent of the party, and had obtained
and received the nomination as a candidate for the office of
of said county by the regular and
general nominating convention of said party of
the said county of , held in , in said
county, on the day of ,
. . . . , and thereby became and was a candidate for said office
of on the regular ticket of said
party at the general election held in said county on the
day of , ....
And the said plaintiff, for a further statement of extrinsic
facts bearing upon the grievances hereinafter mentioned and
complained of, further avers that on and prior to the
day of , 19 . • J there was in said county of ,
and elsewhere throughout the United States, and ever since that
time has been and still is, a large number, class, sect or party
of persons commonly called, known and designated as "anarch-
ists ; ' ' that on said day of , 19 . . , a
great riot occurred in the city of , in said county
of , now commonly known as the "
riot," in which riot one ., a policeman of said city
of , was, as was then and ever since that time
has been and still is commonly understood and believed, killed
by a dynamite bomb thrown by some person into the midst
of a company of policemen of the said city of ,
then and there being, and as a result of the explosion of said
bomb, and the firing of pistol shots then immediately following,
a large number, to wit, other of said policemen,
were killed, and a large number, to wit, of said
policemen, were wounded; that it was then and ever since that
time, has been and still is, commonly believed in said city of
704 ANNOTATED FORMS OF PLEADING AND PRACTICE
, and in said county of , and else-
where, that said riot and murder were immediately and remotely
instigated, caused and brought about by said class and party
of persons then and ever since then and now generally known
and designated in said city and county as anarchists, and by
certain leaders and prominent and representative men in said
class or party of persons called anarchists, as aforesaid ; and
it was then, and ever since that time has been and is now, com-
monly understood and believed in the city and county aforesaid,
that said riot and murder were the natural result of the doc-
trines and teachings of said class, party or sect called anarchists,
as aforesaid, and that the doctrines, opinions, beliefs, teachings
and tenets of said class, party or sect called anarchists, as afore-
said, and of the persons composing said class, party or sect, is,
that the law and order of society then, and ever since then and
now, existing, should be overthrown by revolution and force.
And the plaintiff further avers that after said riot and murder
of the prominent leaders of said class, party or sect called
anarchists, to wit, , were indicted by the grand
jury of said county for murder, to wit, the murder
aforesaid, and thereupon such proceedings were afterward had
in the criminal court of said county that all of said
persons above named were adjudged guilty of murder, and in
pursuance of the judgment of said criminal court the said
suffered the penalty of death by hanging, and in
pursuance of said judgment the said were com-
mitted to the penitentiary of the state of Illinois.
And the plaintiff further avers that said riot has been, ever
since its occurrence, commonly known in said city and county
as the riot of the anarchists ; and that said trial of said
persons was at the time thereof, and ever since that time has
been and still is, commonly known in said city and county as
the trial of the anarchists; and the hanging of said
persons above named was then, and ever since that time has been
and now is, in like manner commonly known and spoken of as
the hanging of the anarchists.
And the plaintiff further avers, that the name, term and
designation of anarchist ever since said riot, trial and hanging,
has been and still is commonly understood and regarded in
said city and county, and elsewhere, as descriptive of one who
holds and entertains opinions and doctrines opposed to the main-
tenance of law and order and subversive of government, and
similar in that regard to the opinions and doctrines entertained
and acted upon, as aforesaid, by said
And the plaintiff further avers, that ever since said riot, trial
and hanging, the name and designation of anarchist applied to
any person has tended, and still tends, to expose such persons
to public hatred, contempt and financial injury ; yet, the defend-
ant, well knowing the premises, but contriving and wrongfully
and maliciously intending to injure and destroy the good name
CASE
705
and reputation of the plaintiff as a law-abiding and order-loving
citizen of the community in which he lives, to wit, m the city
and county aforesaid, and to injure him in his said business,
and to bring him into public hatred, contempt, ridicule and
financial injury, on the day of , 19. ., in the county
aforesaid, wickedlv and maliciously did compose and publish,
and did cause to be composed and published, of and concerning
the plamtiff, and of and concerning the plaintiff as a candidate
for said office of , in a certain newspaper called
" ," whereof the said defendant was then and
there tlie proprietor, a certain false, scandalous, malicious and
defamatory libel, containing, among other things, the false,
scandalous, malicious, defamatory and libelous matter following,
of and concerning the plaintiff, that is to say : " -^
(meaning the plaintiff) is an anarchist, hot-headed and fiery.
' ' It was said yesterday that a committee of had
gone to see (meaning the plaintiff), and was
received by him (meaning the plaintiff) in a room with pic-
tures of (meaning the said above
mentioned) and the other executed anarchists," (meaning the
said who were hung for murder as aforesaid.)
"This did not satisfy the , and they were imprud-
ent enough to complain about ," (meaning the
plaintiff), meaning and intending thereby to charge the plain-
tiff with being a member of said class, party or sect of persons
called anarchists, and that the plaintiff entertained and held
to the aforesaid doctrines, views and tenets of said class, party
or sect called anarchists, and that the said plaintiff held to the
teachings of said executed anarchists with regard to law and
government, and that the plaintiff was in accord with the doc-
trines and cherished the memory of said executed revolutionists
and murderers , and that said plaintiff was a per-
son who entertained opinions and doctrines opposed to the main-
tenance of law and order and subversive of government, and m
favor of the overthrow of society as then existing, by revolution
and force.
2. And also for that whereas, afterwards, to wit, on the
day of , 19 . . , iu the county afore-
said, the "said defendant, well knowing the premises aforesaid,
and further contriving and wrongfully and maliciously intend-
ing to injure and destroy the good name and reputation of the
plaintiff as a law-abiding citizen in the community m which
he resided, to wit, in the city of and county of
aforesaid, did compose and publish, and did cause
to be composed and published, of and concerning the plaintiff,
and of and concerning the result of said election, and of and
concerning the plaintiff' as candidate at said election, in said
newspaper called " ," whereof the said defendant
w?s there and then the proprietor, a certain other false, scanda-
lous, malicious and defamatory libel, containing, among other
706 ANNOTATED FORMS OF PLEADING AND PRACTICE
things, the false, scandalous, malicious, defamatory and libelous
matter following, of and concerning the plaintiff, as afort'said,
that is to say : "But (meaning the plaintill")
was voted against because he is an anarchist. Tliis is disclosed
by the returns from the wards. Here are tliree
wards. Their vote indicates somewliat the temper
of the party (meaning the party) towards
(meaning the plaintitf) . (Insert returas) These figures show
that ran nearly votes ahead of
(meaning the plaintiff) in these wards." Meaning and intend-
ing to charge that said plaintiff was then, to wit. at the time
of and before said election, a member and adherent of said
party, sect or class of persons then commonly known and desig-
nated as anarchists, as aforesaid, and that he, the said plain-
tiff, was defeated at said election, and ran behind the other
candidates on said ticket at said election, because he, the said
plaintiff, was an anarchist ; and meaning and intending to charge
that the plaintiff was a person who entertained opinions and
doctrines opposed to the maintenance of law and order and sub-
versive of government, and in favor of the overthrow of society
as then existing, by revolution and force.
By means of the committing of said several grievances by the
defendant, the plaintiff has been and is greatly injured in his
good name, credit and reputation, and has lieen brought into
public scandal and disgrace ; and also by means of the premises,
the plaintiff" has been and is otherwise injured, to the damage of
the plaintiff of dollars, and therefore he brings suit,
etc.57
1327 Minister's conduct, Narr.
For that whereas the plaintiff is and ever has been a true,
honorable, pure and moral person faithful and honest in his
profession and business and upright in his conduet, and is and
always has been wholly free from false, dishonorable, impure,
immoral purposes and acts, or any offense, or offenses of like
character, and until the committing of the grievance hereinafter
complained of, was reputed, and deservedly so, to be a person
of good name and reputation in the United States and foreign
countries, and was in good standing and repute in the ministry
of the Gospel in which calling or profession he was engaged and
in business of writing, editing and publishing religious papers,
pamphlets and books, which said religious papers, pamphlets
and books have a large circulation and sale in the United States
and foreign countries and from which sales an income was and
is derived with certain divers emoluments and gains with which
to carry on the work of the plaintiff.
57 Cerveny v. Chicago Daily News
Co., 139 111. 345, 351.
CASE 707
Yet the defendant, well knowing the premises, but contriv-
ing to deprive the plaintiff of his good name, reputation and
professional and business standing, and to bring him into scan-
dal and disrepute among his friends, neighbors, associates,
acquaintances, patrons, customers, and with the public, and to
injure him in his said calling, profession, occupation, business
and pursuit, and to harass and discredit, impoverish and dis-
grace him and bring him to ruin, did heretofore, to wit, in the
month of on or about the . day of
, of said month falsely and maliciously compose
and publish of and concerning the plaintiff, in a certain news-
paper published by the defendant in the city of ,
to \nt, the which newspaper then had a large
circulation throughout the , and the states of
> y '
and elsewhere throughout the United States and foreign coun-
tries, the following false, scandalous, defamatory and malicious
libel, to wit: (Set out article).
And the plaintiff says that the statements and charges con-
tained in said publication against him and the inferences thai
the plaintiff (State specifically the particular inferences that
the libelous matter is susceptible of) and that the statements
therein set forth and any and all of them, or the inferences
therein contained of false, unseemly, dishonorable, impure,
immoral, or criminal purposes, acts, or conduct, or any otfense
or offenses of like character are absolutely false ; that the plain-
tiff did not use language attributed therein to him nor any lan-
guage of like or similar import; that the plaintiff was not and
is not in any wise guilty of the said offenses so laid to his
charge or sought to be imputed to him in and by the said false,
scandalous and defamatory publication; and that the said libel
by reason of its publication in the said newspaper was circulated
and published widely throughout the , the states
of , , , and elsewhere
throughout the United States and foreign countries; and that
by reason of said publication the plaintiff has been greatly
hurt and injured in his good name, fame and reputation, and
has been brought into disgrace and disrepute among divers
neighbors, friends and associates, acquaintances, patrons, cus-
tomers and among divers other persons, and before the public
generally, and has been greatly injured in his said calling, pro-
fession and business as a minister of the Gospel, in writing,
editing and publishing the religious papers, pamphlets, and
books, and his influence has been thereby greatly impaired ; and
that by reason of the committing of the grievance aforesaid
divers good and worthy persons have suspected and believed
and still do suspect and believe the plaintiff to have been guilty
of false, improper, impure, immoral, and criminal acts and pur-
poses and bad and improper conduct so published of and concern-
ing him, and have by reason thereof, since wholly refused to have
708 ANNOTATED FORMS OF PLEADING AND PRACTICE
any transaction, acquaintance, association or business trans-
action with the plaintiff, as they otherwise would have had, to
the damage, etc.
1328 Pleadings, libelous matter, action
Alleged libelous matter in a pleading is not actionable, when
the matter is not wholly irrelevant and impertinent to the con-
troversy between the parties.^*
1329 Pleadings, libelous matter, Narr. (111.)
For that whereas the plaintiff now is a true, honest and
faithful citizen of the state of Illinois, and as such has always
behaved and conducted himself, and until the committing of
the grievances by the said defendant as hereinafter mentioned,
was always reputed, esteemed and accepted by and among all
liis neighbors and other wortliy citizens of liiis and other states,
to whom he was in any wise known, to be a person of good
name and credit, to wit, at the said county of
By means of which said premises, the said plaintiff' before the
committing of the said grievances by the said defendant as
hereinafter mentioned had deservedly obtained the good opinion
and credit of all his neighbors and other citizens to whom he
was in any wise known, to wit, at the county of
aforesaid. And for that whereas the plaintiff" before and at
the time of the committing of the grievances by the said defend-
ant, as hereinafter mentioned, was and from thence hitherto
has been and now is the president of S, a corporation organized
and doing business under and by virtue of the laws of the state
of And before and at the time aforesaid the
said corporation exercised and carrieil on, and does now exer-
cise and carry on the business of manufacturing ,
at, to wit, the county of and state of
And plaintiff' had conducted the said business of said corpora-
tion with punctuality in its dealings, keeping its engagements,
paying its debts, and in such a business-like manner as to place
said corporation among the stable and prosperous corporations
at, to wit, the county aforesaid ; and by reason of the premises
the said corporation was doing a large and successful business,
and the plaintiff, as president thereof, was thereby daily and
honestly acquiring great gains and emoluments in said trade.
And the defendant from thence hitherto was, and is now
engaged in the business at, to wit, the said county
of , and w^as and is now a business rival of said
corporation and evilly disposed toward said plaintiff. And
before the committing of the grievances by the said defendant,
58 Ash V. Zwietusch, 159 111. 455
(1896).
CASE 709
as hereinafter mentioned, plaintiff had filed in the
court of said county and state aforesaid, on the
chancery side thereof, a certain bill, known as number
of the general numbers of cases in said court, wherein the plain-
tiff herein was complainant and the defendant herein was
defendant, in words following, to wit: (Set out bill in haec
verba).
And to said bill the defendant in this suit made and filed
in that cause his certain answer in words following, to wit:
(Set forth answer in full ).
Yet, the defendant well knowing the good character of plaintiff,
but wickedly and maliciously intending to injure the good name,
reputation and credit of plaintiff and to injure the growing
trade and reputation of said corporation and to bring plaintiff
and said corporation into public scandal, infamy and disgrace
among the inhabitants of said county, and to cause it to be
suspected that plaintiff had been and was guilty of embezzle-
ment, and for the sole and express purpose of gratifying defend-
ant s malice and ill-will towards plaintiff and to destroy com-
petition in said trade, well knowing that the state-
ments made were wholly impertinent and irrelevant to the
material issue in said cause, and entirely foreign and unneces-
sary as a defense thereto, and that there was no reasonable or
probable cause for asserting to be true the said words, on, to
wdt, the day of , , at, to wit,
the said county of , did write, publish and file,
and cause to be Avritten, published and filed, in his said answer,
and made a part of the public records of said cause, a false,
scandalous, malicious and defamatory libel, of and concerning the
plaintiff, to wit : "That he (meaning ) collected about
$ belonging to defendant (meaning .....) and
liad appropriated the same to his own use (meaning
use) without the consent or knowledge of the defendant
(meaning said ) ;" and the defendant in addi-
tion to said false and defamatory words last aforesaid, and in
the same answer, further and wantonly, on, to wit, the day and
at, to wit, the place last aforesaid, wrote, published and filed,
and caused to be written, published and filed in said cause the
following false, malicious and immaterial matter, of and con-
cerning the plaintiff, to wit, "until the discovery by the defend-
ant (meaning ) of the embezzlement by complain-
ant (meaning ) of a large sura of money." And
the plaintiff avers that by the publishing and filing of said
words in said answer the defendant meant and intended falsely
and maliciously to charge the plaintiff with the crime of em-
bezzlement and to cause it to be suspected by the associates of
plaintiff that he had been and was guilty of the crime of em-
bezzlement and was subject to the penalty made and provided
by the laws of the state of Illinois therefor. And the plaintiff
further avers that the matters above alleged are false and
710 ANNOTATED FORMS OF I'LKADING AND I'HACTICE
dcrauiatory, and wholly iirt'lcvaiit and iniproprr, iiiipcrtint'nt
and immaterial to the issne between the parties to said hill, and
were written, published and filed without any reasonable or
probable cause; all of which was known by the defendant at
the time of filing the same, and with the express intent on his
part to defame the plaintiff. By means of the comnuttinf? of
which said grievances by the defendant, the plaintiff has been
and is injured in his good name, credit and reputation and
brought to publie scandal and disgraee, and has been and is
shunned and avoided by divers j)ersons; and has been and is
otherwise injured in his saiil business, to the damage, etc."'''
1330 Privileged communications, proof
In an action for libel arising from privileged communications
the plaintiff must prove the falsity of the contents of the com-
munication and express malice in its publication, without eitiier
of which there is no cause of action. In an action for libel which
is not privileged, the plaintiff is not bound to prove the falsity
of the libel.''"
MALICIOUS PROSECUTION
1331 Nature and scope
In an action for malicious prosecution, the gist of the action
is the concurrence of malice and want of probable cause. The
want of either element is fatal to the action." ^ Unless a person
has acted maliciously and without probable cause, he is not
liable for the bringing of a civil or criminal action, and for the
wrongful seizure of property thereunder, if the court in which
the suit was brought had jurisdiction of the subject matter and
the parties."- IMalice may be inferred from a want of probable
cause ; but the absence of probable cause cannot be inferred from
malice."^ A prosecution instituted with any other motive than
that of bringing a guilty party to justice is malicious as a mat-
ter of law."^ No action for malicious prosecution is maintainable
59 A demurrer was sustained to the 111. 289, 294 (1870); :McElroy v.
foregoing declaration on the ground Catholic Press Co., 254 111. 290, 293
that the pleadings which were set (1912).
out in the declaration disclosed no 62 Hill Co. v. Contractors' Supply
cause of action. Ash v. Zwietusch, & Equipment Co., 249 111. 304, 310
supra. (1911).
60 Edwards v. Chandler, 14 Mich. «- McElroy v. Catholic Press Co.,
471, 475 (1866). 254 111. 294.
•■■1 Jacks V. Stimpson, 13 111. 701, «* McElroy v. Catholic Press Co.,
703 (1852); Spaids v. Barrett, 57 254 111. 293.
CASE 711
until the suit or the prosecution upon which the action is to be
based has legally terminated.^ ^
1332 Declaration requisites generally
A declaration for malicious prosecution must aver that the
former suit or proceeding was terminated and that such termina-
tion was in plaintiff's favor. But a defective averment of the
termination of the first proceeding is cured by verdict.^'^ The
words "without any reasonable or probable cause" are not in-
dispensable if language is used which has a similar meaning.^"
In an action against a private individual for false imprisonment
the averment of want of reasonable or probable cause is unneces-
sary ; but if such an averment is made, it will be treated as sur-
plusage.*^^ The declaration must particularly specify special
damages, if such damages are sought to be recovered.*^^
1333 Abuse of process, action
Liability for an unwarranted use of legal process depends
upon whether the process complained of is void or merely void-
able. A total absence of evidence as to any essential fact re-
quired to be proved to a court of special and limited jurisdic-
tion, as the ground of issuing process, renders the process abso-
lutely void, but when the proof before the court has the legal
tendency, to make out a proper case, in all its parts, for issuing
the process, the process will be valid until it is set aside by a
direct proceeding for that purpose, although it may be based
upon slight and inconclusive proof.""^
1334 Abuse of process, declaration, requisites
A declaration based upon a malicious abuse of process must
show that legal process was misused after it had issued.'^^
65 Feazle v. Simpson, 1 Scam. 30 69 Home v. Sullivan, 83 111. 30, 31
(1832). (1876).
60 Feazle v. Simpson, »upra; to Miller v. Brinkerhoff, 4 Denio
Spaids V. Barrett, 57 111. 294. 118, 120 (X. Y. 1847) ; Johnson v.
67 Spaids V. Barrett, 57 111. 295. Maxon, 23 Mich. 129, 136 (1871).
cs Enright v. Gibson, 219 111. 550, n Keithley v. Stevens, 238 111. 199,
556 (1906). 202 (1909).
712 ANNOTATED FORMS OF PLEADING AND I'liACTICE
1335 Attachment, action
An action on the case is maintainable for maliciously suing
out an attachment and seizing the goods of a debtor."^-
1336 Attachment, Narr. (111.)
For that whereas, at and before the time of the committing
of the gi-ievances hereinafter set forth, plaintitf, in said county,
was carrying on and was engaged and had been for a long
time engaged in the business of , and owned a
great stock of merchandise, material, tools, and implements,
pertaining to such business, and conducted and carried on his
business honestly, and was deservedly held in good credit by
the public in general, and his neighbors, and customers, and
patrons in particular, whereby, he daily acquired great gains
and profits; yet the defendants, well knowing the j)reinises, l)ut
wickedly contriving and maliciously intending to injure the said
plaintiff in his said business, good name, and fame, and credit
did, to w^it, on the day of , ,
cause to be made and filed a certain paper, commonly knovyn
as an affidavit in attachment, before a justice of the peace in
and for the county of , and state of Illinois, to
wit, before , escfuire, and then and tiiere caused
to be issued out of and obtained from the said justice of the
peace, a paper commonly known as a writ of attachment, com-
manding any constable in the county of , and
state aforesaid, to attach so much of the estate, real or personal,
of the said above named plaintiff to be found in his county, as
should be of value, sufficient to satisfy the debt named in the
said writ amounting to dollars, and
cents ($ ), and costs alleged to be owing to the said
above named defendants, etc., against this plaintiff, and deliv-
ered the same to the said constable of said county ; whereby,
the said defendants, , affirmed and charged that
this plaintiff" had departed from this state with the intention
of having his eff'ects removed from this state, and was about
to remove his property from this state to the injury of the said
defendants ; and this plaintiff' in fact says that he liad not then
and there departed from this state with the intention of hav-
ing his effects removed from this state, nor was he about to
remove his property from this state, to the injury of the said
defendants, as above stated; and he in fact says that the said
, and his aforesaid co-defendant, and each of them,
did not then and there at and before and within the time of
the making and filing of the said affidavit, and of the obtaining
72Spaids V. Barrett, 57 111. 293;
Thomas v. Hinsdale, 78 111. 259
(1875).
CASE 713
of the said writ, and of the delivery of it to the said constable,
have probable cause to believe that this plaintiff had departed
from this state with the intention of having his effects removed
from this state, nor was about to remove his property from this
state ; and so this plaintiff avers, and charges that the said de-
fendants did maliciously, wrongfully and without probable
cause, cause to be made and filed the said affidavit, and to be
obtained the said writ and the same to be delivered to the said
constable, and by him levied.
And plaintiff, in fact says, that thereupon, to wit, on the
day of , , the said defendants
caused the said writ to be levied, and the said constable did
levy said writ upon the goods and chattels, effects, furniture,
tools, implements, merchandise, and materials of this plaintiff,
and did cause said constable to enter upon the business prem-
ises of this plaintiff, and did cause him to possess himself
thereof, and he did possess himself thereof, and they did cause
him to eject this plaintiff therefrom, and he did eject him there-
from ; all of which acts and wrongs he did in pursuance of the
said writ, and he did thus and tliereby deprive this plaintiff
of his personal property of great value, and did damage other
of his personal property to a great amount, and did deprive
this plaintiff of his place of business, and greatly injure his
good name, and credit, and destroy the good will in and to
the said business, and did thence until hitherto deprive him of
great gains and profits to accrue out of his said business, and
did utterly prevent him continuing in his said business, and
did cause the same to be wholly lost to him, and did cause him
to pay out large sums of money, and to incur large debts in
procuring the said attachment to be released, and in recover-
ing and attempting to recover the said goods, and chattels taken
under said writ.
And the plaintiff, in fact says that afterwards, to wit, on the
day of , , by judgment on
that day rendered, by the said justice of the peace, the issues
upon the said affidavit were found in favor of this plaintiff,
and by the final order of said justice of the peace, duly made
and entered on that date, which order thence, hitherto has
remained in full force and effect, the said writ of attachment
was then quashed, and wholly held for naught.
By means of which said several premises, and by the acts
and wrongs aforesaid, and by other wrongs and grievances in
that behalf then and there by said defendants caused to be
wantonly, oppressively, willfully, vexatiously, and maliciously
done, this plaintiff' sustained damages direct and exemplary
in the sum of dollars ($ ) . Therefore
he brings this suit, etc.
714 ANNOTATED FOKMS Ob' I'LKAUlMi AM> I'UACTICE
1337 False imprisonment, action
The assignor of a chose in action is not liable for the wrongful
issuance of a capias at the instance of the assignee of the right
of action, without the assignor's special sanction and authority
therefor.'^^ An action of trespass on the case, and not trespass,
will lie for an act done under legal process regularly issued
from a court, or by an otTicer of competent jurisdiction, when
there is malice or want of probable caused* Imprisonment under
legal process of a court having jurisdiction of the subject matter
cannot be iiuide the basis of an action for false imprisonment
against a judge or magistrate who has issued process, the officer
who has served it and the party at whose instance the process
was issued, when the court or magistrate had merely erred in his
judgment as to the sufficiency of an affidavit upon which the
process was based. "^
1338 False imprisonment, Narr. (111.)
For that whereas, the plaintiff now is a good and honest
citizen of tiiis state, and as such has always behaved . . . .sel. . .,
and has not ever been guilty, or until the time of the commit-
ting of the several offenses and grievances by the defendant. .,
as hereinafter mentioned, been suspected to have been guilty
of larceny, or any other such crime, by means whereof the
plaintiff, before the committing of the said grievances by
defendant., had deservedly obtained the good oi)inion and
credit of all h.. neighbors and other worthy citizens of the
state; yet, the defendant., well knowing the premises, but
contriving and maliciously intending to injure the plaintiff. .
in h.. aforesaid good name and fame, and credit and to bring
h. . into public scandal, infamy and clisgracc, and to cause the
plaintiff. . to be imprisoned for a long time, and thereby to
impoverish, oppress and ruin h. ., did on or about the ........
day of in the town of , in
the county and state aforesaid go and appear, before one
then and there being one of the justices of the peace in
and for the county aforesaid, and then and there, before the
said , so being such justice as aforesaid, falsely
and maliciously, and without any reasonable or probable cause
whatsoever charge the plaintiff. . with having feloniously stolen
certain articles of personal property described in the aforesaid
'•■'Park V. Toledo, Canada South- 228 (1875); Paulus v. Grobben, 104
em i: Detroit R. Co., 41 Mich. 3.52, Mich. 42, 49 (1855).
355 (1879). 75Feld v. Loftis, 240 111. 105, 107
74Blalock V. Randall, 76 111. 224, (1909).
CASE 715
complaint then and there made by the defendant. . as follows,
to wit: (Describe goods), the property of the defendant. . and
upon such charge the defendant. . falsely and maliciously and
without any reasonable or probable cause whatsoever, caused
and procured the said so being such justice afore-
said, to make and grant his certain warrant, under his hand and
seal for the apprehending and taking of the plaintiff. ., and for
bringing the plaintiff. . before him the said or some
other justice of the peace in and for the said county, to be
dealt with according to law for the said supposed offense ; and
the defendant. ., under and by virtue of the said warrant, after-
wards, to wit, on the day of , aforesaid,
there wrongfully and unjustly, and without any reasonable or
probable cause whatsoever, caused and procured the plaintiff. .
to be arrested by . .h body, and to be imprisoned, and kept
in prison for the space of hours then next following,
and until . .h the defendant., afterwards, to wit, on or
about the day of , there falsely and mali-
ciously and without any reasonable or probable cause whatso-
ever, through and by virtue of said warrant caused and pro-
cured the house and domicile of this plaintiff. . to be entered
by an officer of the law and by him searched, and divers of
. .h goods and i)roperty were then and there taken by said
officer, and carried away and brought before the said
justice as aforesaid.
And the defendant., afterwards, to wit, on or about the
day of , without any reasonable or
probable cause whatsoever caused and procured the plaintiff
to be carried in custody before the said
so being such justice as aforesaid, to be examined before
the said justice, touehing the said supposed offense; whereupon,
the plaintiff then and there prayed a change of venue from
the said justice aforesaid to the next nearest jus-
tice of the peace in the town and county aforesaid; and the
defendant., afterwards to wit, at the time aforesaid then
falsely and maliciously, and without any reasonable or probable
cause whatsoever caused and procured the plaintiff to be car-
ried in custodv before , a justice of the peace in and for
the county aforesaid, he, the said justice being the next nearest
justice of the peace in the town and county aforesaid to be
examined before the said justice aforesaid, touch-
ing and concerning the said supposed offense; which said jus-
tice having heard and considered all that the defendant.,
could say or allege against the plaintiff touching and con-
cerning the said supposed offense and all that the defendant. .
could sav or allege touching and concerning the divers goods
and property so taken as aforesaid, then and there adjudged
and determined that the plaintiff was not guilty of the
said supposed offense, and then and there caused the plaintiff
to be discharged out of custody, fully acquitted and discharged
71G VN'NOrvTLID FORMS (>F |-LLAI<IN(J AND PRACTirE
of tile said .siii)i)us«'(l onViisc, ami Hun ami iIutc itdjud^'cd and
detcrmiiit'd that the divi-is ^'oods and |>ru])t'rty s<j takru as al'urf-
said belonged to tlie idaintili", ami I lie said divtis goods and
property were by the said justiee ordered restored to the plain-
tili"; and the defendant. . ha. . not further prosecuted . .h. , . .
said complaint, but ha.... abandoned the same and the said
complaint, and j)roseeution are wholly ended and determined.
By means of which premises, the plaintitT has been and is
greatly injured in ..h.... ereilit antl reputation, and brought
iuto public scandal, infamy ami disgrace, with and among all
. .h. . . . iieighbois and othei- worthy citizens of this state; ami
divers of those neighbors ami citi/ens, to whom ..h.... inno-
cence in the j)remises was unknown, have on occasion of the
premises, suspected and believed, and still do suspect and be-
lieve that the plaintilV has been and is guilty of larceny ; and also
the plaintiff has, by means of the i)remises sulVered great anx-
iety anil pain of body and miml, and has Ix en obliged to lay
out, and has laid out divei-s large sums of money, amounting to
dollars, in and about the pro<-uring of . .h. . . . dis-
charge from the said impri.soument, and the defending of
. . . .sel. . . . in the premises and the manifestations of . .h, . . .
innocence in that behalf; and has been gr»>atly himlrred and
prevented by reason of the ])remises, from following and trans-
acting . .h. . . . alfairs and business, for the space of ;
and also, by reason of the i)remises the plaintilV has bet'U ami
is otherwise greatly injured in ..h.... creilit and circum-
stances. To the damage, etc.
(Maryland)
For that heretofore, to wit, on or about the
day of 1I>. ., the defendant fahsely and
nuiliciously anil v.ithout reasoiuible cause v/hatsocver, cau.sed
and procured the arrest of the plaintiiF, upon the charge of
having feloniously stolen, taken and carried away certain house-
hold furniture, to wit; (Describe property) the projjcrty of
and caused and procured police
olHcer of the city of to take the said
to the police station, where she was searched and
locked up and was otherwise humiliated; that on the said day
the defendant did cause her, the said })laintiif to be taken before
the police station in the city of ,
and thereafter, after a hearing before the pre-
siding magistrate at the police station she, the
said plaiutitt' was committed for the action of the criminal court
of and there charged the plaintitT with having com-
mitted the aforesaid crime; that said plaintiff was tried before
his honor of the criminal court of ; that
said charge was in effect false, and the plaintiff, upon the trial
thereof by the criminal court, was acquitted and discharged;
CASE 717
suspicion, and tiiat tik ^:''l} J"' . , . ., plaintiff was made
the reputation ot the phuntiff; and tliat ^^^^ P'^"'; , T^rosecu-
ill and has suffered other injuries as a result ot such piosecu
lion as aforesaid. Wherefore, etc.
(Virginia)
For this to wit, that the said plaintiff was known to all the
*''f f^h Zrt Ik U V, . a„ l-ontriving and maliciously
set forth, but tne sam V'^ .,,. • , • .,|orosaid good name,
intending to "JJ^'^d-toT ini h n i o pul «-anci-d. infancy
fame and <^^« J"' ""'l'" ''",',; ' ,", l,i„,iir to lie suspected of
rum l,i„>, heretofore to w:t, on the .^^^ ._^_^0 ^^v^^
; inriVwrn/'lulving "feloniously stolen ( »--,'>^,X"^- > >
:jStr;n^^£^arcK.,...^cm|he^
Suntil the said defendant aft-va;;|^;,--U°f ;„,„,],
718 ANNOTATED FORMS OF PLEADING AND PRACTICE
committed by the said justice to imprisonment for a further
examination; the said justice, having? heard and considered
all that the said defendant and its duly authorizt-d agents could
say, allege or prove against the said plaintitT, committed the said
plaintiff to the grand jury of the court of the
city of , and the plaintiff was again imprisoned
for a long space of time, to wit, for the space of
days; thereafter the said defendant and its duly authorized
agents appeared before the grand jury on the day
of , where an indictment was brought against the
said plaintiff, charging him with having feloniously stolen (De-
scribe property) from the said defendant of the value of
dollars, and the said defendant then and there,
wrongfully, unjustly, wantonly and maliciously and without
any reasonable or probable cause whatsoever, again caused the
said plaintiff to be arrested by his body and to be imprisoned
for a long space of time, to wit, for the space of
days, until he could be bailed for his appearance in said court
at the trial of said indictment. That the said plaintiff on a
certain date, to wit, the day of , in
the court in the city of , was ar-
raigned and tried on the said indictment, which, without proper
cause, was instigated by the defendant through its duly author-
ized agents, and the said plaintiff was adjudged and determined
by the said court and its jury in said trial to be
"not guilty" of the supposed otTense, and the said plaintiff was
then and there discharged out of the custody and fully ac<iuitted
of the said supposed off'ense ; and the prosecution of the same
has fully and finally ended. By means of said premi-ses the said
plaintiff' has been greatly injured in his health and reputation
and put to great inconvenience and expense, to wit,
dollars, in defending himself in said prosecution, and has been
disgraced and injured, to the damage, etc.
(West Virginia)
For this, to wit, that whereas the said plaintiff' is a good,
true, just and honest citizen of this state and as such hath
always behaved and conducted himself, and until the commit-
ting of the grievances by the said defendant, as hereinafter men-
tioned, was always reputed, esteemed and accepted by and
amongst all his neighbors, and other good and worthy citizens
of this state, to whom he was known, to be a person of good
name, fame and credit; and whereas, also, the said plaintiff
hath never been guilty, nor until the time of the committing
of the said grievances by the said defendant, as hereinafter
mentioned, been suspected to have been guilty of stealing or
larceny, or of any other crime as hereinafter stated to have been
charged upon or imputed to him by the said defendant ; by
means whereof the said plaintiff before the committing of the
CASE 719
grievances by the said defendant, as hereinafter mentioned, had
deservedly obtained the good opinion and credit of all his neigh-
bors and other good and worthy citizens of this state, to whom
he was known to be an honest and upright man, and would
neither wrong, harm nor steal from his f ellowman ; and whereas
the said defendant, contriving and maliciously intending to in-
jure the said plaintiff in his aforesaid good name, fame and
credit and to bring him into public scandal, infamy and dis-
grace, and to cause the said plaintiff' to be imprisoned for a
long space of time, and thereby to impoverish, suppress and
wholly ruin him, heretofore, to wit, on the day of
, in the year 19 . . , at the county of ,
appeared before one , then and there being one
of the justices of the peace in and for the said county, and a
relative of the said plaintiff, and then and there before the said
justice of the peace falsely and maliciously, without any reason-
able or probable cause whatsoever, charge the said plaintiff
v.'ith having taken, stolen and carried away, a certain paper
writing of the value of $ , the property of the defendant,
and upon such charge, falsely and maliciously, and without any
reasonable or probable cause whatsoever, caused and procured
the said , so being such justice as aforesaid, to
make and grant his certain warrant, in due form of law, for the
apprehending and taking of the said plaintiff, and for bringing
the said plaintiff before the said , or some other
justice of the peace in and for the said county of ,
to be dealt with according to law for the said supposed offense.
And the said defendant, under and by virtue of the said
warrant, afterwards, to wit, on the day and year aforesaid,
wrongfully and unjustly, and without any reasonable cause
whatsoever, caused the said plaintiff to be arrested by his body
and to be imprisoned and restrained of his liberty for a long
space of time, to wit, for a space of days then
next following, and until the said defendant, afterwards, to
wit, on the day of , 19 . . , at the
county of , falsely and maliciously, and without
any reasonable or probable cause whatsoever, caused the said
plaintiff' to be carried in custody before the said ,
so being such justice as aforesaid, and to be committed and bailed
by the said justice, for a further examination, and to be kept
and held and deprived of his liberty on his recognizance given
to said justice for a long space of time, to wit, for the space
of days then next following, and until the said
defendant afterwards, to wit, on the day of ,
19.., falsely and maliciously and without any reasonable
or probable cause whatsoever, caused the said plaintiff to be
carried in custody before one , then and there
being a certain other justice of the peace in and for the said
county of , to be examined before the said justice
touching the said supposed crime.
720 ANNOTATED FORMS OF PLEADING AND PRACTICE
Which said last mentioned justice, having heard and consid-
ered all that the said defendant could say, allege or prove against
the said defendant, touching and concerning the said supposed
offense, then and there, to wit, on the day and year last afore-
said, at the county aforesaid, adjudged and dctcnnined that
the said plaintiff was not guilty of the said supi)os.d offt-nse,
and then and there caused the said plaintiff to he dis<hargi'd
out of custody, released from his said bond and recognizance,
fully ac(iuitted of said supposed offense; and the said dofrnd-
ant hath not further prosecuted his said complaint, but hath
deserted and abandoned the same, and the said complaint and
prosecution are now fully ended.
2 And for this also that the said defendant, further contriv-
ing and malieiously and wickedly inteniiing as aforesaid the
said j)hiinliff" to defame, imjjoverish, oppress and ruin, hereto-
fore, to w^it, on tlie day of , in the year
19.., at the county of , falsely and malieiously
and without any reasonable or probable cause whatsoever,
charged the said plaintiff with having eommitted a certain
offense, punislial)le by law, to wit, a misdemeanor; and upon the
last mentioned charge tiie said defendant then and there, to
v.it, on the day of , 19. ., at the county
aforesaid, falsely and maliciously, caused and procured the said
plaintiff to be arrested by his l)0(ly and be imprisoned and de-
prived of his liberty for a long space of time, to wit, for the
space of days then next following, and at the
expiration of which said time the said plaintiff was fully ac-
quitted and duly discharged of the said last mentioned offense.
By means of wliieh several premises the said plaintiff hath
been and is greatly injured in his said cretlit and reputation
and brought into public scandal, infamy and disgrace, with and
amongst all his neighbors, and other good and worthy citizens
of this state ; and divers of those neighbors and citizens, to whom
his innocence in the premises was unknown have, by reason of
the premises, suspected and believed, and still do suspect and
believe that the said plaintiff hath been and is guilty of stealing
and larceny; and also, by reason of the premises, the said plain-
tiff hath suffered great anxiety and pain of body and mind,
and hath been obliged to lay out and expend, and hath neces-
sarily laid out and expended divers sums of money, in the whole
amounting to a large sum, to wit, the sum of dollars, in
and about the procuring of his discharge from the said imprison-
ment, and the defending of himself in the premises, and the
manifestation of his innocence in that behalf; and hath been
greatly hindered, by reason of the premises from following and
transacting his lawful and necessary affairs and business for a
long space of time, to wit, for the space of days ;
and also by reason and means of the said premises, hath been
and is greatly injured and damnified in his credit and circum-
stances. To the damage, etc.
CASE 721
1339 Injimction, action
No action is maintainable for maliciously suing out a writ of
injunction where an injunction bond has been given; because
the defendant in the injunction suit is fully indemnified by the
injunction bond."^*
1340 Replevin, Narr. (Mich.)
For that whereas, before and at the time of the committing
of the grievances next hereinafter mentioned, and for a long
space of time then next preceding, said plaintiff has been wholly
engaged in the study of music, thereby preparing and fitting
herself for the business, occupation and profession of a teacher
of music, expecting and intending thereby to follow said pro-
fession for a livelihood, to wit, at the of
in said county, and in pursuing and carrying on such study and
occupation successfully it became and was necessary for said
plaintiff to have a pianoforte to use in and about the daily prac-
tice of said study ; and to that end and purpose, the said plain-
tiff became and was possessed, in her own right, of one pianoforte
of great value, to wit, dollars. And wliereas be-
fore and up to, the time of the committing of tlie grievances
hereinafter mentioned said plaintiff was using said pianoforte
in her daily study and practice, and thereby deriving great
profit and advantage from its use, and in consequence thereof
was becoming more exptTt and proficient in her said study and
in preparing herst-lf, as aforesaid, for the profession of a teacher
of music. Yet, the said defendant contriving and maliciously
intending, wrongfully and unjustly to injure the said plaintiff,
in said behalf heretofore, to wit, on the day of
, , at the of in said
county, came to the house and home of said plaintiff, bringing
with iiim divers other persons who were acting under his advice
and command and for him, and then and there maliciously
contriving and intending to injure the said plaintiff gave out
and stated that he had a writ -of replevin in favor of one
and against , that by said writ he
had authority to take said pianoforte hereinbefore mentioned,
the property of said plaintitf and in her possession. That said
defendant, then and there well knew that the said property was
not the property of either of the parties to said writ of replevin,
and that neither of them was entitled to the possession of the
same, but that it was the property of the said plaintiff and in
her possession, and that he had no legal right to seize said piano-
forte on said writ. But that the said defendant maliciously
TO Gorton v. Brown, 27 111. 489
(1862); Spaids v. Barrett, 57 111.
293.
e
722 ANNOTATED FORMS OP PLEADING AND PRACTICE
contriving and intending to injure said plaintill" in this regard
then and there, aided and assisted by saiil divers persons in his
employ and under his coniniand, took and earried away said
pianoforte by foree from the possi'ssion of said phiintitT by
tlireats of arrest and imprisonment if she resisted or in any way
hindered him from taking the same; and lie, the said ih-ft-ndant,
afterwards, to wit, on the same chiy, illegally and wrongfully
converted the said pianoforte to his own use and wholly refused
to return the same to the plaintiff, and the same has been en-
tirely lost to her and she has been deprived wholly of its use
and tleprived of the opportunity of further pursuing her said
studies and preparing herself for a teacher of music, to the
damage, etc.
1341 Malpractice as physician, Narr. (Md.)
For that, heretofore, to wit, on or about , 10. .,
the defendant, Ix'ing a praeticing physician in
city, and state of -Maryland, with laigc and extended experience,
and being the family physician of the said , the
father of the infant plaintitf, and the said dcfcmlant holding
himself out as a competent and skillful physician and one who
would carefully attend patients who might employ him, the
said defendant was sent for on or al)out said day
of , 19. ., to call at the home of the said ,
in city, to attend the wife of the said
who was about to give l)irth to a child, and the said defendant
responded to said call and came to the home of the siiid
and made an examination of his wife, and at or about
o'clock, mitlnight, the said defendant untlertook, as a physician
the delivery of said child, and after about hours of
labor with the u.se of forceps the infant daughter, ,
was brought into the world on the day of ,
19. , ; and the plaint ifV further .says that it was and became the
duty of the defendant to make a careful examination of the
mother of the infant plaintitf before her birth, and to make
such examination as was in common u.se among skilled physi-
cians, dealing with the birth of children, and to u.se and exer-
cise reasonable care and skill in prei>aring the mother of said
infant plaintitf for the delivery of .said child and also to use
and exercise reasonable care and skill in the delivery of s^iid
infant plaintiff at said birth, so that .said infant plaintiff might
be brought into the world free from the negligence and unskill-
fulness of said defendant ; and the plaintitf further says that the
said defendant was negligent and unskillful and failed to exer-
cise and use i-easonable care and skill in the delivery of said
infant plaintiff in that, by the use of forceps he caused an in-
denture to be made in the forehead of said infant plaintiff, and
immediately after the delivery of said infant plaintiff and on
CASE ' "'^
several occasions thereafter said indenture was called to the
atleuUon of said defendant, and he was called and reques ed
to treat the same, but the said defendant failed and neglected
n diatnose said trouble, and failed and neglected to treat said
ndentre so c W^^^ negligent and unskillful treatment
and his failure to use and exercise reasonable care and ski 1 in
2 delivery of said infant plaintiff, saying that it was nothing
and would not in anyway affect the infant plaintiff, and that
aUhou° the said delLdant visited the home of the mother of
?he infant plaintiff for some time after her birth, and examined
saidlnfant plaintiff and treated said infant plaintiff, he ta led
and ne^ected to make any effort to treat remove or elmmiate
sSd ^nden ure upon the forehead of said infant p laintit , al-
houc.hot"en requested to do so, and that by the unskilltul and
mnroper treatment of the infant plaintiff, during her birth, and
ZeXr and the failure of the defendant to use and exercise
r'n^^^^^^^^^ carVand skill at the birth of -^ ^^^^^
nml in the treatment of said mtant plaintiff alter her Hirtn,
and the leglecTdefault and failure of the defendant to diagnose
?eat rem^^^e or eliminate the indenture upon the torehead of
le inf' nt plaintiff, caused by the defendant as atoresjiid and
lich he was often re.,uested to do, and -l^* ^^^j^ J^^^^^,^;' !fl^
to his attention, the said infant became unable to ^^alk or talk
Lr use her mental fa.-nlties. so that she has become an imbecile,
theTroper developnu-nt of her n.ental faculties having been ar-
rested although said infant plaintiff has since the ••••;••••• • •
dav of . . . ., 19- ., ^v^>^•" ^^^^^^ indenture in her forehead,
caused as' aVoresaid,' was operated upon and removed by Dr.
Qf tj^e haspital or
d'ty"b;;ome* somewhat i'n'iproved. and said infant P^^intiff shows
mater al benefit since said operation, and whi.,-h condition ho -
ev^r o said infant plaintiff was caused and is now exis ii^^ >y
•rtue of the negligence and "-^^'I'^^'-'f, ^f^J'^^^^l'S Tn
•uid his failure to use and exercise reasonable care anc skill m
Ihec^^eliver of the infant plaintiff at her birth and the negli-
gence and unskillfulness of the defendaiit and the *«/ "^ o the
1 r».i,nt t.^ nse and exercise reasonable care and skill in diag-
no h g re tinra'd^^ --1 -'^-^^-^ ^P^^ '''' 'r""''^
Tf \lf , f nt phintiff eaused bv the defendant as aforesaid,
n h r btrwh condition of s^id infant plaintiff's head was
edkHl o ^attention of «iid defendant and he was requested
o 41 the same, and that by reason of the ^^^-^;^
dpf-nilt of the said defendant to use and exert^ise reasonanie
e^end skill fn the delivery of said infant^ P^J^jf^.f^tu"
birth and in diagnosing, treating and caring for the ^denture
in he forehead of the infant plaintiff although often requested
so o do and caused as aforesaid by the negligence, default and
ilki Ku ness of the defendant at the birth of said -fan Plain-
tiff said infant plaintiff has become and is unable to ^^alk, talk
or u^e Lt menJal faculties as othenvise she would have been
724 ANNOTATED FOKMS OF I'LEADING AND I'KACTICE
able to do had it not bceu for the negligence and unskill fulness
of the defendant, and his failure tu use anil fXcrciso reasonable
care and skill at the birth of said infant plaintiff and in tliag-
nosing, caring for anil treating said indenture on the forehead
of said infant plaintitl", which he was re(|uested to do, wherefore
said infant j)hiintitr lias become and is seriously ami pernmnently
injured.
And the plaintitT brings this suit and claims
dollara.
Next friend's authority
To the honorable the judge of said court :
I hereby authuri/e and direct tlie use of my name in this
suit, as the next friend of
1342 Nuisance, private; action, notice, damages
An action on the case is maintainable for a private nuisance
consisting of smells, smoke, etc., caused by the manufacture of
gases and rendering premises uncomfortable for habitation. ^^
The party aggrieved has the right, at common law, to peaceably
abate a private nuisance."^ A party who sustains damages by
temporary nuisance may have successive actions for their recov-
ery until the nuisance is abated."^" A grantee or lessee who comes
into possession of lands with an existing nuisance upon them
cannot be held liable for an action for damages until he has been
first notified to remove the same; but this rule bas no applica-
tion to railroads which have been constructed after the Illinois
Railroad act of 1801 went into effect.®" The unsuccessful at-
tempt to remove or remedy a nuisance does not entitle a party
who is liable for the continuation of the nuisance to further
notice to remove it before bringing an action therefor.®^ In
case of nuisance a party is entitled to past, present and future
damages if the nuisance is permanent, and to damages accrued
up to the time of the bringing of the suit, if the nuisance is
temporary.82
7T Ottawa Gas-Light & Coke Co. & Eastern E. Co., 226 111., 129, 132
V. Thompson, 39 111. 598, 606 (1864). (1907).
78 Schmidt v. Brown, 226 111. 590, si Chicago, Peoria & St. Louis Ry.
604 (1907). Co. V. Reuter, 223 111. 387, 392
-9Fairbank Co. v. Bahre, 213 III. (1906).
636, 642 (1905). 82 Fairbank Co. v. Bahre, 213 HI.
80 Tetherington v. St. Louis, Troy 641.
CASE 725
1343 Nuisance, public; action
A private action is maintainable by anyone who suffers special
damages different in kind and not merely in degree or extent,
from the damages sustained by the public in general, and who
is himself free from contributory negligence. ^^
1344 Nuisance, declaration requisites
In an action on the case for damages resulting from a private
nuisance it is not necessary to charge the defendant with negli-
gence, because as a general rule, the (juestion of want of care
is not involved in such an action. Nor is it necessary to use
the word "nuisance" if the facts alleged constitute a nuisance.^*
In an action for damages which result from a public nuisance
the declaration must show special and peculiar damages, differ-
ent in kind, and not merely in degree or extent, from those which
the general public has sustained.^^
1345 Obstructing navigation, bridge; action
A township having the control of bridges is liable for the ob-
struction of navigation by the construction and maintenance of
a bridge.*"'
1346 Obstructing navigation, bridge; declaration requisites
In an action based upon the construction and maintenance of
a bridge over a navigable river, it must be averred in the dec-
laration that the construction and maintenance of the bridge
interferes with the plaintiff" 's established business on the river
above or below the place of the bridge, or that the construction
and maintenance of the bridge injuriously affects the plain-
tiff's riparian property rights.^"
1347 Obstructing public street, railroad; action
The erection and the maintenance of an unlawful ol)strnotion
in a public street or highway, as the unlawful construction and
83 McEniry v. Tri-City Rv. Co., 2o4 «o Harlem v. Emmcrt, 41 111. 319,
m. 99. 102 (1912). " 323 as6<n.
84 Laflin & Rand Powder Co. v. 87 Swain & Son v. Chicap'O, Bnr-
Teamev, 131 111. 322, 325, 32G lineton & Quincy R. Co., 252 111.
(1890)". 625.
»■< Swain & Son v. Chicafro, Bur-
linprton & Quincy R. Co., 252, 111.
622, 626 (1912).
726 ANNOTATED FORMS OF PLEADING AND PRACTICE
operation oi" a railway, is an actionable nuisance when special
damages and freedom from contributory negligence are made the
basis of the action.**^
1348 Obstructing public street, railroad; declaration requisites
A declaration based upon the unlawful obstruction of a street
must allege the unlawful character of the obstruction, the plain-
titf's freedom from contributory negligence, and special damages
different in kind, and not merely in degree or extent, from the
damages sustained by the pul)lic in general. «» The declaration
must show a state of facts from which the legal conclusion can
be drawn that the obstruction had been maintained in the street
for an unrensona])le length of tirne."'^ In an action for damages
resulting from the construction and operation of a railroad ad-
joining the plaintiff's premises, the declaration must aver facts
showing that the damages to the plaintiff's property are of a
permanent nature. The description of the locus in quo is legally
essential to and is of the substance of this action. An averment
of a specific description must be proved as laid.^^
1349 Overflow of lands, dam across slough, Narr. (111.)
For that whereas, the plaintiff was, on the day
of , 19. ., and for a long time prior thereto had
been, in possession of, using and occupying the following de-
scribed real estate, to wit, a parcel of land consisting of
acres off of the north end of a certain tract of land known as
tract situated on a certain island known as
or island, lying in section in township ,
range , west of the third principal meridian in the county
of , in the state of Illinois, the said acre
tract being bounded (State legal boundaries), which tract of
land in question was, at that time, and prior thereto had been,
used for agricultural purposes by the plaintiff; that along the
east line of the above described tract was a natural water-course
known as slough, through which the surface water
and drains from the lands contiguous thereto, and from the
lands eastw^ard and northward of said slough, and from the
creeks and branches to the northward and eastward thereof
were discharged into the river ; and through which
8S :McEniry v. Tri-City Ey. Co., si Hart v. "Wabash Southern Ry.
254 111. 102. Co., 238 111. 336 (1909); Wisconsin
S9 McEniry v. Tri-City Ey. Co., Central E. Co. v. Wieczorek, 151
supra. 111. 579, 585 (1894).
90Lefkovitz V. Chicago, 238 111.
23, 30 (1909).
CASE
727
water-course the back water and flood water of the . . . . . . ...
river also found their way again into said river without damage
to the land aforesaid. . -, . ,,1 • +u«
And the plaintift' avers that the defendant, well knowing the
premises aforesaid prior to the time above named, constructed
a dam or dyke across the said slough about a halt
a mile south of the land occupied and tilled by the plaintiff as
aforesaid, thereby causing on, to wit, the date aforesaid, the water
which would naturally pass off and through the said ••••••••••
slough into the river to be obstructed and thrown
back upon the lands then occupied by the plaintiff as above de-
scribed, whereby plaintiff's crops on said lands consisting ot
wheat, corn, oats and potatoes were destroyed, and the land was
thereby bv reason of said overflow greatly damaged tor that
season and for the succeeding season. To the damage, etc.
5
For that whereas, before and at the time of the committing
of the grievances by the defendants hereinafter mentioned, a
certain farm with the appurtenances, situated in the county and
state aforesaid and described as follows, to wit, the (Insert de-
scription) P. M., were in the possession and occupation ot one
the reversion thereof then and there belonging
to the' piaintVff as it still does, at, to wit, the county and state
aforesaid; and the plaintiff avers that before and until the
time of the committing of the grievances by the defendants here-
inafter mentioned, through, over and across the northeast por-
tion of which said premises from the south in a northerly direc-
tion, an ancit-nt stream, slough, or water-course, was wont to
turn and flow in its natural channel, without obstruction or in-
terruption, and of right ought now to so run and flow; by means
whereof said premises from the time whereof the memory ot
man runneth not to the contrary, and until the said time when
etc were drained, maintained, and kept in good tillable and
arable condition, and free from all injurious and damaging ex-
cess of water; and of right ought now to be so drained, main-
tained and kept in good tillable and arable condition and tree
from all injurious and damaging excess of water, by means
whereof and upon said premises, before, at, and until the said
time when, etc., there were accustomed annually to grow and
mature large quantities of the usual and ordinary farm prod-
ucts, of great yearly value, to wit, of the yearly value of
dollars. . , . , . , •
And the defendants, well knowing the premises, but contriv-
mcr to injure the plaintiff in his reversionary estate, and interest
inland to said premises, and the appurtenances thereunto be-
londn'^ whilst they were so in the possession and occupation
of the°said and whilst the plaintiff was so inter-
ested therein as aforesaid, on, to wit, the day of
728 ANNOTATED FORMS OF PLEADING AND PRACTICE
, 19. ., and at, to wit, the county aforesaid, wrong-
fully and injuriously, with a certain line or track of railroad,
couunonly called the , with the trendies, bridges
and embankments thereof by the dftVndants, then and there
built and constructed over, tlirough and across said premises
and the said ancient stream, slough or water-course, obstructed,
and impeded, and so narrowed and filled up, and caused to be
so obstructed and impeded, and so narrowed and filled up, the
natural channel thereof, that said ancient stream, slough, or
water-course thereby became and was, on, to wit, the said
of , VJ. ., and at, to wit, the county aforesaid, per-
manently incapable of draining, maintaining and keeping said
premises in good tiUable and arable condition, and free from all
injurious and damaging excess of water, as before, at, and until
the said time, when, etc., said premises were accustomed to, and
of right ought now to be drained, maintained and kept in good
tillal)le and arable condition, and free from all injurious and
damaging excess of water.
Whereby, and by means whereof, said premises were, on, to
wit, , 19. ., and, at, to wit, the county and state
aforesaid, and from thence hitherto have been, and from time to
time in the future will be, rendered permanently unfit and in-
capable of growing and producing the said annual crops of the
said ordinary and usual farm products; by means of which
said several premises the plaintiiY, has been, and is, badly preju-
diced and injured in his said reversionary interest and estate
in and to said premises and the appurtenances thereunto belong-
ing. Wherefore, etc.
1350 Overflow of lands, ditch improperly constructed, Narr.
(111.)
For that whereas, during the year and prior thereto
and until the present time, plaintiffs, as tenants in common, have
been possessed of a leasehokl estate in antl have been in posses-
sion and occupation of the following described property, to wit :
a certain farm or tract of land known as the '' farm,"
situated in the county of and state of Illinois, in
sections .... and . . . . , township, range
west, said farm containing about acres, and being
bounded on the north by the road, south by the
railroad tracks, east by the farm known as the
" farm, ' ' and west by land known as the
farm, which said farm or tract of land has been cultivated and
used by plaintiffs for agricultural and grazing purposes; and,
whereas, the natural fall and drain of a large portion of said
farm being the eastern portion thereof is now and always has
been to the south and then to the east, the waters draining on to
it and falling thereon naturally flowing and draining first south-
wardly into a ditch or drain, which runs along the southern
CASE 729
line of said farm, and then eastwardly in said ditch, through the
adjoining tract of land known as the farm into
a natural depression or water-course which runs through said
farm from north to south at a distance of about
yards east of the said farm leased by plaintiffs,
and which passes under and through a trestle of the
railroad at a point a little south of plaintiff's said farm and
about yards east thereof ; the said natural depres-
sion or water-course, prior to the commission • by defendant of
the wrongs and injuries hereinafter mentioned, having at all
times been adequate and sufficient to carry off waters flowing
and draining therein, and having served as and constituted an
adequate and sufficient drain for the said eastern portion of said
farm so leased by plaintiffs; and whereas, at all times herein-
after mentioned defendant was and still is a corporation engaged
in the business of operating a certain system of railroad, and
possessing, maintaining, operating and controlling a certain
right of way, roadbed and railroad track, running east to west
at a distance of about yards more or less south
of the above mentioned farm leased by plaintiff's, as aforesaid,
and nearly parallel to the south line thereof; and, whereas there
is a certain running stream, creek, or natural water-course known
as , having a well defined bed and channel, which said
creek enters from the east of the above mentioned farm,
which is, as aforesaid, a tract of land adjoining the said
farm, leased by plaintiffs, on the east, and then flows in a general
westwardly direction along the north side of defendant's right of
way and railroad track until it arrives at a trestle constructed on
defendant's said right of way about yards, more or less,
southeast of the said farm, and, while in its nat-
ural course and condition, and prior to the commission by de-
fendant of the grievances herein complained of, said ci-eek, upon
arriving at said trestle, made a turn or bend southwardly and
flowed through said trestle and underneath defendant's roadbed
and railroad track continuing its course south thereof, and being
at all times of sufficient dimensions to carry off all waters and
drift, naturally flowing and draining therein, and discharging
same south of said trestle ; and, whereas, heretofore, to wit, dur-
ing the year , defendant did wrongfully obstruct, change
and divert the natural course of said where it
flowed under defendant's said track and through said trestle
as aforesaid, and did dig a ditch which it connected with said
creek immediately north of said trestle and on its said right of
way, said ditch extending in a westerly direction from its junc-
tion with said creek, along the noi-th side of defendant's said
right of way and parallel thereto for a distance of about one-
half a mile, more or less, and then emptying into the first above
mentioned depression or water-course which served as a drain
for the eastern portion of said farm, which was
occupied and cultivated by plaintiffs aforesaid; by means of
730 ANNOTATED FORMS OF PLEADING AND I'KACTICE
which wrongful acts of defendant the water and drift whieh
naturally was accustomed to flow in said ereck and
be discharged south of defendant's said railroad, wa^ diverted
in said ditch and llowed westwardly for a long distance tlicrcin,
whereby the course and channel of said creek was
changed and diverted and the flow of the water therein was
hindered, and obstructed.
And thereupon it became the duty of defendant to construct
and at all times maintain said ditch in a earel'ul and skiillul
manner so that it would at all times be in all respects fully adi'-
quate and sufticieut to carry otf all water and drift flowing
therein from said creek; but plaintill's aver that
defendant, disregarding its duty in that behalf, constructed said
ditch in a negligent, unskillful and insutbcient manner, and
that said ditch has ever since its construction been negligently,
unskillfuUy and insutltieiently maintained by defendant, and
has at all times been of much less width and depth tlian the
natural bed of the aforesaid creek, and has been
of insufficient size and dimensions and totally inadefpiate to
properly carry away the water flowing therein in time of severe
rain ; all of which said wrongful acts wei-e done by defendant
in the county of , state of Illinois; that because of
the insufficient manner in which said ditch has been constructed
and maintained, logs, ])ranches, leaves, and drift of all kinds.
which found their way into said creek, and thence
into said ditch, all of which said creek had here-
tofore, while in its natural state, readily carried along and ilis-
charged south of defendant's railroad, as well as such rocks and
drift as fell or otherwise found their way directly into said
ditch, became attached and stuck to the sides and bottom of
said ditch, thus clogging and damming it up and impeding
and obstructing its flow; and plaintilfs aver tiiat during the
spring and summer of , by reason of the wrongful di-
version of the natural course of said creek by de-
fendant and of the unskillful, insufficient, inadeciuate and negli-
gent manner in which said ditch was constructed and maintained
by defendant as aforesaid, and the insufYieient dimensions thereof,
said ditch became clogged and dammed up with rocks, branches,
logs, drift, etc., and in time of severe rain was totally insufficient
and unable to carry off the water flowing therein, and such
water was backed up into creek, and said creek
and said ditch both overflowed their banks and a large volume
of water spread out over the adjoining land and flowed and was
emptied into the first above mentioned depression or water-
course, which served as a drain for said eastern portion of said
farm, leased by plaintiffs, as aforesaid, and a large
quantity of said water was forced and flowed with a strong cur-
rent in a northwardly direction toward, under and through the
first above mentioned trestle, through which said depression or
water-course, draining the said farm leased by the plaintiffs
CASE 731
passed in its course ; that said large volume of water thus empty-
ing into said depression or water-course and thus forced north-
wardly under said trestle carried with it a large quantity of
drift, debris and sediment which was deposited in said depres-
sion south of said trestle and also under said trestle, whereby
said trestle became partially clogged and dammed and the said
depression was partially filled up, obstructing and impeding the
natural flow of said depression or water-course ; and in the
spring and summer of .... the water thus carried northwardly
through said trestle as well as the water flowing and draining
into said water-course north of said trestle was unable to ade-
quately flow or drain back southwardly in the natural channel
of said water-course as it had been accustomed to drain, and the
water naturally draining off of the said eastern portion of said
farm into the above mentioned ditch running along the
south line thereof, as aforesaid, and then through said ditch into
said water-course could no longer so flow and drain, but such
water together with the water thus forced northwardly through
said trestle, was backed up into said ditch and on to said
farm and overflowed the same, and said eastern portion of said
farm was prevented from being adequately drained as it pre-
viously had been by means of the aforesaid depression or water-
course.
Whereby said farm, so leased by plaintiffs, was flooded and
the crops of wheat, clover, and other agricultural products which
plaintiffs had planted and were cultivating were ruined, and a
large tract of pasture land covered with grass and used for
grazing purposes was rendered unfit for such use during the
season of , or for any valuable use ; and plaintiffs,
were damaged in many and divers other ways in the sum of
dollars ; wherefore, etc.
1351 Overflow of lands, drainage channel, action
The Sanitary District of Chicago is liable for damages to
lands caused by overflows of its channels, regardless of the ab-
sence of proof of negligence in their operation ; and the plain-
tiff is entitled to a reasonable attorney's fee in an action for such
damages.^- #
1352 Overflow of lands, drainag-e channel, Narr. (111.)
For that whereas, on, to wit, the day of ,
19. ., and for more than years prior thereto and
from thence hitherto the said plaintiff owned in fee simple the
follov^-ing described real estate, all lying within
county in the state of Illinois, said property lying adjacent to
92 Jones V. Sanitarv District, 252
lU. 591, 604, 606 (1912).
732 ANNOTATED FORMS OF PLEADING AND PRACTICE
and near to the river, said property being as fol-
lows, to wit: (Insert description) which said real estate was
covered with timber of great value in a lively and flourishing
condition on the said day of , 10 . . ,
and which said timber consisted of oak, ash, linden, butternut,
walnut, pecan and various other trees, the lumber of which was
valuable for commercial and manufacturing purposes.
And plaintiff further alleges that said lands during all of
said period above mentioned were valuable to plaintiff for graz-
ing purposes and for agricultural purposes and ^\•ere used from
time to time by the plaintiff for both of said purposes and also
lor the cutting of timber therefrom to be sold as a source of
prolit by the said plaintiff".
Plaintiff' further alleges that on the said day of
• • • , 19. ., and at all times since said date, the said
defendant has been engaged in causing the waters of Lake Mich-
igan to flow through its certain drainage canal, and by means
of other intermediate canals and streams into the
river so that said water flowed into said river at
a point above the district wherein are located the lands of the
plaintiff, and that thereby the amount of water in the
river has been greatly increased during all of the period afore-
said, namely from , 19. ., until the beginning of
this suit, and until the present time.
And plaintiff' alleges that said sanitary canal was constructed
and operated by said defendant under and pursuant to a certain
statute of the state of Illinois in that behalf, giving the said
defendant power to operate said sanitary canal but providing
that said sanitary district, the defendant herein, should be
liable for all damage to any real estate within or without said
district which should be overflowed or otherwise damaged by
reason of the construction, enlargement or use of said channel.
That during the period aforesaid the said defendant has con-
tinuously operated said sanitary canal and has during said
period continuously and at all times cast large quantities of
water into said river, so that the same has con-
tinuously overflowed its banks at or near the aforesaid lands of
the said plaintiff and said waters of said river, by
reason thereof, have overflowed onto and across and upon 'the
lands aforesaid of the said plaintiff, and has stood upon said
lands for the greater portion of each year.
And the plaintiff alleges that said quantities of water flowing
over and standing upon the said lands aforesaid causes and has
caused large numbers of said trees to die, and that by reason
of the overflowing of the said lands as aforesaid so caused by
the said defendant by the use of said sanitary canal and by
reason of the waters standing upon the lands aforesaid, the said
timber upon said lands has been continuously and continually
dying during the period aforesaid and is now gradually dying
and many trees are dead upon said land, by reason of said
CASE
733
grievances, and many of said trees are dying and are in a dying
condition, so that the plaintiff by reason of the acts of the said
defendant has been greatly damnified and the standing timber
and trees upon said lands has been greatly damaged.
And the plaintiff further alleges that by reason of the over-
flow of said waters upon said lands aforesaid so caused to over-
flow bv the acts of the said defendant, plaintiff has lost large
gains and profits which he might otherwise have acquired from
said land for grazing and agricultural purposes during the
period aforesaid.
Wherefore an action has accrued to this plaintiff under and
by virtue of the statute in that case made and provided to
demand and recover of the defendant the damages so sustained
by him. To the damage, etc.
1353 Overflow of lands, embankment; action
A railroad company is liable at common law, in damages, for
the overflow of abutting lands caused by the negligent construc-
tion or maintenance of embankments whereby the natural chan-
nel through the surface waters derived from rain or snow is
obstructed.'-'^ Each overflow upon land of adjoining owners
caused hy the negligence of another is a fresh nuisance and
creates a new cause of action.^* A nuisance thus created is per-
manent, and authorizes a recovery for past and future injury to
the property.^^
1354 Overflow of lands, embankment, Narr. (111.)
For that whereas the plaintiff, on, to wit, the day
of ' , 19. ., was and from thence hitherto has been
and still is the owner and lawfully possessed of the following
described real estate, to wit: (Set forth legal description), in
county, Illinois, used and cultivated as a farm ;
and the defendant was and has been at all times since possessed
of a certain right of way running along and near the northerly
part of said real estate of the plaintiff.
That through or along the north part of plaintiff's said farm
there then was and now is a certain stream commonly called
, which runs and naturally drains large quantities
of water off the said farm and many farms east and north and
west of plaintiff's said farm in times of ordinary floods, heavy
rain storms and freshets, said , also known as
93 Chicago Peoria & St. L. Ry. Strange v. Clevelanrl, C. C. & St. L.
Co V Eeuter, 223 111. 387 (1906). Ey. Co., 245 111. 246, 250 (1910);
94 Chicago, Peoria & St. L. Ey. CI. 5, sec. 19, c. 114, Hurd's Stat.
Co V. Eeuter, 223 111. 392 ; Eamey v. 1909.
Baltimore & 'Ohio Southwestern E. 95 Strange v. Cleveland, C. C. &
Co., 235 111. 502, 506 (1908); St. L. Ey Co., s«pra.
734 ANNOTATED FORMS OP PLEADING AND PRACTICE
has always heretofore and now overflows its banks
and spreads over part of the farm of the said
plaintiff and other lands in the vicinity, and large quantities of
the overflow water, as aforesaid, formerly naturally ran and
flowed in a westerly and northwesterly direction through the
lands of the plaintiff and adjoining lands into, over and upon
the land known as the north of and adjacent to
the lands of the plaintiff, and thence into the
(creek), without serious injury to the farm of the plaintiff*.
That, on, to wit, , 19 . . , the defendant was pos-
sessed of, using and operating a certain railroad over a certain
embankment located on said right of way, which embankment
was of great dimensions, to wit, of the height of
feet, of the width of, to wit, feet and of the length
of more than mile, which said embankment was
built across the natural water-course or flow of said waters,
which overflowed from said as aforesaid, and
said embankment was without any openings therein to
permit the free passage of water naturally flowing up to and
against the same.
That, on, to wit, , 19 . . , a flood or freshet occurred
and the overflow w^aters from said flowed toward
the w^est and northwest up to, against and over said einbankment,
and broke the same and washed out a large part of said embank-
ment, to wit, feet in length, feet in
width and feet in depth and other places
feet in length, across and under said railroad, and the waters
which had accumulated and been held back by said embankment
in their natural flow thereupon flowed through said opening in
their former natural course to and upon the said
farm and into said (creek) .
That the defendant thereafter wrongfully and negligently
repaired and rebuilt its said roadbed, embankment or All as
aforesaid which had so washed away as aforesaid, without any
openings therein to permit the free passage of the water which
might thereafter naturally flow to, upon and against said em-
bankment, and thereafter maintained the same without any open-
ings thereunder. And on divers and sundry days thereafter
said embankment under said railroad was again washed out
and away and again rebuilt solid as aforesaid by said defendant.
That on various days thereafter in the months of
and and on other days since said time, by reason
of said embankment, w-hich the defendant so wrongfully and
negligently rebuilt and maintained, the natural flow of large
quantities of rain-water and the overflow waters from said
which naturally flowed upon, over and across the
said premises of the defendant were obstructed, and the said
water was diverted from its natural course by said embankment,
and ran and flowed in a different direction over and upon the
said land and premises of the plaintiff, and large quantities of
CASE _ 735
said water were held and thrown and remained on the said lands
of the plaintiff, and thereby the said lands and premises of the
plaintiff were greatly damaged and injured and became and-
are swampy and to a great extent unfit for cultivation, and the
crops growing thereon in the year and to the
date of the commencement of this suit were, to a large extent,
damaged and injured, to the damage, etc.
(Maryland)
For that whereas, the said plaintiff is and for long time prior
hereto, to wit, years, has been the owner and in
possession of a certain tract of land in the county of ,
, known as part of a tract called " , "
situated at or near , , along the rail-
road of the said defendant company; that the said defendant
from , 19. ., has been and still is the owner of
a line of railway on which cars are operated by steam, a section
of Avhich railroad, known as the com-
pany, runs along a roadbed immediately adjacent to and abut-
ting the said land of the plaintiff, on the east thereof; that on
and before the said year, the said defendant, in the operation
and maintenance of said branch of its railroad, had built and
maintained, and now maintains a. large embankment along the
course of said railroad abutting the said land of the plaintiff
on the east thereof, whereon it had constructed and maintains
a roadbed, upon which tracks were laid and are maintained
upon which its cars might and do run; that at the time of the
building of said tracks and bank, that portion of the land of
plaintiff^ lying contiguous to said bank and tracks, was low, in-
clined toward the east, and had a natural drainage across said
land occupied by said railroad company as aforesaid, and the
drainage of the said land of plaintiff was drained and carried
off toward the east across said line or bank and railroad track ;
that said drainage of water and the flow thereof was not ob-
structed, but was free and carried away and off by natural
drainage on the surface without damage to the said property
of plaintiff, and said water and drainage had access towards
the east, and at numerous places along the line of railroad track
and bank, and w^as diffused and scattered in its flow along and
over the surface across said line of railroad; that the build-
ing of said tracks and bank cut off and obstructed the flow of
water and drainage tOAvards the east across the same, and the de-
fendant railroad company carelessly failed and omitted to make
and maintain culverts and openings through said bank sufficient
to allow the free passage of water underneath said track; but the
plaintiff says that the defendant company built and constructed
but one culvert underneath said track and bank, but that said
culvert was carelessly, negligently and wrongfully permitted to
become filled with mud and debris, and to rot, so that the water
736 ANNOTATED FORMS OF PLEADING AND PRACTICE
which flows from her property cannot pass through it where
it naturally should escape, and the defendant has carelessly,
netyligently and wrongfully permitted it to remain in that con-
dition, and that from the said day of ,
19.., hereinbefore mentioned, hitherto, the building of said
embankment and maintenance of an insutTicient culvert,
has prevented the said drainage and water from freely flowing
and draining off the said land of plaintiff as it had done before
the happening of the grievances hereinbefore mentioned, but
the same was and still is caused to be backed up and cast back
by said obstruction and stand upon the lands of the said plain-
tiff for long periods; wbereby and by reason whereof the use
of the said land of plaintitY for agricultural and gardening pur-
poses during all of which time has been prevented and destroyed,
which use had theretofore existed and the benefits thereof ac-
crued to the said plaintiff, and plaintiff has thereby been caused
to sutfer a loss of dollars ; and further, the said land
of plaintiff, although of great value before the happening of
the grievances hereinbefore referred to, has by reason of the
premises been greatly depreciated in value; all to the dam-
age, etc."''
(West Virginia)
For this, to wit, that heretofore, to wit, on the
day of , 19. ., the plaintiff was, and ever since has
been, and now is, seized and possessed of a certain tract of land,
lying and being situate on river, in
county. West Virginia, and being a portion of a acre
survey, patented by the commonwealth of Virginia to ,
by virtue of an entry made on the of ,
. . . ,, the said portion containing acres, more or less,
and bounded and described as follows: Beginning at (Give
legal description).
Plaintiff says that the said river is a running
stream of water with well defined channel, bed and banks ; that
the said tract of land above mentioned and described abuts upon
and adjoins the said stream on the southern side thereof; that
on the day and year last aforesaid and for a long time prior
thereto the channel of said stream at and near the said tract of
land, and especially where the said stream runs along by and
adjoining the said tract of land, was such that the current of
said stream was thrown to and ran near the northern bank of
same and opposite the said tract of land owned by the plaintiff,
96 The foregoing declaration may which follow the common law rule
be used in states which follow which does not recognize certain
the civil law concerning dominant duties resting upon the servient es-
and servient estates. The declara- tote. Baltimore & Ohio E. Co. v.
tion should not be used in states Thomas, 37 App. D. C. 255 (1911).
CASE 737
which course the plaintiffs avers was the usiial, ordinary and
natural course of said stream and the current thereof.
And plaintiff says that he was of right entitled to have the
said stream and the current thereof continue to run in its usual,
ordinary and natural course or channel, and that it was the
duty of the defendant to permit the said stream to flow in its
usual, ordinary and natural course or channel, and not to divert
the said stream and cause the same to flow in another than its
usual, ordinary and natural course or channel, and not to change
the course of the said stream so as to cause the same to flow out
of its ordinary and usual course or channel and upon the lands
of the plaintiff and cause damage thereto.
But plaintiff" avers that on or about the day and year last
aforesaid the said defendant not regarding its duty and obliga-
tion in this behalf, but wholly disregarding the same, and con-
triving and intending to injure and damage this plaintiff, wrong-
fully obstructed the bed or channel of said stream and changed
the course of the current thereof by depositing within the said
channel a large amount of earth and stone, and constructing a
large fill or embankment therein, by reason whereof the said
stream was diverted from its usual, ordinary and natural course
or channel, and the current thereof caused to flow in another
than its usual, ordinary and natural channel, and the course
thereof so changed as to cut into the earth a deep ditch or chan-
nel of great width on the southern side of said stream and into
the said land of the plaintiff", and outside of the usual, ordinary
and natural course of said stream, thereby causing the said stream
to flow along and through the said channel so cut by the said
current as aforesaid, and out of its usual, ordinary and natural
course, and through the said lands of the plaintiff' ; by reason
whereof the said current of the said stream, being so diverted
from its usual, ordinary and natural course as aforesaid, cut
through, damaged, destroyed and washed away large portions
of said land belonging to this plaintiff and so situated on and
near the said stream as aforesaid, to the damage of the said
plaintiff dollars.
Therefore he brings this suit.
1355 Overflow of lands, levee construction; action
If a drainage district has failed to compensate for land dam-
aged by the construction of a levee an action on the case lies to
determine the question whether such lands were damaged and to
recover the damages ; and if damages are recoverable they may be
collected by assessment against the lands embraced in the drain-.
age district.^'^
97 Bradbury v. Vandalia Levee &
Drainage District, 236 111. 36, 44, 47
(1908).
738 ANNOTATED FORMS OF PLEADING AND PRACTICE
1356 Overflow of lands, levee construction, Nan*. (Illinois)
For that whereas, heretofore, to wit, on tlie day
of , 19. ., and for many years prior thereto, and
from thence hitherto, plaintiffs were and are the owners of and
in possession of the following described real estate, to wit : (De-
scribe property) in county, Illinois, containing
about acres, said land being known as high bottom land,
and lies west of river.
And plaintiffs aver that said lands, in their natural states
and before the committing of the grievances hereinafter com-
plained of, were not subject to overflow by freshets or the flood
waters of the river, but were valuable farming
lands and cultivated by plaintiffs.
That the defendant the is a drainage district
organized under an act of the Illinois legislature, entitled. An
act for the construction, reparation and protection of drains,
levees and ditches across the lands of others for agricultural,
sanitary and mining purposes, and to provide for the organiza-
tion of drainage districts, approved and in force May 29, 1879,
together with the amendments thereto.
That said district was duly organized as above set forth, on
or about the day of , 19 . . , and that
the scope of the improvement provided for by said drainage
district as fixed by the decree of the county court of
county, Illinois, included the construction of a levee along the
east side of the river as near the banks of said
river as it could conveniently and safely be erected, said levee
to begin at the mouth of creek about a quarter of
a mile down the river towards its mouth from the lands above
described, and continuing from thence along the east side of
said river for a distance of about miles;
also a levee to be constructed from the mouth of
creek aforesaid in an easterly direction to the
That during the summer of said defendant by
its commissioners, officers and servants erected and caused to be
erected a levee as above described in accordance \\^th the order
and decree to said county court. Said levee so con-
structed was about feet in height, and
feet wide on top, and is a solid embankment of earth with no
outlet from the river into the lands lying on the east side of
said river.
That the river is a stream of water running in
a southwesterly direction through the county of ,
along and by the lands of plaintiff above described; that at the
time of floods and freshets said stream of water overflows its
banks, and overflows and inundates a wide strip of land, to wit,
a strip about two miles in width, and that at flood time the bed
of said river is about miles in width ; but plaintiffs aver
that by reason of the construction of said levee by the said de-
CASE 739
f endant as aforesaid, the said flood channel of the •.•••.•••
river is very much narrower ; that in some places along said river
below the lands of plaintiffs said flood channel does not exceed
in width the width of, to wit, feet; that by reason
of the construction of said levee the waters of said
river were caused to rise much higher on the west side of said
river and above said levee in time of freshets, and to thereby
overflow the lands of plaintiffs. And plaintiffs allege that by
reason of the construction of said levee by the defendant as
aforesaid their said lands above described were damaged and
various crops of corn and other grain gi-owing thereon were
destroyed and that the soil of said land washed away and said
lands were rendered unwholesome, unhealthy to live upon, and
that said lands were greatly depreciated in value.
Wherefore, and by reason of the premises and the laws of the
state of Illinois in such case made and provided, and by reason
of section 2 of an act for the construction, reparation and pro-
tection of drains, ditches and levees across the lands of others
for agricultural, sanitary and mining purposes, and providing
for the organization of drainage districts, approved and in force
May 29, 1879, the defendant became and was liable to pay to
the plaintiffs all of their said damages as aforesaid, to wit, in
the sum of dollars.
2. And whereas also on or about the day of
, 19. ., plaintiffs were and still are the owners of and in
possession of the following lands, to wit : All that part of the
(Describe the same), which lies west of the river, in
county, Illinois ; and that said lands are high river
bottom, and in a state of nature are not subject to overflow
by the flood waters of the river except in times
of very high freshets and floods, and that said lands are valu-
able farming lands and in a high state of cultivation.
And plaintiff's aver that the defendant is a drainage district
organized under and in accordance with the statute of the state
of Illinois ; that, on, to wit, years ago said defend-
ant by its agents and servants wrongfully constructed and
caused to be constructed a levee along the east side of said
river, beginning at a point about of
a mile below the lands of plaintiffs, and running thence in a
southwesterly direction along the east bank of the said
river for a distance of about miles, and connected at
the north end of said levee with the bluffs along the east side
of the said river bottom ; that said levee is a solid
embankment of earth of an average height of about
feet, and vnth an average width on top of about . ... feet,
without any opening from said river into the
lands on the east of said river; and that said de-
fendant by its agents and servants as aforesaid has wrongfully
caused said levee to be maintained from thence hitherto.
Plaintiffs aver that the river in a state of nature
740 ANNOTATED FORMS OF PLEvVDING AND I'UACTICE
is a stream running in a general southwesterly direction through
the county of , and along and by the lands of
plaintiffs; that in a natural state, in times of frcsin-ts and Hoods
the waters were accustomed to overflow the hanks of said stream
on both sides of said stream and that the tloud cliannel of tlie
said river is, to wit, about miles in width.
Plaintiffs aver that by reason of the wrongful construction
of the said levee as aforesaid by the defendant as aforesaid, and
the wrongful maintenance of the said levee, the waters of the
said river are compelled to flow over and upon
the lands on the west side of the river in a greater
quantity, and to a greater depth than they otherwise would
have flowed, causing the lands on the ^.est siile of said river
and above said levee to be overflowed at times wlien they would
not otherwise have overflowed ; whereby erops of corn and other
grain growing upon the lands of plaintifls have been destroyed
and damaged, and the lands of said phiinl ill's have been washed
and damaged and greatly diminished in value. Wherefore, etc.
1357 Overflow of lands, notice, requisites
No particular and defined location of the land is required
by statute in a notice to be given to the sanitary district claim-
ing damages from an overflow, but the notice is sutlficient if it
enables the sanitary officers to locate and examine the premises
with a view to a settlement.^®
1358 Overflow of lands, sewer insufficient, Narr. (Illinois)
. For that whereas, before and at the time of the committing
of the grievances by the defendant as hereinafter mentioned,
the plaintift' was, and from thence hitherto had been and still
is lawfully possessed of a certain tract of land and premises,
with the appurtenances situated in the county of
aforesaid, which land and premises with the appurtenances, the
said plaintiff before and at the time, as aforesaid, used and en-
joyed, and of right ought to use and enjoy for pasturage, grass
and hay and for cultivating the same and sowing, planting,
growing and raising thereon, and gathering and harvesting
therefrom, grass, hay, oats, potatoes, corn, and other crops per-
taining to good husbandry and agriculture, and to tlie great
profit of said plaintiff, said land being, to wit: (Describe prop-
erty) in county, ; that the southeast
side or portion of said land was next to and upon a certain
river or body of water called the D river there being and flow-
ing ; that through said land there, then and there flowed a certain
98 Miller v. Sanitary District, 242
lU. 321, 327 (1909.)
CASE
741
stream of water known as R the waters of whieli then and there
and along the lands of the plaintiff empties nito said river; that
said river and stream of water known as R for many years, to
^-it years next prior to the committing of the griev-
ances hereinafter mentioned, flowed in their natural courses
and channels next to and adjoining and through said land and
premises to said plaintiff's great pi-ofit, the same being rich
and valuable land and premises, without hurt, injury or damage
from waters of or flowing in said river, or said stream ot water
known as ; and that said river, stream or waters,
before and up to the time of the committing of the grievances
hereinafter mentioned did not flood, run on or over, percolate
throuf'h, saturate or stand in or upon said land or premises,
or any part thereof, so as to damage the same or the pasturage,
grass or crops thereon, or interfere with the use and enjoyment
of said land and premises. . -^ ^u
And the plaintiff avers that the defendant, on, to wit, the
(Jay of , 19 . . , was and is a corpora-
tion or'ganized under 'the statutes of the state of Illinois and
thereby was and is empowered, subject to the payment of all
damages, to construct, improve, possess and use channels tor
the carrying and flowing of water and sewage and to regulate
the passage and flow of water and sewage therein, and was and
is under said statutes, and the law, lial)le for all damages to
real estate which shall be overflowed or otherwise damaged by
reason of the construction, enlargement or use of any channel,
ditch drain, outlet or other improvement made by it under said
statutes, and for reasonable attorneys' fees for prosecution ot
suits therefor.
And the plaintiff avers that the defendant on the day and
year aforesaid was and is using and is in control of certain
permanent channels carrying, and for the future to continue
to carry,. large quantities of water and sewage from, to wit, the
in the state of Illinois and from its vicinity, and
from to wit, the C river in said state and from Lake Michigan,
upon' whose shore said city is located down into said D river
above the said premises of the plaintiff; and the defendant so
using said channel and being in possession and control thereot
did wrongfullv and negligently cause and sutt'er large quanti-
ties of water and sewage to pass and flow through said channels,
from the sources aforesaid, into said D river, at, to wit, or near
the of in said county, above
the said premises of the plaintiff, on, to wat, the . . ... day
of , 19 . . , and divers other days and times between
that' time and' the commencement of this suit, and still wrong-
fullv and negligently causes and suffers such large quantities
of waters and sewage so aforesaid, and not theretofore accus-
tomed to flow in said D river, to pass and flow through said
channels from the aforesaid sources into said D river at to wit
the place aforesaid, thereby greatly increasing the volume ot
742 ANNOTATED FORMS OF PLEADING AND PRACTICE
water theretofore in said river and permanently and continu-
ously overflowing the banks of said D river near, at, and adjoin-
ing plaintiff's said premises and causing the waters of said R
to be dammed and backed up and to overflow its banks onto the
plaintiff's said lands and thereby, and by reason of the premises,
permanently overflowing and flooding, to wit, acres
of said premises and causing water and sewage to run upon,
over and through the same and to wash away large portions of
the surface of, and to stand upon and in the same, wholly de-
stroying the said acres of land, for the uses aforesaid
and for all beneficial purposes and uses, so that the plaintiff
has wholly lost the use and benefit of the same by reason of
said acts and conduct of the defendant to the great injury, prej-
udice and hurt of the plaintiff in the possession, use, occupation
and enjoyment of said land, rendering the same incommodious
and unfit for all or any of the beneficial uses and of no value
or use to the plaintiff by reason of the premises.
And the plaintiff avers that said overflowing and flooding of
his said premises by the defendant, as aforesaid, was, is, and
Kill be permanent and said channels and their appliances and
the flowage of water and sewage as aforesaid in large (luantities
will be continuously maintained, so as to result in defendant's
continuously and permanently flooding and damaging the plain-
tiff's premises ; and on the day of ,
19.., the plaintiff served upon the defendant by delivering to
one of the trustees of the defendant a notice in writing that he,
the plaintiff, had sustained damages by reason of overflow of the
premises aforesaid in the sum of dollars and that
he intended to sue for said damages; and plaintiff avers that
his reasonable attorneys' fees in said cause are the sum of
dollars.
Wherefore the plaintiff has sustained permanent injury and
said premises have been and are permanently damaged, and the
defendant has become and is liable under said statutes and
under the law to the plaintiff in the sum of dol-
lars; and therefore, he brings this suit.
(Maryland)
For that the defendant is a municipal corporation and as such
is charged by law% among other duties, with the duty of skil-
fully and with ordinary care constructing, building and main-
taining all of the sewers in said city of , and of
properly grading, constructing, maintaining and keeping in
order the streets belonging to said corporation. That at the
happening of the damage hereinafter complained of, the plain-
tiff was the owner and in possession of a certain butcher busi-
ness in city located at the premises No and
, which property has a front on
of about one feet and abuts on the rear on a nat-
CASE
743
ural stream of water known as run, which run
was for many years an open and unobstructed waterway. iJiat
some time before the happening of the injuries hereinafter com-
plained of, the said defendant, the mayor and city council ot
constructed a sewer to carry off all the water
which" theretofore had flowed in run, as well as
the water which might fall and run therein. That the sewer
so built in the bed of run by the defendant was
so constructed as to connect with an existing sewer ot the de-
fendant. That in building the said sewer m run,
from the carelessness of the defendant and the want of ordinary
care it did not provide said sewer and its connecting sewer
with sufficient capacity and size to carry off the waters of
run as well as the rain water which might be
expected to* flow therein and the waters which flow in the con-
necting sewer with which the run sewer was at-
tached That by the exercise of ordinary and reasonable care
and diligence the defendant had notice, or might have had
notice of the injuries which would necessarily be inflicted upon
the plaintiff by reason of the insufficient capacity and size of
the said sewer with which run sewer connects.
That by reason of the said insufficient size of said sewer with
^vliich run sewer connects, it fails to take off the
water which drains therein when the said sewer is burdened by
rain water which flows therein in addition to the ordinary flow
of water in said sewer, and by reason of the insufficient capacity
of said sewer, it has fre(iuently overflowed into the slaughter
house of the plaintiff and has, from time to time, within the
last three years, frequently overflowed and backed up in the
premises of the plaintiff, causing him serious loss and damage,
both in his buildings, to his business, the stock of meats carried
by him in cold storage, and the machinery and equipment used
by him in connection with his said business, by reason whereof
the plaintiff has suffered serious loss and damage ;
2. And for that , also called .••••;*
street, is a public highway owned by the said corporation de-
fendant, the mayor and city council of , and by
reason of the failure of the said defendant to use proper care
and diligence in caring for said street, it has failed to grade
and pave the same and to place gutters in said street to carry
off the waters which flow therein from rain and other sources,
and the defendant, well knowing this and well knowing that
recently other streets have been opened up connecting with
in such manner that large quantities of water
flow from other streets in and over , and said
not being provided with gutters and other means
for taking off said water, large quantities of water flow from
other streets and from over and across the prem-
ises of the plaintiff so that his dwellings and buildings thereon
and the machinery and equipment, and the stock of meats car-
744 ANNOTATED FORMS OP PLEADING AND PRACTICE
ried by the plaintiff on said premises, have, within the last
years, been seriously damaged, and the plaintiff
has suffered great loss and damage.
Wherefore, he claims $ damages.
1359 Public improvement, action
An injury which is the natural, probable and necessary re.sult
of a work done within the scope of legislative authority is not
actionable.^^ If private property is damaged by the construc-
tion of a public improvement and no provision for compensation
is made by the municipality, the owner of the property has a
right of action on the ease against such municipality for the omis-
sion of its duty to ascertain the damages, if any, and to provide
means for its payment.*"** An action for damages occasioned
by a public improvement is maintainable only when there is a
direct physical disturbance of private property, such as prac-
tically or actually affects its enjoyment and use, causing the
owner to sustain special damages with respect thereto as dis-
tinguished from a mere personal inconvenience or injury in ex-
cess of, or different in kind from, that sustained by the people
of the whole neighborhood generally, susceptible of proof and
capable of being approximately measured.*'** Mere inconven-
ience, expense or loss of business occasioned to abutting owners
by the temporary obstruction of a public street and the conse-
quent interference with their right of access to other property
made necessary by the construction of a pu])lic improvement,
gives no cause of action against a municipality. *°2 a quasi
public corporation is liable for special permanent damages done
to private property by the erection of a bridge over a navigable
river; but not for such damages as are incident to and shared
by, the general public.***^
99 Jones V. Sanitary District, 252 Rigney v. Chicago, 102 HI. 64, 78
111. 600. (1882); Chicago & W. I. R. Co. v.
100 Elgin V. Eaton, 83 111. 535, Ayres, 106, 111. 511, 518 (1883);
537 (1876); Sec. 13, art. 2, Const. Sec. 13, art. 2, Const. 1870.
1870; Beidler v. Sanitary District, 102 Chicago Flour Co. v. Chicago,
211 111. 628, 638 (1904). 243 111. 268, 271 (1910).
101 Illinois Central R. Co. v. "3 Chicago & Pacific R. Co. v.
School Trustees, 212 111. 406 (1904); Stein, 75 111. 41, 45 (1874).
CASE 745
1360 Replevin bond, insufficient, action
A sheriff who fails in his duty to exercise the best means of
securing a sufficient bond for the return of replevined property,
is liable to an action on the case to the party injured. ^^*
1361 Reversion, action
The owner of premises occupied by a tenant has an action on
the case for an injury to the reversion or freehold.^*^^
1362 School schedule, refusal to certify, declaration requisites
In an action against school directors for the refusal to ex-
amine and certify a schedule of scholars in attendance at a
school, the declaration must aver that the plaintiff presented to
his directors his or her certificate of qualification before the com-
mencement of school. ^^^
1363 Seduction, action
An action on the case for seduction is appropriate, notwith-
standing the fact that the intercourse was accomplished by
force, and that the injury may be made the subject of a crim-
inal prosecution. ^•^'^ The unlawful intercourse, whether accom-
plished with or without force, is the ground of an action for se-
duction. ^"^ A husband has a right of action for the seduction
of his wife separate and distinct from her right of action for the
same offense. ^'^^
1364 Seduction, parties
An action for seduction of a minor female may be brought by
either parent or guardian. An action for seduction of a female
of full age may be maintained by the father, by any other rela-
tive authorized by her, or by herself in her o\\ti name.^^^ In
104 People V. Core, 85 111. 248, 252 147, 151 (1872) ; Watson v. Watson,
(1877) ; Sec. 12, c. 119, Kurd's Stat. 53 Mich. 168, 171 (1884).
1909, p. 1820. ^08 Dalman v. Koning, 54 Mich.
losHalligan v. Chicago, Rock 320, 322 (1884); Stoudt v. Shep-
Island R. Co., 15 111. 558, 560 herd, 73 Mich. 588, 593 (1889).
(1854). 109 Johnston v. Disbrow, 47 Mich.
100 Smith V. Curry, 16 111. 147, 59,62 (1881).
148 (1854); Sec. 176, c. 122, Hurd's no Watson v. Watson, 49 Mich.
Stat. 1909, p. 2024. 540, 544 (1883); (10418), C. L.
107 Kennedy v. Shea, 110 Mass. 1897 (Mich.).
746 ANNOTATED FORMS OF PLEADING AND PRACTICE
Michigan a woman of full age, whether of age or not when de-
bauched, may sue in her name for the seduction.^ ^^
1365 Seduction, joinder of counts
In an action for seduction a count involving an assault may
be joined with a count based upon enticing the plaintiff for the
purpose of concubinage. '^-
1366 Seduction, declaration requisites
The time of the seduction may be stated in the declaration
under a videlicit and any seduction may be proved that is within
the statute of limitations.^i^ -phe words "seduction" and "de-
bauching" ma}" be used interchangeably in an action for seduc-
tion of a servant or a member of the plaintiff's family.^i^
Under ilichigan statute, the declaration for seduction should
set forth the natural or legal relationship of the plaintiff to
the person seduced. The declaration need not allege that the
seduced female is the plaintiff's servant, nor need it allege any
loss in consequence of the seduction, as is required at common
law."5 In an action for seduction brought upon the authority
of a female of full age, the declaration must allege the authority
to bring the action.^^°
SLANDER
1367 Action, nature and scope
The action of slander is trausitory.^^^ Slander is not main-
tainable upon anything said or written in a legal proceeding
which is pertinent and material to the matter in controversy,
the same being privileged. ^^^ Malice is an essential element in
an action for slander.^ ^^ "Words which are not in themselves
actionable may become so if spoken in connection with a per-
son's business or occupation. ^^o
111 Watson V. Watson, 53 Mich. ne Watson v. Watson, 49 Mich.
178; Stoudt V. Shepherd, 73 Mich. 544.
596. iiTCassera v. GaMn, 158 HI. 30,
112 Watson V. Watson, 49 Mich. 35 (1895).
542; Stoudt v. Shepherd, 73 Mich. us Spaids v. Barrett, 57 111. 289,
597. 291 (1870).
113 Johnston v. Disbrow, 47 Mich. us Huson v. Dale, 19 Mich. 17,
61. 30 (1869).
114 Stoudt V. Shepherd, 73 Mich. 120 Nelson v. Borchenius, 52 111.
591. 236, 237 (1869).
115 (10418), C. L., 1897; Watson
V. Watson, 49 Mich. 543.
CASE 747
1368 Parties
In Illinois, an action for slander of or personal injuries to a
married woman must be brought in her own name.^^^
1369 Declaration requisites, proof
In an action for slanderous words which are not actionable
per se the innuendo in the declaration must refer to some fact
or facts stated in the inducement, and the inducement and collo-
quium must warrant the innuendo.^-- The omission of an aver-
ment that the defendant maliciously published a matter is avail-
able upon special demurrer, but is cured by verdict. ^-^ After a
plaintiff proves the words that have been alleged in the declara-
tion, he may give in evidence, for the purpose of showing malice,
the uttering by the defendant of other slanderous words not
charged in the declaration which are of a similar import to those
that are charged,^ ^^ provided the subsequent words or libels ex-
pressly refer to those which are the subject of the action and
constitute no distinct calumny. ^25
1370 Larceny, Narr. (D. C.)
The plaintiff sues the defendant for that whereas, the plain-
tiff at the time of the committing of the several grievances here-
inafter mentioned has always been a person of good name,
credit and reputation and for many years has been in the busi-
ness of dealing in real estate in the city of , District
of Columbia, and elsewhere. That the said defendant contriving
wickedly and maliciously intending to injure said plaintiff in
his good name, fame and credit and to bring him into public
scandal, infamy and disgrace among the people of the District
of Columbia and to vex and harrass the said plaintiff, said de-
fendant did, on, to wit, the day of ,
19 . , , in the city of , District of Columbia, in a
certain conversation with one of
and concerning said plaintiff and of and concerning the affairs
of falsely and maliciously spoke and published
of and concerning said plaintiff in the presence of and the hear-
ing to said and divers other persons, false, scan-
dalous and defamatory words, that is to say, that he, meaning
plaintiff, had gotten away with dollars of the
funds of the said and that he, meaning the de-
121 Hawver v, Hawver, 78 HI. 123 Taylor v. Kneeland, supra,
412, 414 (1875). 124 Thompson v. Bowers, 1 Doug.
122 Taylor v. Kneeland, 1 Doug. 321, 329 (Mich. 1841).
67, 74 (Mich. 1843). 125 Taylor v. Kneeland, supra.
748 ANNOTATED FORMS OF PLEADING AND PRACTICE
fendant, had located about dollars of
funds, meaning and intending and charging thereby that the
plaintiff had been guilty of the eliarge of larceny.
By means of the committing of which said grievances, the
plaintiff has been greatly injured in good name, fame and rep-
utation and brought into public scandal, infamy and disgrace,
in so much that divers good and worthy citi/ens have by reason
of the grievances aforesaid suspected and believed and still do
suspect and believe the plaintiff to be guilty of the larceny
mentioned; and by reason of the committing of the grievances
from thence till now have wholly refused to have any transac-
tions or business dealings with the plaintiff as they otherwise
would have had, to the damage, etc.
1371 Perjury, Narr. (111.)
For that whereas, before the committing of the several
grievances by the said defendant hereinafter mentioned, a cer-
tain action had been depending before , escjuire, a
justice of the peace within and for the county of
and state of Illinois aforesaid, of which said action the said
justice had then and there jurisdiction, to wit, at
in said county, wherein the defendant in this suit was plaintiff,
and the plaintiff in this suit was defendant, and which said
action had then and there been lately tried by the said ,
justice of the peace as aforesaid, and on said trial the said
plaintiff in this suit had been and was examined on oath (he,
the said defendant in this action, then and there before said
oath was administered, having waived any preliminary oath,
and having consented that the said plaintiff in this action should
be examined on oath, and testify in said cause), in a matter ma-
terial to the issue in said trial, and having given his evidence
as a witness (as by the laws of this state he had a right to do),
to wit, at , to wit. at the county and state afore-
said; yet, the said defendant, well knowing the premises, but
greatly envying the happy state and condition of the said plain-
tiff, and contriving, and wickedly and nmliciously intending to
injure the said plaintiff in his good name, fame, and credit, and
to bring him into public scandal, infamy, and disgrace, with
and amongst all his neighbors, and other good and worthy citi-
zens of this state, and cause it to be suspected and believed by
those neighbors and citizens that he, the said plaintiff", had been
and was guilty of the offenses and misconduct hereinafter men-
tioned to have been charged upon and imputed to the said plain-
tiff, or any other such offenses or misconduct, and to subject
him to the pains and penalties by the laws of this state made
and provided against and inflicted upon persons guilty thereof,
and to vex, harass, oppress, impoverish, and wholly ruin him
the said plaintiff, heretofore, to wat, on the day
of , 19 . . , at , to wit, at the county
CASE 749
and state aforesaid, in a certain discourse which he the said
defendant then and there had with the said plaintiff, of and
concerning the said plaintiff, and of and concerning the said
action, and of and concerning the evidence of him the said plain-
tiff, given on the said trial, as such witness as aforesaid, in the
presence and hearing of divers good and worthy citizens of this
state, then and there in the presence and hearing of the said
last mentioned citizens, falsely and maliciously spoke and pub-
lished to, and of and concerning the said plaintiff, and of and
concerning the said action, and of and concerning the evidence
by him the said plaintiff given on the said trial as such witness
as aforesaid, these false, scandalous, malicious, and defamatory
words following, that is to say :
You (meaning the said plaintiff) swore falsely, (meaning
that he, the said plaintiff), in giving liis evidence as such wit-
ness, on the said trial, before said justice of the peace as afore-
said, had committed wilful and corrupt perjury.^-*^ By means of
which scandalous, malicious and defamatory words, so spoken
and published, the plaintiff' has fallen into disgrace, contempt
and infamy and has been greatly injured in his good name and
reputation, and divers good and worthy persons have, by rea-
son of the committing of the said grievance, suspected and be-
lieved and still do suspect the plaintiff guilty of the words
spoken and refuse to have any dealings or association with
him, as they otherwise would have had; and the plaintiff has
been and is otherwise injured, to the damage, etc,
1372 Woman's character, Narr. (D. C.)
The plaintiff, , being a woman and having a reputa-
tion for chastity and virtue, and having always borne the
reputation for chastity and virtue among the people in the
neighborhood in which she resides, sues the defendant, ,
for that the said defendant, well knowing said fact, did falsely,
maliciously and intending to injure plaintiff in her good name,
fame, and reputation, and to bring her into public scandal and
disgrace and to cause it to be believed that she, the said plain-
tiff was an unfit and improper person to associate with persons
of good fame, and to subject her to disgrace and degradation,
on, to wit, the day of , in the District of
Columbia, in certain discourses which the defendant then and
there had of and concerning plaintiff, in the presence and hear-
ing of divers persons did falsely, maliciously and wickedly, in
the presence of and hearing of said divers persons, speak and
publish of and concerning the said plaintiff, and then and there
intending that said persons who were at said time present and
heard said charge should hear, and who then and there did so
126 Sanford v. Gaddis, 13 111. 329,
330 (1851).
750 ANNOTATED FORMS OF PLEADING AND PRACTICE
understand the said defendant, the false, scandalous, malicious
and defamatory words following, that is to say that she is
, meaning that the plaintitf was a prostitute witiiout
character and not legitimated; by means of which scandalous,
malicious and defamatory words, so spoken and published, the
plaintiff has fallen into disgrace, contempt and infamy and has
been greatly injured in her good name and reputation, and
divers good and worthy persons have, by reason of the commit-
ting of the said grievance, suspected and believed and still do
suspect the plaintiff guilty of the words so spoken and refuse
to have any dealings or association witii her, as tliey otherwise
would have had ; and plaintiff has been and is otherwise injured,
to the damage, etc.
1373 Sparks from locomotive, Narr. (111.)
For that whereas, the defendant is a corporation and was on,
to wit, the day of , 19. ., and for a long time prior
thereto had been possessed of a line of railroad, the general
(iirection of which extended north and south through the vil-
lage of , in the county of and state of
Illinois; that said defendant was also possessed of divers loco-
motive engines and trains of cars attached thereto, which it
used and operated on said line of railroad. That, on, to wit, the
date aforesaid, he was owner and possessor of a certain general
stock of goods consisting of dry goods, clothing, hats, caps,
boots, shoes, harness, hardware, groceries, glassware, tinware,
queensware, woodenware, cutlery, stoves, showcases, notions,
soaps, store fixtures, and other goods, contained in a certain
frame building situated and being on the following described
parcel of land, to wit, (Set forth legal description) in the vil-
lage of , in the county of and state of
Illinois; that said general stock of goods was of the value of,
to wit, dollars ; and that said building in which the
said stock of goods was contained, was the distance of, to wit,
feet east of said railroad.
Plaintiff further avers that, on, to wit, about
o'clock in the noon of the date aforesaid defendant
carelessly and negligently operated one of its certain locomotive
engines and trains of cars attached thereto, which was going
south upon said line of railroad, and which said locomotive was
defective; that by reason of such defect in said locomotive en-
gine, sparks and brands of fire were thrown from said locomotive
engine to and against and upon, to wit, the building known as
the building, which was situated, to wnt, the distance
of feet east of defendant's said railroad and
feet south of the said building containing plaintiff's said stock
of goods; and that said fire was communicated from said
building to the buildings situated between the said
CASE 751
building and the building containing plaintiff's said
stock of goods, thence to the said building containing plaintiff's
said stock of goods, and then and there wholly destroying and
consuming said building and plaintiff's said stock of dry goods,
clothing, boots, shoes, hats, caps, harness, groceries, glassware,
tinware, queensware, woodenware, cutlery, stoves, show cases,
notions, soaps, store fixtures, then and there situated and con-
tained in said building situated on said described parcel of land
as aforesaid ; and which said stock of goods was of the value of
to wit, dollars. Wherefore, etc.
(Maryland)
For that the plaintiff having purchased a farm, known as the
farm, in the election districts of
county, Maryland, and received a deed for the
same, dated the day of , 19 . . ,
entered upon and took possession of the timber land lying
east of creek, south of the
road and west of the property as pointed out by
under and by virtue of his said purchase and was
in possession thereof as aforesaid at the time of the wrong of
the defendant hereinafter complained of; that the defendant
OA\Tied a railroad between the town of in the state
of and the city of , in the state of Mary-
land, which passed through said county, to the plain-
tiff's said farm; that large quantities of dry grass, weeds and
bushes were negligently suffered by the defendant to be and re-
main on its right of way along its said railroad near the plain-
tiff's said farm; that the defendant operated over its said rail-
road along its said i-ight of way (among other things) locomo-
tive engines containing fire and burning matter; and that the
defendant so negligently and unskill fully managed one of its
said engines and the fire and burning matter therein contained,
while operating said engine over its said railroad along its said
right of way near the plaintiff's said farm, that sparks from
said fire and portions of said burning matter escaped and flew
from said engine and set on fire said weeds, grass and bushes,
which was thence communicated to the plaintiff's said timber,
and large portions thereof were burned and greatly injured and
destroyed, to the plaintiff's damage.
(Mississippi)
That on or about the day of and
prior thereto, the defendant company was a com-
mon carrier of passengers and freight for hire between
]\Iississippi and Mississippi, both places being lo-
cated in said county, Mississippi ; and that between
these points in said county the defendant railway company's
752 ANNOTATED FORMS OF PLEADING AND PRACTICE
line of railroad was a small station called which said
station the defendant company maintained as a
freight and passenger station, carrying passengt-i-s and freight
to and from said station for hire. That plaintiff had prior to
and on said date placed at and near said station
near the defendant railway company's right of way, a large
quantity of stuff commonly called staves, which was unfinished
timber from which barrel headings are made ; that plaintiff
had placed these timbers or headings near said station, as above
alleged and adjacent to said defendant company's right of way,
as aforesaid, for the purpose of sbipping them over the defend-
ant company's line of railroad from to
Mississippi and from thence over the railroad and
other points.
That the defendant company used engines in the operation of
its trains and that said engines were not properly constructed;
that the smokestacks of said engines were not properly provided
with spark arresters and cones to prevent the throwing of
sparks in the operation of said train ; and that said smoke-
stacks on the date aforesaid and prior thereto emitted great
volumes of sparks of large dimensions when said trains were
in operation.
That the defendant company had carelessly and negligently
failed to provide the said smokestacks of any of its said engines
with spark arresters and cones; or if it had in fact provided
any spark arresters at all they were so imperfect and so negli-
gently and carelessly constructed that they permitted great
volumes of live, burning coals of great size to be emitted from
said smokestacks endangering property along its right of way.
Plaintiff further avers that defendant company negligently
and carelessly failed and refused to burn coal in the operation
and running of any of its said trains, but carelessly and negli-
gently used and burned wood and fat pine thereby adding to the
volume and increasing the size of the sparks emitted from said
smokestacks in the operation of its trains; thereby increasing
the danger to plaintiff's property along and adjacent to its right
of way as above alleged.
Plaintiff alleges that on or about the date aforesaid the defend-
ant company was operating its trains on its said line, as afore-
said, and that its engine number was pulling a
heavy train loaded with by station
towards and that as said engine passed
station thus heavily loaded, as aforesaid ; that said defendant
company by its employees so carelessly and negligently handled
and operated said engine that they caused said engine to exhaust
heavily as it passed by said station and by plaintiff's staves or
headings as aforesaid ; and that because of their said negligent
handling of said engine, because of the unfit condition of said
engine as aforesaid and because of the defendant company's
negligence and carelessness in not providing the smokestacks of
CASE 753
said engine number with a spark arrester and cone
to prevent the emission of sparks as aforesaid, and because of
defendant company's careless and negligent use of the wood
and fat pine in firing said machinery and engine, as aforesaid,
a great volume of live and burning coals of large size was emitted
from said smokestacks and set fire to plaintiff's staves and head-
ings, from which a large quantity of said staves or headings
were burned and totally destroyed; and that from said fire,
which was a direct result of the defendant company's careless-
ness and negligence, as aforesaid, plaintiff lost the following
amount of staves or headings, to wit: (Insert itemized list)
Wherefore, etc.
1374 Sparks from traction engine, Narr. (Mich.)
For that whereas, on, to wit, the day of
19. ., said plaintiff was the owner in fee simple of (Give legal
description of property) with the frame buildings thereon situ-
ated, to wit, one story frame house by
feet with wing by ; one
story frame house by feet,
with wing or kitchen, by feet, one wood-
shed, by feet ; one toolshed
by feet containing logging chains (State other con-
tents) ; said buildings and personal property being of great
value, to wit, all of the value of dollars ; and said
defendant on the day and year aforesaid, was the owner and
was running and operating a traction engine, which, when fired
up, would run by its own power; that defendant, in running
and operating said steam traction engine in and along the pub-
lic highways used large fires which emitted and gave off large
quantities of sparks of fire through the smokestack of said
engine.
And whereas, at the time of the committing of the grievances
hereinafter set forth, it became and was the duty of defendant
to have used upon said smokestack, a hood or spark arrester,
which would have prevented the escape of sparks of fire, or in
some other way to have prevented their escape, so that when
the said defendant was running said engine along the highways
in front of plaintiffs premises and buildings, fire would not
have been communicated by sparks from defendant's traction
engine to the aforesaid property of the plaintiff. But the said
defendant not regarding his duty in that behalf, did not have
a hood or spark arrester on said engine sufficient to prevent the
escape of sparks of fire, or did not in any way prevent sparks of
fire from escaping from the smokestack of said engine.
And plaintiff avers that, to wit, the day of
the said defendant, by his agent and servant was
running and operating said traction engine in and along the
public highway in front of plaintiff's premises, without using
754 ANNOTATED FORMS OF PLEADING AND PRACTICE
any ade(iuate means to prevent escape of sparks of fire from
the smokestack caused the same to be stopped in front of and
within feet of plaintiff's buildings, and the sparks
of fire from the smokestack of said en{?ine were thrown upon the
plaintiff's aforesaid buildinf^s and said buildings together with
the personal property aforementioned, were thereby set on fire
and totally consumed, to the plaintiff's damage of
dollars and therefore he brings suit.
1375 Strikes, action
Special ownership of property destroj^d by mobs and riots
is sufficient to give a right to maintain an action under the Mobs
and Riots act of 1887.^2? The liability for damages sustained
from mobs, etc., rests upon public policy and not upon the doc-
trine of negligence. ^2^
1376 Strikes, Narr. (ni.)
For that whereas, on, to wit, the day of ,
19.., at , to wit, in the county aforesaid, plaintiff
was, and for a long time prior thereto had been tlie owner of the
real estate and .... story brick building located and being at
the corner of and streets in the
city of ; that said real estate and building were then and
there occupied by K as tenant of the phiiiitilf under a lease
which provided that the plaintiff should replace in said building
any and all of the plate glass therein contained that might or
should become broken or destroyed.
Plaintiff further avers that several weeks prior to the
day of , 19, ., the employees of the said
K went out on a strike and that said strike and controversy be-
tween the employees of said K and said company had continued
with great virulence and still continuing on said
day of , 19. . ; that as a result of said strike and the
endeavors of K to employ other persons in the place of the
strikers, the place was picketed by the striking employees and
many violent acts were perpetrated, in so much that said build-
ing and premises and the employees of K had to be guarded by
the police of the defendant city in order to protect said building
and premises from damage and the employees from injury; of
all of which the defendant city had notice.
Plaintiff further avers that, on, to wit, the day
of 19. ., in the afternoon of said day, the defendant
city negligently and carelessly failed to furnish sufficient
127 Pittsburg, Cincinnati, Chicago 128 Sturges v, Chicago, 237 111.
& St. L. Ky. Co. V. Chicago, 242 46, 52 (1908).
lU. 178, 187 (1909).
CASE 755
policemen to guard and protect said building and premises or
to otherwise guard and protect the same, and that while the said
building and premises were so insufficiently guarded and pro-
tected, a large mob or riot of more than twelve persons as-
sembled around about said building in the streets and on the
sidewalks and with brickbats, stones and other missiles, broke
and destroyed the following panes of plate glass, contained in
said building, viz.: (Describe property) that the value of said
plate glass, so broken and destroyed, and the damage to said
building was then and there the sum of ($ )
dollars.
Plaintiff further avers that such destruction and injur}' was
not in any way occasioned or aided, sanctioned or permitted by
the carelessness, neglect or wrongful act of the plaintiff or of
his tenant, K, and that both plaintiff and said K did everything
in their power and used all reasonable diligence to prevent such
damage.
Plaintiff avers that afterwards, on, to wit, the
day of , 19 . . , and within thirty days after the dam-
age aforesaid was done, he presented to the defendant city of
, notice of his claim for damages, in and by said
notice notifying the defendant city of , that he
was the owner of the building at the corner of
and streets in the city of ,
then and there occupied by K as tenant ; that on the
day of , 19. ., the plate glass contained in said build-
ing was broken in consequence of, and by a mob or riot com-
posed of more than twelve persons, as follows (Describing the
property as hereinbefore set forth) ; that the damage and de-
struction was not occasioned by, or in any way aided, sanc-
tioned or permitted by the carelessness, neglect or wrongful
act of the plaintiff, and that he used all reasonable diligence to
prevent such damage; that the damage done amounted to
($ ) dollars ; and that he claimed and de-
manded from the defendant city of , three-fourths
of said sum, or the sum of ($ ) dollars,
pursuant to the statute in such case made and provided.
Plaintiff' further avers that the defendant city of
failed and refused to pay to the plaintiff said sum of
($ ) dollars, or any part thereof, and still refuses so
to do, to the damage of the plaintiff of ($ )
dollars, and therefore he brings suit in accordance with the
form of the statute in such case made and provided.
h
For that whereas, to wit, on the day of ,
19. ., said plaintiff was a corporation engaged in the manufac-
ture and sale of soap, with a large and extensive mail order
business by and through which said product was disposed of.
756 ANNOTATED FORMS OF PLEADING AND PRACTICE
That on the day and year last aforesaid the said plaintiff wa«
possessed as of its own property of a large (juantity of goods,
merchandise, supplies and jH-operty, including the following de-
scribed property, to wit: (Give itemized statement of property
destroyed with amount of each item) of great value, to wit, of
the value of $ , which was then and there located and
situate at, to wit, in the building known as the rear of
street within the territorial limits of the said city
of
And the plaintiff alleges that, on, to wit. the day and year
aforesaid, and within the corporate limits of the city of ,
aforesaid, a large number of persons, of the number of more
than twelve, and of the number of, to wit, persons,
did riotously and tumultuously and unlawfully and wrongfully
assemble together of their own free will and authority, with
the common intent mutually to assist each other against anyone
wliu migbt offer resistance to their designs, and with the common
intent anil design to unlawfully enter ui)on the said j)reiiiise.s
of plaintiff, at the place aforesaid, to unlawfully and wrongfully
connnit damage and waste to plaintitf's said property afore-
said; and then and there, without any right or authority, the
said assemblage of persons did so congregate as aforesaid, with
the common design as aforesaid, and did then and there, in the
furtherance of such common design, unlawfully enter upon the
plaintiff's said premises at the place aforesaid, in the execution
of their private designs, and did then and there in a riotous
and tumultuous manner commit waste and damage to the said
property of plaintiff' and wholly destroy the said property of
plaintiff, and render the said property of no value what.soever,
to wit, in the building and at the time and place aforesaid.
That said injury ami destruction and damage was not occa-
sioned or in any way aided, sanctioned or permitted by any
carelessness, neglect or wrongful act on the part of the said
plaintiff" or its agents, or through any neglect on the part of said
plaintiff' or its agents, to use reasonable diligence to prevent said
injury and destruction; and said plaintiff avers that within
thirty days next after the time of said damage and destruction
of said property said plaintiff on a certain day, to wit, the
day of , 19. ., gave due notice to said
defendant of said damage and destruction and then and there,
on, to wit, the day and year last aforesaid, demanded of said
defendant payment of three-fourths of the amount of damages
sustained by said plaintiff" by reason of such injury and destruc-
tion, three-fourths of the sum of ($.' ) dol-
lars, to wit, the sum of ($ ) dollars,
whereby, and by reason of the premises, and by force of the
statute of the state of Illinois in such case made an provided, it
then and there, to wit, on the day of ,
19. ., at, to wit, the county aforesaid, became and was the duty
of said defendant to pay to said plaintiff the said sum of
CASE 757
($ ) dollars ; yet the said defendant, on,
to wit, the day and year last aforesaid, at the county aforesaid,
wrongfully neglected and refused to pay said plaintiff the said
sum of ($ ) dollars, or any part thereof,
by reason of which said wrong and neglect said plaintiff hath
suffered damages in a large sum, to wit, the sum of
($ ) dollars, wherefore, it brings its suit, etc.
1377 Telegrams, negligent transmission, action
A telegi-aph company is liable for all direct damages which
result from the negligent failure to transmit a message, as writ-
ten, within a reasonable time, unless the negligence is in some
way excused, where the message, as written and read in the
light of all known usage in the commercial correspondence, rea-
sonably informs the operator that the message is one of business
importance and discloses the transaction so far as is necessary
to accomplisli the purpose for which it is sent.'-^
1378 Telegrams, negligent transmission, Narr. (Miss.)
That the plaintiff is a resident of , county, Missis-
sippi; that the defendant is a telegraph and cable company
engaged in the transmission of messages from points in various
portions of tlie United States antl in foreign countries; that it
has a regular ofiHce and agents in county, Missis-
sippi, on whom service of process may be had.
Tiiat the plaintiff is engaged in buying and selling spot cot-
ton ; that he keeps on hand spot cotton for sale to the si)inners
of this country and in foreign cities; that having on hand spot
cotton for sale upon the day of lie de-
livered to the a certain message on said date ad-
dressed to in tlie following words : (Set forth mes-
sage in haec verba).
Tiiat said was a broker in said engaged
in tile sale of spot cotton ; that the plaintiff' had made many sales
of actual spot cotton as aforesaid; that the said defendant com-
pany has transmitted many messages from the plaintiff to the
said and other cotton buyers in foreign cities; that
it is well ac<|uainted through its officers and agents witli the
l)usiness carried on by the plaintiff' and is thoroughly aware of
the importance of messages delivered to it by the plaintiff for
transmission ; that the plaintiff' in person delivered said mes-
sage in the city of to the agent of said defendant
company at o'clock in noon on advising
129 Providence - Washington Ins.
Co. V. Western Union Tel. Co., 247
111. 84, 91 (1910).
758 ANNOTATED FORMS OP PLEADING AND PBACTICE
the agent of said compauy of the t'ontents of said message, the
same being in cipher, and the said phiintiff advising the defend-
ant's agent of the importance of tiie same and tlie j)urpo8e of
sending the same and the damage which would accrue to the
plaintiff by reason of any delay in transmission and delivery of
said message.
That the defendant through the general conduct of the busi-
ness was well aware of said fact; that the defendant's agents
and servants represented to the plaintiff that within about
minutes said message would be transmitted and de-
livered to its address; that the plaintiff" paid all proper charges
ui)on said message; that it was the duty of the defi-ndant to
transmit and deliver the same within a reasonable time, and
that minutes would have been a reasonable time.
Plaintiff, however, alleges and avers that said message was
unreasonably delayed; that it was not delivered to its destina-
tion until o'clock in the noon, after the
close of the markets of said day ; that the failure to deliver said
message was the result of gross and willful negligence on the
part of the agents and servants of said (.lefendant company;
that upon the next morning the i)rice of cotton had declined;
that had the defendant delivered said message any time during
the day of said cotton would have been disposed of
and could have been disposed of at but that on account of
said delay, the plaintiff was under the necessity' of selling said
cotton the following day at , making a loss of
per bale, thereby entailing upon the pinintiff a loss of
dollars; that all of said loss was sustained solely on
account of the negligence and willful conduct of the defendant as
aforesaid; that due and timely notice was given to the defendant
of said claim for damages and payment of the same has often been
demanded, but that the defendant fails and refuses to pay said
claim, or any part thereof. Wherefore, etc.
TRANSPORT.VTION
1379 Bill of lading, limitation
At common law and under United States statutes the initial
common carrier, engaged in interstate commerce, who receives a
shipment to be made beyond his line is liable for damages to
the shipment caused by any carrier over whose line the shipment
passes, from the time it is delivered until its delivery to the
consignee at the point of final delivery. ^^'^ A bill of lading is
a written acknowledgment of the receipt of goods and also an
agreement for a consideration to transport and deliver the goods
130 Fry V. Southern Pacific Co., Interstate Commerce act (U. S>,
247 111. 564, 573 (1910); Sec. 20, Comi>. Stat. 1901, pp. 31, 69).
CASE 759
at the specified place to a person therein named, or his order. A
limitation that the carrier shall not be liable beyond its own
lines is valid in Illinois, in that part of the bill of lading which
constitutes an agreement to deliver the goods to the next car-
rier to be carried to its destination; but the burden is on the
carrier to show by evidence other than that contained in the
bill of lading that the limitation of the common law liability
was understandingly assented to and the risk assumed by the
shipper, regardless of whether the bill of lading or contract
of shipment consists of one or more instruments. The statute
which prohibits common carriers to limit their common lavsr
liability has reference to and renders void only that portion
of the bill of lading which acknowledges the receipt of the
property. *3i The right of a railroad company to limit its lia-
bility by contract does not extend to liability for its gross neg-
ligence or willful misconduct ; and a limitation in a bill of lading
which attempts to limit liability beyond the legitimate scope
is void as against public policy.^32
1380 Jurisdiction
State courts have concurrent jurisdiction with Federal
courts in cases arising under section 20 of the Interstate Com-
merce act of 1887, where the amount exceeds two thousand dol-
lars ; in cases involving less than that sum, the state courts alone
have jurisdiction. And this jurisdiction extends to municipal
courts. ^"^-^
1381 Cattle, feeding and watering, action
A common carrier is liable for the failure to provide suit-
able and safe facilities for watering and feeding stock while
in transit, and of this liability it cannot relieve itself by con-
tract. i3-»
131 Illinois Match Co. v. Chicago, i33 Fry v. Southern Pacific Co.,
E. I. & P. Ry. Co., 250 111. 396, 247 111 575, 578. ^ rr. ^
400. 402 (1911); Sec. 33, Fencing i34 Chesapeake & Ohio Ry Co. v.
and Operating Railroads act (Par. American Exchange Bank, 92 Va.
96, c. 114, Hurd's Stat. 1909, p. 495, 500 (1896).
1755). ^ ^
132 Fry V. Southern Pacific Co.,
247 111. 574.
760 ANNOTATED FORMS OP PLEADING AND PRACTICE
1382 Cattle, injured and lost, Narr. (Va.)
For this, to wit, that heretofore, to wit, on the
day of , in the year 19. ., the said defendants were
common carriers, engaged in carrying live stock, and animals
from a point in the state of to a point in tlie state
of Virginia, and the plaintiff was a dt-ak-r in liurses and otlier
animals in the city of , in the state of \'irginia, and
on the day and year aforesaid, the defendant, the
company, received of at the in ,
a carload of horses, which horses were owned by
and were the property of the plaintiff to be transj)orted from
the in to , Virginia, and the
said defendant issued a bill of lading to the said
for the said horses, in which bill of lading the consignee was
given as destination , Virginia, which bill
of lading was transmitted by to the i)hiintiff. who
was from the date thereof and now is the hiwful holder thereof.
That the line of the company does not extend
to , Virginia, but terminates at , Vir-
ginia, where it connects with the line of the com-
pany, and that it was understood and agreed between the
company, and the company that the last
named company should receive the said horses of the first named
company, at , Virginia, and carry the same to their
destination at Virginia, that it was understood and
agreed between the plaintiff and the said defendants that the
said horses should be shipped over the company
and the company from the in
to , Virginia.
And according to said understanding the said horses were
shipped over the line of tlie company from the
in , to , Virginia, and were
there delivered by the first named company to the
company and by said last named company carried from
Virginia, to , Virginia, the point of
destination.*
Whereby it became the duty of the defendants to transport
the said horses to the plaintiff' at , Virginia, and it
was the duty of the defendants not to confine the said horses
in its cars for a longer period than twenty-eight con.secutive
hours, without unloading the same for rest, water and feeding,
for a period of at least five consecutive hours, unless prevented
from so unloading by storm or other accidental causes.
Nevertheless in disregard of the said duty, the said defend-
ants confined the said horses in their cars for a longer period
than twenty-eight consecutive hours, without unloading the
same for rest, water and feeding, for a period of at least five
consecutive hours, although the defendants were not prevented
from so unloading by storm or other accidental causes.
CASE ^^1
Whereby and by reason of the defendants negligence, and dis-
regard of their said duty, all of the said horses vv-ere made sick
and two of said horses died and one or more of the said horses
were made lame and a considerable number of the said horses
became so starved and hungry that they chewed and ate the
tails of one another and were thereby greatly injured and dam-
aged, by reason of said breach of duty and neghgence of both of
said defendants. , ■■ .i.
2. (Consider first count to star as here repeated the same as
if set out in words and figures.) -, ^ j +„ ^.^
Whereby it became and was the duty of the defendants to
transport the said horses with all reasonable dispatch to the
^^ Bui' Uif said 'defendanl'l'reLsly and negligently failed to
.Xon the .id horses with all -sonab^^^^^^^^^^^^^
delayed the transportation of said ^^orses on ^e^ r^o^^
line of the' " " ."" .V.V company and the company,
n consequence of which delay said horses became sick, sore
■ ,ne and hungry, so that two of them died as the effect of said
breach of dut? and negligence of the defendants, and many of
the horses had their tails eaten off by each other owing to their
gieatTunger, caused by said delay, and by the said careless-
ness and negligence of the said defendants.
3. (Consider first count to star as here repeated the same
flsif set out in words and figures.) ^ f a
And the said defendants knew that it was necessary to feed
the^said horses at proper times during the said journey and
knew that no agent of the plaintiff, or other person charged
w th the duty of feeding said horses, accompanied hem, ex-
cept the agents and employees of the defendants, and the said
defendants according to their usual practice and custom, under-
took to properly feed the said horses during the said journey,
and it was their dutv to so feed them. v +i
Nevertheless, the said defendants carelessly and negligently
failed to properly feed the said horses during the said journey
wh le the^said horses were in their care and custody, by reason
whereof the said horses became sick, sore, lame and hungry, so
that two of them died as the effect of said breach of f ty and
negligence of the defendants, and many of them had their tails
eaten off bv each other, owing to the great hunger, caused by
the said breach of duty, carelessness and negligence of the said
^'By'ieason whereof, the said plaintiff has been greatly injured
and damaged and has suffered large losses owing to the death
of two of laid horses, and owing to medicine and treatment for
?he horses which were made sick as aforesaid, and owing to the
exnense of keeping and caring for the sick horses and for those
whicSwere in Led and made unsalable by reason of having their
762 ANNOTATED FORMS OF I'LEADINU AND PRACTICE
tails eaten by the other horses, and owing to the expense of
insurance and stabling of the said horses while they were made
unsalable as aforesaid.
To the damage of the plaintiff $ And, therefore,
he brings his suit.
1383 Goods damaged, Narr. (111.)
For tiiat whereas, before and at the time of the delivery of
the goods and chattels to said defendant, as hereinafter next
mentioned, it was, and from tiienee hitherto has been possessed
of, and using and operating a certain railroad, and was and still
is a common carrier of goods and chattels, for hire, to wit,
from to , at, etc. :
And whereas, also, the plaint ilY, whilst the defendant was such
common carrier as aforesaid, to wit, on the day of
, 19. ., at , to wit, at etc., caused to be
delivered to the defendant, and the defendant then and there
accepted and received of and from the phiintilf divers goods and
chattels, to wit; (Describe proi)erty) of the said plaintiff of
great value, to wit, of the value of ($ ) dol-
lars, to be safely and securely carrieil and conveyeil by the
said defenihint from aforesaid to afore-
said, and tiiere, to wit, at, etc., aforesaid, safely and securely
to be delivered for the said plaintiff for certain reasonable re-
ward to the said defendant in that behalf. Yet the said defend-
ant, not regarding its duty as such common carrier as afore-
said, but contriving and frauduk'iitly intending craftily and
subtly to deceive, defraud and injure said plaintiff in tiiis be-
half, did not, nor would safely or securely carry or convey the
said goods and chattels, to wit, the (Describe property) from
aforesaid to aforesaid, nor there, to wit,
at aforesaid, safely or securely deliver the same for
tiie plaintiff, but on the contrary thereof, the defendant so
being such common carrier as aforesaid, so carelessly and negli-
gently ])ehaved and conducted itself in the premises, that by
and through the carelessness, negligence and default of the de-
fendant in the premises the said (Describe property) aforesaid,
being of the value aforesaid, afterwards, to wit, on the day and
year aforesaid, to wit, at, etc., afterAvards became and were
greatly injured, damaged, and spoiled, to the great loss of the
plaintiff", to wit, at, etc., aforesaid.
2. And whereas, also, heretofore, to wit, on the day and year
aforesaid, to wit, at. etc., aforesaid, the plaintiff, at the special
instance and request of the defendant, caused to be delivered
to the defendant certain other goods and chattels, to wit, (De-
scribe property) of like number, quantity, quality, description
and value as those in said first count mentioned of the plain-
tiff, to be taken care of, and safely and securely carried and
conveyed by the said defendant to , aforesaid, and
CASE 763
there, to wit, at , aforesaid, to be safely and securely
delivered by the defendant for the plaintiff, within a reason-
able time the next following for certain hire and reward to the
defendant in that behalf ; and although the defendant then and
there accepted, and had and received the said last mentioned
(Describe property) aforesaid, for the purpose and the terms
aforesaid; yet the defendant not regarding its duty in that
behalf, but contriving and fraudulently intending, craftily and
subtly to deceive and defraud the plaintiff in this respect, did
not nor would, within such reasonable time as aforesaid, take
care of, or safely or securely carry and convey the said last
mentioned (Describe property) to aforesaid; and
bv means of the negligence and improper conduct of the de-
fendant in that behalf the said last mentioned (Describe prop-
erty) were long and unreasonably delayed in their delivery to
the plaintiff, and were furthermore greatly damaged, injured
and spoiled to the great loss of the plaintiff, to wit, at, etc.,
aforesaid. To the damage of the said plaintiff of
dollars, and therefore he brings his suit, etc.
1384 Goods lost in transit, Narr. (lU.)
For that whereas, on, to wit, the day of ,
19.., the plaintiff was a corporation engaged in business of
manufacturing and selling and owning and operat-
ing a factory in the township of ,
county, Illinois, and the defendant was then and
there a railway corporation operating a line of railway in the
state of Illinois, and extending into and through said town-
ship of and was then and there a common carrier
of goods and chattels fo" hire ; that said plaintiff, on, to wit, the
day of , 19 . . , at its said factory, caused
to be delivered to the said defendant, and the said defendant then
and there accepted and received of and from the said plaintiff,
certain goods and chattels, to wit: (Insert description of goods
and chattels) of the value of dollars, the said
being then and there in good condition to be safely
and securely transported by said defendant from the factory
of said plaintiff aforesaid to county, in the state of
and there safely and securely to be delivered for
said plaintiff to on a certain side track or siding
commonly known as " "in said county, in
the said state of for certain reasonable reward to said
defendant in that behalf ; yet the defendant not regarding its duty
as such common carrier as aforesaid, did not safely or securely
transport the said , from the factory of the plain-
tiff aforesaid, to county aforesaid, nor there safely
or securely deliver the same for said plaintiff to said
on said siding in said county, in the state of
, nor to any other person nor at any other place
764 ANNOTATED FORMS OF I'LE-VDING AND PRACTICE
for said plaintiff, l)Ut on the cr^ntrary llirrt'of said dofondant
80 carelessly ami nej^lif^'ently heliaved ami eonductt-d itself that
by and through its carelessness, negligence anil default, the Kaid
being of the value aforesaid, afterwards, to wit, on
the day and year aforesaid, became and were and are wholly
lost to the said plaintiff, to the damage, etc.
2. And whereas, also, heretofore, to wit, on the day and year
aforesaid, at county aforesaid, the plaintiff at the
request of the defendant, caused to be delivered to the said
defendant certain other goods and chattels, to wit
of a like number, (|uantity, (juality. description and value as
those in the said first count nu-ntioned of the said plaintiff, to
be taken care of and safely and securely carried and conveyed
by the said defendant to county aforesaid, and there,
to wit, at county aforesaid, to be safely and securely
delivered by the defendant for the plaint itT within a reason-
able time then next I'oUowing, for a certain hire and reward to
the defendant in that behalf; and although the sjiid defendant
then and there accepted, and had and receiveil said last men-
tioned , for the purpose and on the terms aforesaid.
and although a reasonable time for the carriage, conveyance and
delivery thereof as aforesaid, has long since elapsed; yet the
said defendant, not regarding its duty in that behalf did not
nor would within such reasonable time as aforesaid, or at any
time aftt'rwards take care of or safely or securely carry and
convey the said last mentioned to county
aforesaid, nor there, to wit, at county aforesaid,
safely or securely deliver the same for the said plaintiff; but
hitherto has wholly neglected and refused so to do, and by
means of the negligence and improj)er conduct of the said de-
fendant in that behalf, the said last mentioned have
not been delivered to, nor for, the said plaintiff at
county aforesaid, or elsewhere, and are wholly lost to the said
plaintiff.
3. And whereas, also, afterwards, to wit. on the day and
year aforesaid, at the county aforesaid, the said
defendant at its special instance, and re(iuest, had the care and
custody of certain other goods and chattels, to wit, of a like
number, quantity, quality, description and value as those in
the said first count mentioned of the said plaintiff; yet the
said defendant, not regarding its duty in that behalf, did not,
nor would it, while it had the care and custody of the afore-
mentioned, as aforesaid, take due and proper care,
of the same but wholly neglected so to do and took such bad
care thereof that afterwards, to wit, on the day and year afore-
said, the aforementioned became and were and are
wholly lost to the plaintiff. To the damage, etc.
CASE 765
1385 Vicious animals, action
An action on the case, and not that of trespass, is maintain-
able for an injury done by a vicious animal, where the owner
of the animal has notice of its vicious propensity. ^^s
1386 Vicious animals, declaration requisites
In an action for an injury by a vicious animal the declara-
tion must aver a scienter.^^*^
1387 Vicious animals, Narr. (Mich.)
For that whereas, the said defendant heretofore, to wit, on
the day of 19. ., and for a long space
of time theretofore, at the township of in the county
of and state of Michigan, was the owner and keeper
of a certain large dog, and ponnitted and allowed said dog at
all times to go at large, and did not keep said dog t'uid up or
otherwise restrained as was said defendant's duty. That said
dog then and there, and for a long space of time theretofore,
was vicious and was used and accustomed to attack and bite
mankind, and said defendant then and there, and for a long
space of time theretofore well knew the habits of said dog and
that it was vicious and u.sed and accustomed to attack and bite
mankind. That then-upon and by rt'a.son thereof it i)ecame and
was the duty of said defendant at all times to keep said dog
tied or otlieiwise restrained and not to permit it to go at large.
But, notwithst<inding the said knowledge of the habits and
viciousness of said dog, and said defendant's duty to restrain
it from going at large, still he permitted and allowed said dog to
go at large and unrestrained at all times, and particularly upon
the date next hereinafter mentioned.
Plaintiff further alleges that on said day of
aforesaid, in the day time of said day she was walk-
ing towards and approaching the dwelling house of the said
defendant in said township, county and state afore-
said and while on the steps leading to the porch, the said dog
aforesaid, so owned and kept by the said defendant as aforesaid
and when said dog was at large and not tied or otherwise re-
strained and without fault or negligence of said plaintiff, vici-
ously attacked and did then and there assault and bite said
plaintiff on both of her ankles, feet and legs below the knees,
and did then and there terribly lacerate, hurt, wound and injure
the said plaintiff. And thereupon and thereby .she, the said
plaintiff, on the portions of her anatomy aforesaid was greatly
bruised, torn and lacerated; and that said plaintiff thereupon
135 stumps V. Kelley, 22 111. 140, i36 Stumps v. Kelley, s^pra,
143 (1859).
766 ANNOTATED FORMS OF PLEADING AND PRACTICE
and by reason thereof then and there became and was sick, sore,
lame and disordered, and so remained and continued for a long
space of time, to wit, from thence hitherto and will so remain
and continue for a great length of time hereafter; and plaintiff
alleges that her said injuries are permanent and may ultimately
prove fatal, and that she will never recover therefrom, and that
it may become necessary to amputate one or both of her legs
because of said injury.
Plaintiff alleges that at the time and place aforesaid her right
leg was bitten by said dog, to wit, inches above the
lower edge of the outside ankle almost entirely around her leg.
That the skin, muscles and tissues were bitten, torn and lace-
rated to a great depth, to wit, inch. That the flesh
and tissues became and were and still are greatly inflamed,
swollen and ulcerated containing great quantities of pus. That
her said leg below the knee became and continued for a great
length of time to be black and blue, and discolored both exter-
nally and internally extending down and along the middle of
her right foot for a considerable distance, to wit, for
inches. That her left leg between the knee and the foot and
particularly at points respectively, to wit, inches
l)eing the lower edge of the external ankle and above the poste-
rior part of the external ankle, was bitten by said d(>g around
the entire leg and that by reason thereof and the injuries afore-
said said leg then and there became and was and still is sore,
red, inflamed and swollen ; that the skin, muscles and tissues
of said leg were bitten, torn and lacerated to a great depth, to
wit, inches, that the flesh and tissues became and
were and still are greatly inflamed, swollen and ulcerated, con-
taining great quantities of pus. That said leg below the knee
became and continued for a great length of time to be black
and blue and discolored, both externally and internally and
extending down and along the middle of her left foot for a con-
siderable distance, to wit, inches.
That by reason of said injuries aforesaid said plaintiff suf-
fered and still suffers, and will continue to suffer for an inde-
finite length of time hereafter great bodily pain and mental
pain, anguish and humiliation ; that she is severely and per-
manently wounded and injured and disfigured for life; that
plaintiff's whole nervous system was and is greatly and per-
manently injured by the shock, fright and injuries aforesaid
from and by said assault and injury of said dog. That she has
no appetite, cannot sleep and is othenvise severely and per-
manently injured. That plaintiff before said injury w-as a
sound and healthy person, both in mind and body ; that her
mental faculties and physical health have been and now are
permanently injured and shattered, and her blood poisoned and
contaminated by reason of said injuries as aforesaid. That she
has expended large sums of money for medicine and attendance
of physicians ; that she has lost a great deal of time and is unable
CASE 767
to work and perform her usual duties, labor and occupation.
Plaintiff further alleges that she was absolutely without fault
or negligence in the premises and that she did not contribute
in any manner to said injury.
The plaintiff therefore alleges that she is entitled to damages
by reason of the premises and under and by virtue of the statute
in such cases made and provided the same being section 5593 of
Miller's Compiled Laws of 1897 for the state of Michigan. To
the damage, etc.
1388 Water supply, cut off, Narr. (Miss.)
That said is a corporation organized and existing
under and by virtue of the laws of the state of INIississippi, and
domiciled in the city of in said state ; that on the
day of , 19.., pursuant to law and
proper authority granted by the municipal authorities of the
of a contract was entered into and be-
tween said and the for the purpose of
furnishing water for domestic purposes, and for protection
against fire in said , and that on the
day of , 19. ., a supplemental contract was entered
into in that behalf; all of which appears by reference to a copy
of said contract and supplemental contract filed as a part hereof
marked exhibit "A."
That under said contracts the said constructed
certain mains and fire hydrants in the of
state aforesaid, which were located by the municipal authorities
of the ; all of which appears by reference to a resolu-
tion of order accompanying said contracts.
That under the said contracts, the said contracted
and agreed to furnish said and inhabitants thereof,
where such pipes and mains were laid, first class fire protection
and an adequate supply of water for the greatest protection
against fire ; all of which appears by reference to the provisions
of the contracts themselves.
That plaintiff is a citizen of and owns the
(Describe property) in said upon which
is situated a valuable frame residence owned and occupied by
him ; he was also seized and possessed of a large
amount of personal property situated and contained in said
building consisting of household and kitchen furniture, wear-
ing apparel and other effects; that in pursuance of law and
the contracts aforesaid, under which the said ac-
quired its franchise for the year plaintiff as the
owner of said property entered into a contract with said com-
pany to supply his residence with water for domestic purposes;
that the water for these purposes was conducted by the pipes
connected with the mains of said company through said resi-
dence and was distributed throughout the residence for use in
768 ANNOTATED FORMS OP PLEADING AND PR-VCTICE
the bath rooius and in other phices thereof; that for this privi-
lege and under these contracts, plaintiff paid to the said com-
pany lor the use of the water thus to he supplied on said prem-
ises the sum of doUai-s per ([uarter, payable in ad-
vance, the last quarter ending ; and that under these
contracts it was the duty of said company to supply to the
jilaintitf on said premises, at all times during said continuation
of said contracts the water contemplateil by them.
That in a bath room on the second story in the said residence
was installed an apparatus for heating water by burning gas,
conunonly called an instantaneous heater which was connected
with the saiil water pipes leading into said residence and with
gas pipes leading into sjud residem-e; that said heater was so
constructed that it could not l)e used to burn gas without a
sufhcient tlow of water through the pipes connected therewith ;
that heaters of this character were and are in common use in
the of and are all connected with the
water pipes of said ; that especially was this the
case as to the block or s<iuare upon which the residence of the
plaintitT was situated and the atljacent blocks and siiuan^s
thereto ; that all of this was well known to the said and
the officers, agents and employees thereof; and that it was also
well known to them that the use of such a heater without a suffi-
cient flow of water was dangerous, and that it would necessarily
result in a conflagration.
That on day of , 10 . . , about
o'clock noon, plaintiff's house being thus connected
with the system of water works of said and the gas
heater being properly installed therein, plaintiff turned and
ignited the gas in siiid heater for the purpose of obtaining
warm water in the bath tub; that at that time the water was
freely flowing through the pipes and that there was a sufficient
supply thereof; that after turning on and igniting the gas for
thus obtaining wann water, a period of five to ten minutes is
required for an ordinary sufficient supply; that after this turn-
ing on the water, the plaintiff left the bath room for a ver\'
short space of time intending to return and shut off the gas
and flow of water when a sufficient supply of water had been
obtained; that almost immediately after plaintiff had thus turned
on the water and ignited the gas in said heater the said ,
through the defendant its superintendent, wrong-
fully, unlawfully and without notice to plaintiff, or any one on
the premises, and without giving any warning whatever, closed
a valve near the plaintiff's residence and thereby cut off the
supply of water, and instantly the water ceased to flow through
the pipes connected with said heater, and the necessary and
immediate result was a conflagration caused by the burning of
the gas without any water supply in the heater, and this con-
flagration caused plaintift"s residence to take fire.
That the plaintiff promptly discovered the absence of the
CASE
769
flow of water and the conflagration and endeavored to extin-
gruish the fire, and although, he made every effort to obtain
water from faucets in the house, he was unable to obtain any
water, because none was flowing through the pipes, and for this
reason he was unable to extinguish the tire, and the same rapidly
spread and destroyed a large part of the building and greatly
damaged the entir*e building and it also destroyed and damaged
a large amount of valuable personal property owned by plaintiff
and situated in said building, and in addition to this plaintiff
was injured and burned in his efforts to extinguish the fire.
That it was the duty of said , a public serA-ice cor-
poration, to supply his premises with a constant flow of water
through the said pipes provided therefor; that it was wrong-
ful and unlawful and in violation of law, and also in viola-
tion of the rules and regulations concerning the duty of said
defendant to cut off said supply of water without warning
or notice; that there was no emergency for thus cutting off
the water, and the act of said defendant and the said
was not only a violation of law and the rules applicable to the
duty of defendant company and the custom in such cases, but
that it was contrary to the most ob\ious rules of ordinary pru-
dence : and that they well knew how the residence was occupied
and used and had ample opportunity to give notice if the cut-
ting off of the water at that time was necessarj*.
That if plaintiff had received any previous warning or notice
he would not have turned on the water and ignited the gas in
said heater ; that after having done so, if he had been warned or
notified in any way that the water supply would be or was being
cut off by the defendants, he could and would have
promptly shut off the gas, and that thus the fire and conse-
quent loss would have been prevented; that the plaintiff there-
fore avers that such a fire was caused solely by the wrongful,
unlawful and grossly negligent conduct of the defendants and
without any fault or neglect on his part.
By reason of said fire a large part of said building was de-
stroyed and the remainder of the building was greatly dam-
aged, the total amount of damages to said residence being the
sura of dollars ; that also by reason of said fire the
extent of plaintiff's loss as to his personal property damaged
was and is the sum of dollars ; that also the plain-
tiff then and there sustained by reason of inconvenience and
loss of the use of the said building and of the use of his furni-
ture, fixtures, and other personal property therein to the
amount of dollars : and that plaintiff also suffered
great mental and physical pain, inconvenience and discomfort
and sustained damages therefrom in the sum of •
dollars. All of which loss and damages were sustained by plain-
tiff in consequence of the carelessness, gross negligence and wil-
ful misconduct of the defendant aforesaid.
770 ANNOTATED FORMS OF PLEADING AND PRACTICE
1389 Wrongful discharge effected by employer's liability in-
surer, Narr. (111.)
For that whereas, on or about the day of ,
, said plaintitf was in the employ of a corporation or company
knovvn as the U company ; that on or about the said date said
plaintiff, while in the employ of said U company, received a
serious and permanent injury to one of his eyes, then and there
losing the sight of the same; that afterwards, to wit, on or about
the day of , 11>. ., said plaintitf l)n)uj,'lit
an action in the court of county, in the
state of Illinois, against said U company, for and on account
of said injury, which action is still pending therein, claimint; in
said suit that the said injury so received by the plaintitf was
caused through the negligence of said U company; that after
said suit against said U company had been commenced l)y plain-
tiff as aforesaid, he, the said plaintiff, remained in the employ
of said U company until, to wit. tiic day of .,
19.., when he w'as di.scharged from siiid employment by said
U company, as hereinafter set forth.
Plaintiff further avers that the defendant, on or a])out
, 19. ., through its servants, agents and employees,
maliciously, wrongfully and without any reason or lawful cause,
and for the purpose of injuring the plaintiff, demanded as of
and from tiic said V company that they immediately discharge
the plaintitf from such employment, as such servant, and thereby
then and there maliciously, wrongfully and for the purpose of
injuring plaintiff procured his discharge from such employ-
ment.
Plaintiff further avers that said U company at the time of such
discharge was well satisfied with the services of plaintitf, and
had no intention, cause or reason to discharge the plaintitf, and
would not have discharged him from such employment were
they not compelled to do so by said defendant ; that said de-
fendant at the time was defending said U company in the suit
against it by said plaintiff, and that said defendant at that time
then and there informed said U company that the said plaintiff
must be discharged at once from his said employment; that the
said defendant did not want the said U company to give em-
ployment to the plaintiff', and thereby enable him to earn money
to carry on his suit against the said U company, said suit being
defended by said defendant under its contract w^th the said U
company.
Plaintiff further avers that he requested said defendant to
revoke its order to the U company to discharge the plaintiff,
and that the said defendant refused to comply \vith said de-
mand and request, unless the plaintiff would dismiss his suit
against said U company, and further threatened the plaintiff
that unless said suit was discontinued that he would not be
permitted to work for said U company for a period of ten years.
CASE 771
Plaintiff further avers, that by reason of such discharge as
above set forth, and without any fault on his part, he was un-
able to secure employment until, to wit, the day
of , 19. . ; that at the time of his discharge as afore-
said he was receiving w^ages at the rate of, to wit, $
per day; and that by reason, and on account of said discharge
as aforesaid, plaintiff has suffered great damages to his char-
acter and reputation. Wherefore, etc.
SPECIAL DEFENSES AND PLEAS
1390 Accord and satisfaction, pleading
At common law, on account of the equitable nature of the
action on the case, accord and satisfaction is provable under
the general issue in case, but not in trespass.^ ^'
1391 Accord and satisfaction, plea
That before the commencement of this suit, to wit, on, etc.,
at the city of , to wit, at the county of
aforesaid, he, the said defendant, paid to the said plaintiff the
sum of dollars of lawful money of the United
States of America, for and in full satisfaction and discharge
of the said grievances in the said declaration mentioned, and
which said sum of dollars he, the said plaintiff, then
and there accepted and received of and from him, the said de-
fendant, in full satisfaction and discharge of the said griev-
ances ; and this the said defendant is ready to verify. Where-
fore, etc.
1392 Arrest without warrant, public officer
An arrest ^^^thout a warrant is legal if it is authorized by
statute and it is necessary to the proper enforcement of the
statute.^28 An individual, such as a conductor, who is given tem-
porary power of arrest during a limited period and under cer-
tain circumstances is not a public officer under the constitu-
tion.i3»
1393 Conspiracy between contractor and improvement board
In an action for conspiracy between a contractor and an im-
provement board it is no defense that the plaintiff could have
137 "Wallner v, Chicago Consoli- "^ Tarantina v. Louisville &
dated Traction Co., 245 111. 148, 151 Nashville R. Co., supra; Seca. 24,
(1910). 25, art. 5, Constitution.
138 Tarantina v. Louisville &
Nashville R. Co., 254 111. 624, 631
(1912); Laws l9ll, p. 462.
772 ANNOTATED FORMS OF PLEADING AND PRACTICE
prevented the damages caused by the conspiracy, by injunc-
tion, mandamus or objections to the application for judgment
and order of sale.^**'
1394 Foreign laws and decisions, pleading
In an action on the case brought to recover for an injurj-
sustained in another state, the defendant may prove, under
the general issue, that he is not liable under the law and the
decisions of that state, although, as a general rule, a foreign
law must be specially pleaded.^**
1395 Fraud and deceit ; inquiry, failure to make
It is no defense to an action for deceit that the plaintiff con-
fided in the false representations instead of making diligent
inquiry, unless he has failed to exercise ordinary care and cir-
cumspection under the particular circumstances. ^*2
1396 Fraud and deceit ; statute of frauds, general issue
In an action on the case for fraud and deceit the defense
that the transaction constituting the cause of action is within
the statute of frauds may be raised under the general issue. ^^^
1397 Intoxication, death unforeseen
In an action for unlawful intoxication, it is no defense to the
action that the death of the intoxicated person could not have
been foreseen by the defendant. ^^*
1398 Intoxication, life insurance
The collection of insurance money on the life of a husband
who has been killed as a result of the unlawful sale of intoxi-
cants, is no defense to an action for damages on account of such
sale and killing.^*^
1*0 Gage V. Springer, 211 El. "3 Third National Bank v. Steel,
200, 208 (1904). 129 Mich. 434, 438 (1902).
141 Christiansen v. Graver Tank i** Eddy v. Courtright, 91 Mich.
Works, 223 111. 142, 151 (1906). 264, 268 (1892).
1*2 Weatherford v, Fishback, 3 us Deel v. Heiligenstein, 244 111.
Scam. 170, 174 (1841). 239, 241, 242 (1910).
CASE 773
1399 Intoxication; regulation and prohibition, scope
Under its police power, the state may regulate the use and
sale of intoxicating liquors, even to the extent of entire pro-
hibition, and for the purpose of reducing the evils of intem-
perance, it may regulate the times, places and circumstances of
drinking intoxicating liquors.^*®
LIBEL
1400 Cemurrer
(Precede this in Illinois by general demurrer) And for
special cause of demurrer as to the count of the said
declaration, defendant saith that the same is not sufficient in
law, because the said count of said declaration alleges that
the alleged libelous matter is contained in an answer of defend-
ant filed in a certain chancery proceeding in the
court of county, and that the same is irrelevant, im-
pertinent and unnecessary to the defense of said cause and does
not set out and show to the court the pleadings in said cause so
that the court can determine whether or not the said alleged
libelous matter is irrelevant, impertinent and unnecessary to the
defense of said cause; and this the said defendant is ready to
verify ; wherefore, etc.
1401 Denial or justification, proof
In actions for libel a defendant may deny the publishing of
the words set out in the declaration or he may rely upon the
truth of the words published. ^^'^ Failure to prove a plea or
notice of justification in an action for libel is of itself no evi-
dence of malice or an aggravation for damages.^^*
1402 General issue, scope
Under a denial or general issue in an action for libel the de-
fendant may mitigate damages either by showing the general
bad character of the plaintiff or by proving any facts which
tend to disprove malice. A defendant under such an issue, has
no right to prove specific acts or misconduct on the part of the
plaintiff, but is confined to proof of his general bad character.^*®
1*8 Tarantina v. Louisville & v. Beecher, 79 Mich. 443, 448
Nashville R. Co. 254 111. 630; Laws (1890); Sec. 3, c. 126, Hurd's Stat.
1911, p. 462. 1909.
M7 Dowie V. Priddle, 216 111. 553, 1*9 Dowie v. Priddle, 216 111. 555,
555 (1905). 557.
148 (10415), C. L. 1897; Wheaton
774 ANNOTATED FORMS OF PLEADING AM) l'I<A( .TICE
In an action based upon the falsity of a privileged comrauni-
cation, the defendant niay show, under the peneral issue, the
truth of such a communication. But when the action is for a
libel which is not privileged, the justification of the lilx'l is
strictly in avoidance and must be pleaded or noticed specially.
This is so because in the one case, the plaintiff is bound to
prove, as a part of his cause of action, the falsity of the privi-
leged communication, whereas in the other case, the falsity of
the libel is not an issue unless the defendant puts it in issue
by pleading. '^'^
1403 Justification; plea, requisites
A plea of justilicatiou in Illinois recjuires great certainty and
particularity of averment. The justification must be of the
very charge it is attempted to justify. When a charge is spe-
cific the plea need only allege that the charge is true ; but where
a charge is general, the plea must state the facts which show
the charge to be true. It is not permissible to set up a charge
of the same general nature, but distinct as to the particular
subject. The plea must justify the very words contained in the
declaration, or at least those that are actionable.*^'
1404 Justification; notice, requisites
A general notice of justification is good under modern Michi-
gan practice; and by such a notice the defendant assumes to
prove the truth of the libelist's statements precisely as charged.
If a plaintif? is dissatisfied with a sweeping notice, the defend-
ant may be compelled to serve particulars of his justification. '^^2
MALICIOUS PROSECUTION
1405 Attachment, waiver
The appearance of a defendant in an attachment proceeding
which has been wrongfully brought against him, and the pray-
ing for a change of venue do not amount to a waiver of the
trespass. '^^
150 Edwards v. Chandler, 14 Mich. i52 Bailey v. Kalamazoo Publish-
471, 475 (1866). ing Co., 40 Mich. 251, 254 (1879).
151 Dowie V. Priddle, 216 111. 556, i53 Thomas v. Hinsdale, 78 111.
557. 259, 261 (1875).
CASE 775
1406 False imprisonment, res judicata
An order of a circuit court holding to bail is a complete de-
fense to an action for false imprisonment on a capias, in the ab-
sence of averment or proof of want of malice or probable
cause. ^^*
1407 Justification; res judicata, plea, requisites
In an action for false imprisonment, a private person can
only justify an arrest made by him by showing that a crime
has in fact been committed and that the person arrested is
guilty of the crime. Probable cause of guilt will not excuse
a private individual's making an arrest or causing an arrest
without a warrant.^^^ A plea justifying an arrest of the plain-
tiff upon the ground that there was probable cause for having
suspected the plaintiff of the commission of a felony and for
having accused him thereof, must state the specific reasons why
the plaintiff was suspected. ^^^ To a declaration counting solely
upon an arrest and imprisonment without authority of law, a
judgment and a process of a court is a complete defense, but not
so in a case where the charge is based upon malice in issuing
the process.^ '^^
1408 Justification; res judicata, plea (111.)
(Commence and conclude as in Sections 887 and 892) That
on, to wit, the day of was
then, and is now, a justice of the peace in and for the said
county of and state of Illinois, and that on the
said day of , at the county and
state aforesaid, the said defendant made oath before said
that the said plaintiff did on the day
of , 19. ., commit a criminal offense, to wit, that
the said plaintiff did feloniously and falsely make, forge and
counterfeit a certain promissory note, purporting to be the
promissory note of said to for the
payment of dollars, with intent to injure and
defraud the said defendant ; and the said defendant avers that
he, said defendant, had just and reasonable grounds to suspect
and believe that said plaintiff had committed the crime of forg-
154 Johnson V Morton, 94 Mich. isc White v. McQueen, 96 Mich.
1 6 (1892) ' 249, 253 (1893).
'i55Enright V. Gibson, 219 111. 554 iot Feld v. Loftis, 240 111. 105,
(1906). 107, 108 (1909).
776 ANNOTATED FORMS OF PLIL\D1NG AND PRACTICE
ery, as above mentioned; whereupon the said did
on said day of , I'J- ., issu.- a warrant in
the name of the people of the state of Illinois, and din-cted thi*
same to all sheriffs, coroners and constables of said state of
Illinois, commanding them, by the authority of said people of
the state of Illinois, to arrest the said plaintiff, and l)nnis' him
forthwith before the said or some other justice of
the peace of said county, to answer said complaint of said
of the crime of forgery aforesaid, whicb said war-
rant was then and there delivered to , the tht-n act-
ing sheriff of said county, and the said sheriff did,
on, to wit, the day of 19.., execute
said writ by arresting the said plaintiff, and })ringing him be-
fore said justice of the peace; whereupon said justice of the
peace, after associating with him one of the justices
of the peace of said county, proceeded to the trial of said plain-
tiff on said crimiiuil charge, and the said plaintiff was, on said
Jay of 19. ., before the justices afore-
said, tried and* held to bail in the sum of dollars,
to appear at the term 19 . . , of the
court of county and in default of giving
said bail, he, the plaintiff, was then and there committed to the
jail of said county of ; and the said defendant avers
that afterwards, to wit, at the t«?rm, ,
19. ., the grand jury of said county of preferred an
indictment against the said plaintiff, for making, forging and
counterfeiting a certain promi.ssory note, being the same note de-
scribed in the oath before mentioned in this plea, and that said
plaintiff was. at the t.-rm 19.., tried in this
court for the crime of forgery, and fouml guilty of the
same, and sentenced to the state's prison for the term of
year. .. and on motion then and tbere made by the
plaintiff for a new trial, which the court then and there re-
fused; which are the several supposed trespasses in the said
declaration mentioned. Wherefore, etc.*^^
1409 Probable cause, law and fact
Whether there was probable cause for the commission or omis-
sion of the act complained of, is a question of law when there
is no dispute of the facts.^^*
1410 Probable cause, pleading:, proof
The existence of probable cause for an arrest of the plaintiff
on the ground that he was guilty of the commission of felony
188 Blalock V. Randall, 76 111. 224, i^s White v. McQueen, 96 Mich.
225, 227 (1875). 249, 254 (1893).
CASE ^^^
cannot be shown under a plea of not guilty in an action for
false imprisonment, but must be pleaded specially, or notice of
it should be given under the general issW unless the declara-
tion sets out fully the affidavit, warrant and records of the suit
which is claimed to be malicious; in which case the general issue
covers the defense of probable cause.^«i a conviction by a
competent tribunal having jurisdiction is prima facie evidence
of the existence of probable cause for the prosecution, although
subsequently reversed by a reviewing court, and it is a suffi-
cient defense to a suit for malicious prosecution unless over-
come by evidence that the conviction was obtained by false
testimony, fraud, corrupt practices or unlawful or unjustifiable
means on the part of the one procuring the conviction. i«2
1411 Ordinance, pleading
In an action on the case, an ordinance or statute may be
shown under tlic general issue.^"^
1412 Ownership of property, denial; plea (111.)
(Commence and conclude as in Sections 887 and 891) That
at the time of the committing of the alleged Sn^'^'^^^^'l'l.'^^
declaration mentioned, on, to wit, ...••, \f^--'^^^ P/^'"'
t'ff was not then, nor theretofore, nor before the time of the
committing of the alleged grievances charged in said declara-
tioTthe owner in fee and lawfully entitled to the possession of
the land described in said declaration, to wit: (Insert descrip-
tion) as charged in the plaintiff's said declaration herein.
(Maryland) Plea
The defendant in the above entitled case for a plea says:
That the plaintiff was not seized and had no right of pos-
session of the land on which he alleges the damages occurred,
which are declared on in this case.
>.,mi.e V. MoQueeo, 96 Mich. ^^-^M.E.ro.^v. CathoUc Pre. Co.,
:, o* J „« « TT^ta 129 Mich i«3 Flynn v. Chicago City Ey. Co.,
161 Steadman v. Keets, i^jy jaicu. tii^rh ari nQlTk
669 670 (1902); Birdsall v. Smith, 250 111. 460, 463 (1911).
158' Mich. 390, 394 (1909).
778 .VNNOTATED FORMS OF PLEADING AND PRACTICE
Replication
The plaintiff for replication to the defendant's plea says
that he is seized and has a ripht of possession to the land on
which the alleged damage occurred declared ou in this case.
1413 Release, pleading-
A release, a former recovery, a satisfaction, or any other mat-
ter ex post facto which is in discharge of the cause of action is
provahle under the general issue in an action on the case with-
out a plea of puis darn in continuance.^'^*
1414 Seduction, chastity
The dcl'endant's reputation for chastity and purity of life,
is no defense to an action for seduction."'-'^ Prior unchastity
is a partial defense to an action for seduction, hut not subse-
quent.i'^"
SLuVNDER
1415 Generally
The defenses to an action of slander are the same as to actions
for libel.107
1416 General issue, proof
In an action for slander, the defendant may show under the
general issue, any facts and circumstances tending to prove
that he believed the truth of the charge when uttered, for the
sole purpose of rebutting or disproving malice and mitigating
damages. But where the entire truth of the slanderous words
is sought to be relied upon as a justification thereof, it must be
specially pleaded or noticed.^"®
1417 Justification; plea or notice, nature
A plea of justification is a new publication of the defamation
when it is filed without an honest belief that it can be sus-
tained.^*^^ But a plea or notice of justification is not conclusive
16* Chicago V. Babcock, 143 HI. i6t Dowie t. Priddle, 216 111. 555.
358, 364 (1892). i«8 Huson v. Dale, 19 Mich. 17,
165 Watson V. Watson, 53 Mich. 34 (1869).
168, 177 (1884). ig9 Freeman v. Tinsley, 50 111.
laeStoudt V. Shepherd, 73 Mich. 497, 499 (1869).
598.
CASE 779
evidence of malice nor an aggravation of damages, if not proven,
as it was at common law.^^^
1418 Justification ; burden of proof, practice
Notwithstanding the filing of a plea of justification in an
action for slander, the plaintiff must first prove the speaking
of the words alleged, before the defendant is bound to make
his defense under his plea.^^^
1419 Justification; plea, requisites
In an action for slander a plea of justification must be co-
extensive with the slander, and need not go farther.i'^2
1420 Justification; notice, sufiiciency
The sufiiciency of a notice of justification in an action for
slander is tested in ^Michigan by the same rules as a notice in
any other action, since the statute of 1846.^^^
1421 Statute of limitations, pleading
A plea of not guilty of the wrongful act within the period
fixed by the statute of limitations is not good, if the original
wrong is not of itself actionable without special damage; for
the reason that the action in such a case is not for the wrongful
act but solely for its consequences. A plea of not guilty is
good if the original wrong is of itself actionable, and the action
is brought solely for the wrongful act, for the plea is then a
complete answer to the declaration. ^'^^
1422 Statute of limitations, plea (D. C.)
And for further plea to the plaintiff's declaration this defend-
ant says that tlie cause of action in said declaration mentioned
did not accrue within years next before the filing of
the above entitled suit,
170 (10415), C. L. 1897; Sec. 3, "2 San ford v. Gaddis, 13 111. 340
c. 126, Kurd's Stat. 1909; Huson (1851).
V. Dale, 19 Mich. 30; Hawser v. its Cresinper v. Reed, 25 Mich.
Hawver, 78 111. 413. 450, 455 (1872).
171 Farnan v. Childs, 66 111. 544, i74 McConnel v. Kibbe, 33 111. 175,
547 (1873). 179, 180 (1864).
780 ANNOTATED FORMS OF PLEADING AND PRACTICE
(Illinois) rita
(Commence and conclude as in Sections 887 and 892) That
the said supposed cause of action in the said additional count
in the said declaration mentioned tiled , did not
accrue to the plaintitl" at any time within tive years next before
the commen'.'ement of this suit in manner and form as the plain-
tiff has above complained against it.
Replication
(Commence and conclude as in Section 028") That the said
cause of action in the said additional count in the siiid declara-
tion did accrue to him within four years next before the com-
mencement of this suit in manner and form as he has above com-
plained against the defendant.
GE>rERAL ISSUE
1423 Nature and effect
A plea of general issue (not guilty) puts in issue all of the
material averments in the declaration and admits the sufficiency
of the respective counts to which the plea is interposed.''^ The
defense of no cause of action or that the defendant is not liable
is good under the general issue in an action on the case.*'®
1424 Forms (D. C.)
The defendant for a plea to the plaintiff's declaration and
to each count thereof says that it is not guilty as alleged.
(Florida)
Now comes the defendant by , its attorney, and
for a plea says, that it is not guilty.
(Illinois)
And the said C D, defendant in this suit, by , its
attorney, comes and defends the wrong and injury, when, etc.,
and says that it is not guilty of the said supposed trespasses above
laid to its charge, or any part thereof, in manner and form as
the said plaintiff hath above thereof complained against it ; and
of this it, the said defendant, puts itself upon the country.
175 Chicago & Northwestern Ry. itc Denver Township v. White
Co. V. Goebel, 119 111. 515. 521 River Log & Booming Co., 51 Mich.
(1887); Wenona Coal Co. v. Holm- 472 (1883).
quist. 152 ni. 581, 591, (1894);
Louisville, X. A. & C. Ry. Co. v.
Red, 154 lU. 95, 96 (1894).
CASE 781
(Maryland)
The defendant, by , his attorney, for plea to the
plaintiff's declaration in the above case filed, says that he did
not commit the wrongs alleged.
(Mississippi)
Comes the defendant, , by his attorney, and for
plea says that he is not guilty in manner and form set forth
in plaintiff's declaration herein; and of this he puts himself
upon the country.
(West Virginia)
And the defendant for plea in this behalf says that he is not
guilty of the grievances above laid to his charge in the manner
and form as the plaintiff hath above thereof complained against
him ; and of this he puts himself upon the country.
VERDICT
1425 Florida
We, the jury, find for plaintiff and assess his damages at
dollars.
So say we all.
Foreman.
1426 Illinois, dram-shop
In an action brouglit under the Dram-Shop act against a
saloonkeeper and the owner of the premises jointly, the form
of verdict is correct if against both.^^'
1427 Illinois, general
Plaintiff
We, the jury, find the defendants guilty as alleged in the
declaration, and we assess the plaintiff's damages at the sum of
dollars.
Defendant
We, the jury, find the defendants not guilty.
Verdict for one and against another:
We, the jun-, find the defendant, , guilty as
alleged in the declaration, and we assess the plaintiff's damages
at the sum of dollars ; and we the jury find the
defendant, , not guilty.
177 Triggs V. Mclntyre, 215 111.
369, 376 (1905).
782 ANNOTATED FOKMS OF PLEADING AND PKACUCL
1428 Mississippi
We, the jury, find for the plaintiff and assess tlie damages
at dollars.
"We, the jury, find for the defendant,
1429 Virginia
We, the jury, on issue joined, find for the plaintiff, and we
assess his damages at dollars.
1430 West Virginia
We, the jury, upon the issue joined find for the defendant.
, Foreman.
JUDGMENT
1431 Requisites
In an action for the unlawful sale of intoxicating liquors, the
judgment should not attempt to distribute the amount recoven-d ;
but if such a distribution is made, it will be regarded as surplus-
age.'^* A judgment against sureties on a saloonkeeper's bond
should be limited to the penalty of the bond.*""
1432 Form (Miss.)
(For commencement and conclusion see Chapter XCV) It
is therefore considered by the court that the plaintiffs, ,
recover of and from the defendants the mayor and boards of
aldermen and councilmcn of the city of , a mu-
nicipal corporation, the sum of dollars and all costs of
suit : for all of which let execution issue.
1433 Appeal
A plaintiff is not required to appeal from a judgment ren-
dered in favor of a co-defendant to an action for a several
tort. 180
iTsHelmuth v. Bell, 150 HI. 263, i8o Schmidt v. Chicago City Hy.
269 (1894). Co., 239 111. 494, 499 (1909).
1T9 Merrinane v. Miller, 157 Mich.
279, 285 (1909).
CHAPTER XXIII
PERSONAL INJURIES
CAUSES OF ACTION I
GENERALLY
§§
143-4 Cause of action defined
1435 Accident
NEGLIGENCE
1436 Actionable negligence
1437 Cause, proximate; test
1438 Cause, proximate; law and
fact, practice
1439 Concurrent causes, parties
1440 Contributory negligence, law
and fact
1441 Due care, law and fact
1442 Damages, scope
1443 Negligence at common law,
law and fact
1444 Statutory violations
BESPONDEAT 8UPEBI0B
1456 Warning of danger
1457 Rules and customs
1458 Foreman's negligence
1459 Concurrent negligence, fel-
low-servant, law and fact
1460 Rest period
1461
1462
14G3
14C4
1465
1466
1467
1468
1469
1445 Doctrine
1446 Gist of action
1447 Application of doctrine, char-
itable institutions
1448 Application of doctrine, mu-
nicipalities
PABTIES
1449 Aliens
1450 Husband and wife
1451 Joint wrongdoers; master
and servant
1452 Lessor and lessee
MASTEB AND 8EBVANT
1453 Liability, scope
1454 Appliance and machinery
1455 Safe place
Municipality ; notice, neces-
sity
Municipality ; notice, requi-
sites
Municipality; notice, form
Municipality; notice, service
Next of kin
Principal and agent, non-
feasance and misfeasance
Public officials, agents and
contractors
Railroad companies, unusual
dangers
Trespassers and licensees
JURISDICTION
1470 Injury and death In another
state
1471
1472
1473
1474
1475
1476
1477
1478
1479
DECLARATION
Joinder of causes of action,
damages
Venue, demurrer
Character of defendant
General requisites
Duty, averment
Negligence; averment, proxi-
mate cause
Negligence; ordinance or
statute, pleading
Negligence; receivers
Negligence; wanton and wil-
ful, practice
783
784
ANNOTATED FORMS OP PLEADING AND PRACTICE
§8
1480 Negligence; proof, presump-
tion
1481 Notice or knowledge; aver-
ment, proof
1482 Due care; averment, unavoid-
able, test
14a*i Due care. Injury to child
1484 Due care, proof
1485 Custom, proof
14W Fellow-servant, proof
1457 Assumotl risk, instructions
1458 Injury, place
1480 Notice to municipality
1490 Survivorship; averment,
practice
1491 Survivorship, proof
1492 Ad damnum
149.T Aniendment. next of kin
1494 Words and phrases, "neces-
sary"
SPECIAL CAUSES AND
DECLARATIONS
1495 Air shaft, Narr.
149G Appliances or instrumentali-
ties; declaration requisites
1497 Attractive machinery; action,
law and fact
1498 Attractive machinery; coal
conveyor. Narr.
1499 Attractive machinery; tor-
pedo in railroad shop,
Narr.
1500 Backing train. Injury to flag-
man. Narr.
1501 Backing train, injury to pas-
senger. Narr.
1502 Boiler bursting. Narr.
1503 Brakes defective. Narr.
1504 Bridgfe. collapse. Narr.
1505 Bridge, guards or railings,
Narr.
1506 Bridge, railroad; "traveler,"
Narr.
1507 Bridge, repair, Narr.
1508 Bridge, spanned partly. Narr.
1509 B r 1 d g e-tender's negligence,
action
69
1510 Careless driving; minor in-
jured, Narr.
1511 Careless running of stret t
car; laborer Injured, Narr.
1512 Careless running of street
car; peiiestrian Injured,
Narr.
1613
1514
1515
15 ir,
1517
I.'IS
1510
1520
1521
1522
152.3
1524
1525
l.-i2r,
1527
1528
1529
1530
1531
1532
1533
1534
1535
1536
COLLISIONS
Automobile and street car,
Narr.
Down grade collision, Narr.
Elevateil trains. Narr.
Street far and buggy, Narr.
Street car and tire en;;ine,
Narr.
Street car and wagon. Narr.
Two steam trains, Narr.
Two street cars, Narr.
Couplers defective; assuming
risk, proof
Couplers defective; brakeniaii
injurctl. Narr.
Couplers defective; switch-
man injure<l. Narr.
Dangerous premises; Invita-
tion, action
Depot grounds; trespassers,
action, proof
Depot grounds. Narr.
Derrick Injury, Narr.
Drover's unsafe place, Narr.
Electric light, action
ELECTRIC POWER INJURIES
Bridge wires, dangerous prox-
imity. Narr.
Bridge wires ; insulation de-
fective, Narr.
Poles ; cross-arms defective,
Narr.
Poles ; defective, action.
Poles ; guards lacking, Narr.
Transformer defective, con-
sumer injured. Narr.
Transformer defective, in-
spector injured, Narr.
PERSONAL INJURIES
785
1537 Wire conductors uninsulated,
Narr.
1538
1539
1540
1541
1542
1&43
1544
1545
ir.-JG
1547
1548
1549
1550
1551
1552
1553
1554
1555
155G
1557
1558
1559
1560
15G1
1562
1563
1564
1565
Elevator, apartment building,
action
Elevator, appliances and con-
struction defective, Narr.
Elevator shaft unguarded,
Narr.
Excavation or pit unguarded,
Narr.
Exhibition of horses, im-
proper management, Narr.
Explosion and panic in street
car, NaiT.
Explosion, carbonic acid gas,
Narr.
Fairs anil carnivals, action
Fairs and carnivals, Narr.
Fenders defective. Narr.
Fenders or headlights, Narr.
Fencing rlglit of way, action
Fire communicated by loco-
motive engine, Narr.
Footboard on engine pilot de-
fective. Narr.
Foundation wall, collapse,
Narr.
Frightening horses or mules,
automobile ; Narr.
Frightening horses, noise of
machinery. Narr.
Frightening horses, street car
whistle, Narr.
Hazardous occupation, action,
damages
Hazardous occupation, Narr.
Independent contractor, ac-
tion, respondeat superior
Independent contractor, Narr.
"Jim Crow" car, white i^erson
compelled to ride in. Narr.
Ladles, adjusting. Narr.
Ladles, incompetent servant,
Narr.
Ladle oven, collapse, Narr.
Ladles, spattering, not
warned, Narr.
Loading and unloading cars,
s§
car shoved without warn-
ing, Narr.
1566 Loading and unloading, sup-
ports removed, Narr.
1567 Loading and unloading,
switch engine run into,
Narr.
1568 Loose rail, Narr.
1569 Man-hole frame on pavement,
Narr.
1570 Manufactured articles, action
1571
1572
1573
1574
1575
1576
1577
1578
1579
1580
1581
1582
1583
1584
1585
1586
1587
1588
1589
1590
1591
1592
1593
1594
1595
1596
1597
MINE INJURIES
Mining act, nature and scope
Parties
Declaration requisites
Collision, Narr.
Coupling cars, Narr.
Dangerous condition, action
Dangerous condition, gob,
Narr.
Dangerous condition, live
wire, Narr.
Elevator, air-breal£ defective,
Narr.
Explosion, Narr.
Hole unguarded, Narr.
Insufficient light, Narr.
Props, action
Props, Narr.
Tools, machinery defective,
action
Tramway track, construction,
action
Trapper, ventilation, action
Trapper, want of, Narr.
Motor or trolley unsafe, Narr.
Moving steam cars, action
Moving street cars, action
Nitric acid, workman injured,
Narr.
Obstruction in street, Narr.
Open switch, Narr.
Pile of barrels In packing
house, Narr.
Poisonous food stuffs, Narr.
Premises unsafe, action
786
ANNOTATED FORMS OF PLEADING AND PRACTICE
1598 Protecting property from an-
other's iH'Kll^jence, action
1509 Pulley burstiiiK. uJHcblnlst In-
jured, Narr.
IGOO Railroad crossing, gate ordi-
nance, action
IGOl Railroad crossing, Narr.
1002 Railroad platform. Narr.
1003 Roof, covered hole. Narr.
1604 Running board of street car,
Narr.
1005 Scaffold Injury. Narr.
IGOG Scenic railway, action
1007 Scenic railway, Narr.
1G08 Shafts and openings unpro-
tected, action
1600 Shafts and oi>enlngs unpro-
toctetl, Narr.
SIDEWALK INJURIES
1610 Generally
1611 Declaration requisites
1612 Elevated private sidewalk,
Narr.
1613 Hole or washout, Narr.
1014 Loose plank, Narr.
1615 Obstructed sidewalk, Narr.
1616
1617
1018
1019
1020
1021
1022
1623
1624
1625
1626
1627
Stairway and passageway, ac-
tion
Stairway and passageway,
Narr.
Street crossings, action
Street crossing, Narr.
Streets and highways, action
Streets, defective. Narr.
Sudden backing of street car,
Narr.
Sudden starting of meat
chopper, Narr.
Sudden starting of street car,
alighting, action
Sudden starting of street car,
alighting, Narr.
Sudden starting of street car,
boarding, Narr.
Sudden stopping of street car,
Narr.
1028 Switch defective, Narr.
1029 Switching, statute, violation
1030 Switching, negligent, Narr.
1631 Swing, aerial, action
1(>,'{2 Swing, aerial, Narr.
1633 Tracks In close proximity.
Narr.
1634 Train service. Incompetent,
Narr.
1635 Trtn^tle accident, Narr.
ir>30 rngiiarded machinery, action
1637 Ungiiarded machinery, dec-
laration, sutliclency
10.38 T'nguarded machinery, Narr.
Itr.O I'nsea worthy vessel, Narr.
1(;40 Wrongful death, action, na-
t\ire
1641 Wrongful death, action, dis-
tinctions
1642 Wrongful death, notice
BILL OF PARTICULARS
1043 Motion
10i4 Bill of ixirtlculars
DEMURRER
1645 Form
SPECIAL DEFENSES, PLEAS,
ETC.
ASSUMED BISK
1040
Origin of doctrine
1047
l>o<trine of assumed risk
1648 Scope of doctrine.
law
and
fact
1649 Presumptions
1650 Promise to repair.
law
and
fact
1651
Unknown risks
1052
Obeying con)mand
1053
Dangerous places
1054 Ordinary tools
10.55
Personal and statutory duties
10.50
Minors
1057
Pleading, general issue
1658 Law and fact
PERSONAL INJURIES
787
CONTRIBUTORY NEGLIGENCE
§§
lGo9 Doctrine
IGGO Rules of employment
1G61 Minors, brother's negligence
1G62 Minors, parent's negligence
1G63 Mining act
16&4 Railroad crossing, negligence
1G65 Pleading and practice
1GG6 Plea, replication, rejoinder
1667 Law and fact
FELLOW-SERVANT
1668 Doctrine
16G9 Strangers
1670 Concurrent negligence
1671 Vice-principal
1G72 Miners
1G73 Law and fact
MINE INJURIES
1674 Class legislation
1675 Dangerous places
1G7G Wilful violation of statute
1677 Ordinarj- care, law and fact
RELEASE AND SETTLEMENT
1678 Covenant not to sue and re-
lease, distinction
1679 Employer's liability, release,
fraud
1680 Law and fact
1681 Plea
1682 Replication
1683 Rejoinder
1684 Res ipsa loquitur
1685 Sidewalk accidents
1686 Statute of limitations, pleas
1687 Statute or ordinance, viola-
tion
GENERAL ISSUE
1688 Notice of claim
1689 Ownership and control
1690 Release and settlement
1691 Survivorship
GROUNDS OF DEFENSE
1692 Form
MISCELLANEOUS
1693 Assignment of right of action
1694 Assignment and retainer
1G95 Attorneys' fees, motion
1696 Attorneys' fees, judgment
attorney's lien
1697 Nature and scope
1698 Notice
1699 Petition, filing
1700 Petition
1701 Order
CAUSES OF ACTION GENERALLY
1434 Cause of action defined
In personal injuries, the cause of action is the act or thing
done or omitted to be done of the defendant towards the plain-
tiff which causes the grievance for which the law gives a
remedy.^ The gist of the action is the defendant's negligence.^
1435 Accident
Xo action is maintainable for a personal injury which is the
result of pure or unavoidable accident. Ordinarily, an occur-
1 Swift Co. V. Gaylord, 229 111. Iron & Steel Co., 241 111. 372, 378
330. 3.'^4 (1907); South Chicago (1909).
City Rv, Co. V. Kinnare, 216 111. 2 Pennsylvania Co. v. Conlan, 101
451, 452 (1905); Lee v. Republic 111. 93, 103 (1881).
788 ANNOTATED FORMS OF PLEADING AND PRACTICE
rence is designated a.s purely accidental when its real cause
cannot be traced or the cause is not apparent. ^ Where there is
negligence, there is no unavoidable accident and the person or
corporation who is guilty of negligence is liable.'* A party may
recover for an injury which is the result of another's negligence
as an efficient cause combining with in»'vitable accident or in-
animate thing, while the injured or deceased party was in the
exercise of ordinary care for his own safety.'*
NEGLIGENCE
1436 Actionable negligence, law and fact
Actionable negligence is i)ased upon the want of ordinary
care and skill toward a person to whom the defendant owes a
legal duty in that regard and an injury results from a breach
of that duty, and none other." In Illinois, there are no degree s
in actionable negligence."
1437 Cause, proximate; test
No cause of action exists lor a violation of a duty which is not
the proximate cause of the injury.** A negligent act is the prox-
imate cause of an injury, if the conse(|uences follow in un-
broken sequence from the wrong to the injuiy, without any effi-
cieut cause intervening, and if, l)y the exercise of ordinary euro
at the time of the negligence, the wrongdoer might have fore-
seen that some injury might result from the negligence, although
the particular injurious consequences and the precise manner
of their infliction could not reasonably have been foreseen.® The
nearest independent cause which is adequate to produce and docs
bring about an injury is its proximate cause and supersedes any
remote cause. ^"^
3 Chicago & Eastern Illinois R. 7 Chicago, Rock Island & Pacific
Co. V. Reilly, 212 111. 506, 511 Rv. Co. v. Hamler, 215 111. 525, 532,
(1904); Lewis v. Flint & Pere 541 (1905).
Marquette Ry. Co., 54 Mich. 55 » Cook v. Big Muddv-Carterville
(1884). Mining Co., 249 111. 41, 50 (1911).
* Flanagan v. Chicago City Ry. Co., o Heiting v. Chicago, Rock Island
243 111. 456, 460 (1910). & Pacific Ry. Co., 252 111. 466, 474
5 Commonwealth Electric Co. v. (1911); Seith v. Commonwealth
Rose, 214 111. 545, 554 (1905); Illi- Electric Co., 241 111. 252, 259
nois Central R. Co. v. Siler, 229 111. (1909); Illinois Central R. Co. v.
390, 397 (1907); Yarber v. Chicago Siler, 229 111. 390, 394 (1907).
& Alton Ry. Co., 235 lU. 589 (1908). lo Yeates v. Illinois Central R. Co.,
Gibson v. Leonard, 143 111. 182, 241 111. 205, 211 (1909).
189, 193 (1892).
PERSONAL INJURIES 789
1438 Cause, proximate; law and fact, practice
The question of proximate cause of an injury is ordinarily a
question of fact, to be determined by the jury from a consid-
eration of all the attending circumstances. It might, however,
arise as a question of law or pleading when the facts are not
disputed or they are such that there can be no difference in
the judgment of reasonable men as to the inferences to be
drawn from them.^^ The proximate cause of an injury is a
question of fact where the evidence is conflicting. ^2 "W'hen the
proximate cause is a question of fact, it should be submitted to
the jury under proper instructions.^^
1439 Concurrent causes; parties
For an injury produced by two causes acting at the same
time, the party who, himself or by his agent or representative,
puts in motion the essential or proximate cause of injury is
liable for the same.^'* Either or both parties may be held respon-
sible for the consequences resulting from their combined negli-
gence when it constitutes the proximate cause of the injury.*'*
1440 Contributing negligence, law and fact
Contributory negligence that is the proximate cause of an
injury will defeat a recovery.'" A person who exercises a de-
gree of care that is required of a reasonably prudent person
under the same circumstances is not guilty of contributory neg-
ligence.'^ The negligence of a companion or driver will not
excuse a party's own negligence in not taking proper precaution
to avoid injury.'^ Whether a person has exercised the neces-
saiy degree of care that is required of him must be determined
from a consideration of all of the circumstances leading up to
"Illinois Central R. Co. v. Siler, ClOO^) ; Seigel, Cooper & Co. v.
229 111. 393; Nail v. Taylor, 247 111. Trocka, 218 111. 559, 562 (1905).
5S0, 585 (1910) ; Heiting v. Chicago, i'' Chicago & Alton R. Co. v. Har-
K. I. & P. Ry. Co., 252 111. 472. rington, 192 111. 9, 29 (1901).
12 Wasc'how V. Kelly Coal Co., 245 i« llynn v. Chicago City Ry. Co.,
m. 516, 520 (1910). 250 111. 460, 464 (1911).
13 Chicago & Alton R. Co. v. Har- i" Rosenthal v. Chicago & Alton
rington, 192 111. 91, 36 (1901). R. Co., 255 111. 552, 556 (1912).
1* Waschow V. Kellv Coal Co., 245 is Flynn v. Chicago City Ry. Co.,
111. 520; Chicago & Eastern Illinois 250 111. 464.
E. Co. V. Kimmel, 221 111. 547, 550
790 ANNOTATED FOKMS OF I'LEADlNCi AND TRACTICE
the occurrence or accident; and where the evidence is conflict-
ing, the question of negligence is for the jury.»»
1441 Due care, law and fact
Due care and caution means the reasonable and prudent
exercise of care by a person for his own safety and to avoid
injury, the exercise of which depends upon all of the conditions
and circumstances that surround the pei-son at tlie time lie is
called upon to act. Age, defective vision or hearing, or other
infirmity, are conditions to be considered in determining whetlier
due care and caution have been used.-" A deaf or blind person
is bound to exercise a greater degree of care for his own safety
than should one who is not thus affected.-^ A i)ai-ty is not
absolved from the necessity to exercise such care as the law
demands, by the presumption that every person will perform
the duty enjoined by law or imposed by contract upon liiin and
that the law does not impase a duty to anticipate negligence in
others.- Voluntary intoxication does not excuse a person from
exercising such care as may reasonably be expected from one
who is sober.23 The exercise of due care is a (piestion of fact
for the determination of the jury under proper instructions.-'
1442 Damages, scope
A party may recover for personal injuries arising from negli-
gence which has been aggravated by organic tendencies and the
treatment of physicians.'- °
1443 Negligence at common law, law and fact
The existence of common law negligence is a question of
fact.-*^ The commission or the omission of an act or a duty made
actionable at common law constitutes common law negligence.
19 Rosenthal v. Chicago & Alton 23 Keeshan v. Elgin, Aurora &
R. Co. 255 111. 557. Southern Traction Co., 229 111. 533,
20 Rosenthal v. Chicago & Alton 537 (1907).
R Co., 255 111. 550, 560. -* Bonato v. Peabody Coal Co.,
21 Toledo, Peoria & Western Ry. 248 111. 422 (1911).
Co V. Hammett, 220 111. 9, 14 25 Chicago City Ry. Co. v. Saxby,
(1906). 213 111. 274, 281 (1904).
22 Schlauder v. Chicago & Southern 26 Butler v. Aurora, Elgin & Chi-
Traction Co., 253 111. 154, 159 cago R. Co., 250 111. 47, 50 (1911).
(1912).
PERSONAL INJURIES 791
1444 statutory violations
Such persons only as are intended to be benefited or pro-
tected by a statute can rely upon its violation as giving them
a cause of action.-'^ A person who is injured as a result of a
violation of an ordinance passed for the protection of members
of his class may maintain an action against the person who is
guilty of the violation and the in jury .28
RESPONDEAT. SUPERIOR
1445 Doctrine
Every person who manages his affairs by an. agent or a ser-
vant is answerable to third persons for damages which result
from the agent's or servant's negligent performance of his work
done in the course of his employment and withui the scope of
his authority.-** An employer is responsible for his own, or his
employee's failure to anticipate the results that naturally fol-
low cither's acts;^" but not for those which cannot be fore-
seen and which the employer is under no moral obligation to
notice.31 An injury which is the result of the fault of an em-
ployee or an agent, concurring with that of the employer, ren-
ders both liable.3^ An employer is liable to third persons for
the negligent conduct of his employee while acting within the
line of his duty and in obedience to the employer's authority,
independently of whether there is any liability of the employee
to the employer.^^
1446 Gist of the action
In an injury- resulting from the negligence of an employee,
■ the employee's negligence is the gravamen of the charge, whether
the action is against the employer severally or jointly with
the employee ; and if the employee is not negligent or is found
not guilty, there can be no cause of action against the em-
ployer
34
27 Gibson V. Leonard, 143 111. 182, 3i Pinkelj v. Chicago & Eastern
196 (1892). Illinois K. Co., 246 111. o'U, Aov
28 Conrad v. Springfield Consoli- (1910). n, ■, n^
dated Ey. Co., 240 111. 12, 16 (1909). 32 Klemfelt v. Somers Coal Co.,
29 Harding v. St. Louis National 156 Mich. 4/3, 4(9 (1909).
Stock Yards, 242 111. 444, 449 33 Star Brewing Co v. Hauck,
(1909) 222 111. 348, 353 (1906).
30 Yeates v. Illinois Central E. 34 Hayes v. Chicago Tel. Co., 218
Co., 241 111. 211. Ill- 414, 418 (1905).
792 ANNOTATED FORMS OF PLEADING AND PRACTICE
1447 Application of doctrine, charitable institutions
The doctrine of respondeat superior has no application unless
the relation of employment exists.^^ The essential elements of
an employment are the power of the employer to dire(;t the em-
ployee with reference to what work he shall do and the manner
in which that work should be performed, and the power to dis-
charge and remove him.-"'" A person who is a general employee
of one party may be hired by his employer to another for some
special service, so as to become, as to such service, the employee
of the other, the test being whether, in the particular service,
the employee continues to be under the direction and control of
his general or special employer. Whether a person is in the
employ of a general or special employer depends upon the
circumstances in each case.^^ The rule or principle of respon-
deat superior has no application to public or private institutions
organized for purely charitable purposes.'^**
1448 Application of doctrine, municipalities
A municipality is not liable, under the doctrine of respon-
deat superior for the negligent acts of its agents or servants
engaged in executing, enforcing or giving effect to its police
ordinances and regulations.^^ This rule is based on the prin-
ciple that the acts of the officers or agents of the municipality
that are illegal and unlawful are ultra vires where a munici-
pality is simply exercising its police power.**^ But a munici-
pality is liable for the negligent acts of its officers or agents
when it is given by statute private or proprietary^ rights for
its benefit and profit, and an injury results through an exer-
cise of these rights.^^
PARTIES
1449 Aliens
An action for personal injuries may be brought for the bene-
fit of a nonresident alien. ^^
35 Harding v. St. Louis National Long's Admrs., 17 Gratt. 375
Stock Yards, 242 111. 451. (Va. 1867).
36 Yeates v. Illinois Central R. ^'^ Tollefson v. Ottawa, 228 111.
Co., 241 111. 212. 134, ]3S (1907).
37 Harding v. St. Louis National ^i Chicago v. Selz, Schwab & Co.,
Stock Yards, 242 111. 449. 202 111. 545 (1903); Tollefson v.
38 Parks V. Northwestern Univer- Ottawa. 228 111. 137.
sity, 218 111. 381, 384 (1905). -li Guianios v. De Camp Coal Min-
39 Tollefson v. Ottawa. 228 111. ing Co., 242 111. 278, 283 (1909).
134, 136 (1907); Eichmond v.
PERSONAL INJURIES 793
1450 Husband and wife
At common law the husband was required to join his wife in
an action for injuries to her person or reputation.^^ i^ Illi-
nois this rule has no application on account of the Married
Woman's act of 1861. Under this act the wife alone must sue
for injuries sustained by her.** So, in Michigan the wife, and
not the husband, must sue for personal injuries to her.*^
1451 Joint wrong^doers, master and servant
A person is not relieved from liability for his negligent act by
the mere fact that another's negligent act contributed to the
injury.**' Each wrongdoer is responsible for the whole amount
of damages, without apportionment.*^ The employer and an
employee may be joined in an action for personal injuries when
Ihe latter has acted in the capacity of vice-principal and the
injury is the result of the violation of a common duty resting
upon both.*^
1452 Lessor and lessee
The negligent operation of a railway renders the lessor and
the lessee liable for the resultant injury, whether the lesssor is
guilty of actual negligence or not.*'*
MASTER AND SERVANT
1453 Liability, scope
An employer is responsible for the negligent performance
of his personal and positive duties to his employees when the
duties are performed by himself or by any of his employees
and the injury would not have occurred but for such negli-
gence. An employee, of whatever rank or authority who is
authorized by his employer to perform his personal duties is
" Chicago V. Speer, 66 111. 154, *' Devaney v. Otis Elevator Co.,
]56 (1872). 251 111. 28, 39 (1911).
■*4 Chicago V. Speer, supra; Haw- 48 Republic Iron & Steel Co. v.
ver V. Hawver, 78 111. 412, 414 Lee, 227 111. 246, 254 (1907).
n875) 49 Chicago & Eastern Illinois R.
45 Roberts V. Detroit, 102 Mich. Co. v. Schmitz, 211 111. 446, 458
64 67 (1894). (1904) ; Chicago & Western Indiana
46 Flanagan v. Wells Bros. Co., 237 R. Co. v. Newell, 212 111. 332, 335
111. 82, 87 (1908). (1904).
794 ANNOTATED FORMS OF PLEADING AND PRACTICE
a vice-principal.^'^ The persoual duties ol" the eiuployiT are:
the duty to provide reasonably safe machinery and appliances;
the duty to furnish a reasonably safe place in which to
work; the duty to provide for inspection and repair of premises
and appliances ; and the duty to inform immature, ignorant or
unskilled employees of the dangers of the employment.'*
1454 Appliance and machinery
An employer is liable for an injury resulting from defective
appliance or machinery when he has failed to exercise reason-
able and ordinary care and diligence in the selection and sup-
plying of the appliance or machinery causing the injury.'^ j^
person who assumes to furnish employees of an independent
contractor implements or instrumentalities to do the work, is
required to provide reasonably safe and suital)le implements;
and such person renders himself liable to such emi)loyees in
damages for a failure to perform this duty if it results in in-
jury to them.-'"''' The employee is required to notice all patent
and obvious defects which the exercise of ordinary care for his
own safety would discover.^* A party is not liable for an
injury resulting from a latent defect in the material employed
in the construction of machinery, when the machinery was con-
structed of proper material, free from defects, when the known,
usual, and well recognized tests were used in selecting the
machinery, and when experienced, skilful and prudent servants
were employed to use it.^'
1455 Safe place
It is the duty of an employer to use reasonable diligence to
provide his employee with a reasonably safe place in which to
work, and to use reasonable care to maintain the safety of the
place, except where, during the progress of the work and the
workmen engaged in it, the conditions are changing from time
to time; making it impractical to do so, or where it is the duty
soBaier v. Selke, 211 111. 512, 517 52 Orr v. Waterson, 228 111. 138,
(1904) ; Chicago Union Traction Co. 141 (1907); Green v, Sansom, 41
V. Sawusch, 218 111. 130, 136 (1905) ; Fla. 94, 103 (1909).
Odin Coal Co. v. Tadlock, 216 111. ss Green v. Sansom, supra.
624, 628 (1905). 54 Green v. Sansom, supra.
51 Baier v. Selke, supra; Mobile & ss Illinois Central R. Co. v. Phil-
Ohio E. Co. V. Godfrey, 155 111. 78 lips, 49 111. 234, 237 (1868); Toledo,
(1895); Schillinger Bros. Co. v. Wabash & Western Ey. Co. v. Beggs,
Smith, 225 111. 74, 79 (1907). 85 111. 80, 83 (1877).
PERSONAL INJURIES 795
of the employee to make dangerous places safe. This duty is
a continuing one and cannot be delegated to another so as to
relieve the employer from liability for injuries resulting from
its negligent performance.^^
1456 Warning of danger
The employer owes a duty to an employee to warn him of
any peculiar and unusual dangers which might be encountered
in the performance of the employer's work and to warn the
employee of latent and hidden dangers which the employer has
reason to anticipate when the dangers are of such a nature
that the employee, from lack of knowledge may not appreciate
or understand them by an ordinary inspection, although he
might be a man of average intelligence.^''^ The duty of an
employer to warn an employee before he is exposed to the
risk of a dangerous substance used in his employment arises
when the substance is liable to injure a person who might
handle it, when the employer knows, or by the exercise of ordin-
ary diligence might know that the substance is dangerous and
capable of producing injury, and when the employee does not
know that the substance is dangerous and likely to injure him,
and he has no equal opportunity with his employer of know-
ing thereof at the time of the injury.^^ An employer is not
liable for an injury to an employee when it is the result of a
failure to warn him of dangers which are patent to ordinary
intelligence.^^
1457 Rules and customs
An employer who conducts a business with different branches
owes a duty to his employees to make, publish and enforce rea-
sonable rules and regulations for the promotion of their safety ;
but the failure to perform the duty will not excuse the em-
ployer from recognizing an employee's custom having the effect
of promoting such safety,^**
BO Montgomery (Village) v. Eob- Illinois R. Co., 246 111. 370, 377
ertson, 229 111. 466, 472 (1907); (1910).
Kellevville Coal Co. v. Bruzas, 223 59 Montgomery (Village) v. Eob-
111. 595. 601 (1906); Illinois Steel ertson, 229 111. 471.
Co. V. Ziemkowski, 220 111. 324, 331 eo Yeates v. Illinois Central R. Co.,
(1906). 241 111. 210; St. Louis National
57 Postal Telegraph-Cable Co. v. IStock Yards v. Godfrey, 198 111. 288,
Likes, 225 111. 249, 260 (1907). 294, 295 (1902).
58 Pinkley v. Chicago & Eastern
796 ANNOTATED FORMS OF PLE.\D1NG AND FEACTlCi:
1458 Foreman's negligence
When the injury is the result of a foreman's negligent per-
formance of his duties as foreman, the employer is liable, but
not when it is the result of and act as a fellow-servant.^^
1459 Concurrent negligence, fellow-servant, law and fact
The employer is responsible for the negligence of fellow-ser-
vants concurring with his negligence which constitutes the prox-
imate cause of the injury.*'- Whether servants of a coiunioii
employer are fellow-servants, is a question of fact to be deter-
mined from all of the circumstances in each case, unless the
facts are conceded or there is no dispute with reference thereto,
and all reasonable men will agree, from the evidence and the
legitimate conclusions to be drawn therefrom, of the existence
of the relation.*'^ The eager and engineer operating cars in a
coal mine are not necessarily fellow-servants,'**
1460 Rest period
An employer is liable for an employee's negligence during
his rest period, if the act which has resulted in injury is within
the scope of his duties.**^
1461 Municipality; notice, necessity
The statutory notice to a municipality of a claim for per-
sonal injuries must be given before and not after suit has been
commenced. The giving of the notice is one of the essential
elements of a good cause of action against a municipality and
must exist at the time of the commencement of the action
against it.^^ The statutory requirement of notice to a munici-
pality in cases of personal injuries extends to municipal em-
ployees and is valid.*^^
eiBaier v. Selke, 211 111. 516. eeLangguth v. Glencoe, 253 111.
«2 Yeates V. Illinois Central R. Co.. 505, 507, 509 (1912); Pars. 6 and
241 111. 213; Sturm v. Consolidated 7, c. 70, Kurd's Stat. 1909, p. 1247.
Coal Co., 248 111. 20, 31 (1910). ei Condon v. Chicago, 249 111. 596,
63 and 64 Sturm V. Consolidated 599, 600 (1911) ; Sec. 2. Laws 1905,
Coal Co., 248 111, 28. p. Ill (Kurd's Stat. 1909, p. 1248).
65 Tiian v. Illinois Steel Co., 250
HI. 554, 559, 560 (1911).
PERSONAL INJURIES 797
1462 Municipality, notice, requisites
The notice required by statute to be given to a municipality
must state the exact date and hour of the injury or accident.^^s
1463 Municipality, notice, from (Mich.)
State of Michigan, 1
county, I ss.
village. J
To the clerk of the village of , as aforesaid.
Please take notice that I intend to hold the said village of
liable for the damages sustained by me by reason
of injuries to my person caused by the negligence of said vil-
lage as set forth substantially in the statement herewith pre-
sented, under the provisions section 2775 of the Compiled
Laws of 1897 of the state of Michigan as amended, therein also
setting forth substantially the time when and the place where
such injury took place, the manner in which it occurred, and
the extent of such injury, so far as known, the amount of dam-
age for such negligence, and injury, to be hereafter filed with
the common council of said village in accordance with the pro-
visions of section 2754 of the Compiled Laws of 1897, state of
Michigan.
Dated this day of , 19 . . .
Respectfully submitted,
Claimant.
Statement
In accordance with the above notice, the said of
the village of aforesaid, hereby presents to the
council of said village her statement showing the time, place,
manner, and extent of her injuries as far as known, as follows:
That on the day of , 19. ., she, the
said in company with others, was walking west-
ward upon the public sidewalks of said village, to wit, the side-
walk abutting upon and situated on the south side of lot ....
owned by , on the northwest comer of
and streets, in said village, and it then and there
and previously became and was the duty of said village to
have said walk reasonably safe and convenient for public
travel, and the said sidewalk was under the care and control
of the said village and the same was open to public travel;
that said sidewalk was unsafe for public travel; that said
village had knowledge that the said sidewalk was not reason-
ably safe for public travel, and had previously served notice
upon the owner of the premises abutting upon said walk to
rebuild the same; that the said village had sufficient notice
esOiiimette v. Chicago, 242 111.
."501, 507 (1909) ; Condon v. Chicago,
249 111. 602.
798 ANNOTATED FORMS OF PLEADING AND PRACTICE
that the said sidewalk had not been rebuilt, but had neg-
ligently failed to cause the same to be repaired or rebuilt, so
that the sidewalk would be reasonably safe for pedestrians
and for public travel after said village had had reasonable
opportunity so to do ; and because of such neglect the said
, while walking along said sidewalk, in the dark-
ness of the evening, to wit, about the hour of .... o'clock
p. m., when within about feet from the west
end of said sidewalk, and without carelessness or negligence
upon her part was tripped by a loose plank, and thrown to
the ground. And by reason thereof, and the negligence of said
village as aforesaid in not constructing or repairing said side-
walk after notice that the same was not safe for public travel,
and after having a reasonable opportunity so to do, the said
then and there became and was greatly hurt,
bruised, wounded, the ligaments of the right shoulder rup-
tured, causing this claimant to become sick, sore, lame, and
disordered; and she will so continue for a long space of time.
And also because of said negligence the said
has been compelled to pay and has incurred an indebtedness,
and will be obliged to pay in the future large sums of money
to defray the expense in the employment of a physician. And
also because of the negligence aforesaid on the part of the
said village the said has been since the said
day of , 19 . . , and will for some time in
the future be unable to perform her duties and resume her
employment. And also, by reason of the negligence of the
village as above said, the claimant, has suffered,
and will continue to suffer, great bodily pain and anguish.
And your claimant, , further gives notice that, as
soon as she is able to ascertain and determine the extent of her
injuries by reason of the negligence of said village as aforesaid,
she intends to file with said village council an itemized state-
ment of her claim or account as provided by said section 2754
of the Compiled Laws of 1897.
Account
Village of
In account with Dr.
For damages and injuries sustained by reason of the neg-
ligence of the village as fully set forth in the notice of inten-
tion to hold said village liable for damages filed with the
village clerk of the village of , aforesaid, on the
day of , 19 . . , as follows :
To loss of time from the
to the , being
weeks at $ per week $.
To board during said time at $
per week $ .
PERSONAL INJURIES 799
To doctor's bill and expense incurred
therefor $ .
To nursing and care during
weeks of said period at $ per
week $ .
To mental anguish, pain and suffering
by reason of the negligence of said
village $.
To future damages, pain and suffering
and loss of time by reason of the
negligence of said village as aforesaid $.
Total $.
State of Michigan, ^
county.
, the above named claimant of the village of
, in the said county, being duly sworn, deposes
and says that the above account is true and correct; that the
sums charged for the damages sustained and the loss incurred
as above set forth are reasonable and just; that to the best
of her knowledge no set-off exists nor payment made on
account thereof; and that there is now due from said village
to this deponent for the injuries sustained by reason of the
negligence of said village as aforesaid, the sum of
dollars.
Subscribed, etc.'''^
1464 Municipality, notice, service
The service of the notice required by Illinois statute may be
had upon the village clerk if the action is to be brought against
a village, by filing the same in his office, where the village has
no regular licensed village attorney who maintains an office or
place of business.'^'' The particular mode of service of written
notice or a statement of the injury required to be made by stat-
ute is not binding upon the injured party, unless it clearly ap-
pears that there was a licensed attorney duly appointed for the
municipality who has an office at a fixed place, that the person
who has been injured by the negligence of the municipality may
know with reasonable certainty with whom and in what place to
file the notice.'^ 1 Courts do not take judicial notice of offices
created by ordinance, as the office of city attorney.' ^
«9Hawley v. Saranac (Village), (Village), 247 111. 522, 525, 526
157 Mich. 70 (1909); (2754), (1910) ; Sec. 2, Laws 1905, p. 111.
(2775), C. L. 1897. 72 Condon v. Chicago, 249 111. 602.
70 and 71 Donaldson v. Dieterich
800 ANNOTATED FORMS OF PLEADING AND PRACTICE
1465 Next of kin
Parents, as next of kin, have a cause of action for injuring or
killing a minor child, on the ground that they are entitled to
the child's services until the child reaches majorityJ^
1466 Principal and agent, nonfeasance and misfeasance
An agent is not always liaMe to third persons. For a mere
nonfeasance or nonperformance of a duty, the agent is liable
solely to his principal. For misfeasance or the improper per-
formance of a duty, the agent is liable to tliird persons injured
by such negligence.''*
1467 Public officials, agents and contractors
The public ofhcers and agents are lia])le for their o\^ti per-
sonal negligence in the discharge of their duties, but they are
exempt from liability for acts or defaults of inferior officials in
the public service, whether appointed by them or not. A con-
tractor with the government for the transportation of the mails
is not engaged in a public service within the meaning of the
foregoing rule and is liable to a mail clerk for an injury sus-
tained by him in a collision caused by the contractor's sen-ant's
negligence.''^
1468 Railroad companies, unusual dangers, free pass
A common carrier of passengers is bound to exercise greater
precaution toward a passenger who is in a dangerous position
by its consent than it has in a case of a passenger who is not in
that condition ; and a passenger who is in an unusually danger-
ous position when traveling is required to use a greater degree of
care for his own safety than he would otherwise be required to
exercise."'^ A free ticket or pass which contains the usual con-
ditions exempts the railroad company from liability for an injury
to the person who travels upon the pass, except where the rail-
road company is guilty of gross or wilful negligence in operat-
ing its railroad trains.''''
73 Chicafjo & G. T. Ry. Co. v. Gaei- " ^^ath v. Chicago City Ey. Co.,
nowski, 155 111. 185, 191 (1895). 243 111. 114, 120, 121 (1909).
74 Consolidated Gas Co. v. Connor, " Toledo, Wabash & Western Ry.
114 Md. 140, 156 (1910). Co. v. Beggs, 85 111. 80, 84 (1877).
75 Barker v. Chicago, P. & St. L.
By. Co., 243 111. 482, 486 (1910).
PERSONAL INJURIES 801
1469 Trespassers and licensees
A railroad company owes a trespasser upon its right of way
or a licensee no duty other than that to abstain from wantonly
and recklessly injuring him, and is bound to use only reasonable
care to avoid injuring him after he is discovered to be in a
perilous situation."^ So, the owner of land and buildings as-
sumes no duty to one who is on his premises by permission
alone as a mere licensee, whether under license from the owner
or by law, except that the owner shall refrain from wilful or
affirmative injurious actsJ''
JURISDICTION
1470 Injury and death in another state
No action can be maintained in Illinois for a wrongful act
and death which have taken place in another state, whether the
action be based upon the foreign or Illinois st-atute.**^
DECLARATION
1471 Joinder of causes of action, damages
By special statutory provision in Illinois, counts in trespass
and counts in case may be joined in the same declaration or
action.*^ Injuries to the person and damages to his property
may be joined in a single count, where the injuries and the
damages result in the same manner and from the same negli-
gent or unlawful act of the defendant, where they are coincident
in time, and where the causes of action accrue to the plaintiff
in the sajiie right and against the defendant in the same char-
acter or capacity .®2 j^ count based upon the Survival act and
a count under the Death act may be joined in Michigan in one
action because the right of action in both cases is vested in the
personal representative of the estate and the remedy is of a
nature requiring such joinder of counts.*^ In actions ex delicto
78Bartlett v. Wabash R. Co., 220 (Kurd's Stat. 1911, p. 1290); Sec.
111. 163, 165 (1906); Thompson v. 1, art. 4, Federal constitution; Par.
Cleveland, Cincinnati & St. Louis Ry. 1, sec. 2, art. 4, Federal constitution.
Co., 226 111. 542, 545 (1907); si Krug v. Ward, 77 111. 603, 605
Blanchard v. Lake Shore & M. S. (1875); Barker v. Koozier, 80 111.
Ry. Co., 126 ni. 416, 424 (1888). 205, 206 (1875).
79 Gibson v. Leonard. 143 111. 182, 82 Chicago West Division Ry. Co.
189 (1892) ; Casey V. Adams, 234 111. v. Ingraham, 131 111. 659, 665
350, 355, 356 (1908). (1890).
80 Dougherty v. American Mc- ssCarbary v. Detroit United Ry.,
Kenna Process Co., 255 111. 369, 370 157 Mich. 683, 684 (1909).
(1912); Sec. 2, Injuries act
802 ANNOTATED FORMS OF PLEADING AND PRACTICE
there may be a recovery against a single defendant under a
declaration which charges joint negligence against several.**
1472 Venue, demurrer
In an action against a railroad company for personal injuries,
the declaration should aver that the railroad owned by de-
fendant and used by it was used in the county and state in
which the action is brought ; the failure to so aver, however, can be
taken advantage of only by demurrer.®'*
1473 Character of defendant
An averment that the village of (naming it) a municipal cor-
poration of the state of (naming it) is sufficient to show the
corporate existence and character of the defendant®^
1474 General requisites
Three elements are essential to the statement of a good cause
of action for negligence, namely: the existence of a duty on
the part of the person who is charged to protect the com-
plaining party from the injury that was received; a failure to
perform that duty; and an injury which has resulted from its
nonperformance. The absence of any one of these elements
renders the pleading bad.*" In an action for personal injuries
against more than one defendant, the statement of a cause of
action must be complete, in itself, against each one of the de-
fendants without the aid of allegations against the other.**
1475 Duty, averment
Duties may be general and o\nng to everybody, or particular
and owing to a single individual, by reason of his peculiar
position. A general duty becomes personal and particular when
84 Linquist v. Hodges, 248 HI. 491, 263 (1907) ; Greinke v. Chicago City
495 (1911). Ry. Co., 234 111. 564, 567 (1904);
85 Chicago & Rock Island R. Co. Hackett v. Chicago City Ry. Co., 235
V. Morris, 26 111. 400, 402 (1861). 111. 116, 132 (1908); East St. Louis
88 Clark V. North Muskegon, 88 Connecting Ry. Co. v. Meeker, 229
Mich. 308, 309 (1891). 111. 98, 106 (1907); McAndrews v.
87 Devaney v. Otis Elevator Co., Chicago, Lake Shore & E. Ry. Co.,
251 111. 28, 33 (1911); Bahr- v. 222 111.232,236(1906).
National Safe Deposit Co., 234 111. ss Klawiter v. Jones, 219 111. 626,
101, 103 (1908); Chicago Union 629 (1906).
Traction Co. v. Giese, 229 111. 260,
PERSONAL INJURIES 803
some person is placed in a position giving him special occasion
to insist upon its performance.^^ The declaration must state
facts from which the law will raise a duty, and it is not suf-
ficient to allege that it is the duty of the defendant to do cer-
tain things, as that would be but the averment of a conclusion.^ <*
A duty will not be implied from the mere characterization of an
act as negligent and reckless.^ i If the declaration fails to state
facts from which the law raises a duty owing from the defend-
ant, it will be insufficient to support a judgment.^2 j^ single
count of the declaration may charge several distinct breaches of
duty, and proof of any one of them will entitle the plaintiff
to a recovery.^ 3
1476 Negligence; averment, proximate cause
A declaration for personal injuries must state the specific
act or omission relied upon as constituting a breach of duty
in order that a cause of action may appear therefrom.^^ The
pleader is not required to set out the particular facts constitut-
ing the negligence complained of when they are not within his
knowledge ; and where the act is of a simple character, an alle-
gation of absence of care in its performance is sufficient without
particularly specifying the circumstances."-^ The declaration
must also establish the natural connection between the alleged
wrongful act and the injury and that such negligence contrib-
uted in some degree to plaintiff's in jury .^'^ It is not necessary
to specifically allege that a defendant was negligent and that
his negligence was the result of an injury if facts are stated in
the declaration from which the law raises a duty and which show
an omission of the duty on the defendant's part which resulted
in the injury in question.'''^ An allegation that the defendant
«t» Chicago Union Traction Co. v. o* Klawiter v. Jones, 219 111. 626,
r.iese, 229 111. 260, 263 (1907). 630 (1906); Barnes v. Danville
80 McAndrews v. Chicago, Lake Street Rv. & L. Co., 235 111. 566,
Shore & E. Ry. Co., 222 III. 237; 573 (1908); Thompson v. Qeveland,
Chicago & Alton R. Co. v. Clausen, Cincinnati, Chicago & St. L. Ry. Co.,
173 ill. 100, 105 (1898); Avers v. 226 111.542 (1907).
Chicago, 111 111. 406, 412 (1884) ; os Chicago City Ry. Co. v. Jen-
Sargent Co. V. Baublis, 215 111. 428, nings. 157 111. 274, 280 (1895).
431 (1905). sa Keeshan v. Elgin, Aurora &
91 McAndrews v. Chicago, Lake Southern Traction Co., 229 111. 533,
Shore & E. Ry. Co., 222 111. 232, 536 (1907); McGanahan v. East St.
239 (1906). Louis & Carondelet Ry. Co., 72 111.
92 Langan v. Enos Fire Escape Co., 557, 558 (1874).
233 111. 308. 311, 312 (1908). 97 Nail v. Taylor, 247 111. 580, 586
03 Postal Telegraph-Cable Co. v. (1910).,
Likes, 225 111. 249, 258 (1907).
804 ANNOTATED FORMS OF PLtLVDlNG AND PRACTICE
was guilty of negligence in failing to perform a specified duty
sufficiently avers the ultimate fact of negligence.^^ In West
Virginia the acts of omission or commission constituting the
negligence or wrong need not be stated particularly .»»
A plaintiff cannot recover for negligent acts which are not
averred in the declaration, even if such acts caused the injury ;
as he must recover, if at all, upon the cause stated in his decla-
ration. 10 ^^ A declaration which defectively states negligence is
cured after verdict.^^^
1477 Negligence; ordinance or statute, pleading
A declaration which sets up a violation of a statute or ordi-
nance is good, and the advantage of pleading the statute or ordi-
nance is that proof of its violation establishes prima facie acts
of negligence.i"2 The violation of mimicipal ordinance by the
defendant must "be specially pleaded.i*^^
1478 Negligence; receivers
In an action against a receiver of a corporation for personal
injuries, the declaration must allege that the receiver had pos-
session or control of the property causing the injury, and it
must charge him with negligence, i''*
1479 Negligence ; wanton and wilful, practice
In personal injury cases a plaintiff should always include in
the declaration a count charging wanton and wilful negligence
if there is any evidence to sustain it.^^^
1480 Negligence; proof, presumption '
A plaintiff may prove a part of a divisible charge of negli-
gence; i*^® and he is not bound to prove an allegation of concur-
98 Chicago & Eastern Illinois E. Stoltenberg, 211 111. 531, 537, 538
Co. V. Kimmel, 221 111. 547, 551 (1904). . , o,
/29Qg\ 103 Blanchard v. Lake Shore &
99 Hawker v Baltimore & Ohio R. Michigan Southern Ry. Co., 126 111.
Co., 15 W. Va. 628, 635 (1879). 416, 425 (1888).
100 Crane Co. v. Hogan, 228 111. i04 Henning v. Sampsell, 236 111.
338, 344 (1907); Lyons v, Ryerson 375, 379, 380 (1908)-
& Son ^42 111. 409, 415 (1909). los Belt Ry. Co. v. Skszypczak, 225
101 Illinois Terra Cotta Lumber 111. 242 (1907) ; Thompson v. Cleve-
Co V Hanley "14 HI- 243, 245 land, Cincinnati, Chicago & St. L.
(1905) ; Sargent Co. v. Baublis, 215 Ry. Co., 226 111. 542, 544 (1907)
Til 4^"- Barker v Koozier, 80 111. loe Guianios v. De Camp Coal Min-
206, 207 (1875). " i"g Co., 242 111. 278, 281 (1909).
102 United States Brewing Co. v.
PERSONAL INJURIES 805
rent negligence of two or more deiendants, but he may prove
negligence sufficient to produce the injury of either of the de-
fendants, lo'^ A charge of wilful and wanton negligence is suffi-
ciently proved to sustain a judgment without proving the wil-
fulness or wantonness of the negligence, on the principle that in
actions of tort a plaintiff may prove a part of a divisible charge
of negligence, and the charge of wilful negligence is divisible.^*^'^
In some cases and under some circumstances, negligence may
be inferred from proven or admitted facts. ^'^'^
1481 Notice or knowledge; averment, proof
In personal injuries, the declaration must allege knowledge
or facts from which it necessarily appears that the employer
knew or had notice of a defect or a neglect of duty, unless the
duty or act is of such a nature that an allegation of its nonper-
formance or performance necessarily involves notice and knowl-
edge. But the failure to aver notice or knowledge is cured by
verdict.^^*' An averment and proof of actual notice of the de-
fective construction and condition of an appliance are riot nec-
essary in a declaration against the maker of the instrument.^ ^^
1482 Due care ; averment; unavoidable, test
A declaration charging common law negligence must aver
due care on the part of the plaintiff when he was injured, or
it* must contain an averment in regard to his conduct or the
circumstances surrounding him from which due care on his
part may be reasonably inferred.1^2 if such allegations are
omitted, the declaration does not state a cause of action and
after the period of limitations fixed by statute has elapsed can-
not be amended to state a cause of action which would not be sub-
ject to the bar of the statute.ii^ But too general an averment
of due care is cured by verdict. "^ In West Virginia, however,
107 Pierson v. Lyon & Healy, 243 "2 Walters v. Ottawa, 240 111. 266,
111. 370, 375, 376 (1910). 267 (1909); Bradley v. Chicago Vir-
losGuianios v. De Camp Mining den Coal Co., 231 111. 622, 627
Co., ^ipra. (1908) ; Blanchard v. Lake Shore &
109 Linquist v. Hodges, 248 111. Michigan Southern Ry. Co., 126 111.
■L'Jl, 500 (1911). 425; St. Louis, Alton & Terre Haute
110 Sargent Co. v. Baublis, 215 111. R. Co. v. Holman, 155 111. 21, 24
433; Postal Telegraph-Cable Co. v. (1895).
Likes, 225 111. 263; Linquist v. us Walters v. Ottawa, supra.
Hodges, 248 111. 498. 114 Brunhild v. Chicago Union
111 Linquist v. Hodges, 248 111. Traction Co., 239 111. 621, 623
497. (1909).
806 ANNOTATED FORMS OF I'LKADING AND PRACTICE
it is not necessary for the plaiutilV to allege in his declaration
that he was using ordinary care and was not guilty of negligence
which contributed to the injury, such matters beiuGr defenses
at common law.^i'' In alleging the grievance complained of, the
word "unavoidable" means the exercise of ordinary or due care
on the part of the plaintiff; it does not mean the exercise of
the highest degree of care.^^" Due care depends upon the cir-
cumstances surrounding the occasion and is to be determined
with reference to the situation in which a person finds himself
at the time of the injury.^^^
1483 Due care, injury to child
In an action for personal injuries to a child it is necessary
to allege that the parents of the child were in the exercise of
reasonable care for the child's safety, but the failure to so allege
may be cured by verdict if it can be clearly inferred from the
allegations of the declaration that the accident was not due to
the parent's negligence and when the general issue was
pleaded."^
1484 Due care, proof
Under an allegation that the plaintiff was in the exercise of
due care for his own safety, proof of all the circumstances tend-
ing to support the allegation is admissible, including,' proof that
the plaintiff was ordered or directed to do the work in the place
or in the manner it was performed.^ ^'-^ Ordinary care may be
established by circumstantial evidence.^^o
1485 Custom, proof
It is not necessary to aver the existence of a custom regulat-
ing the occupation in which an injury occurs to permit evidence
of the custom, if it bears directly upon the questions of contrib-
utary negligence and fellow-servant, ^^i
iwsheff V. Huntington (City), lis Illinois Central K. Co. v. War-
16 W. Va. 307, 313, 314 (1880); riner, 229 111. 91, 97 (1907).
Berns v. Gaston Gas Coal Co., 27 W. "8 Henrietta Coal Co. v. Camp-
Va. 285, 290 (1885). bell, 211 lU. 216, 227 (1904). _
116 Chicago & Alton E. Co. v. Har- 120 StoUery v. Cicero & Proviso
rington. 192 111. 9, 27 (1901). Street Ry. Co 243 111. 293 294
117 Illinois Central R. Co. v. Siler, 121 Sturm v. Consolidated Coal Co.,
229 111. 390, 394 (1907). 248 111. 28.
PERSONAL INJURIES 807
1486 Fellow-servant, proof
In stating negligent acts of defendant's servants, it must be
averred that the injury to the plaintiff was caused by the de-
fendant's servants who were not fellow-servants of the plain-
tiff; as an omission to so aver is not cured by verdict.^-- But
an omission to negative the relation of fellow-servant is cured
after verdict, if the facts alleged fully show the relation of the
parties and the issue joined necessarily requires proof of these
facts. ^23 ji^ allegation that a certain person was the foreman
in charge of the work and as a superior servant and vice-princi-
pal of the defendant negligently gave a certain order sufficiently
charges fellow-servantship.^-^ A foreman of a shop is not nec-
essarily a vice-principal, and the fact that he was acting as such
must be shown. ^25
Negativing fellow-servantship is essential only when the injury
is caused by persons who might have been fellow-servants of the
person who Avas injured. When the cause of the injury is the
negligence of the employer himself, or, if a corporation, that of
its agents or servants who acted for it, the allegation concerning
f ellow-serv'ant is not an essential element of the cause of action ;
especially, when it appears from the averments of the declaration
that the person who was injured had no connection or associa-
tion with the agents or servants of the defendant through whose
negligence the injury was occasioned. ^^e
1487 Assumed risk, instructions
The assumption of risk may be negatived by proper averments
in the declaration. ^ 27 ij^ a^ action for personal injuries sus-
tained by continuing in the service after notice of a dangerous
condition in the employment and a promise to repair, the decla-
ration should aver that the danger was not so imminent that the
plaintiff should have quit the services rather than incurred the
risk, and that he did not remain in the employment for an un-
reasonable time after the promise to repair, if it is intended to
ask a peremptory instruction to find for the plaintiff as charged
122 Joliet Steel Co. v. Shields, 134 125 Burgess v. Humphrey Book-
Ill. 209, 214 (1890); Schillinger case Co., 156 Mich. 345, 349 (1909).
Bros. Co. V. Smith, 225 111. 81. 12c Melnemej v. Western Pack-
123 Bennett v. Chicago City Ky. ing & Provision Co., 249 111, 240,
Co., 243 111. 420, 434 (1910). 243 (1911).
124 Malloy V. Kelly-Atkinson Con- 127 Kirk & Co. v. Jajko, 224 lU.
struction Co., 240 111. 102, 104 338, 343 (1906).
(1909).
808 ANNOTATED FORMS OP PLEADING AND PRACTICE
in the declaration.^ ^s ^^ averment that the plaintiff did not
know, nor had an opportunity of knowing of the dangerous
condition which caused the injury negatives his assumption of
risk when supported by the evidence and authorizes an instruc-
tion in his behalf leaving out the element of assumed risk. ^20
1488 Injury, place
Describing the place of injury as "near" a certain street is
sufficient on general demurrer. ^^^
1489 Notice to municipality
In an action against a municipality for personal injuries, an
Illinois declaration must aver the giving of notice within six
montlis from the date of the injury, or when the cause of action
accrued, regardless of when the action be brought. ^^^ This
averment is a condition precedent to the bringing of the action.^^^
In Michigan, the declaration against a municipality for personal
injuries must aver the previous presentation of the claim to the
common council. ^^^
1490 Survivorship; averment, practice
If an action is based upon the Death act the declaration must
aver the wrongful act, neglect or default of the defendant caus-
ing the death of the intestate under such circumstances as would
entitle him to maintain an action if death had not ensued, the
fact of survivorship, and the names of the widow or next of
kin.^2^ An averment of survivorship is an essential allegation
of the cause of action and must be averred in the declaration. ^^5
Naming one kind of next of kin will preclude a recovery in be-
half of another, as the naming of certain persons as survivors is
exclusive of others not mentioned.^ ^o 'pj^g naming of parents and
sisters, without stating them to be the next of kin to the deceased,
merely states a cause of action defectively.^ ^^ The failure to
128 Cromer v. Borders Coal Co., 246 133 Springer v. Detroit, 102 Mich.
111. 451, 456 (1910) ; Scott v. Parlin 300 (1894).
& Orendorff Co., 245 HI. 460, 468, i34 Quincy Coal Co. v. Hood, 77 111.
469 (1910). 68, 72 (1875).
129 Hagen v. Schleuter, 236 111. i35 Lake Shore & Michigan Soiith-
467, 474 (1908). ern Ey. Co. v. Hessions, 150 111. 556,
130 Karczenska v. Chicago, 239 111. 557 ; Chicago & Rock Island E. Co. v.
483, 484, 485 (1909). Morris, 26 111. 400, 402 (1861).
131 Erford v. Peoria, 229 111. 546, i36 Quincy Coal Co. v. Hood, 77 111.
553 (1907). 74.
132 Walters v. Ottawa, 240 111. 262, i37 BjTne v. Marshall Field & Co.,
263. 237 lU. 384, 388 (1908).
PERSONAL INJURIES 809
correctly give the Christian names of some of the next of kin
will not change or bar the cause of action, and may be supplied
by amendment.138 ^^ averment of survivorship and profert of
letters of administration at the end of the last count immediately
preceding the conclusion is good form in a declaration which
contains several counts. ^^ 9
1491 Survivorship, proof
In an action for personal injuries resulting in death, it is
permissible to prove that the wife or next of kin were, at and
before the time of the injury and the decease, dependent for sup-
port upon the deceased, or that he was her or their sole sup-
port. i^<^ But such evidence is not permissible when an injured
person sues for damages in his own name.^^^
1492 Ad damnum
In actions based upon the Death act, the ad damnum must not
claim more damages than the statute allows, if the statute limits
recovery to a specific amount.^ ^2
1493 Amendment, next of kin
In personal injury cases an amendment of the declaration
which corrects the Christian name of some of the next of kin
does not amount to and does not constitute a new cause of action
upon which a plea of the statute of limitations can be based.^^^
After the death of a plaintiff in a personal injury case, the decla-
ration cannot be amended to permit proof of damages under the
Act of 1905, because such an amendment amounts to the intro-
duction of a new cause of action.^^^
138 Grace & Hyde Co. v. Strong, "2 Hughes v. Eichter, 161 HI. 409
224 111. 630, 634 (1907). (1896).
139 Lake Shore & Michigan South- 1*3 Grace & Hyde Co. v. Strong,
ern Ey. Co. v. Hessions, 150 111. 577. supra.
140 Kulvie V. Bunsen Coal Co., 253 i** Fournier v. Detroit United Ey.,
111. 386, 392 (1912). 157 Mich. 589 (1909); Act No. 89,
141 Jones & Adams Co. v. George, Public Acts 1905.
227 111. 64, 70 (1907); Kulvie v.
Bunsen Coal Co., 253 111. 393.
810 ANNOTATED FORMS OF PLEADING AND PRACTICE
1494 Words and phrases, "necessary"
The word "necessary" used in a declaration for personal in-
juries does not mean indispensable or unavoidable, but may mean
expedient or reasonably convenient.^ ^^
SPECIAL CAUSES AND DECLARATIONS
1495 Air shaft, Narr. (111.)
i-i^For that the defendant, in the lifetime of the said B,
to wit, on or about tlie day of , 19 . . , was
possessed of, controlled and managed a certain building and
appurtenances thereto belonging, commonly known as and
called the , in the city of , in the
county aforesaid, in which said building there now is, and
before and on the day aforesaid there was, a certain shaft,
pit or areaway, which said building was then and there used
for offices, and for the purpose of renting offices, suites and
stores therein to tenants for hire; that it was then and there
the duty of the defendant to have the said building and the
appurtenances thereto properly and safely constructed, and
to keep said shaft, pit, or areaway properly and sufficiently
guarded, obstructed and protected, and to so manage said
building and the appurtenances, as not to expose persons in
the lawful and necessary use of said building and appurten-
ances, and rightfully upon said premises, to unnecessary peril,
danger and harm.
Yet, the defendant, not regarding its duty in that behalf, and
well knowing the premises, and while it was possessed of,
occupying and managing said building and the appurtenances
thereto, and while there was such shaft, pit, or areaway as
aforesaid, to wit, on the day aforesaid, then and there wrong-
fully, negligently and wantonly permitted said shaft, pit, or
areaway to be and remain so badly, insufficiently and defec-
tively closed, guarded, obstructed and protected, that by
means thereof, and for want of proper and sufficient closing,
guarding, obstructing and protecting of the said shaft, pit,
or areaway, and while the said B, on the day aforesaid, was
rightfully in the said building of the defendant, in the proper
and necessary pursuit of his lawful business, then and there
necessarily and unavoidably fell into and down the said shaft,
pit, or areaway, wuth great force and violence, and was there-
by, then and there, killed.
2. That it was also then and there the duty of the defendant
to keep the said shaft, pit, or areaway safely and securely
145 Brooks V. Chicago, Wilmington i^e Add caption as in Section 211,
& Vermilion Coal Co., 234 111. 372, Note 60, and commencement.
379 (1908).
PERSONAL INJURIES 811
closed, fastened, secured and locked, so as not to expose per-
sons rightfully in said building to unnecessary peril, danger
and harm.
Yet the defendant, not regarding its duty in that behalf,
and well knowing the premises, and while it was the owner of
and controlling and managing the said building and the
appurtenances thereto, and while there was such shaft, pit,
or areaway, to wit, on the day aforesaid, then and there wrong-
fully, negligently and wantonly permitted the said opening
to said shaft to be and remain unclosed, unfastened, unsecured
and unlocked ; that by means thereof, and while the said B,
on the day aforesaid, was rightfully in said building of the
defendant in the proper and necessary pursuit of his lawful
business, then and there necessarily and unavoidably fell into
and down the said shaft, pit, or areaway, with great force,
and was thereby, then and there, killed.
3. That it was also then and there the duty of the defendant
to have and keep the said doors closed and locked, and to
remove the said keys therefrom, so that said doors would not
be and become open and unlocked, and thereby expose per-
sons rightfully in said building to unnecessary peril, danger
and harm.
Yet the defendant, not regarding its duty in that behalf,
and well knowing the premises, and while it was the owner
of and in the control and management of said building and
the appurtenances thereto, and while there was such shaft, pit,
or areaway, with doors leading thereto having locks and
keys, to wit, on the day aforesaid, then and there, wrongfully,
negligently and wantonly permitted the said keys to remain
and be in the said locks in such doors of said shaft, pit, or
areaway, that by means thereof the said doors to said shaft,
pit, or areaway became and were, on the day aforesaid,
unclosed and unlocked; and that by means thereof, and while
the said B, on the day aforesaid, was rightfully in the said
building of the defendant, in the proper and necessary pur-
suit of his law^ful business, then and there, necessarily and
unavoidably, fell into and down the said shaft, pit, or area-
way, and was thereby, then and there, killed.^'*'^
And said B left him surviving one K B, his widow, and one
B B, his son, and one A B, his daughter, and one J B, his
son, and one M B, his daughter, and one G B, his daughter,
his next of kin, who are still living, and by reason of the
death of said B as aforesaid the said K B has been and is
deprived of her means of support, and the said B B, A. B, J
B, M B and G B have been and are deprived of their means of
support and education; to the damage of the plaintiff, as
1*7 Bahr v. National Safe Deposit
Co., 234 111. 101 (1908).
812 ANNOTATED FORMS OF PLEADING AND I'HACTICE
administratrix as aforesaid of dollars, and
therefore she brings her suit, etc.
And the plaintiff brings into court here the letters of
administration to her granted by the probate court of
county, which give sufficient evidence to the
court hereof of the grant of administration of the said estate to
the plaintiff, and that plaintiff' is such administratrix, and has
the administration of said estate.
Plaintiff's attorney.
1496 Appliances or instrumentalities; declaration requisites
In an action by an employee against an employer on account
of a defective appliance, the declaration must aver that the
appliance was defective, that the employer had notice or knowl-
edge thereof, or ought to have had notice or knowledge, that
the employee did not know of the defect and had not equal
means of knowledge with the employer and that the employer
knew of it, that the circumstances were such that the employee
did not assume the risk, and that the defect was the proximate
cause of the injury.^*^
1497 Attractive machinery ; action, law and fact
Persons owning or operating unguarded machinery or other
objects of a dangerous character and of a nature and at a place
to attract young children, are liable for injury sustained by
them and caused by such machinery; the attractive nature of
the machinery is a question of fact and not of law.^-^^
The doctrine of attractive nuisance is applicable: (1) Where
an injury results from some dangerous element which is a part
of, or which is inseparably connected with the alluring thing
or device; (2) Where the injury results from some independent
source, not such as will break the relation of the cause and effect,
brought directly in contact with the alluring device or thing.^^*^
1498 Attractive machinery; coal conveyor, Narr. (111.)
For that whereas, on, to wit, the day of , 19. .,
the defendants were possessed of and were jointly using and
i48Kepublie Iron & Steel Co. v. i49 Stollery v. Cicero & Proviso
Lee, 227 111. 246, 257 (1907) ; Chi- Street Ey. Co., 243 111. 292.
cago & Eastern Illinois R. Co. v. i5o Seymour v. Union Stock Yards
Heerey, 203 111. 492 (1903); Dia- & Transit Co., 224 111. 579, 585
mond Glue Co. v. Wietzychowski, 227 (1906),
111. 338, 342 (1907).
PERSONxiL INJURIES 813
operating a certain powerhouse known as tlie_ ,
which said powerhouse was situated at the intersection of
avenue and street, in the county of
, and state aforesaid, and that in and about the
said powerhouse the said defendants were then and there
possessed of and using and operating certain machinery, and
that said machinery was then and there used by the said
defendants for the purpose of enabling the defendants to
generate power within said powerhouse, and that said power
was then and there used by the said defendants for the purpose
of propelling street cars that were then and there possessed
and owned and operated by the said defendants.
And the plaintiffs further aver that a part of the machinery
constituting said powerhouse, and used in and about the said
powerhouse, was a certain coal conveyor, that said coal con-
veyor then and there consisted of endless chains,
running parallel to each other at a distance of, to wit,
feet apart, and that certain coal conveyors were
then and there attached at right angles to said chains so as to
form an endless apron that was then and there used in con-
veying coal into and within said powerhouse of said defend-
ants.
And the plaintiffs fui'ther aver that said powerhouse was
then and there situated at a distance of, to wit,
feet south of street, and that said coal conveyor
then and there extended through said powerhouse from north
to south, and that on the north side of said powerhouse there
was then and there situated certain sprocket wheels upon which
said conveyor then and there ran, and which sprocket wheels
were then and there used for the purpose of supporting said
conveyor while used by said defendants, and that the north
end of said coal conveyor, and the sprocket wheels on which
said conveyor ran, were then and there wholly unguarded and
uncovered and beyond and outside of said powerhouse, and
that said coal conveyor then and there ran within a distance
of, to wit, foot from the ground on said north side
of' said powerhouse, and that said coal conveyor was then
and there, and for a long time prior thereto had been operated
by the said defendants at irregular intervals as the said de-
fendants then and there might have occasion to use the same
for the purpose of conveying coal.
And the plaintiffs further aver that the space between
street and the north side of said powerhouse
was then and there an unenclosed and vacant lot.
And the plaintiffs further aver that the said coal conveyor
then and there immediately adjoining and connecting with
the north side of said powerhouse of the said defendants, was
814 ANNOTATED FORMS OF PLEADING AND PRACTICE
then and there, and for a long time prior thereto had been
attractive to children of tender years, and then and then?
tended to and did incite the childish curiosity of infants of
tender years, and that on the said .... day of , 19. .,
and for a long time prior thereto, a large number of infants
of tender years were in the habit of, and did play in the said
vacant lot, and in, on and about the said coal conveyor of the
said defendants, so situated and adjoining the north end
of the said powerhouse. All of which facts were then and
there well known to the said defendants, or could by the exer-
cise of reasonable care on their part have been discovered.
And the plaintiffs aver that it then and there became and
was the duty of the said defendants to exercise ordinary care
in and about the management of their said powerhouse, and
the machinery in and about the same, and the said coal con-
veyor, to the end that children playing on and about the
said machinery and coal conveyor, and near the said power-
house, and attracted by the said machinery and said coal
conveyor, would not be injured.
And the plaintiffs aver that on the day and year afore-
said the plaintiffs' deceased was then and there a child of
tender years, of, to wit, the age of years, and
in the care and custody of his mother, and that
said mother was at and before the time of the accident in
the exercise of ordinary care for the safety of said deceased,
and that said deceased then and there resided a short distance,
to wit, block from said powerhouse, and that the
plaintiff's deceased was on the day and year aforesaid at-
tracted bj'' childish curiosity towards the said powerhouse
and the said coal conveyor of the said defendants, and then
and there went into said vacant lot, and over to said coal
conveyor and was then and there playing about and on said
coal conveyor; and the plaintiffs further aver that the said
defendants then and there carelessly and negligently failed
and neglected to provide a covering or fence around the said
machinery and said coal conveyor, to prevent children from
having access to the same, but that the said defendants then
and there carelessly and negligently allowed and permitted
said machinery and said coal conveyor to be and remain in
an open and exposed condition ; and that by and through the
said carelessness and negligence of the said defendants afore-
said, and in so failing to guard or cover the said machinery
and said coal conveyor, and in leaving the same exposed, the
plaintiffs' deceased, while then and there playing on and
about said coal conveyor, and at all times in the exercise of
ordinary care for his own safety, was then and there caught
in a sprocket wheel of the said coal conveyor and was then
and there and thereby crushed and mangled, and plaintiffs'
deceased then and there, immediately thereafter, came to
his death by reason of being so crushed and mangled.
PERSONAL INJURIES 815
And the plaintiffs aver that the said left him sur-
viving his mother as his only heir at law and next
of kin, and that by reason of the death of the said
the said has been and is deprived of the pecuniary
aid and assistance of the said , and of her means
of support. All to the damage of the plaintiffs as adminis-
trator aforesaid, in the sum of dollars ; and
therefore they bring this suit. (Add administration clause, as
in Section 1495, last paragraph)
1499 Attractive machinery; torpedo in railroad yard, Narr.
(D. C.)
For that heretofore, to wit, on and prior to the .... day
of , the defendants the W and W S
kept, maintained, operated and controlled upon the land and
premises and right of way of the defendant W S in the county
of certain cars known as repair cars upon which
the agents and servants of the defendants were employed;
and the said defendants for the purpose of protecting their
property and the lives of their employees from danger of
accident and collision with railroad cars and locomotives and
for the purpose of warning approaching cars and locomotives
at any place or time of persons on the repair cars of the
defendants on said railroad tracks, kept and used among other
things, a certain kind of device, contrivance and apparatus
called a torpedo, containing a powerful and dangerous
explosive designed to be capable of being set off by concus-
sion, and said torpedo was so charged and loaded with an
explosive that any person being in close proximity to the same
at the time of it being exploded and set off might and could
be much hurt, maimed, disabled and wounded; that a part of
said railroad lands and premises and right of way in the
said county of immediately north of the cor-
porate limits of the city of , runs along and near
a settlement and large number of dwelling houses in said
county collectively known as , whereupon, the
day and year aforesaid, and a long time prior thereto, a large
number of children resided.
And the plaintiff further avers that on the date aforesaid
and prior thereto and at the place aforesaid there ran parallel
to the main line tracks of said defendant railway company
certain lines of tracks known as side tracks to which the
repair cars of the defendants were transferred by means of
switches so that said cars of defendants would remain station-
ary for a long time at the place aforesaid without obstruct-
ing the main line tracks of the defendant railway company;
and the plaintiff avers that for a long time, to wit, for
months or more preceding and up to the day
and date last above mentioned a large number of children
816 ANNOTATED FORMS OF PLEADING AND PRACTICE
residing at and in the neighborhood of afore-
said, were in the habit of and accustomed to play upon, around
and about the said switches and siding where the repair cars
of the defendant telegraph company and the defendant rail-
way company were located, and to converse and play with the
agents, servants and employees of said defendants living and
working upon and about said repair cars; of all of which the
said defendants had notice. And thereupon it became and was
the duty of the said defendant telegraph company, and the said
defendant railway company, their agents and servants, not
to place or permit to be placed, or to suffer any of their said
torpedoes to remain upon the ground and premises of said
railway comj)any at the place aforesaid, ungu;u-ded, without
notice or warning where such torpedoes would attract the
attention, interest, instinct, or curiosity of children entering
upon and accustomed to play upon said premises ; and it
became and was the duty of the defendant telegraph com-
pany and the defendant railway company not to leave or per-
mit any of their torpedoes to remain upon the ground and
premises aforesaid without taking due, proper and reasonable
means and care to prevent a child of tender years from
ignorantly and unwittingly and through childish thought-
lessness causing any of the torpedoes of said defendants to
explode.
Yet, the said defendants, their agents and servants, disre-
garding their duty in the premises did carelessly and neg-
ligently place and permit to be placed and left upon the ground
and premises and right of way of the said railway company
at the time and place aforesaid, unguarded and without notice
or warning, a torpedo as aforesaid, where said torpedo would
attract the attention, instinct, interest and curiosity of chil-
dren entering upon the said premises and right of way as
aforesaid; and the said defendants did leave and permit the
torpedo as aforesaid to remain upon the ground and prem-
ises aforesaid without taking due, proper andl reasonable
means and care to prevent any person from ignorantly and
unwittingly and through childish instinct and thoughtlessness
causing such torpedo to explode, and without labeling or mark-
ing such torpedo so as to disclose its nature and so as to pre-
vent children entering upon said premises as aforesaid from
exploding the said torpedo, through ignorance, curiosity or
childish instinct or thoughtlessness.
And on, to wit, the .... day of , the plaintiff
, an infant of the age of years,
residing at said place called , in said county of
, in the vicinity and neighborhood of the spot
where the said defendants, their agents and servants had left
one of the torpedoes aforesaid upon the ground, entered with
other children upon the premises aforesaid, and while there
her childish instinct and curiosity were attracted to the tor-
PERSONAL INJURIES 817
pedo aforesaid which the said defendants, their agents and
servants had so as aforesaid carelessly and negligently left
upon the ground where the said defendants, their agents and
servants knew, or in the exercise of due and reasonable cau-
tion and care should have known that such torpedo would
attract the attention, interest, curiosity and instinct of chil-
dren residing in that vicinity and neighborhood accustomed
as aforesaid to play about said repair cars and siding; and
the said plaintiff, , then and there and through
such childish instinct, curiosity, ignorance and thoughtless-
ness as might have been expected from a child of her age,
picked up the torpedo aforesaid and thoughtlessly and ignor-
antly believing the same to contain money endeavored to
open the same by striking it with a stone, when said torpedo
exploded with great force and violence near the face of said
plahitift' and permanently injured her so that the sight of her
right eye was totally destroyed and the sight of her other eye
was permanently impaired, and both eyes of the said infant
and her face and hands and arms were lacerated, bruised and
wounded and the said infant was otherwise injured, bruised
and wounded and made sick, sore, lame, disabled, and the said
infant did then and there suffer great mental and bodily pain
and distress which has endured for a long space of time, to
wit, from thence hitherto, and the said infant will continue to
suft'er great mental anguish and bodily pain and inconvenience,
and has been rendered forever incapable of attending to
any business or occupation as she would otherwise have been
abie to do ; and the said defendant AV S, their agents and
servants other wrongs and injuries to the said plaintiff
did commit.
And the said infant plaintiff avers that the said wrongs
and injuries were done, caused and occasioned by the care-
lessness, negligence and want of due and reasonable care
on the part of said defendant W and the said defendant W
S, their agents and servants, in carelessly as aforesaid, and
negligently as aforesaid, placing and leaving and causing to
be placed and left exposed, unguarded and unprotected, and
without notice or warning to the plaintiff, upon the said
premises at the place aforesaid, the torpedo aforesaid in the
neighborhood aforesaid, to the great wrong and injury of the
said plaintiff in the sum of dollars.
1500 Backing train, injuring flagman, Narr. (El.)
For that whereas, heretofore, to wit, on the day of
, 19. ., at, to wit, the county aforesaid, the defendant
was the owner of, possessed of, and had control of a certain
railroad together with branches, switches and connecting lines
one with another which said railroad then extended with its
many wings, switches and sidetracks from the main line of the
818 ANNOTATED FORMS OP PLEADING AND PRACTICE
road to the Illinois State Fair grounds. That among the many-
sidetracks or connecting branches of said railroad there
extended a certain sidetrack or branch track of defendant's
to said main track of railroad leading from the southeast
corner of the Illinois State Fair grounds south and east to a
distance of about feet, where said branch track
of defendant's said railroad connects or intersects with its
main line of tracks.
And the plaintiif avers that defendant's said railroad track
as aforesaid was constructed in such a way, that at a certain
point about feet south of the southeast corner
of said Illinois State Fair grounds, said railroad of defendant
makes a curve to the east, the same being the shape of a
semi-circle. That on the east side of said curve of defendant's
railroad track there stand several large buildings so that any-
one who might be at or near the said southeast corner of said
Fair grounds cannot see a train of cars on account of said
buildings so standing near thereto.
And the plaintiff avers that the said defendant on the day
and year aforesaid, at the county aforesaid, operated, used
and controlled a certain number of passenger coaches with a
certain locomotive engine attached thereto, commonly called
a passenger train, which said train of passenger coaches was
then and there used and operated by defendant over and
upon its said railroad as aforesaid for the purpose of convey-
ing persons back and forth to and from said Illinois State
Fair while the same was in session.
And plaintiff avers that the place at the said southeast cor-
ner of said Illinois State Fiir grounds as aforesaid was one
of the main entrances of said Fair grounds and was then and
there crossed and intersected by two public highways known
as the and That there were con-
stantly teams, foot-passengers and vehicles passing to and fro
over and upon a certain public crossing there and the same
being a place of extraordinary danger during the time that
said Illinois State Fair was being held on account of the
same being used as the main entrance to said Fair grounds.
And plaintiff avers that there was constructed and main-
tained by the another side track or branch rail-
road leading from its main track or road, along, over and upon
said public highways, at and parallel with defendant's branch
track which said branch railroad of said was
then and there near to and entered said State Fair grounds
along and on the west side of defendant's said track or rail-
road at said southeast corner of said Illinois State Fair
grounds. That by reason of the two railroads as aforesaid
being close together and both crossing over and upon the said
public highways as aforesaid, and by reason of the many
wagons, trains and vehicles and many foot passengers cross-
ing and re-crossing over and upon said public highways where
PERSONAL INJURIES 819
said railroad of the said and defendant's said
railroad enters said southeast corner of said Illinois State Fair
grounds, it then and there became and was necessary for the
safety of travel then and there to have some person at said
place to act as flagman and warn travelers of the approach of
the said trains when the same were coming into
or going out of the said Illinois State Fair grounds, as afore-
said. And the plaintiff avers that the deceased, ,
was then and there in the employment of the
in the capacity of flagman at a place where the said
crosses or intersects with the said public highways as afore-
said. That the place where the deceased had to perform his
duty as such flagman, and where the said had to
stand for that purpose, was at and near the defendant's said
railroad and upon said public highway.
And the plaintift' avers that it then and there became and
was the duty of the defendant to so operate and control its
said locomotive engines and train of cars so that it might be
reasonably safe for the said to discharge his duty
as such flagman for the said company, while in the exercise
of ordinary care for his safety.
Yet, the' defendant did not observe its duty in that behalf,
but on the contrary it negligently and carelessly, through its
agents and servants, caused one of its certain locomotive
engines with said train of cars attached thereto, to be backed
in a northerly direction over and above and upon its said track
then and there back to and into and towards the said entrance
of the said Illinois State Fair grounds, at a high and danger-
ous rate of speed, and negligently and carelessly then and
there failed to give the said any warning what-
ever of the approach of its said train of cars. That by and
through the careless conduct and neglect of duty of defendant
in that regard and by reason of the defendant's said train
suddenly coming around said curve of defendant's said track
as aforesaid and by reason of the said being
unable to see the approach of defendant's said train of cars
so operated by defendant as aforesaid, in the manner as
aforesaid, and by reason of defendant's failure to keep a
proper lookout, and by reason of defendant's not hav-
ing sutlficient appliances on its said train of cars at the
rear end thereof so that it could control the same, and by
reason of the improper control and management of its said
train in that regard through its said servants and agents, the
plaintiff's intestate, , who was then and there in
the employment of the said as flagman for its
said trains as aforesaid, and while he the said
was then and there in the exercise of due care and caution
for his own safety, and while in the discharge of his duty
and employment as such flagman as aforesaid, defendant's
certain train of cars with its said locomotive engine attached
820 ANNOTATED FORMS OF PLEADING AND PRACTICE
thereto, struck with great force and violence then and there
against the body of the said and thereby then
and there the said was thrown with great
force and violence to and upon the ground there and thereby
received injuries from which he shortly thereafter died.
And plaintiff avers that by reason of the death of the said
his next of kin consisting of his children, ,
who survive him are deprived of their means of
support and education, and plaintiff his widow is deprived of
her means and support in consequence thereof. To the dam-
age, etc. (Add last paragraph of Section 1495)
1501 Backing train, injury to passenger, Narr. (Fla.)
That the defendant is a common carrier, engaged in said
county and state in the regular business of operating rail-
road lines, and thereon by its servants and employees operating
railroad trains and carrying and transporting passengers and
freight for hire ; and as such, on and before and
since that date, was in the possession and control of the cer-
tain line of railroad track extending from to
, in said county, and the certain engines, cars,
machinery, and appliances used thereon and operated there-
with, commonly known and designated as the "
railroad;" and operated and used said track, cars, engines,
machinery, and appliances in carrying on its said business.
On the said day of , 19 . . , the plaintilf was a
passenger on a certain train operated on said line of rail-
road by the defendant, and the defendant, for a certain sum
of money to it then paid, received the plaintiff as a passenger,
and then and there undertook and agreed to safely carry
the plaintiff' on said train from to
on said line of railroad. Before reaching , and
at a regular station of the defendant on said road known as
, the train on which plaintiff was a passenger was
stopped by defendant and there waited for a long time, to wit,
about minutes, for the arrival at
of another train on defendant's railroad.
Plaintiff further says that when said train was stopped,
as aforesaid, at , the locomotive engine which was
attached to and drawing said train was by defendant
uncoupled and detached from the cars provided for and used
by the passengers on said train, and moved, with a car or cars
which it was drawing, to another railway track or tracks of
the defendant, and that the car in which said plaintiff' was
a passenger, and other cars carrying passengers, on said train,
were left standing at said station called ; that
while said passenger cars were so standing still, and while the
plaintiff was on the platform extending from and between
said passenger cars and connecting the same, the defendant
PERSONAL INJURIES 821
negligently and carelessly caused said locomotive engine to be
run backward with great force and violence against said
passenger cars so standing on said track, and thereby caused
the plaintiff to 'be thrown over and between the platforms
of said passenger cars, and the plaintiff's right foot to be
caught between the buffers of said passenger car platforms,
whereby the plaintiff's right foot was wounded, crushed,
broken, and greatly and permanently injured.
Plaintiff avers that the defendant and its agents and
servants did not exercise all reasonable care and diligence in
running its said locomotive engine and cars, and did not use
and exercise all reasonable care and diligence in running said
locomotive engine backward against said passenger cars, and
that the said injury to the plaintiff was caused by the care-
lessness and negligence of the defendant and its agents and
servants in running said engine and cars and by the failure
of the defendant and its said agents to use and exercise the
reasonable care and diligence required by law; that the
defendant ran its said locomotive engine against said
passenger cars with great and unnecessary force and violence ;
that said defendant, when bringing and running its said engine
against said passenger cars, and when about to bring and run
said engine to and against said cars, gave no signal, notice,
or warning of the approach of said engine, or that the same
would be brought or run to and against said cars; that the
defendant, in running its said locomotive engine and train of
ears, did not provide and use on and between said passenger
cars a certain appliance known as a "buffer iron," which said
appliance is a metal plate covering the space or opening
between the ends or buffers of cars used for passengers, and
which appliance was and is necessary for the safety and
security of passengers on railway trains occupying the plat-
form of the cars, and in getting on and oft' said cars, and in
going from one car to another car on the same train, and is
generally and commonly used by common carriers and rail-
way companies as a means of protection and safety for pas-
sengers and employees on railroad trains.
By means of which negligence and want of care on the part
of the defendant, its agents and servants, and by reason
of which failure and refusal on the part of the defendant, its
agents and servants, to exercise and use all reasonable care
and diligence in running its said locomotive engine and cars,
the plaintiff has sustained the injuries as aforesaid, and has
lost the use of her foot, has become permanently maimed and
crippled, has suffered great pain and anguish of body and
mind, has been made sore and sick, and her health and strength
of body have been permanently impaired, injured, and dam-
aged. Wherefore, etc.
822 ANNOTATED FORMS OF PLEADING AND FHACTlCE
1502 Boiler bursting, Narr. (111.)
For that whereas, on or about the day of ,
19. ., the defendant, , owned, operated and con-
trolled a certain then boiler, with certain then flues attaciied
for the purpose of developing power to propel certain then
machinery in its plant; that on the day and date last afore-
said, plaintiff's intestate was in the employ of said defendant
as a fireman or water tender, and was engaged in the execution
of said usual and customary duties for the defendant, his
employer; that it then and there became and was the duty of
the defendant to use care to furnish plaintiff's intestate with
a reasonably safe appliance and to keep the appliances in
and about where plaintift"s intestate was required to work in
a reasonably safe condition; but that the defendant wholly
failed in its duty in this behalf and, on the contrary, while the
plaintiff" 's intestate, in the exercise of all due care and caution
for his own safety, was working in a certain then pit in front
of the firebox of said boiler, the defendant negligently and
carelessly suffered and permitted a certain then flue to be and
become defective, in this, that said flue, at a certain portion
thereof, was negligently suft"ered and permitted to become thin,
and much thinner than other portions of the said flue, and
much thinner than was usual and customary in such flues; all
of which the defendant well knew, or in the exercise of reason-
able inspection could have known, and of which plaintift"s
intestate was ignorant and had no opportunity of knowing;
so that, by reason of the negligence of the defendant, as afore-
said, in furnishing said flue, which was then and tiiere defec-
tive, as aforesaid, said flue by reason of said defects then and
there exploded, and blew out ; and that by reason of the
premises, large quantities of boiling water and steam were
thrown and projected down and upon plaintift"s intestate in
said pit, and by reason of the premises plaintiff's intestate was
killed. (Add last two paragraphs of Section 1495)
1503 Breaks defective, Narr. (111.)
For that whereas, heretofore, to wit, on , . . . ., 19. .,
, to wnt, at the county aforesaid, the defendant
was possessed of a certain car loaded with iron ore which was
located on a certain trestle work or elevated track a great
distance, to wit, feet above the ground there,
in which said car was a certain aperture or chute through
which ore from said car was unloaded, and in order that said
car might be unloaded safely it was necessary that the wheels
thereof be locked by a brake or in some way fixed or secured
so that said car would not move nor jerk while ore was being
unloaded from said car and thereby throw from said car the
persons engaged in unloading the same; and it then and
PERSONAL INJURIES 823
there became and was the duty of the defendant to have and
keep said ear and the brake and all parts thereof in good and
safe repair and condition so that the wheels of said car could
be tightly locked and rendered immovable by said brake and
not to set any of its servants at work unloading said car
unless the wheels thereof were locked or so fixed or secured
that said car would not move or jerk while the same was being
unloaded, and to furnish its servants whom it might set to
unloading said car a safe place to work. Yet the defendant,
not mindful of its duty in this regard, carelessly and
negligently had and kept said car in bad and dangerous con-
dition and repair, and the brake thereof out of order, so that
the same would not work and lock the wheels of said car, and
carelessly and negligently had said car standing on said trestle
or elevated track without the wheels thereof being locked
or fixed or secured so that said car would not move or jerk
while the same was being unloaded.
And the plaintiff was then and there a servant in the employ
of the defendant and the defendant then and there carelessly
and negligently ordered the plaintiff to go upon said car and
unload ore from the same, and the plaintiff then and there,
without fault or negligence on his part, in obedience to said
order of said defendant, went upon said car and proceeded to
unload ore therefrom, when without fault or negligence on
the part of the plaintiff", and by reason of the careless and
negligent misconduct of the defendant aforesaid, said car sud-
denly and violently moved or jerked and threw the plaintiff
from said car to and upon the ground there; by means of
which said premises, to wit, six of the plaintiff's ribs were
broken and his legs and arms were broken and divers other
bones of the plaintiff were broken, and his hips were dislo-
cated and divers other of his joints were dislocated, and one
of the plaintiff' 's legs was greatly and permanently shortened,
and the voice, sight and hearing of the plaintiff were greatly
and permanently lessened and impaired, and the plaintiff was
rendered permanently subject to headaches, roarings in the
head and vertigo, and the plaintiff suft'ered severe and perma-
nent internal injuries, and the arms and shoulders of the
plaintiff were greatly and permanently injured and crippled,
and the plaintiff was rendered permanently incapable of work-
ing as a laborer, at which employment he had theretofore
earned large sums, to wit, $ a day, and was rendered
permanently incapable of doing any work. And also by reason
of the premises the plaintiff suffered great and excruciating
pain and agony and will permanently suffer the same in the
future. And the spine of the plaintiff suffered a severe concus-
sion, and was greatly and permanently injured. And the nerv-
ous system of the plaintiff was greatly broken, shattered and
permanently injured. And the plaintiff was put to a great
expense, to wit, an expense of $ for medical attendance,
824 ANNOTATED FORMS OF PLEADING AND PRACTICE
medicines and nursing, in cndi'avoring to be eured of the injur-
ies aforesaid, and will be obliged to incur like expenditures
permanently in the future for the same purpose; and also by
reason of the premises the plaintifT has thence hitherto been,
and permanently in the future will be unable to attend to his
ordinary affairs and busiiu'ss; arul also by reason of the prt-iii-
ises the plaintiff has been and is otherwise greatly injured,
to wit, at the county aforesaid. Wherefore, the plaintiff* says
he is injured and has sustained damages in the sum of
($ ) dollars, and therefore he brings his suit, etc.'''^
(Virginia)
For this, to wit, that before and at thf time of the com-
mission of the grievances and wrongs liereiimfter complained
of, to wit, on the day of , 19. ., the said
defendant eonij)any was the owner, user and occupier, as a
common carrier, of a certain line of railway, exteniling from
the city of , in the state of Virginia,
thence northward by one of its stations named ,
in the county of , and thence to the city of
, in said state; that said drfcudant used said
line of railway for the purpose of proix-liiiig and running
thereon by steam its loeoniotivcs, engines and ears, and also
the cars of other railway companies, for the transportation
of passengers and freight ; and said defendant company had,
used and maintained at certain of its stations, along its rail-
way line, and especially at said station of
, certain side tracks upon which it also propelled its
engines, locomotives anil cars, for the purpose, amongst
other things, of making up, shifting, moving and i)laeing the
said ears and its trains thereon, or in detaching from its trains
certain of said cars and leaving them temporarily upon said
side tracks in the course of its business as a common carrier.
And the plaintiff' avers that while the defendant company
was engaged, as aforesaid, in the business of a common carrier,
before and on the day aforesaid, it had in its employment for
the purposes aforesaid a large force of servants, consisting in
part of conductors, engineers, firemen, flagmen and brake-
men, to operate and run its trains, both passenger and freight,
over its said railway and over and along its side tracks afore-
said at its stations aforesaid ; and amongst the servants afore-
said in the employment of defendant company was plaintiff"s
intestate, whose duty was, among other things, to assist in
rurniing and operating said trains and said cars over and along
said railway line, and in shifting and changing cars, taking
them up and leaving them at said stations and on the side
tracks aforesaid, and especially at said station of ,
on and before the day aforesaid. And among the duties
especially required of plaintiif's intestate was that of manip-
151 Eylenfeldt v. Illinois Steel Co..
165 111. 185 (1897).
PERSONAL INJURIES 825
ulating the brakes upon the ears in the operation of which he
was aiding as an employee of said company, both on said main
line and its side tracks.
Plaintiff avers that it tlien and there became and was the
duty of the defendant company to use reasonable and ordi-
nary care in the grading, building and constructing its said
railway line and its side tracks, and especially at the said
station of , so as to have and maintain them in a
reasonably safe condition for its servants and employees to
operate its trains and cars (whether said trains were intact or
detached) with safety to life and limb, and whether its cars
were connected with or disconnected from its engines and
locomotives; and at all times was it defendant's duty to use
ordinary care to warn, guard and protect its servants and
employees against such accidents and casualties as might be
reasonably foreseen and prevented by said defendant com-
pany ; and especially was it its duty to use ordinary care in so
grading and maintaining its main line and side tracks and in so
providing and equipping its engines, locomotives, trains and
cars with proper and adequate brakes as to avoid injury to
its servants and employees in their use and operation. And
especially was it the duty of said defendant company in
operating its engines, locomotives, trains and cars on said side
tracks, for the purposes aforesaid, that is to say, for the pur-
pose of shifting its cars from one track to another or taking up
ears standing on said side tracks by connecting them with
its engines, locomotives, trains and other ears, or detaching
cars from its train and leaving them on said side tracks, to
\ise ordinary care in so governing, controlling and moderat-
ing the speed of its engines, locomotives, trains and cars,
whether connected or disconnected with its engines or loco-
motives, as to avoid by any violent collision between the
stationary and moving cars, or train of cars, casualties ajid
injuries to its employees and servants then and there operat-
ing them. Yet, the defendant company, regardless of its duty
in this behalf, did not use reasonable and ordinary care in
grading, building and constructing its said railway lines and
its side tracks, especially at the said station of ,
so as to have and maintain them in a reasonably safe condition
for its servants and employees to operate its trains and cars
for the purposes aforesaid; and it did not use ordinary care
in so providing and equipping its engines, locomotives, trains
and cars with proper, adequate and sufficient brakes as to
avoid injury to its servants and employees, but was careless
and negligent in the performance of its duty in the respects
aforesaid at said station of , on the day and year
aforesaid.
And plaintiff avers that at said station of on
the day and year aforesaid said side track was improperly and
negligently constructed, in this, to wit, that for the purpose of
826 ANNOTATED FORMS OF PLEADING AND PRACTICE
operating or moving said train of cars, or any of them, when
detached from its engine and without the control of its engine
properly and adequately equipped with brakes, the grade was
too great for the safe movement of any one or more of its cars
in a southerly direction, which was down grade, from a
point on said side track nearly opposite its station, unless the
said cars were adequately and properly equipped with brakes.*
And plaintiff avers that on the day and year aforesaid,
while one of defendant's freight trains was at said station of
, northward bound in the course of its business,
its engine, locomotive, tender and several of its cars, coupled
to said engine or locomotive and severally and consecutively
linked together, composing a part of its train, was moved from
said main track to said side track under the direction and
order of its conductor who carelessly and negligently, without
the exercise of ordinary care, caused some of said cars to be
cut loose or disconnected from said engine while upon said
side track, for the purpose of being propelled in a southern
direction and on a down grade to where was stationed one or
more cars upon said side track, for the purpose of being con-
nected with the latter and subsetiuently moved with them
from said side track on to said main track, or for the purpose
of being left upon said track along Avith, and coupled to, said
stationary cars; and it then and there became the duty of
plaintiffs 's intestate to ride upon one of the said cars, and as
they approached said stationary cars to tighten the brakes
upon said car for the purpose of moderating the speed of said
moving cars and preventing a violent and dangerous collision
of said moving cars Avith those standing upon said side track.
But, owing to the defective and inadequate condition and
character of the brakes attached to the car upon which plain-
tiff's intestate was riding and the steepness of the downward
grade, the momentum of the cars being increased by the
steepness of the grade, plaintiff's intestate, notwithstanding
he tightened said brakes to the best of his ability, was unable to
check or moderate their speed and the car upon which he vras
riding came in contact with said stationary cars with such
degree of violence that the plaintiff' 's intestate was precipi-
tated to and upon said side track, said stationery cars were
propelled from their position and plaintiff's intestate was
run over by the car upon which he had been riding, both of
his legs and one of his arms were cut off, and his death shortly
thereafter, to wit, in a few hours, occasioned thereby. And
plaintiff says that by the wrongful act, neglect and default of
the said defendant company in not using ordinary care in
having and maintaining a properly graded side track at said
station, and especially in negligently causing said cars to be
cut loose from the engine and propelled down said side track
whose steep grade was well known to defendant when the car
aforesaid, upon which his intestate was riding, was not pro-
PERSONAL INJURIES 827
vided with proper and adequate brakes at the time and place
aforesaid, as was well known to defendant, his intestate suf-
fered the injuries aforesaid and lost his life. And plaintiff
avers that the injury suffered as aforesaid by his intestate
resulted from the negligence of an agent of said defendant
company of a higher grade of service than that of his inte-
state, and from that of a person employed by said company
having the right and charged with the duty of controlling
and directing the general services, or the immediate work, of
plaintiff's intestate, to wit, its conductor.
2. (Consider first count to star as here repeated the same
as if set out in words and figures.)
And plaintiff avers that on the day and year aforesaid,
while one of the defendant company's freight trains was at
said station of , northward bound in the course
of its business, its engine, locomotive, tender and several of
its cars composing a part of its train was, by order of the con-
ductor of said train who under the rules of said defendant com-
pany had control and management of said train and all of the
servants of said company connected therewith, moved from
said main track to said side track. And plaintiff further
avers that said engine or locomotive was not then and there
properly provided with safe, adequate and sufficient brakes.
And plaintiff further avers that said engine or locomotive,
with several cars attached to it, as aforesaid, was by its engi-
neer negligently and carelessly and without using ordinary
care started backward along and down said side track in a
southerly direction at a high, immoderate and dangerous
rate of speed and when said engine with the cars attached to
it approached certain cars standing further down said side
track its engineer endeavored in vain to moderate or lessen
its speed, because said brakes attached to said engine were
inadequate and insufficient to control it, and by reason of the
defective condition and character of said brakes, of which
said engineer and conductor had previous knowledge, said
cars whose momentum was increased by said downward grade
came in contact with certain cars standing upon said side
tracks with great force and violence, and plaintiff's intestate,
who, in the performance of his duty, was riding upon the car
which collided with said stationary car, was precipitated by
reason of the violence of said collision in and upon said side
track and was run over by the car upon which he had been
riding, his legs and one of his arms were cut off and his death
occasioned thereby.
And plaintiff says that by the wrongful act, neglect and
default of the said defendant company, in not using ordinary
care in equipping and providing the said engine with ade-
quate, safe, proper and sufficient brakes, at the time and
place aforesaid and for the work aforesaid, in which plain-
tiff's intestate was required by defendant company to take
828 ANNOTATED FORMS OF PLEADING AND PRACTICE
part, and by reason of the want of ordinary care on the part
of said conductor in causing said engine and cars to be
transferred to said track and allowing them to be propelled
along the same in the manner aforesaid regardless of the
condition of said brakes and said grade, and by reason of
the want of ordinary care on the part of said engineer in
propelling said engine and cars along said side track in man-
ner aforesaid, regardless of the condition of said brakes and
said grade, his intestate suffered the injuries aforesaid, and
his death was occasioned thereby.
3. (Consider first count to star as here repeated the same
as if set out in words and figures.)
And plaintiff avers that on the day and year aforesaid,
wdiile one of the defendant's freight trains was at said sta-
tion of , northward bound in the course of its
business, its engine, locomotive, tender and several of its
cars coupled to said engine or locomotive and severally and
consecutively linked together, composing a part of its train,
was moved from said main track to said side track, by the
order and command of the conductor of said train, for the
purpose of being propelled in a southern direction and on
a down grade to w^iere was stationed one or more cars upon
said side track for the further purpose of being connected
with the latter and subseciuently moved with them from said
side track on to the said main track, or for the purpose of
being left upon said side track along with, and coupled to,
said stationary cars.
And plaintiff further avers that after said engine and the
cars attached to same had reached said side track, for the
purpose aforesaid, some of the cars attached to said engine
were negligently, carelessly and recklessly, and without the
exercise of ordinary care, cut loose from, or disconnected
from, said engine, or the cars next to said engine, and turned
loose upon said downward grade by one or more of its brake-
men who were agents or servants of said defendant company,
for the purpose of being sent or allowed to roll to said sta-
tionary cars for the purposes aforesaid, after reaching said
stationary cars ; and it then and there became the duty of
plaintiff's intestate to ride upon one of said cars as they
moved along said side track in the direction of said stationary
cars, and, as they approached said stationary cars, to tighten
the brakes upon the car upon which he was riding for the
purpose of moderating or lessening the speed of said moving
cars and preventing a violent and dangerous collision of said
moving cars with those standing upon said side track. But
owing to the defective and inadequate condition and character
of the brakes attached to the car upon which plaintiff's intes-
tate was riding and the downward grade, the momentum of
the cars being increased by said downward grade, plaintiff's
intestate, notwithstanding he tightened said brakes to the
PERSONAL INJURIES 829
best of his ability, was "unable to check, lessen or moderate
the speed of said cars, and the car upon which he was riding
came in contact with said stationary cars with such degree
of violence that plaintiff's intestate was precipitated to and
upon said side track. Said stationary cars were propelled
from their position by the impact and plaintiff's intestate
was run over by the car upon which he had been riding and
both of his legs and one of his arms were cut off and his
death shortly thereafter, to wit, in a few hours, was occasioned
thereby.
And plaintiff further says that it was the duty of the con-
ductor of said train to supervise, control and direct its move-
ments; to control, govern and direct the engineer, brakemen,
firemen, flagmen and all of the servants of the said company
connected with said train, all of whom were subordinate to
and subject to his authority; and it was especially the duty
of the said conductor to prevent said cars from being cut
loose from said engine while upon said side track in order
that the engine to which said cars were attached might aid
in governing, controlling, moderating and checking the speed
of said cars and train in its movement down said side track
towards said stationary cars and, in that way, avoid a violent
and dangerous collision between said moving cars or train
of cars and said stationary cars.
And plaintiff says that said conductor did not prevent or
attempt to prevent the servants of said company, to wit, its
brakemen, from severing said train of cars upon said side
track, as it was his duty to do, and in said omission and
failure he did not exercise ordinary care, but negligently,
carelessly and recklessly failed to perform his duty in that
respect.
And plaintiff says that by the wrongful act, neglect and
default of said defendant company in not using ordinary care
in having and maintaining a properly graded side track at
said station, and in negligently causing said cars to be cut
loose from said engine and allowing them to roll down said
track, whose downward grade was well known to said defend-
ant company, and in failing to provide and equip said
car upon which plaintiff's intestate was riding with proper
and adequate brakes, whose defective character was also
well known to the defendant, and also in consequence of the
negligence of the said conductor and his want of ordinary
care in failing to prevent one or more of defendant's servants
from severing said train of cars, said conductor having the
right to control the brakemen and servants of said company
who cut said train of cars in twain upon said track, his intes-
tate suffered the injuries aforesaid and his death was occa-
sioned thereby.
4. (Consider first count to star as here repeated the same
as if set out in words and figures.)
830 ANNOTATED FORMS OF PLEADING AND PKACTICE
And plaintiff avers that on the day and year aforesaid,
while one of the defendant's freight trains was at said station
of , northward bound in the course of its busi-
ness, its engine, locomotives, tender and several of its cars
coupled to said engine or locomotive and severally and consec-
utively linked together, composing a part of its trains, was
moved from said main track to said side track by the order
and command of the conductor of said train, for the purpose
of being propelled in a southern direction and on a down
grade to where was stationed one or more cars upon said
side track for the further purpose of being connected with
the latter and subsequently moved with them from said side
track on to the said main track, or for the purpose of being
left upon said side track along with, and coupled to, said sta-
tionary cars.
And plaintiff avers that after said engine, with the cars
attached to it, had reached said side track for the purposes
aforesaid, the engineer in charge of said engine, and the cars
attached to it, negligently and carelessly and without the
exercise of ordinary care caused said cars, either while they
were coupled to and connected with said engine, or after they
had been severed therefrom, to be propelled down said side
track in a southerly direction at a high and dangerous rate
of speed which was accelerated by the down grade of said
side track, and negligently and carelessly and without the
exercise of ordinary care caused the advance car, propelled
as aforesaid down said track, to collide with the car which
was stationed upon said side track with such degree of violence
that plaintiff's intestate, who was riding upon said advance
car and endeavoring to check and minimize the speed of said
cars by tightening the brake of the car upon which he was
riding, as it was his duty to do, was precipitated by reason
of said violent collision in and upon said side track, and was
run over by said car, the wheels of which cut off one of his
arms and both of his legs, and his death was occasioned
thereby.
And plaintiff says that by the wrongful act, neglect and
default of the said defendant company, whose servant and
agent the engineer aforesaid Avas, in manner and form afore-
said, his intestate suffered the injuries aforesaid and his death
was occasioned thereby ; by reason of all of which said plaintiff
hath a right to recover of said defendant company the sum of
dollars.
And therefore he brings this suit.
1504 Bridge, collapse, Narr. (Md.)
For that the said defendant is a corporation duly incor-
porated and on the day of , 19. ., at ......
county, aforesaid, was engaged and for some time
PERSONAL INJURIES 831
theretofore had been engaged in the erection and construc-
tion of a bridge across the river at ,
in the county and state aforesaid; that said defendant was
then and there placing the structural iron or steel work used
in the erection of said bridge upon piers or abutments which
had lately theretofore been constructed of cement, sand and
stone and commonly called concrete work, and which concrete
piers or abutments stood about equi-distant from each other
across said river ; that this plaintiff was then
employed by the defendant and was then and there the serv-
ant of the defendant and engaged in the work of placing
said structural iron or steel work on said piers or abutments,
and was then and there using due care and caution on his
part ; that whilst this plaintiff was so engaged in his afore-
said work it became and was the duty of the defendant to
exercise all reasonable care to furnish, provide and maintain
a reasonably safe place for this plaintiff to perform his work,
aforesaid, and to avoid exposing this plaintiff whilst so
employed to any extraordinary and unreasonable peril,
against which this plaintiff from want of knowledge and skill
could not by the exercise of due care on his part guard
himself.
Yet, the defendant well knowing its duty in the premises,
and well knowing or by the exercise of reasonable care and
caution on its part could have known that a certain one of
said piers, to wit, pier known as "Pier No. . .," was, then and
there, and at that time, to wit, on the morning of
. . . ., 19. ., green, weak, defective and of insufficient strength
to carry the weight for which it had been constructed, and
well knowing that this plaintiff by reason of lack of the
requisite scientific knoM'ledge, skill and experience could not
by the exercise of ordinary care and prudence guard himself
against the weakness, defectiveness and insufficient strength
of said Pier No. .., negligently ordered and directed this
plaintiff to proceed with his work of placing said structural
iron or steel work upon said Pier No. .., and whilst so
engaged, to wit, on , 19 . . , at
county, aforesaid, and whilst this plaintiff was using due care
and caution on his part, the said Pier No. . . , by reason of its
weakness, defectiveness and insufficient strength collapsed
and broke down under the weight of said structural iron or
steel work, and this plaintiff by reason of the defendant's
negligence aforesaid, was hurled and thrown from said
bridge many feet into the river below and thereby was
greatly injured by having a great gash cut in the head,
left leg broken and shattered, angle and left foot crushed,
right knee-cap and joint crushed and ligaments torn, hips and
back injured ; whereby and by reason thereof this plaintiff has
832 ANNOTATED FORMS OF PLEADING AND PRACTICE
been permanently injured, has suffered and still suffers great
pain and has been put to very great expense for doctors fees
and hospital bills.
And this plaintiff claims $ damages.
1505 Bridge, guards or railings, Narr. (111.)
For that whereas, before and at the time of the committing
of the grievances by the defendants as hereinafter mentioned,
the defendants were acting as the commis.sioners of highwavs
of the township of in the county of ' ,
and state of Illinois, and as such commissioners
iiad the care, supervision, po.ssession and control of a certain
public highway between sections (fourteen and fifteen) in saitl
township, and it was their duty to keep said highway in good
and safe repair and condition for travel, and to build and
maintain proper and suitable bridges in said highway where
it was crossed by creeks, water-courses and drains so as to
furnish safe pa.ssage for plaintiff and every person traveling
along said highway with a wagon drawn by a team of horses;
and whereas the defendants then and for a long time prior
thereto had adecjuate funds and material, and labor at their
command with which to keep said highway and bridges in
good and safe repair and condition and to build and maintain
proper and suitable bridges in said highway as aforesaid;
yet the defendants, not regarding their duty in that behalf
while they so had the care, supervision, possession and control
of said highway, wrongfully, negligently and unskillfully
built and permitted to be built, and remain a certain bridge
in said highway between sections (fourteen and fifteen) in
said township of across and over a certain
creek, water-course or drain, of timbers and plank, so narrow
as to be dangerous to cross with a team and wagon in case
said team should deviate sligiitly from the center thereof,
and without any railing and side truss, or anything whatever
above the plank flooring of said bridge to prevent a wagon or
team from going off of the side of said bridge, said bridge
being of such a length, width and height above said water-
course, creek or drain as to be very unsafe and dangerous to
persons driving across the same ; by reason whereof, and,
to wit, on the day and year aforesaid, and at the county afore-
said, and while the plaintiff was driving across said bridge
with all due care, skill and diligence in a certain wagon drawn
by a certain team of horses, said horses, suddenly took fright
and swerved to one side, whereby the said team of horses and
wagon wdth the plaintiff were necessarily and unavoidably
precipitated from off the side of said bridge to and upon the
ground below, then and there injuring and bruising the
plaintiff and thereby breaking his left leg near the hip joint,
and his left leg became shrunken and lame and he became sick,
PERSONAL INJURIES 833
lame and disordered, and so remained for a long time, to wit,
from thence hitherto, during all which time he thereby suf-
fered great pain, and was hindered from transacting his
business affairs, and also by means of the premises, he was
obliged to and did lay out divers sums of money, amounting
to, to wit, dollars, in and about endeavoring to
be healed of said wounds, bruises, lameness, sickness and
disorder, to the damage, etc. 1^2
(Maryland)
For that the defendant is a municipal corporation and is
bound to construct, keep in repair and regulate the public
highways, roads, bridges, streets and alleys of
county, so as to be safe for persons and teams traveling there-
on; and that one of the public highways, roads, streets and
alleys of county aforesaid, namely
(which connects avenue with ) at
or near the corner of was imperfectly and
defectively constructed by said defendant and was negligently
suffered to be and remain out of repair, and unsafe for travel,
in that the defendant had or left a steep and dangerous
embankment or abutment over a large culvert under said
highway without guards, railings or safe-guards, to provide
against the dangers ensuing from, or which might reasonably
ensue from the ordinary and reasonable use of said highway;
also, in that the defendant allowed and permitted the sides of
said highway to become grown up with vegetation and foliage
and bushes and vines, so that they obscured and cut off the
view of said culvert and steep and dangerous embankment
or abutment or declivity from one lawfully passing on said
highway and particularly from the said , while
she was then and there lawfully on said highway; and it was
negligently suffered by the defendant to remain in such con-
dition ; in consequence of which, while the said plaintiff was
lawfully driving upon said highway, and while the said plain-
tiff was using due care, the said plaintiff was precipitated over
an embankment of said highway to a depth of ten or twelve
feet, and was thereby hurt and injured and damaged exter-
nally and internally and seriously and permanently^ and two
of her ribs were fractured, and one of her lungs was punc-
tured, and she was otherwise seriously and permanently dam-
aged and injured.
And the plaintiff claims therefore dollars.
i52Nagle V. Wakey, 161 111. 387,
389 (1896).
834 ANNOTATED FORMS CF PLEADING AND PRACTICE
1506 Bridge, railroad; "traveler," Narr. (111.)
For that whereas the plaiiitilT alleges that in the lifetime
of the said deceased, prior to and on, to wit,
the day of , 19. . , the deefndant was
engaged in the general business of a structural iron con-
tractor and as such was then and there constructing a certain
railroad bridge across the river from or near
the town of , in the state of Illinois, to the
side of said river, and it had then and there in its
employ, engaged in said work, a large number of men, among
them the deceased, who, the plaintitY alleges, was then and
there a structural iron worker, and as such earned, to wit
dollars per day.
And the plaintiff further alleges that the defendant had
then and there upon the falsework in the state of Illinois used
in the construction of saiil bridge, and at a great distance
above the ground, a certain movable engine or car, called a
"traveler," by means of which the iron and other material
used in the construction of said bridge was raised up to the
point \yhere it was to be used; that at the time and place
aforesaid the condition of the weather indicated that a high
wind was likely and liable to soon be blowing, and that in
the event of such a high wind blowing, if said "traveler"
was not properly and st'ourely fastened, as it was not at that
time, it was liable to and there was great danger of its starting
to run along and upon and falling from said falsework, and
if it should thus start to run along and upon and fall from
said falsework, it was likely and liable to injure or kill the
deceased, or other of the defendant's servants; all of which
facts, the plaintifT alleges, the defendant, through its fore-
man then and there in charge of said work, and who was not
a fellow-servant of deceased, knew, or by the exercise of ordi-
nary care in that behalf would have known; and that by rea-
son of the premises, it was then and there the duty of the
defendant, through its said foreman, to have exercised ordi-
nary care toward so securing or fastening said "traveler" as
to prevent it from starting and running upon and falling from
said falsework as aforesaid: but that the defendant, through
its said foreman, not regarding its said duty and in utter
violation thereof, then and there negligently failed and
neglected to so fasten and secure said "traveler," and therein
wholly failed and made default, of which failure and default
and of the danger to which he was thereby exposed the
deceased, through no want of ordinary care upon his part, did
not know; and that as a direct result and in consequence of the
defendant's said failure and default, and of a high wind which
plaintiff alleges shortly afterwards started to blow, said
"traveler" then and there started to run upon and along and
fell from said falsework a great distance to the ground, and
PERSONAL INJURIES 835
it then and there struck and knocked deceased, who, the plain-
tiff alleges, was then and there in the discharge of his duty and
exercising ordinary care and caution for his own safety, work-
ing upon or about said falsework, a great distance above the
ground, and the deceased thereby then and there sustained
such serious bodily injuries that he died as a result thereof
a short time afterwards.
And the plaintiff alleges that the deceased left him surviv-
ing his mother, and brothers ....
his only next of kin, all of whom are still living and
to whose support and otherwise the deceased was accustomed
to and would have continued to contribute large sums of
money, and that by reason of the death of the deceased his
estate has been damaged to the extent of dollars.
To the damage, etc.
1507 Bridge, repair, Narr. (Mich.)
For that whereas, before and at the time of the grievances
hereinafter complained of, the company,
defendant herein, was a corporation duly incorporated and
doing business under the laws of this state providing for the
incorporation of plank road companies, and was operating and
controlling a public highway from the city of
through the townships of and in
said county, which was open to and used by the traveling pub-
lic, and upon which the said defendant had erected toll gates
and exacted and collected toll from persons traveling thereon,
as authorized by the charter of its incorporation. And at the
time hereinafter complained of the said plaintiff was lawfull}'
traveling by horse and buggy on said highway or toll road,
and on a part thereof over wliich the said defendant collected
toll. And it became and was the duty of the said defendant
to keep and maintain said highway or toll road in a good
condition of repair, and safe for travelers by night as well
as by day.
Yet, the said defendant neglected its duty in this respect and
did not maintain said highway in good repair, but suffered
the same to become and remain in a bad condition and unsafe
and dangerous to travelers thereon. That said highway or
toll road runs in a northwesterly direction from the said city
of and said defendant maintains a toll gate
thereon near the boundary line between the said city of ....
and the township of That a short
distance northwesterly along said highway from said toll gate
a deep ravine crosses said highway or toll road which is at
different points from . . to . . feet in depth below the level of
said roadway, and the said defendant constructed a bridge
for use of travelers over said ravine about to
feet in length on line of travel and about
836 ANNOTATED FORMS OF PLEADING AND PRACTICE
feet wide, and erected railings on each side of the
traveled way thereon to protect travelers from accidentally,
either from darkness or other causes, getting off the ends of
said bridge and being precipitated in the deep ravine, and sucli
railings were necessary to make said highway or toll road in
a good condition of repair at that point.
Plaintiff alleges that, for a long time prior to the accident
hereinafter set fortli, to wit, several years, the said defendant
had allowed said railings to rot away and break down to
topple over into said ravine, and had allowed saiil bridge to
remain without any railings or i)rotection of any kind to
travelers, and by reason of the want of said railings, and
the neglect of said defendant to maintain the same the said
highway or toll road became and was allowed to remain in a
dangerous and unsafe conditon for public travel, and the
same was condemned by tiie highway commission of
as unsafe and dangci-ous and notice thereof served
upon said defendant, and with full knowledge of the danger-
ous and unsafe condition and after receiving notice to repair
the same the said defendant neglected its duties and failed
«and neglected to repair the same.
And on, to wit, the day of , 10 . . , at
about the hour of .... o'clock in the evening the plaintilf was
driving along said highway or toll road coining to the city of
, with a horse and buggy and a friend seated in
the buggy with him, and while in the exercise of all care on
his part at all times, and owing to the darkness of the night
and the darkness of the place where said bridge is located,
while the wheels of plaintiff's buggy landed on the first plank,
some of the planks of said bridge further on were considerably
shorter and on the wheels coming to the short plank they
dropped over the east end of tlie bridge and plaintiff and his
companion were precipitated into the ravine a depth of upwards
of feet falling upon logs and timbers of various
kinds seriously and permanently injuring plaintiff. That
plaintiff at the time of receiving said injuries was .... years of
age and in good health, and capable of earning $
to $ a month. That by said accident he suffered
injury in the muscles, tendons, ligaments, joints and blood
vessels of his arms, legs and all parts of his body; that his
spine has been seriously injured, and his whole nervous system
seriously damaged, the serious effects thereof being indicated
at the present time by loss of strength, great weakness in the
back and spinal column, injury to the joint of his right knee,
and the disordered condition of his liver, kidneys and
intestines.
Plaintiff alleges that after receiving said injuries he secured
the services of reputable physicians, and has been to the hos-
pital and submitted to operations, and he is advised by his
physicians that his injuries are permanent and he alleges the
PERSONAL INJURIES 837
fact to be that he will be crippled and permanently injured
during the balance of his life and will be prevented from earn-
ing a livelihood. That he has suffered great pain and will con-
tinue to suffer great pain. That he has been unable since said
injuries to perform any kind of labor or work. That he has
expended upwards of dollars in trying to be
cured of said injuries and will be compelled to spend large sums
of money in the future.
And plaintiff alleges that the injuries received by him
was solely the result of the fault and neglect of the said
defendant, and by reason of the premises he has suffered great
damages, to wit, in the sum of dollars.
Therefore he brings suit.
1508 Bridge, spanned partly, Naxr. (Miss.)
That the defendant is a municipal corporation, organized
and existing under the laws of the state of Mississippi and
located and situated within in said state.
That under and by virtue of its charter, derived from sundry
acts of the legislature of the state of Mississippi incorporating
said municipality, said municipal corporation is given and
granted the right and power to lay out, open, and work and
maintain all necessary and proper streets, avenues and
llioroughfares therein, and by virtue of its said charter is
given the exclusive control and jurisdiction of said streets,
avenues, thoroughfares and highways located within the terri-
torial corporate limits thereof. That among other streets and
avenues located within said municipality, laid out, opened,
worked and maintained by it, pursuant to the authority afore-
said, is what is known as street, said street
traversing the portion of said city and running
in a and direction. That crossing said street
from to at a point between what is
known as and , being intersecting
highways within said city with the said street
is a ditch or ravine from feet deep and from
feet wide, and that said municipality erected or
caused to be erected over the same a bridge in said
said bridge being constructed of wooden material and the
public invited to pass thereover in the use of said street.
That it became and was the duty of said defendant to
maintain said bridge and street in a safe and suitable condi-
tion and to so work, control and maintain the same as that
persons using said street would do so with safety. But plain-
tiff avers that notwithstanding its duty in the premises, said
defendant negligently failed in this: that the bridge was so
constructed that the same did not span said ditch for the
838 ANNOTATED FORMS OF PLEADING AND PRACTICE
entire width of the street, as it should have done ; that the said
bridge was not provided with guard rails and lacked from
feet on the end thereof, of reaching
the line of said street, as it should have done ;
that said bridge being thus constructed, left a part of said
ditch or ravine exposed and unspanned and unprotected in
said street, a distance of feet in length, from
to feet in width and from
to feet in depth, thereby rendering the
same dangerous to pedestrians and travelers lawfully using
said street.
That on or about the day of , 19 . . ,
the said defendant, through its certain duly authorized serv-
ants, agents or employees, whose duty it was to gather from
the streets, avenues and alleys of said city, trash, debris and
refuse as the same should be found therein, remove the same
from said city by wagons and carts, in the performance of such
duties carelessly and negligently placed on the margin of the
lines of said street, at a point some to
feet west of said ditch two piles of trash consisting of paper,
barrel staves, parts of boxes, tin cans, and other like refuse
and thrown away material ; the said trash piles being so placed
on the sides of said street, as that the same would likely pro-
duce and did produce fright in ordinarily gentle animals being
driven by said point.
That on the said day of , 19 . . , the
plaintiff while driving an ordinarily gentle and tractable
horse hitched to a buggy and while she and her mother were
riding, in going from the home of a relative to the home of
plaintiff, on and along said street, and at a time when the ani-
mal she was driving was under perfect control, and while
plaintiff was exercisng due care and caution in driving said
animal, when they had reached a point in said street when
the buggy in which they were riding was upon the said
bridge, the animal became suddenly and greatly frightened at
the trash piles hereinbefore referred to, and became momen-
tarily uncontrollable and was caused thereby to back the buggy
in which plaintiff and her mother were riding, off of the
end of said bridge, precipitating the same into the
ditch below. That in so falling, the buggy and the horse
attached thereto, together with the plaintiff were thrown into
said ditch in a heap. That in said fall the plaintiff sustained
many physical bruises and wounds on both of her arms and in
her left leg, about the knee, ankle and thigh joints, and also
suft'ered certain serious internal injuries. That plaintiff's
health was bad, and that the shock sustained from the fright
of her said experience, as also from the additional violence
sustained in her body by reason of her fall, completely pros-
trated the plaintiff, from which she was caused to be con-
PERSONAL INJURIES 839
fined to her bed for many days, and to require constant atten-
tion and attendance of medical skill and treatment.
The plaintiff avers that defendant was careless and negli-
gent in the construction of said bridge by failing to build the
same so that it should span said ditch for the entire width of
said street. That it was also negligent by failing to provide
guard rails at the end of said bridge, and that it was also
negligent by permitting said open ditch to remain uncovered
in any part of said street, and especially in the manner as
hereinbefore set out. That said defendant was negligent by
piling, or causing said piles of trash to be placed on the sides
of said street in the mariner hereinbefore set out. And plain-
tiff avers that by reason of said negligent acts of said defend-
ant, the plaintiff was caused to suffer the injuries hereinbefore
described; and that on account of its said negligence in the
premises, that the said defendant became and is liable to pay
to the plaintiff all such damages as she has sustained in con-
sequence thereof.
The plaintiff avers that by reason of the physical pain and
mental anguish suffered by her in consequence of the many
bruises, wounds and injuries inflicted upon her person and
by reason of the physical and serious sickness of plaintiff
resulting therefrom that her general health has been seriously
and permanently impaired and that in consequence thereof and
in consequence of all of said injuries that plaintiff has been
greatly damaged, to wit, in the sum of dollars.
1509 Bridge-tender's neg-ligence, action
A city is liable for the negligence of its bridge-tender who
manages its bridge. ^^^
1510 Careless driving; minor injured, Narr. (D. C.)
The plaintiff, , avers that, on, to wit, the
day of , the supreme court of the District of Colum-
bia holding a probate court appointed him administrator of
the estate of , deceased ; that he has duly qualified
as such ; that on the day of , letters of
administration were issued to him by said court.
Plaintiff further avers that the defendant, ,
is a corporation and was, on, to wit, the day of
, 19. ., engaged in business in the District of Colum-
bia in transferring baggage to and from the various depots in
said District of Columbia by means of heavy wagons drawn
153 Lehigh Valley Transportation
Co. V. Chicago, 237 lU. 581, 582, 583
(1909).
840 ANNOTATED FORMS OF PLEADING AND PKACTICE
by a horse or horses; that in the course of its said business,
the defendant transferred baggage to and from the
depot at the corner of avenue and
street northwest in said district; that, on, to wit, the
day of , 19. ., the deceased, then an infant of . . . .
years of age was lawfully upon street,
north near its intersection with street, west in
the city of in the District of Columbia and was
engaged in play with a number of his companions when a
heavy wagon of the defendant corporation drawn by a horse
or horses, and in charge of the agents, servants and employees
of the said defendant corporation, came rapidly from the west
along street, to wit street ; that it
then and there became the duty of the defendant, its agents,
servants and employees to use ordinary skill and care in driv-
ing, managing and controlling the horse or horses attached to
said wagon, but disregarding said duty, said defendant, its
agents, servants and employees controlled, managed and drove
the wagon and horse or horses of the defendant so carelessly,
negligently and unskillfully, and were so negligent, inattentive
and regardless of their duties, that the said wagon of the
defendant corporation was driven upon and
over the said , now deceased ; that he was thereby
mortally wounded and crushed and was removed to the
hospital and died within a few hours; that his death
was in consequence of the violence, wounds and bruises so
received by him, the said and the result of being
run over by the wagon of the defendant corporation, through
the negligence, carelessness, mismanagement, unskillfulness
and lack of attention of the agents of the defendant who were
in charge of the same ; and that the said on,
to wit, the day of , 19 . . , in the city of
, in the District of Columbia then and there
died.
And the plaintiff avers that the death of the said
decedent of the said plaintiff, was under such circumstances and
in such manner that if death had not resulted, the said
would, as an infant, by his next friend, have had a right
of action against the defendant corporation on account of the
carelessness, negligence, unskillfulness, mismanagement and
lack of attention of the servants of said defendant corporation
for the injury done to him at the time, place and in the man-
ner indicated; but that as death resulted to the said ,
the said decedent of said plaintiff by reason of the said negli-
gence, unskillfulness, recklessness, carelessness and inattention
of the servants of the said defendant corporation, the said
plaintiff, as his administrator, became entitled to sue for the
damages sustained by the next of kin of the deceased, through
the wrongful act of said defendant corporation, its servants
and agents, under and by virtue of section 1301 of the Code of
PERSONAL INJURIES
841
the District of Columbia; that said decedent left surviving him
as his next of kin, his father, the plaintiff, and an infant
brother ; that the said was a strong healthy child
and that his father lost divers great gams and profits which
he might, could and would have gained from the said
... in his life time, but for his untimely decease on account
of the negligence, carelessness, and wrongful acts of said
defendant corporation and its servants ; and that the next ot
kin of said deceased were damaged to the extent of
dollars. Wherefore, etc.
(Illinois)
For that whereas the defendant, , a corporation,
before and at the time of the committing of the grievances
hereinafter mentioned, was in the brewing business, and as
such was the owner of a certain vehicle or brewery wagon
bv it used and employed in hauling, carrying and delivering
beer to divers customers of the said defendant at divers places
in the city of , county and state aforesaid, and
being such owner and in control of the said vehicle or brewery
wagon, or other conveyance, it, the defendant, on, to wit, the
..^... day of ,l...,at .. m the
county and state aforesaid, by and through the negligence
and carelessness of the said defendant by its servant who was
then and there at said time driving said conveyance with a
team of horses of the said defendant thereto attached, along
and upon a certain street or public highway in the city ot
.. ., county and state aforesaid, known as, to wit,
street, between two other public streets m the
gjY ' of , and state aforesaid known as, to wit,
^ * and streets, then and there so neg-
iieentiy* wilfully knd maliciously managed, and drove said
team with said wagon or vehicle attached that K, the deceased,
who was a mere boy of the age of, to wit, ....... years, while
on his way to school and while crossing the said highway
known as, to wit, street at the place aforesaid
with all due care and diligence, as he had the right to do, Ajas
bv the negligence and carelessness of the defendant, by its then
servant, run into with the vehicle and team of horses afore-
said struck, thrown and knocked down with great force and
violence to and upon the ground there and passing over his
body, and was thereby then and there killed.
2 That it also then and there became and was the duty of
the said defendant to employ competent, proper and capable
servants in the carrying on of its business and particularly m
the driving of said team and wagon as aforesaid Yet, the de-
fendant, not regarding its duty in that behalf, did not employ
careful, competent, proper and suitable persons in its business
as aforesaid, but carelessly, wilfully and negligently employed
842 ANNOTATED FORMS OF PLEADING AND PRACTICE
and permitted au incompetent person to drive one of its said
wagons and teams on tlie day aforesaid at the place aforesaid,
and while the said K, who was a boy of the age of, to wit,
years, who, while using all due care and dili-
gence for his own safety and while on his way to school, in
attempting to cross the said street known as, to wit,
street, was by reason of the carelessness and negligence of
the said defendant, by its said servant in that behalf, then and
there run into and struck with great force and violence by the
said vehicle or wagon so driven by the servant of the said
defendant, and thereby the said K was then and there thrown
with geat force and violence to and upon the ground there,
and was thereby then and there killed.
And the plaintiff avers that the said K left him surviving
J K, his father, R K, his mother, S K, and F K, his brothers,
and A K, his sister, and next of kin, who are still living and
who were deprived of his services and their support and educa-
tion, to the damage of the plaintitY as administrator as afore-
said of dollars, and therefore he brings his suit,
etc.
And the plaintiff brings into court here the letters of admin-
istration to him granted by the j)robate court of the county
aforesaid, which gives sufficient evidence to the court here of
the grant of administration of the said estate to the plaintiff,
etc.
Administrator of the
estate of
deceased.
h
For that whereas heretofore, on, to wit, , 19. .,
at the city of , to wit, in the said county of ,
the defendant was the owner of, to wit, two certain horses and
a certain wagon ; and whereas the defendant then and there
had placed said horses with said wagon in charge of a certain
other person then and there being a servant of defendant, which
said person as such servant, while acting within the scope of his
said employment and in the transaction of defendant's busi-
ness, was then and there negligently and unlawfully driving
said horses and wagon along a certain public street, to wit,
street, and within the corporate limits of the
said city of at a much greater rate of speed than
six miles an hour, to wit, at the unlawful rato of fifteen miles
an hour, contrary to the form and terms of a certain ordinance
of the said city of then and still in force and legal
effect, wherein and whereby it was then and there provided,
among other things, substantially in the words following, to
wit: "No person shall ride or drive any horse or horses or
PERSONAL INJURIES 843
other animals in the city of with greater speed
than at the rate of six miles an hour under a penalty of not
more than ten dollars for each offense to be recovered from the
owner or driver thereof severally and respectively;" and there-
in the defendant, by its said servant wholly failed and made
default; and thereby, by means of the said several premises
and in consequence of which said default and by reason of the
negligence and carelessness of the defendant by its said serv-
ant, the said horses and wagon or some one or several thereof
then and there ran and struck with great force and violence
upon and against the plaintiff, then being an infant of tender
years, to wit, of the age of six years, or thereabout, and while
plaintiff then was upon said public street at or near the inter-
section of a certain other public street, to wit,
avenue, as he lawfully might, and while he then and there was
in the exercise of as much care and caution as was usual and
could be reasonably expected of an infant of his age, intelli-
gence and knowledge under the same or similar circumstances,
then and there as aforesaid, and thereby injured the plaintiff
both internally and externally, whereby he was rendered per-
manently sick, sore, wounded, crippled and disordered, and re-
ceived a severe nervous shock and concussion of the brain and
spine, and thereby the plaintiff's internal organs and his liver,
kidneys, bladder and heart were greatly and permanently af-
fected and rendered incapable of properly performing their
normal functions and were rendered diseased, and thereby, to
wit, seven of the plaintiff's ribs were broken and fractured and
dislocated, and divers other of the plaintiff's ribs were thereby
greatly and permanently injured, and thereby also, by reason of
the premises, divers of the other bones of the plaintiff's body
and limbs were dislocated, strained, sprained, broken and other-
wise injured, and the plaintiff suffered from sprains, lacera-
tions, tearing and ruptures of divers other parts of his body;
and the plaintiff thereby suffered greatly from loss of blood,
and thereby the plaintiff's body was rendered subject to divers
swellings, and the plaintiff was rendered subject to spitting of
blood and passing of blood in his urine, and thereby his private
parts and organs of reproduction were greatly and permanently
impaired and injured, and the plaintiff will be rendered unable
to work or earn a living, and will be put to great expense for
medicines, nursing and medical attendance in the future ; also
by reason of the premises, the plaintiff says that he has been
and is otherwise greatly and permanently injured and damaged,
to wit, at said county. Wherefore, etc.
1511 Careless running of street car; laborer injured, Narr.
(Mich.)
For that, at the present time and on, to wit,
19 . . , and for a long time, to wit, months,
844 ANNOTATED FORMS OF PLEADING AND PRACTICE
prior thereto, said defendant, the company,
owned and operated a certain street railway along and upon
certain streets in the city of , county of
and state of Michigan, and more particularly along and upon
the streets in the city of , known as
avenue and street from the intersection of said
street with street to the point where
said avenue joins said street, and
from thence west on said r avenue to, to wit, ....
street, upon which said railway said defendant was
then and there controlling and operating divers electric motor
street cars.
On said date, to wit, , 19 . . , plain-
tiff, a man of the age of, to wit, years, was in the
employ of the city of , as a street sweeper, and at
about o'clock in the of said day,
was working on the track of said defendant at a point on ....
avenue, a distance of, to wit, feet west of
the point where said avenue intersects
street. Plaintiff was working on said defendant's track as
aforesaid, with his back towards defendant's car which was
approaching from the west, as hereinafter set forth, for a period
of, to wit, .... minutes, and was in plain sight of the motor-
man of said car as it approached plaintiff, for a distance of,
to wit, feet. Defendant 's car, number, to wit,
, then and there approached i)laiiitiff from the
west at a speed of, to wit miles per hour. There
were then and there upon avenue and
street, which were then and there paved with brick, many
wagons and other vehicles which made such a noise as to
drown the sound of said car as it approached plaintiff.
It thereupon became and was then and tliere the duty of said
defendant to run its said car in a careful and cautious manner
with due regard to the rights of plaintiff, who was lawfully upon
the track ;
And it became and was then and there the duty of the
defendant to run its said car at a reasonably safe rate of speed ;
And it became and was then and there the duty of the defend-
ant by its motorman, to keep a sharp lookout ahead of said
car, so that when it became, or ought to have become, apparent
to said motorman that plaintiff was on the track of said defend-
ant in a position of danger, and did not know of the approach-
ing car and from plaintiff's actions that he did not intend to
remove himself from the track before said car would reach hira,
said motorman could control and stop his car at any time to
avert an injury ;
And it became and was then and there the duty of said
defendant, by its motorman, when said motorman saw, or
ought to have seen, plaintiff on the track in a position of
danger, to check the speed of said car and bring it under
PERSONAL INJURIES 845
such control that it could be brought to a stop before reaching
the point where plaintiff was on the track in a position of
danger, as aforesaid;
And it became and was then and there the duty of said
defendant to give plaintiff warning by the sounding of a
gong, or otherwise, of the approach of said car to the point
where plaintiff was on the track, as aforesaid, and to continue
such warning until plaintiff should remove himself from the
path of said approaching car;
And it became and was the duty of defendant by its motor-
man, when said motorman saw, or ought to have seen, that
plaintiff was on the track in a position of danger and that
plaintiff' did not intend to get off the track, to use every effort
to stop said car ;
And especially did the said defendant owe to the said plain-
tiff' the duties above set forth, in view and by reason of the fact
that there were then and there many heavy wagons and other
vehicles, the noise of which made it impossible for plaintiff to
hear the sound of said car as it approached, and that there
were then and there many other pedestrians and workmen on
the street.
After said car struck plaintiff, throwing him to the pave-
ment in such a position that his legs were under the fender of
said car, it became and was then and there the duty of said
defendant to immediately stop said car and to give aid, assist-
ance and attention to plaintiff' and to hold said car stationary,
and to render assistance in extricating plaintiff from under
the fender of said car.
Yet the said defendant then and there wantonly, recklessly
and wilfully disregarded its duties as above set forth, in the
following particulars, to wit:
Defendant failed to run its said car in a careful and cautious
manner with due regard to the rights of plaintiff.
Defendant did not then and there run its said car at a reason-
ably safe rate of speed, but on the contrary, ran said car at an
unsafe and unreasonable rate of speed when approaching plain-
tiff", and especially was the speed of said car unsafe and unrea-
sonable in view and by reason of the fact that there were then
and there many wagons and other vehicles, the noise of which
drowned the sound of said car as it approached plaintiff, and
also many other pedestrians and workmen.
And defendant further wantonly, recklessly and wilfully dis-
regarded its duties, in that its motorman who was operating
said car did not keep a sharp lookout ahead of said car as it
was approaching plaintiff, as aforesaid, and did not have said
car under control so that it could be stopped in time to avert
an injury to plaintiff, when it became, or ought to have become,
apparent to said motorman that plaintiff was in a position of
danger and did not know of the approach of said car, and
said motorman did not have said ear under control so that it
846 ANNOTATED FORMS OP PLEADING AND PRACTICE
could be stopped in time to avert an injury to plaintiff when it
became or ought to have become, apparent to said motorman,
from the actions of plaintiff, that he, the said plaintiff, did not
intend to remove himself from the path of said approaching
ear before said car would reach him.
Defendant further wantonly, recklessly and wilfully disre-
garded its duties by not checking the speed of said car and
bringing it under control, so that it could be stopped before
reaching plaintiff, when the motorman of said car saw, or
ought to have seen, plaintitf on defendant's track in a position
of danger.
Defendant further wantonly, recklessly and wilfully disre-
garded its duty by failing to give plaintiff warning by the
sounding of a gong or otherwise, when said car was approach-
ing plaintiff as he was working on the track of said defendant
with his back to said car and in plain sight of the motorman of
said car, as aforesaid.
Defendant further wantonly, recklessly and wilfully disre-
garded its duty by failing to use every effort to stop said car
when the motorman saw or ought to have seen that plaintiff
was on the track in a position of danger and that plaintitf did
not intend to get off the track.
Defendant further wantonly, recklessly and wilfully disre-
garded its duty by continuing to run its said car forward a
distance of, to wit, feet, after said car had struck
plaintiff and knocked him to the pavement, as aforesaid, drag-
ging plaintiff for said distance along and over the rough
pavement.
Defendant further wantonly, recklessly and wilfully disre-
garded its duties by not holding said car stationary after it had
stopped running forward, as aforesaid, and by reversing said
car and running the same backward a distance of, to wit,
feet, again dragging plaintiff for said distance,
along and over the rough pavement.
Then and there and thereby, and by reason of the premises
and while plaintiff was in the exercise of due care, defendant
ran and propelled its said car against, over and upon plaintiff,
dragging him forward along and over the rough pavement, a
distance of, to wit, feet, and then as said car was
reversed again dragging plaintiff along and over the rough
pavement, a distance of, to wit, feet.
And then and there and thereby, and by reason of the run-
ning and propelling of said car against, over and upon plaintiff,
and by reason of the dragging of plaintiff forward a distance
of, to wit, feet, and again backward, a distance of,
to wit, feet, plaintiff was thrown violently to the
pavement, his right collar bone was fractured, three or more
large wounds were made in his head, and said wounds were of
such a serious nature that it became necessary for them to be
sewed up by a surgeon, his body, arms and legs were wounded,
PERSONAL INJURIES 847
bruised and lacerated and the drums of his ears were injured
so that ever since , 19. ., he has been gradually
growing deaf; plaintiff was also injured internally, and as a
result of the shock, his nervous system was wrecked, all of
which injuries are permanent, and from the effect of which
plaintiff has suffered great mental and bodily pain as a result
of such injuries, and will continue to suffer great mental and
bodily pain, as a result of such injuries, during the rest of his
natural life, and he has become crippled, lame and disabled, and
will be crippled, lamed and disabled during the rest of his
natural life; and plaintiff, except for the injuries aforesaid,
would have been capable of earning large sums of money in the
future, to wit, ($ ) dollars, per annum,
but by reason of the premises, he has become incapacitated from
doing any labor and will continue to be so incapacitated from
doing any labor during the rest of his natural life, and he has
been permanently deprived of the ability to earn a livelihood
for himself and family; and plaintiff has been compelled to
expend and become liable for large sums of money, to wit,
: ($ ) dollars, for medical attendance, nurs-
ing and care, and for medicines, and will in the future be re-
quired to expend and become liable for large sums of money
therefor, on account of the injuries aforesaid.
And plaintiff was without negligence with respect to the
cause of his said injuries.
All to plaintiff's damage of ($ )
dollars, and therefore he brings suit.
1512 Careless ninning of street car; pedestrian injured, Narr.
For that whereas, heretofore, on, to wit, the day
^^ •••••• ' ^^- •' ^^6 defendant, , was pos-
sessed of and owned, operated, controlled and used a certain
street railway propelled by means of an underground cable
over, along and upon a certain street known as
avenue, in said city of and county and 'state
atoresaid, and the defendant on said, to wit, the
^^y ^{ » 19. ., was possessed of and using and
operating a certain train of cars and the said train of cars
was then and there under the care and management of
divers then servants of the defendant, who were then
and there, to wit, on said day, drivng and propelling
said tram of cars upon and along the said street, known as
avenue ; and while the said plaintiff,
who was then and there, on, to wit, said day of
, 19 • . , with all due care and diligence for his own
848 ANNOTATED FORMS OF PLEADING AND PRACTICE
safety walking along and upon the said street
avenue, in said city of , which said street was then
and there a public highway, the dcfenchmt then and there by
its servants so carelessly and improperly managed said train of
ears that by and through the negligence and improper conduct
of the defendant the said was then and there
thrown with great force and violence upon the ground by said
train of cars and was then and there struck by said train of
cars and greatly bruised and injured.
And plaintiff avers that by reason of the premises, he
then and there became and was sick, sore, lame and disordered,
and divers of his bones became broken and injured and divers
of his muscles, tendons and sinews became wrenched, bruised,
injured and contused, and the said plaintiff suffered a severe
and permanent weakening, disorder, and displacement, and
thereby the plaintiff' sutTered great pain and anguish and will
in the future during his natural life thus suffer, and thereby
the plaintiff beeanu* greatly and permanently lame and crip-
pled and thereby his, the j)laintifl"s. viscera and his internal
organs were greatly and permanently disordered, weakened
and injured, and thereby the plaintiff* became necessarily in-
debted for a large sum of money in and about endeavoring to
be cured of his various wounds and ailments occasioned as
aforesaid, and his ability to earn a living and pursue his
regular and ordinary vocation was and has been greatly and
permanently injured. Wherefore, etc.
COLLISIONS
1513 Automobile and street car, Narr. (111.)
For that whereas on, to wit, the , 19. ., at,
to wit, the city of , county and state aforesaid, the
said defendant, was in the business of keeping
for hire and hiring to the public certain automobiles, and he
then and there had possession, charge and control of certain
automobiles and had in his employment a certain chauffeur
or driver to operate said automobiles, and then and there the
said did for a certain compensation hire a cer-
tain one of said automobiles, and the chauft'eur as his said
servant to operate the same, to the plaintiff' and other persons,
or to certain other persons for her, and then and there the
said directed his said servant, the said chauffeur
or driver, to operate the said automobile, and then and there
while the plaintiff", with other persons, were rightfully and law-
fully riding in the said automobile, and while the plaintiff was
riding therein, with all due care and caution for her own safety,
and while the same was being operated by the said employee of
the said as his servant, the said servant so negli-
gently and carelessly ran, managed, controlled and operated
PERSONAL INJURIES 849
the said automobile upon a certain public street in said city,
that then and there and thereby, by and through and by reason
of the said negligence, as aforesaid, of the said chauffeur or
driver, the said automobile then and there ran against and
struck with great force and violence a certain street car, and
then and there and thereby the plaintiff was thrown violently
from the said automobile to and upon the ground, whereby she
then and there sustained severe external and internal injuries
to her body, arras, legs and head, all of which injuries are per-
manent, and thereby she sustained serious internal inj[uries to
her lungs, heart, liver, kidneys, ovaries, uterus, stomach and
other organs, and the said injuries have resulted in permanent
nervous disorders; and thereby plaintiff's spine and back were
greatly injured, all of which injuries are permanent. And by
reason of said injuries plaintiff became and was sick, sore, lame
and disordered, and so remained for a long space of time, to
wit, from thence, hitherto, and so she will remain permanently.
And by reason of the said injuries plaintiff' has paid out and
become liable to pay divers large sums of money, to wit,
dollars in and about endeavoring to be cured thereof;
and by reason of said injuries plaintiff has been unable to fol-
low her usual occupation and has lost thereby divers large
sums of money, to wit, dollars per month since
the said injuries.
All to the damage of the plaintiff in the sum of
dollars. Wherefore, she brings this suit.
1514 Down grade collision, Narr. (Mich.)
For that whereas, on, to wit, the day of ,
19. ., and for a long time prior thereto, the said defendant was
and still is, a corporation organized and doing business under
the laws of the state of Michigan, and was and still is the
owner and proprietor of a street railway system in the city
of , Michigan, and an interurban electric railway
between and ._ , Michigan, and was
operating upon the streets of said city of , to wit,
avenue and avenue, a line of street
cars for the carriage of passengers for hire, and said defend-
ant was then and there a common carrier of passengers for
hire.
And for that whereas, heretofore, on the day of
, 19. ., the said plaintiff, at the special instance
and invitation of the defendant, did enter upon and into one
of its cars for the purpose of becoming a passenger thereon, and
for the purpose of being conveyed for hire and reward to said
defendant as a passenger in its said car from the east end of
its track on avenue, in said city to a point on its
line on avenue south, and the said defendant
850 ANNOTATED FORMS OF PLEADING AND PRACTICE
then and there received said plaintiff as such passenger to so
be carried as aforesaid.
And thereupon it became and was the duty of said defendant,
with due and proper care to convey and carry said plaintitT
from said first mentioned point on its said line to said second
mentioned point; and particularly it became and was its duty
to provide reliable, skillful and careful employees, who would
run and operate said car in a careful, proper and safe manner ;
and it became and was its duty to see to it that said car was
run and operated in a careful and safe manner and with rea-
sonable and proper regard for the safety of said plaintiff; and
it became and was the duty of the said motorman on said car
to remain at all times at his proper and usual station on the
said car when the same was in motion in order that he might
properly control the same and reverse the current by which the
said car was run and operate the brakes as occasion might
demand.
Yet, the said defendant, not regarding its duties in that
behalf, did not use due and proper care to convey and carry
said plaintiff" from the said first mentioned point on its said
line to said second point ; and did not provide reliable, skillful
and careful employees who would run and operate said car
in a careful, proper and safe manner and with reasonable and
proper regard for the safety of said phiintiff; and the motor-
man on said car did not remain at all times at the proper and
usual station on the said car when the same was in motion;
but the said motorman unnecessarily, negligently, carelessly
and without due and proper regard for the safety of plaintiff,
abandoned his proper and usual station on said car, and when
the same was in motion and running at a high rate of speed
took hold of the handle or support on the side of the vestibule
of said car, intended for the use of passengers and employees
in getting on and off said car, and attempted to swing himself
out of said vestibule and around and in front thereof with-
out either stopping said car or providing anyone to take his
place at his proper and usual station and without in any way
providing for the control of said car and while so doing fell
from said car to the ground, and said car was thereby left
uncontrolled, and with no one to check or reverse the current
by which said car was propelled or apply the brakes as occa-
sion might demand, or in any way to control said car.
2. And it also became and was the duty of said defendant to
provide reliable, skillful and careful employees who would
run and operate said car in a careful, proper and safe manner
and to see to it that said car was run and operated in a care-
ful, proper and safe manner and with reasonable and proper
regard for the safety of said plaintiff ; and it became and was
the duty of the conductor of said car to exercise all due care
and caution in the operation and conduct of said car, and to
Bee that the same was at all times kept under proper and due
PERSONAL INJURIES 851
control, and if for any reason the motorman failed to remain
at his proper and usual station on said ear, and to maintain at
all times proper watchfulness and control over the same, and
if said car should for any reason not be properly operated and
controlled by the motorman, to use all means within his power
to bring said car within control, and to see that it was safely
and properly operated.
Yet, the said defendant, not regarding its duties in that
behalf, did not use due and proper care to convey and carry
said plaintiff as aforesaid, and to provide skillful, reliable
and careful employees who would run and operate said car
in a careful, proper and safe manner ; and it did not see to it
that said car was run and operated in a careful, proper and
safe manner, and with reasonable and proper regard for the
safety of said plaintiff; and the conductor of said car, the
motorman as aforesaid having abandoned his usual and proper
station on said car and having failed to keep and maintain said
car under proper control, negligently, carelessly and unskill-
fully, did not do all that was within his power to keep and bring
said car under proper control ; and, although said car, as afore-
said, in passing down a grade in avenue, attained
a high and dangerous rate of speed, the said conductor did not
reverse or in any way check or break the current by which said
car was propelled and did not set the brakes upon the rear
of said car as he might and ought to have done, and said car
was thereby left uncontrolled.
3. And particularly because it was the duty of said defend-
ant to provide a safe and suitable car in which to carry plain-
tiff.
Yet, the said defendant, not regarding its duty in that behalf,
did not use due and proper care to convey and carry said
plaintiff" as aforesaid, but negligently and carelessly provided
a car that was unsafe and dangerous in this, to wit, that one
of the handles or supports provided for the purpose of being
taken hold of by passengers in getting on and off said car, and
by employees in the operation of said car to support them-
selves, was weak, broken and unsafe so that when the said de-
fendant's motorman, whose duty it was to control the speed of
said car, and to apply the brakes as occasion might demand, took
hold of said handle or support, it gave way and caused said
motorman to fall off from said car to the ground, and said car
was thereby left uncontrolled, and with no one to check or
reverse the current by which said car was propelled or apply
the brakes as occasion might demand, or in any way to control
said car; and by reason thereof said car in going down grade
in said avenue attained a high and dangerous
rate of speed and ran off the track and ran violently into a
house standing by the side of avenue, and threw
plaintiff with great force and violence against the back and
end of one of the seats in said car so that said plaintiff, with-
852 ANNOTATED TOUMS OF PLEADING AND PRACTICE
out any fault or neglect on his part, was greatly hurt, bruised,
and injured, and made sore, sick, lame and disordered, and had
three ribs broken, and his liver and spleen injured, displaced
and caused to become inflnmed and enlarged, and his stomach
and bowels bruised, injured, torn and lacerated, from all of
which he has ever since sulTered and still sutfcrs great bodily
and mental pain and anxiety, and has ever since been unable
to follow his usual occupation or employment or any occupa-
tion or employment whatever, whereby he has been deprived
of great gains which he would otherwise have had, and has
been put to great expense for surgical and medical attendance,
nursing and medicines, and has been permanently injured, his
constitution weakened, and his health impaired, so that he
will in the future be deprived of great gains, and will suffer
great bodily and mental pain, and be further put to great
expense for medical and surgical attendance, nursing and
medicines, to his damage of dollars, and
therefore he brings suit.
1515 Elevated trains, Narr. (111.)
For that whereas, heretofore, on, to wit, on the .... day of
, 19.., the defendant was a corporation and duly
organized, existing and doing business under and by virtue of
the laws of the state of Illinois, and was then and there the
owner of, in possession, control and management of a certain
line of elevated railroad in the county aforesaid, which ran
and extended over, along and upon a certain public street
and highway in said county known as and called L street, which
said L street then and there intersected and abutted upon
divers other public streets and highways, and particularly
then and there intersected and abutted upon a certain other
public street and highway, known as and called W avenue;
upon which said tracks the defendant then and there
placed, moved, operated and ran divers cars and trains of
cars, propelled, moved and driven by means of electricity,
and in addition to said line of elevated railroad in said L street,
the defendant then and there by license, contract, lease, agree-
ment, permission, consent and sufferance of a certain other
corporation organized, existing and doing business under and
by virtue of the laws of the state of , known as
and called U, then and there placed, moved, operated, man-
aged and drove its said cars and trains of cars on divers other
elevated tracks belonging to and used by said U upon other of
said public streets and highways, more particularly said W
avenue, and a certain other public street or highway, known
as and called V street, in said county, said L street and said V
street then and there each running and extending through said
city and county in an easterly and westerly direction and
PERSONAL INJURIES 853
lying parallel to each other, and the said W avenue then and
there running and extending in a northerly and southerly
direction through a portion of said city, and intersecting,
crossing or abutting upon said L street and said V street at
nearly right angles; and the said defendant was then and
there engaged in the business of carrying passengers to and
from certain stations upon said line of its tracks to certain
other stations upon its said line of tracks, and to certain sta-
tions upon the line of tracks owned by and in possession of
said U. All of which the said defendant did for hire and
reward, and was then and there a common carrier of persons
for hire.
And the plaintiff avers that upon, to wit, the said day
of , 19.., at a point on said defendant's line of
elevated railroad, to wit, at a certain station known as C ave-
nue, in A, in the said county, the defendant received the plain-
tiff into one of its said cars which was then and there one
of a train of cars managed, controlled, operated and possessed
by the defendant, as aforesaid, and for reward and compensa-
tion then and there paid by the plaintiff to the defendant, the
plaintiff was to be safely carried and conveyed as a passenger
along and upon the defendant's said line of tracks to the tracks
of the said U, and thence along and upon the tracks of said
U to his destination at a station of defendant in the vicinity
of the intersection of said V street with a certain other public
street or highway running northerly and southerly through
said city, and known as and called D street.
And the plaintiff' avers that by reason of the premises it
then and there became and was the duty of the defendant to
use the highest degree of care, caution and prudence to safely
carry and convey the plaintiff in its said cars along and upon
said lines of elevated track to his said place of destination and
there deliver the plaintiff uninjured, and to that end and for
that purpose to exercise and use the highest degree of care and
caution in the control, operation and management of the train
in which the plaintiff was riding as such passenger, as also
in the control, operation and management of other trains upon
the same tracks used by the defendant and which might be
running and operating in close proximity to the train in which
the said plaintiff' was riding as a passenger as aforesaid.
But therein the said defendant wholly failed and made
default, and contrary to its duty in that behalf, and when the
said car in which the plaintiff was riding, as aforesaid, as a
passenger, had arrived at and in the vicinity of where said L
street is intersected by a certain other public street and high-
way in said city of , known as and called A street,
in said county, the defendant so carelessly, negligently and
imprudently operated, managed and governed the cars and
trains which were then and there operating and running upon
854 ANNOTATED FORMS OF PLEADING AND PRACTICE
said track, that the defendant by its servants and agents in
that behalf ran, drove and moved a certain other car or train
of cars then and there upon the said track in close proximity
to the train and car in which the plaintiff was riding as afore-
said, so that by reason of the carelessness and negligence of the
defendant and of the premises, one of defendant's said trains
so operated and controlled by it, as aforesaid, tiien and there
collided with great force and violence with, against and upon
said car and the train upon which the plaintill" was riding as
aforesaid; whereby and by means whereof the plaintiff, who
was then and there without fault or negligence on his part and
with all due care and caution for his own safety riding as such
passenger, was then and there violently struck and hurt, and
was then and there violently thrown from his seat in said car in
which he was riding as aforesaid, to, upon and against the seats,
parts, sides and floor of the said car, and the seats, parts,
and sides of said car were then and there with great force and
violence hurled and thrown upon the plaintiff"; by means where-
of he was greatly hurt, bruised, contused and wounded in and
about his head, body, limbs, spine aiul spinal cord; and the
plaintiff' then and there suff'ered severe internal and external
injuries and lesions, and severe shock to his nervous system,
resulting in the impairment of his nervous organization and
mental faculties, whereby he has become and is greatly
deranged, both mentally and physically, and has been unable
to sleep or rest, and has suffered and will continue to suffer
mental and physical prostration and distress, and divers bones,
tendons and ligaments were then and there strained, sprained,
bruised and contused, and he became and was by reason thereof
sick, sore, lame and disordered and so remained for a long
space of time, to wit, from thence hitherto, which injuries are
and will be permanent.
And the plaintiff" further avers that by reason of all said
premises, he has expended, paid out and become liable for
divers large sums of money, to wit, the sum of
dollars for doctor's bills, medicine, medical and surgical attend-
ance and nursing, in and about endeavoring to cure himself
and to be cured of his wounds, bruises and injuries occasioned
as aforesaid.
And the plaintiff further avers that prior to the time of
his said injury he w^as a strong, healthy and robust man,
engaged in the business and occupation of a , and
in and about such business, and by means thereof, he was able
to and did earn large sums of money, to wit, the sum of
dollars a month, but that by reason of the injuries
received as aforesaid and of the premises the plaintiff has
become and is unable to longer perform and carry on his said
business. To the damage, etc.
PERSONAL INJURIES 855
1516 street car and buggy, Narr. (111.)
For that whereas, on, to wit, , 19. ., on a certain
public highway known as street in the city of
county, aforesaid, near a certain other
street called street, the plaintiff was rightfully
riding in a certain vehicle called a buggy then and there drawn
and propelled by a certain horse upon and along said public
highway, to wit, . . . ; street, and the defendant was
then and there possessed of and had control of, by its then ser-
vants, of a certain street car which was then being drawn west-
ward on street by a team of horses, said horses being
then in the possession and under the care of the said defendant
by its said servants, who were then and there driving it along
and upon certain street car tracks then and there in the posses-
sion of the defendant, along said street as aforesaid ; and while
the plaintiff with all due care and diligence was rightfully
riding then and there in said buggy on said
street and across said street car tracks, the defendant then and
there by its said servants so carelessly, and improperly drove
and managed the said horses and said street car that by and
through the negligence and improper conduct of the defendant
by its servants in that behalf the said street car and horses
then and there ran and struck with great force and violence
upon and against the plaintiff's buggy in which he was then
and there riding; and thereby the plaintiff was then and there,
with great force and violence, thrown from said buggy to
and upon the ground there; and was thereby then and there
greatly bruised, hurt and wounded, his left foot and toes badly
crushed and lacerated, the flesh of his left leg torn and
lacerated up to the knee, his right leg wrenched, bruised and
wounded ; his back wrenched, strained and bruised, and his
nervous system severely shocked throughout his body; and
he became and was sick, sore, lame and disordered, and so
remained for a long space of time, to wit, from thence hitherto ;
during all of which time he, the plaintiff, suffered great pain
and was hindered and prevented from attending to and
transacting his affairs and business; and he, the plaintiff, was
permanently injured and damaged, and the said horse, which
he then owned, was badly bruised, hurt and frightened and the
harness which he then and there owned torn and shattered,
and his said buggy wrenched and damaged ; and by means of
the premises the plaintiff was forced to and did then and there
lay out divers sums of money, amounting to
dollars in and about endeavoring to be cured of his said
wounds, hurts and bruises occasioned as aforesaid; and the
plaintiff was compelled for a long time, to wit, for the space
of to abandon and neglect his business as a sur-
geon and medical practioner, by means whereof he suffered a
great loss of his income, to wit, a loss amounting to
856 ANNOTATED FORMS OF FLELVDING AND PRACTICE
dollars; and also, by the running and striking of the said
horses and street car upon and against the plaintiff's buggy
as aforesaid, at the time and place in that behalf aforesaid,
the said buggv l)eing then of the value of dollars, and
whereof the plaintiff was then and there lawfully possessed,
was crushed, weakened and broken, and the plaintitT was com-
pelled to pay out a large sum of money, to wit, the sum of
dollars in and about repairing the same, and the
harness upon said horse, whereof the plaintiff was then and
there lawfully possessed, was torn and shattered, and the
plaintiff was compelled to pay out a large amount of money,
to wit dollars in and about repairng the same;
and the horse, whereof the plaintiff* was then and there law-
fully possessed, was seriously and permanently injured so
that he depreciated in value to the amount of
dollars. ^Vherefore, etc.'^*
1517 Street car and fire engrine, Naxr. (111.)
For that in the lifetime of the said 15, to wit, on the ....
day of 19. ., in the city of , which city
is wholly within county, in the state of Illinois.
he was a member of the fire department of said city of
, a city organized and existing under the laws
of said state and having such a d<'j)artment, and as a jmrt of
his duty as such member, was riding to a tire on a certain tire
engine then and there being drawn by certain horses, upon
and along street, a public highway, in said city,
at a certain crossing of said street, and avenue.
another public highway in said city, and the defendant was
then and there a street railroad company, and also known
as a street railway, and as one of the city railway companies
and was then and lliere possessed of, using and operating a cer-
tain street railroad extending through a part of said city, and
upon and along said avenue over anil across said street, and
on said avenue for a long distance thereon on both sides of
the said crossing, and in said city.
And defendant also then and there possessed a certain elec-
tric motor car used by it to carry passengers along and o.i
.said avenue by means of an electric current then and there
.supplied by it through an overhead trolley wire there to an
electric motor upon and a part of said ear, which said car and
the track on which same was, were then and there under the
care and management of divers then servants of the defendant,
which said car was then and there running upon and along
the said avenue near and towards the said crossing.
And thereupon it became and was the duty of the defendant
1S4 Chicago West Division Ry. Co.
V. Ingrahani, 131 ill. 659 (1890).
PERSONAL INJURIES 857
at said city, on, to wit, said .... day of , 19. ., to
run and operate said car at a moderate and reasonable rate of
speed in approaching and passing over said crossing at night.
Yet, not regarding said duty, but in violation thereof, and
while the said B, with all due care and diligence, was then and
there riding on said fire engine on and along said street and
across the said street railroad and said avenue, the said
defendant then and there, by its servants, so negligently, care-
lessly and improperly ran said car at an immoderate, unreason-
able and excessively fast and dangerous rate of speed at night
while approaching and passing said thronged crossing; and
failed to use the care and prudence in that respect which the
safety of those whom said servants in good reason should know
are likely to be imperilled by said car being so run, demands
should be exercised ; and did not, in approaching said crossing,
so regulate the speed of said car that collisions with other
persons having the right to cross said avenue at said crossing
could, by the exerci.se of ordinary care, be avoided; and said
car was then and there run at such a great rate of speed in
approaching and passing said crossing as to interfere with
the customary use of said avenue and crossing by others of
the public with safety.
2. And thereupon it also became and was the duty of the
defendant at said city, on, to wit, said day of ,
19. ., carefully and properly to cause said car to be run under
control in approaching and passing over said crossing of said
street and avenue, in this, to run said car so that the motor-
man operating said car is able to keep control of it, so as to
stop it within a reasonable distance upon the appearance of
danger to others; and to so lessen the speed of said car while
same was approaching said crossing, that said car would be
under control while pa.ssing over on said cro.ssing.
Yet, not regarding said duty, but in violation thereof, and
while the said B, with all due care and diligence, was then
and there riding on said fire engine on and along said street
and across the said street railroad and said avenue, the said
defendant then and there by its servants so carelessly, neg-
ligently and improperly caused said car to be run not under
control in approaching and passing over said crossing, and
it did not run said car so that the motorman operating the
same would be or was able to keep control of it, so as to stop
it within a reasonable distance upon the appearance of danger
to others; and it did not .so lessen the speed of said car while
same was approaching said cro.ssing that said car would be
under control while passing over or on said crossing.
3. And thereupon it also became and was the duty of the
defendtint at said city, on, to wit, said day of ,
19. ., to carefully and properly drive and manage said car by
causing a bell or gong on said car to be rung or sounded just
before said car ran upon and on to said crossing, and to keep
858 ANNOTATED FORMS OF PLEADINO AND PRACTICE
said bell or gong constantly sounded while said car approached
said crossing.
Yet, not regarding said duty, but in violation thereof, and
while the said li, with all due care and diligence, was then and
there riding on said tire engine on and along said strei.'t and
across the said street railroad and said avenue, the said defend-
ant then and there by its servants so negligently, carelessly and
improperly drove and managed said car at night, and while it
was dark, without causing a bell or gong on said ear to be
rung or sounded just before said car was run ui)on and on to
said crossing; and it did not keej) said brll or gong constantly
sounded while said car ai)proached said crossing.
4. And thereupon it also became and was the duty of the
defendant at said city, on, to wit, said .... day of ,
19. ., to carefully and properly have its servants then and there
in charge and management of said car, while the same was
approaching said crossing, watch and look out for the approach
or passage of fire engines upon said street over said crossing
to avoid running said car into the said engine, and to have
said servants then and there look to see if said crossing was
and would be clear for the passage of said car; and emlt-avor
to ascertain if tiie track ui)on said crossing was and would be
clear for the passage of said car, and to exercise greater watch-
fulness and give more attention as to whether the track ahead
of said car was clear, while said car was approaching and pass-
ing said crossing, than at other places on the route of said car.
Yet, not regarding said duty, but in violation thereof, and
while the said li, with all due care and diligence, was then and
there riding on said fire engine on and along said street and
across the said street railroad and said avenue, the said defend-
ant then and there by its servants then and there in charge
and management of said car, while the same was approaching
said crossing, so negligently, carelessly and improperly failed
to watch and look out for the aj)proach or passage of fire
engines upon said street over said crossing; and it failed to
look to see if said crossing was and would be then and there
clear for the passage of said car; and it failed to try to ascer-
tain if said track over said crossing was and would be clear
for the passage of said car; and it did not exercise any greater
watchfulness nor give more attention as to whether the track
ahead of said car was clear, while said car was approaching
and passing said crossing, than at other places on the route
of said car.
By reason of the several breaches of duty hereinbefore set
forth, and by and through the negligence, mismanagement,
improper conduct and unskillfulness of the defendant, by its
said servants in that behalf, and the matters aforesaid, the
said car then and there ran into and struck with great force
and violence upon and against the said fire engine, and thereby
the said B was then and there thrown with great force and
PERSONAL INJURIES 859
violence from said fire engine to and upon the ground and
pavement there, and was thereby then and there killed. (Add
last two paragraphs of Section 1495)
1518 Street car and wagon, Narr. (111.)
For that whereas, the said defendant, B, a corpo-
ration organized and doing business under and by virtue of
the laws of the state of Illinois, is and was on, to wit, the ....
day of , 19. ., engaged in maintaining and operating
certain street car lines in the city of , county of
, and state of Illinois, and did on, to wit, ,
so maintain and operate a certain street car line upon and along
a certain street in said city of aforesaid, to ^yit,
upon and along , at or near the intersection
of said with other streets, to wit,
in said city of and county aforesaid, and did then
and there run or cause to be run at frequent intervals upon
and along said street car line, certain cars belonging to and
owned by said defendant. ., H. And whereas, it then and there
became and was the duty of said defendant. ., B, to operate and
run its said cars upon and along said at or
near the intersection of said with ,
in the city of aforesaid in a careful and cautious
manner, so as to avoid running into and colliding with vehicles,
wagons or persons then and there being and passing along and
upon said street and upon the tracks of the said defendant. .
B aforesaid :
And whereas, C, a corporation organized and doing busi-
ness under and by virtue of the laws of the state of ,
was, on, to wit, the day of , engaged in the
business for which said corporation was organized in the city
of , and county aforesaid and as part of said busi-
ness, said defendant.., C, was, on, to wit, the .... day of
, driving or causing to be driven upon and along
said , at or near the intersection of said
with in the city of , aforesaid, a cer-
tain vehicle or wagon belonging to and owned and controlled
by said defendant. ., C; and it then and there became and was
the duty of said defendant. ., C, to drive or cause to be driven
its said vehicle or wagon upon and along said ,
at or near the intersection of said with
aforesaid, with all due care and caution so as not to run into
or collide with other vehicles or wagons then and there being
driven upon and along said streets aforesaid and upon and
along the tracks of the defendant. ., B.
And whereas, also, heretofore, to wit. on , the
defendant.., D, was engaged in the general expressing and
carrying business for hire in the city of afore-
said.
860 ANNOTATED l'OH.M>- OI' I'l.l ADI.NH AND I'KACTICE
And whereas, the [)laintilT, (ui to wit, the .... day of
, w. . . . desirous of being conveyed from the
. . . ., situated on said , at or near the intersec-
tion of said , with , in the city of
, aforesaid, to the , situated on
, at or near the intersection of said
with , in the city of
aforesaid, and the defendant. ., D, for a valuable consideration
then and there undertook and agreed with the said plaintitf to
safely carry and convey . .h. ., the plaintiff, to . .h. . place of
destination aforesaid.
And whereas, the plaintiff at the special instance and
request of said defendant.., D, then and there entered into
the said vehicle or wagon of defendant.., D, for the purpose
of being conveyed to his place of destination as aforesaid ;
it then and there became and was the duty of the defendant. .,
D, to exercise all due care and caution in driving and man-
aging ..h.. said vehicle or wagon as aforesaid, while the
plaintiff was so riding in the vehicle or wagon of said defend-
ant. ., D, so as not to run into or collide with the said vehicle
or wagon of the defendant. ., C, or with the said car of the
defendant.., H, then and there being and passing along and
ui)on said , at or near the intersection of said
with , in said city of , and county
aforesaid.
Nevertheless, the said defendants, B, by its servants and
employees, C, by its servants and employees and said D, wholly
disregarding their said duties in tliat behalf did so negligently
and carelessly operate, manage and diixe their respective cars,
vehicles and wagons upon and along the tracks of the defend-
ant, B, and upon and along said , at or near the
intersection of said , with , in the
city of , aforesaid, that the said car of the defend-
ant. ., B, the said vehicle or wagon of the defendant. ., C, and
the said vehicle or wagon of the defendant. ., D, without any
fault on the part of the plaintiff and while plaintiff was
exercising all due care and caution on iiis part, did then and
there with great force and violence run into and collide, each
with the other, to wit, at or near the intersection of said
, with , in the city of ,
aforesaid, on, to wit, the day aforesaid, and the plaintiff
was then and there and thereby thrown with great force and
violence down to and upon the ground and was then and
there and thereby greatly bruised, scratched, wounded, injured
and maimed upon and about his said person, and then and
there and afterwards, to wit, from thence hitherto became,
was and is sick, sore, lame and disordered in and about
his said person, and has expended divers large sums of
money in endeavoring to be healed of his said injuries
aforesaid, to wit, the sum of $ , to the damage of
PERSONAL INJURIES 861
the plaintiff in the sum of $ , and therefore he
brings this suit.
h
For that whereas the plaintiff, on, to wit, > 19 • • »
was employed by A in the capacity of, to wit, a driver or
teamster, and was earning, while so employed, the sum of, to
wit, dollars per day, and was lawfully driving a
two-horse wagon, to wit, south on street at
or near the intersection of street, in the city of
, county, And the
defendant was then and there possessed of and owned, con-
trolled and operated a certain street railway, to wit, an elec-
tric street railway, and then and there ran, controlled and
operated the same in a northerly and southerly direction on
said street, whereon, to wit, motor cars in charge
of divers servants of defendant were then and there propelled
and operated by, to wit, electricity along and upon said rail-
way in a northerly and southerly direction; and the plaintiff
avers that it was then and there the duty of the defendant,
by its servants, to propel, operate, manage and control its said
cars on said street with due regard and care for
the safety of other vehicles and pedestrians, rightfully upon
said street there; yet, the defendant, by its servants, wholly
regardless of its duty in that behalf, and while the plaintiff
was then and there lawfully upon and driving in a southerly
direction along said street, in the exercise of due care and cau-
tion for his own safety in that regard, carelessly, negligently
and improperly propelled, managed and operated its said car
then and there moving in, to wit, a southerly direction along
said street, in that said defendant carelessly and negligently
failed to warn said plaintiff" of the approach of said car while
well and truly knowing that the plaintiff was then and there
ahead of and in front of said car,
2. That it was also then and there the duty of the defend-
ant, by its servants, to propel, operate, manage and control its
said cars on said street with due regard and
care for the safety of other vehicles and pedestrians rightfully
upon said street there ; yet the defendant, by its servants,
Avholly regardless of its duty in that behalf, and while the
plaintiff* was then and there lawfully upon and drivng in a
southerly direction along said street, in the exercise of due care
and caution for his own safety in that regard, carelessly, im-
properly and negligently propelled, operated and managed its
said car then and there moving in a southerly direction along
said street, in that said defendant failed to ring the bell or
otherwise notify the plaintiff of the approach of said car.
By reason of the failure to observe and perform the several
duties as aforesaid, said car was then and there propelled and
ran into and struck with great force and violence against,
to wit, said plaintiff' and said wagon, wherein and whereon
862 ANNOTATED FORMS OF PLEADING AND rUACTICL
said plaintiff was riding; by means whereof the plaintiff was
then and there thrown with great force and violence from and
off said wagon to and upon the ground there; whereby one of
the legs of the plaintiff then and there suffered a compound
fracture, and he was greatly bruised, hurt and injured and
divers bones of his body were then and there lacerated, bruised
and broken, and one of the legs of plaintiff was then and there
crushed, mutilated and wounded, and said leg has become
injured and completely and peniumeiitly shortened and the
plaintiff has completely and permanently lost the use of said
leg, and the plaintiff was obliged to and did lay out divers
large sums of money amounting to dollars in
and about endeavoring to be cured of his said injuries, received
as aforesaid, and also by means of the premises the plaintiff
then and there became and was sick, lame and disordered and
so remained for a long time, to wit, from thence hitherto, dur-
ing all which time the plaintiff' has suffered great pain and has
been hindered and prevented from attending to and transact-
ing his business and affairs, and for the rest of his natural life
will suffer great pain and be hindered and prevented from
transacting, attending and entering into his usual avocations,
by reason whereof the plaintiff" has lost and will be deprived
of divers great gains and profits which he might and would
otherwise have made and acquired as driver and teamster as
aforesaid. Wherefore, etc.
(Virginia)
For this, to wit, that prior to the appointment of said
receivers, as hereinafter stated, the company was
a common carrier of passengers, and the owner and operatoi-
of a line of electric street railway and the cars running thereon,
in street and other highways in the county of
That by decree of said circuit court of the United States
in said cause, entered on the .... day of , 19. ., the
said were appointed receivers of the said cor-
poration, and were instructed to continue the operation of
said street railway. That said receivers were operating said
railway under said decree at and before the time the wrongs
and injuries hereinafter mentioned were committed.
And heretofore, to wit, on the .... day of , 1^. ., the
plaintiff was seated in a jumper and driving a fretful and
unruly horse attached thereto along street in a
southwesternly direction near the railroad cross-
ing in the county of , which said street was a public
highway, when the said defendants were then and there
propelling one of their cars along said street, in
a northeasterly direction, which necessitated its passing in
close proximity to said plaintiff and his said unruly horse."
And it then and there became and was the duty of said
PERSONAL INJURIES 863
defendants to use reasonable and ordinary care to so manage
and control its said car as not to run into or upon said plaintiff,
in case his said horse should become unmanageable and get
upon the defendant's said tracks; and the plaintiff's said horse
did then and there become unmanageable and did back upon
said track, or so close thereto as not to enable said car to
pass without striking said jumper and said horse ; yet the said
defendants, although well knowing the unruly and unmanage-
able character of said horse, and well knowing that the plaintiff
was then and there in peril, did not properly control said car,
but, on the contrary, then and there carelessly, negligently and
recklessly ran their said car into, against and upon the said
jumper.
2. (Here consider as re-written all of first count down to
star.)
And as said car did approach and get within forty or fifty
yards of said plaintiff, his said horse became then and there
fretful, unruly and unmanageable, and backed onto and off
said defendants' car tracks in front of said approaching car
several times, placing the said plaintiff in a dangerous condi-
tion, all of which was visible and known to said defendants,
as well as the great peril of the said plaintiff", and also the said
plaintiff warned, motioned and cried out to said defendants to
slacken the speed of its car and stop the same ; and thereupon
it became and was the duty of the said defendants to use
reasonable care and diligence to slacken the speed of said car
and stop the same until the said plaintiff could get safely by
said car with his horse; yet, the said defendants, disregard-
ing their duty in the premises, carelessly and negligently
failed to stop or slacken the speed of said car, and carelessly
and negligently continued to run the said car towards said
horse, causing him to become more fretful and frightened, and
to back said jumper on the tracks upon which said car was
running, and carelessly, negligently and recklessly ran said
car into, against and upon the said jumper, whereby the said
plaintiff, Avithout any negligence on his part, was thrown from
the said jumper to the ground, and was greatly cut, bruised,
strained and wounded in his hips, legs, back, sides, arms, ribs
and other parts of his body, and suffered much physical pain
and mental anguish, and was put to great expense in attempt-
ing to be healed of his injuries, and was prevented for a long
time from attending to his usual business and occupations,
and from earning the accustomed returns from his labor, and
has been permanently injured and maimed, and rendered more
susceptible to disease than he otherwise would have been, and
rendered permanently less able to engage in his usual business
and occupations and earn a livelihood; to the plaintiff's
damage $
And therefore he brings his suit.
864 ANNOTATED FORMS OF PLEADING AND PRACTICE
1519 Two steam trains, Narr. (Mich.)
For that whereas the defendant on the .... day of ,
in said county, was possessed of and using and opera-
ting a certain railroad extending to and from the
of to the of
in said county with certain trains of cars running
thereon for the conveyance of passengers for reward. That
on the .... day of , 19. ., the plaintiff, at said
, entered a passenger car of a regular train of defend-
ant, and became a passenger on said train for a certain reward
to the defendant in that behalf, to be then and there carried
from said of to said . ;
of , in said county, as by law he had a right to
do, and as by law the said defendant was then and there
required as a common carrier to carry him the said plaintif?
then and there, without any negligence, imprudence, care-
lessness, or wrong conduct on the part of the managers, agents,
engineers, firemen, brakemen, conductors, and other servants
of the said defendant, and free from injury, hurts, bruises and
damage caused by said negligent, careless, imprudence and
wrong conduct.
And therefore it then and there became and was the duty
of said defendant to use due and proper care that the said
plaintiff should be safely and securely carried and conveyed by
and upon said passenger train on said journey from said
of to said of ,
and it was the duty of the said defendant to see that the
said road between said two stations was clear of all other trains,
so that the said passenger train could and should run safely to
said , and it was its duty and the duty of its
managers, agents, conductors, and engineers to so carefully,
diligently and cautiously conduct themselves in and about
the running of said trains and engines on said road that said
passenger train should have a clear track and not collide with
any other train or engine.
Yet, the said defendant, not regarding its duty in that behalf,
did not use due and proper care that said plaintiff should be
safely and securely carried and conveyed by and upon said
passenger train on said journey from said to
said , but wholly neglected so to do, and that the
defendant, its servants and agents did not see that the said
road between said two stations was clear of all other trains
and engines so that the said passenger train would run safely
to said , and would not run into another train
or engine; and that the defendant's manager, agents, con-
ductors and engineers did not carefully, diligently and cau-
tiously conduct themselves in and about the running of trains
and engines on said road, that the said passenger train should
have a clear track and not collide with any other train or
PERSONAL INJURIES 865
engine, and the defendant wholly neglected its duty in the
premises ; and contrary to its said duty, and its duty under the
law, as a common carrier of passengers, and so carelessly,
imprudently and negligently managed the running of its trains
and engines, and its manager, agents, engineers, station agents,
and conductors so carelessly and negligently and imprudently
performed their duty in and about the running of said trains
and engines upon its said road at and near the station called
, on its said road, that the engine and tender
number , was wrongfully, carelessly, negligently
and imprudently allowed to be and upon the said track near
said , and to be running west so that by and
through said carelessness, negligence and imprudence it ran
against, upon and into the locomotive of said passenger train,
thereby the passenger car in which the plaintiff was then riding
as such a passenger was crushed, injured, broken and wrecked
and thereby the plaintiff, who was then riding therein with-
out any negligence or want of care on his part, was injured.
That said passenger train upon which said plaintiff was a
passenger as aforesaid left the station of said defendant at
said , at the usual time, to wit, at about
and arrived at , a station on said road, about
miles east of said , at the usual time
for said train, to wit, at about the hour of , and
departed from said station on its way to said ,
about later. That at a place about a
of a mile east of said station the train upon which plaintiff
was so riding as a passenger was going east toward said
, was run into, and collided with by another loco-
motive and tender of said defendant, being locomotive number
, of said road, which was then running west on
the same. track; that said locomotive and tender so running
west was running backwards, so that when the said locomo-
tive and tender so ran into the locomotive which was hauling
the train upon which plaintiff was a passenger, the rear end
of said tender struck the head of said passenger locomotive;
that said locomotive and tender so running west was so run-
ning west on the same line without any right of way and
carelessly and with great and unusual speed and without any
precaution upon the part of the engineer and fireman in
charge thereof to prevent such colliding with any train going
east on said track, and without blowing any whistle as a warn-
ing for approaching trains, and that there was no conductor of
and for the same and that the said locomotive was in charge of
an engineer and fireman only; that said engineer was care-
less and negligent in running said locomotive and tender upon
said track in this that he had just a few minutes prior to said
collision pushed a train going east to a point about
mile east of said , and that after leaving said
train that he did not have time to run back with said locomo-
866 ANNOTATED FORMS OP PLEADING AND PRACTICE
tive and tender to before said passenger train
would leave said , going east.
And the engineer of said locomotive number
was careless, negligent and imprudent in running back west
upon said track; that he did not have time to run back and
reach said before said passenger train would
pull out going east; that he knew said passenger train was
due to leave said station at , and
that he knew, or ought to have known, that he did not have
time after leaving the train that he had been pushing to go
back and reach before said passenger train would
pull out of , going east ; that said engineer of said
locomotive number attempted to make said run
west of without any order or permission from
the proper ofificer of said defendant, and in violation of the
laws and rules of said defendant company in regard to the
running of trains upon said road.
That by the rules and regulations of said defendant
company regarding the duty of its locomotive engineers and
conductors of trains, it was forbidden that any engineer or
conductor should run his train or engine upon the time of
another train, and it was also forbidden that any engineer or
conductor should run his engine or train so that there would
be any possible danger of a collision with any other train or
engine, and it was also forbidden that such engineer or con-
ductor should run his engine or train from one station to
another, or from any point upon the line to another point upon
the line without permission or order of a servant of said com-
pany ca.'led a train despatcher; that the engineer of said engine
number in the performance of his duty and in
compliance with said rules and regulations ought, after leav-
ing said train that he had pushed east of to have
waited at a suitable and convenient side-track on said road
until said passenger train had passed before attempting to go
west to said
That said collision was caused by the aforesaid negligence,
carelessness and imprudence of said engineer of said locomo-
tive number and by his said disregard and dis-
obedience of said rules and regulations of the defendant and
by the said defendant not having and providing a conductor
for said locomotive number
That said locomotive and tender number
struck said passenger locomotive in said collision with great
force and violence and the said locomotive and tender number
and passenger train were brought together with
great force and violence.
That said plaintiff while so riding on said passenger train
was sitting in the car next to the engine upon a seat pro-
vided for passengers and had remained sitting upon said seat
during all of said journey and down to the time of said col-
PERSONx\.L INJURIES 867
lision; that he did not do any act or thing to cause said col-
lision ; that he, during all of said time conducted himself with
care and due regard for his own safety; that he used due care
and diligence in and during all of said journey and that he
was not in and about said collision and wrecking of said pas-
senger train and the consequent injury to himself guilty of
any negligence whatever which would in any way contribute
to said collision or to the injury to him.
That by means of said collision and the wrecking of and
injury to said passenger car, in which the plaintiff was so
riding, and by said car being broken and crushed in about
the tender and engine in collision with said engine number
, the plaintiff was struck by portions of said
passenger car and by the tender of the engine of said train
being forced against and into said car, so that he was thrown
out of said car and fell down to and upon the ground and the
plaintiff' was so struck that he was bruised, wounded, cut and
injured and his body was wrenched and he was knocked into
insensibility, and that he received thereby several severe cuts
and wounds upon his head and was wounded and bruised upon
his left arm, and that both his legs were bruised and wounded
and that his left leg received a severe cut and that his back
was injured and that his back was sprained across the kidneys
and that he was injured internally, and that by so being struck,
wounded, bruised and injured, his nervous system became
injured and impaired. And also by so being struck, wounded,
bruised and injured and wrenched his bladder was injured.
That at the time of said collision and the consequent injury
to plaintiff' he was of the age of years, was at
the time prior to said injury a strong man, physically and
mentally, and in good health and with a prospect of a long life
before him. That by so being struck, wounded, bruised and
wrenched he was permanently injured in his legs and that he
has become thereby weak and also thereby his back was per-
manently injured and weakened and that thereby his bladder
and kidneys were permanently injured and weakened.
That by reason of his injuries so received by him, plaintiff
was rendered incapable and unable by reason of the physical
weakness arising from said injuries, from carrying on his busi-
ness and occupation during the remainder of his life. That
the business in which the plaintiff has been engaged for many
years is that of exploring and conducting and carrying on and
superintending mining operations in of ,
in which business and occupation he has always been accus-
tomed to earn and receive large compensation as earnings, by
reason of his skill, experience and reliability in such business
and occupation.
That said business and occupation is and was such that it
required his personal attention and presence upon the lands,
explorations and mines in which the work and operations
868 ANNOTATDD FOKMS OP PLEADING AND PRACTICE
were carried on. That by the injuries so received by him in
said collision the plaintiff has been totally and forever dis-
abled and incapacitated from continuing in said business and
occupation. That he has no other occupation, business or
profession. And also by reason of the premises tiie said plain-
tiff' became and was sick, sore, lame and disordered and so
remained and continued for a long space of time, to wit, from
thence hitherto, during all of which time the plaintiff suffered
and endured great mental and physical pain and was hindered
and prevented from transacting and attending to his neces-
sary and lawful affairs by him during all that time to be
performed and transacted ; and also was deprived of divers
great gains, profits and advantages which he might and other-
wise would have derived and acipiired; and that thereby also
said plaintiff was necessarily forced and obliged to and did
then and there pay, lay out and expend divers large sums of
money amounting in the whole to the sum of ............
dollars in and about endeavoi-ing to be cured of the said bruises,
cuts, injuries and in and about being nursed and attended
and assisted as he necessarily must be because of his said weak-
ness in his legs, back, kidneys and bladder. In all to the dam-
age, etc.
1520 Two street cars, Narr. (111.)
For that whereas, on and before, to wit, the day of
, 19.., at the city of , county of
, and state of Illinois, the defendant was in the
possession of and using a certain line of street railway, com-
monly known as the line, of said defendant, run-
ning along, upon and over ; • • • . street,
and divers other streets in the said city of ,
together with certain cars thereunto belonging and used for
the conveyance of passengers for a certain reward to the
defendantin that behalf, and operated by means of electricty;
that at the time aforesaid she was a passenger on one of the
said cars of the said defendant, which said car was then and
there being run in a southerly direction along, upon and
over street at or near the intersection of
street and street ; that it then and there became
and was the duty of the said defendant to have used the high-
est degree of care to safely carry the plaintiff, so being
a passenger, as aforesaid, in and on said car aforesaid, along,
upon and over the route traveled by the same; yet, the
defendant did not regard its duty in that behalf and did not
use due and proper care that the plaintiff should be safely
carried in and on said car aforesaid, but neglected so to do;
and by reason thereof, afterwards, and while the plaintiff was
a passenger on said car aforesaid and in the exercise of all due
care and caution for her own safety, at or near a certain point
PERSONAL INJURIES 869
in said city, county and state, to wit, the intersection of .....
street and . • street, the said car aforesaid collided
'vith a certain'other car of the said defendant; by means and
in consequence whereof the plaintiff was thrown with great
force and violence upon and against ^ f ^^^f .«f ^, f ,'!?,
street car, and by means whereof the plamtitt s
back and 'head were severely hurt, bruised, wounded and
TnTared, and she was injured in and about the abdomen
and in and about the spinal cord, and ber back, head
and hip were greatly contused, and she suffered severe
nervous^hock, and her mind became impaired and seriously
injured, and she was injured both internally and externally,
and became therefrom sick, sore, lame, and disordered,
and wm be sick, sore, lame, and disordered the remainder
of her life during all of which time the plaintiff has
suffered and will suffer great pain, and has been prevented
from attending to and transacting her usual and ordinary
affaTrs and duties, and has lost and will lose divers great gains
and profits which she otherwise would have made and acquired ;
and also by means of the premises she was then obliged to and
became obligated to pay, lay out and expend divers large sum.
of money, amounting to, to wit, dollars, m and
about endeavoring to be cured of her said hurts, bruises
wounds, injuries and contusions received as aforesaid, to the
damage, etc.^^^
(Maryland)
For that the defendant is a body corporate, duly incorpo-
rated and a carrier of passengers for hire ; that theretofore, to
wit on or about the ... day of ,19. .,the defendant
accepted. the plaintiff to be its passenger, receivng from her
fare as such, to be transported upon one of its cars in its
service in city; that thereupon it became and
was the duty of the defendant while the plaintiff was such
nassenger to exercise the highest degree of care practicable
under 111 Ihe circumstances to transport the plaintiff m safety ;
"hat in neglect and default of its said duty in the premises, said
defendant did not exercise the highest degree of care prac
ticable under all the circumstances to transport the plaintiff
n safety but on the day and year aforesaid, a collision
occurred between the car in which the plaintiff was being so
tran ported by the defendant, and another car of said defend^
ant operated by its agents and servants, whereby the plaintiff
was seriously and pennanently injured about the head, body
and limbs the sight and hearing being permanently impaired,
caused to suffer great physical pain and mental anxiety, dis-
qualified from pursuing any avocation by reason of which
i55Greinke v. Chicago City B7.
Co., 234 111. 564, 565 (1908).
870 ANNOTATED FORMS OF PLEADING AND PRACTICE
she has lost the emoluments she otherwise would have received,
has been put to great expense for professional attention and
treatment, and the jjurchase of necessary medicines, and appli-
ances, and is otherwise injured and damaged.
And the plaintiff says that her said injuries were directly
caused by the negligence and want of care of the defendant,
its agents and servants in the premises, and without negligence
or want of care on the part of the plaintiff directly thereunto
contributing; wherefore this suit is brought.
And the plaintiff claims dollars damages.
For that the defendant is a body corporate, duly incor-
porated, and owns, operates and maintains a double track elec-
tric railway, between the city of , in the state of
Maryland, and the city of , in the District of
Columbia, and a single track electric railway, connected there-
with with the Naval Academy Junction, in the state of Mary-
land, and the city of Annapolis, also in said state, and is a
carrier of passengers for hire; that heretofore, to wit, on or
about the .... day of , 19, ., the defendant accepted
, the minor son of the equitable plaintiff' in this
case, to be its passenger, from city to the city of
, and received from him his fare, or ticket as such;
that then and there it became, and was the duty of the said
defendant to exercise the highest degree of care proper under
all the circumstances to transport the said , the
minor son of the equitable plaintiff, in safety to his destina-
tion ; that in neglecting its said duty in the premises while the
equitable plaintiff's said minor son was such passenger, the
said defendant did not exercise the highest degree of care
practicable under all the circumstances to transport him in
safety to his destination, but that while the said ,
the equitable plaintiff's minor son, was such passenger, on
the said .... day of , 19. ., as aforesaid, the car upon
which the said equitable plaintiff" 's son, was riding, by reason
of the negligence, and want of care of the defendant, its serv-
ants and agents in the premises, collided with another car,
also operated by the defendant, its officers, servants and agents,
coming in an opposite direction upon the same single track,
at or near station, in the state of Maryland, in
consequence whereof the eciuitable plaintiff's minor son was
killed, and that the death of the said , the minor
son of the equitable plaintiff, vras directly caused by the act,
negligence and default of the defendant, its officers, servants
and agents, and without any negligence, or want of care upon
the part of the said directly thereto contributing;
that the said deceased at the time of his death was engaged in
the wholesale and retail business, in the city of
, for the benefit, and on account of the said equi-
PERSONAL INJURIES
871
table plaintiff, from which business he derived for the equitable
plaintiff, great emoluments, and contributed largely to the sup-
port and maintenance of this equitable plaintiff, his wife and
family, and would have continued to do so until he had attained
his majority, but for his death occasioned as aforesaid; that by
reason of the death of the said . ..... ., under the cir-
cumstances aforesaid, the equitable plaintiff has been deprived
of this source of maintenance and support, and has likewise
directly sustained great pecuniary loss, damage and mjury.
Wherefore this suit is brought and the plaintiff claims
dollars damages.
1521 Couplers defective, assuming risk, proof
Under state and Federal statutes, a common carrier owes an
absolute duty, not merely that of exercising reasonable care
or good faith, to equip its empty and loaded cars with auto-
matic couplers and to maintain them in a condition that the
ears may be coupled and uncoupled without requiring employees
to go between them when in the performance of their duties;
and in an action for a violation of the Illinois statute, the plain-
tiff is not obliged to prove that the common carrier did not
exercise reasonable care to maintain the safety appliances in
good condition and repair.i^^ Under the Illinois statute, an
employee does not assume the risk of an injury by going between
cars in the performance of his duties.^ ^'
1522 Couplers defective; brakeman injured, Narr. (111.)
For that whereas, the defendant, on, to wit, the day of
19. ., was a railroad corporation and was possessed
of and using and operating certain lines of railroad running
through parts of the states of Illinois and , some
of which said lines extended through part of the county of
state of , and some of the same lines
extending through a part of the county of , state of
to the city of , and that the said
defendant was possessed of a large number of locomotives and
cars which it used upon the said lines, also using and haul-
ing 'cars for other lines operating in this and other states,
which said locomotives and cars and lines of railroad the said
defendant used in operating a certain system engaged m inter-
state commerce as a common carrier, and was then and there
iscLuken v. Lake Shore & M. S. '" ^uken v ^^^^| ^^°^® ^ ^- ^•
Ey Co., 248 111. 377, 382, 383 (1911) ; Ey. Co., 248 111. 388.
Laws 1905, p. 350 (111.) ; 1901 U. S.
Comp. St., p. 3174; 1909 U. S. Comp,
St., p. 1143.
872 ANNOTATED FORMS OP PLEADING AND PRACTICE
engaged in interstate commerce on the day and date aforesaid,
and had been so engaged for many years immediately before
that time. That on the day and date aforesaid, and for a
number of months prior thereto, he was in the employ of
the said defendant as a freight brakeman, working with a
crew operating between the city of , county of
, aforesaid, and the city of , in the
county of aforesaid, in the service of the said
defendant while the said defendant was so engaged as a com-
mon carrier of interstate commerce.
And the plaintiff avers that the defendant on the day and
date aforesaid, being a railroad corporation engaged in inter-
state commerce as a common carrier as aforesaid, it then and
there became and was the duty of the said defendant to have
its cars used in moving interstate traffic equipped with couplers
coupling automatically by impact, so that the said cars could
be coupled and uncoupled without the necessity of men going
between the ends of the cars, according to an Act of Congress,
entitled, "An Act to promote the safety of employees and travel-
ers upon railroads by compelling common carriers engaged in
interstate commerce to equip their cars with automatic couplers
and continuous brakes, and their locomotives with drive wheel
brakes, and for other purposes," approved March 2, 1893; and
it then and there became and was the further duty of the said
defendant to keep the same in reasonably safe condition and
repair so that the plaintiff and other servants of the said
defendant would not be exposed to unnecessary danger while
in and about the performance of their duties in and about
the coupling and uncoupling of cars and engines while in the
exercise of due care and caution for their own personal safety.
And plaintiff avers that on, to wit, the night of the
and of , 19. ., at, to wit, after the hour of
midnight, the train crew, of which plaintiff was a member,
were at a point in the city of , on the line of the
said road, known as , and had with them the
engine and caboose in their charge; that on the night afore-
said, the said crew was ordered to take their engine and caboose
and proceed to the station of , to pick up a train
of cars to bring to the city of ; that the said
defendant, notwithstanding its duty in that behalf according
to the statute aforesaid, negligently and carelessly failed to
have its said caboose equipped with couplers coupling auto-
matically by impact, and negligently and carelessly failed to
keep the same in reasonably safe condition and repair, so
that the plaintiff would not be exposed unnecessarily to danger
of injury by being compelled to go between the end of the
caboose and the end of the engine for the purpose of coupling
said engine to the said caboose ; that the said defendant then
and there negligently and carelessly permitted one of the
couplers, or draw bars upon its said caboose, which said
PERSONAL INJURIES 873
coupler or draw bar it was then and there necessary for this
plaintiff to use in making a coupling with defendant's engnie
aforesaid, to be and remain in a dangerous and unsafe condi-
tion and out of repair, which said dangerous, unsafe and
defective condition of the said draw bar or coupler was
known to the defendant and had been kno^yn to the defendant
for, to wit, many weeks prior to the said time.
2. And plaintiff further avers that the said defendant on
the day and date aforesaid, being a railroad corporation operat-
ing certain lines of railroad, and using thereon certain cars,
known as cabooses, and certain locomotives as aforesaid, it
then and there became and was its duty to furnish its employees
with reasonably safe machinery and appliance with which to
work, and to keep the same in reasonably safe condition and
repair, so that the plaintiff and other servants in and about the
performance of their duties while in the service of the said
defendant would not be unnecessarily exposed to danger of
injury while in the exercise of ordinary care and caution for
their own personal safety; but that, on, to wit, the hour of
o'clock .. M. on the day of ,19.., the
said defendant negligently and carelessly failed to furnish this
plaintiff with reasonably safe machinery, appliances, etc., and
negligently and carelessly failed to keep the same m reason-
ably safe condition and repair. That is to say, that
on the night aforesaid, after having attempted to equip
its certain caboose, which was in the charge of the freight
crew of which this plaintiff was a member, with an automatic
coupler, the said defendant permitted the same to be and
remain 'in a dangerous and unsafe condition, which dangerous
and unsafe condition had previously been reported to the said
defendant, and which dangerous and unsafe condition was
unknown to this plaintiff. ,
And plaintiff avers that by reason of the negligence of the
defendant aforesaid, and because the said defendant had neg-
lic^ently and carelessly failed to have its caboose equipped as
aforesaid, according to the statute of the United States m
such case made and provided, and had failed to keep the said
caboose, after having once attempted to comply with the statute
aforesaid, in a reasonably safe condition and repair, according
to the intent and purpose of the said statute as aforesaid,
that this plaintiff, while in and about the performance of his
duty in attempting to couple his engine to his said caboose, at
a point on the said defendant's line known as .,
his right hand caught and was crushed between the draw bar
of the said engine and the draw bar of the said caboose, and
while the said plaintiff was in the exercise of ordinary care
and caution for his own personal safety, bruising, mangling
and crushing plaintiff's said right hand so that amputation
became and was necessary at a point above the wrist, causing
the plaintiff herein to become permanently injured and
874 ANNOTATED FORMS OF TLEADING AND PRACTICE
crippled, for, to wit, from thence hitherto, during all of which
time he thereby suffered great pain and agony and was
hindered from transacting his business and affairs and from
following his usual occupation ; also by means of the premises
he was thereby obliged to and did lay out divers sums of
money, amounting to, to wit, dollars, in and about
endeavoring to be healed of his wounds, sickness and dis-
order; to the damage, etc.^^*
1523 Couplers defective; switchman injured, Narr. (111.)
For that whereas, heretofore and, on, to wit, the .... day of
, 19. •, the defendant was possessed of and operating a
certain railway which extended, among other places, through a
portion of the state of Illinois, and it was then and there a
common carrier engaged in interstate commerce and in mov-
ing traffic upon its said railway line between points in said
state, and the plaintiff was then and there employed by the
defendant as a switchman to switch with certain engines and
cars which it then and there operated upon its said railway
line, and as such switchman earned, to wit, dol-
lars per month ; that at the time and place aforesaid, to wit, at
the defendant's railway yards which it operated in connec-
tion with and as a part of its said railway line, to wit, at
, in the city of , in the county and
state aforesaid, the defendant unlawfully, wrongfully and neg-
ligently, and contrary to the statute in such case made and
provided, hauled and used upon its said railway line in mov-
ing said traffic between points in said state a certain car
equipped with a certain coupler, which, by reason and in con-
sequence of its then improper and defective condition of repair,
could not be coupled automatically by impact without the
necessity of its switchmen going between the ends of said cars.
2. And the plaintiff further alleges that at the tim-e and
place aforesaid, to wit, in the defendant's railway yards which
it operated in connection with and as a part of its said rail-
way line, at, to wit, , in the city of ,
in the county and state aforesaid, the defendant unlawfully,
wrongfully and negligently, and contrary to certain Acts of
Congress in such case made and provided, hauled and used
on its said railway line in moving interstate traffic a certain
car equipped with a certain coupler, w^hich, by reason and in
consequence of its then improper and defective condition of
repair, could not be coupled automatically by impact without
the necessity of its switchmen going between the ends of said
cars.
That said plaintiff as such switchman was then and there
158 Chicago & Alton Ry. Co. v.
Walters, 217 111. 87 (1905).
PERSONAL INJURIES 875
required by the defendant to couple said ear on to a certain
other car then standing upon the same track and close to it,
and in the discharge of his duty as such switchman and while
he was exercising ordinary care and caution for his own safety,
he was, as a direct result and in consequence of the said defec-
tive and improper condition of said coupler, required to and did
go between the ends of said cars for the purpose of attempting
to adjust said coupler in order that it might be coupled on to
said other car, and while so being between the ends of said cars
and while attempting to adjust said coupler for the purpose
aforesaid, said other car was, without the knowledge of the
plaintiff, moved back against said car so equipped with said
coupler in said defective and improper condition of repair as
aforesaid, and as a direct result and in consequence of the said
defective and improper condition of said coupler as aforesaid,
which necessitated plaintiff 's going between the ends of said
cars and of his so being between the ends of said cars for the
purpose aforesaid, one of his hands and arms was thereby then
and there caught and crushed between the ends of said ears
and his said hand and arm were thereby then and there so
seriously crushed and mangled that their use has become and
is greatly and permanently impaired, and divers other bones,
ligaments, muscles, tendons and membranes of the plaintiff's
body were also thereby then and there sprained, dislocated,
broken and otherwise injured, and he sustained a serious shock
to his nervous system, and as a direct result of his said injuries
he has ever since suffered and will continue permanently to
suffer great pain, and has become and is permanently crippled,
sick, sore and disordered, and incapacitated from attending to
or transacting his regular business, or any ordinary business or
affairs, and he has thereby been and will continue permanently
to be deprived of great gains and profits which he might and
otherwise would have made and acquired, and he has been
compelled to and did incur, expend and lay out for medical
attention, nursing, medicines and otherwise, divers large sums
of money, amounting to, to wit, the sum of dollars, in
and about endeavoring to be cured of his said injuries, sickness
and disorders, occasioned as aforesaid. To the damage, etc.
For that whereas the said defendant was, on, to wit,
day of , possessed of, and operating certain loco-
motive engines, cars, trains of cars, railroad tracks and railroad
yards in, or near, the city of in
county, Illinois, and on the said date defendant was engaged
in switching certain railway cars by means of a certain loco-
motive engine, which said engine and train of cars were in
charge of a certain night switching crew of defendant, which
crew, including plaintiff, was under the direct supervision and
control of a certain foreman by the name of ,
876 ANNOTATED FORMS OF PLEADING AND PRACTICE
who was not then and there a fellow-servant of plaintiff; that
plaintiff was then and there in the employment of the said
defendant as a member of said switching crew in the capacity
of switchman, it being the duty of plaintiff to couple and
uncouple cars and to do the work usually and ordinarily done
by a switchman of a yard switching crew; and that plaintiff
was then and there inexperienced in said work and was un-
familiar Avith the hazards and dangers incident thereto.
And plaintiff' further avers that one of the couplers with
which the said cars were coupled and which said plaintiff was
attempting to operate was defective and out of repair, so that
said cars could not be uncoupled from the side on which plain-
tiff was working; that, in obedience to the direct and specific
order of the said foreman, who then and there had authority to
direct and order the plaintiff' in and about said work, plaintiff
got upon one of said cars and crossed over the same to uncouple
said cars from the opposite side, and said foreman then and
there knew, or should have known, that to suddenly check the
motion of said moving cars while the plaintiff' was uncoupling
said ears, or before he had fully regained his balance after hav-
ing uncoupled the same, would necessarily place plaintiff in a
perilous and very dangerous position and would in all prob-
ability cause him to fall upon said railroad tracks in front of
said cars; that while plaintiff' was attempting to uncouple said
cars, or after having just uncoupled the same, and while in the
exercise of reasonable and ordinary care and caution for his
own safety, the said foreman of the defendant negligently and
carelessly signaled and caused the engineer in charge of said
locomotive engine to suddenly check the motion of said locomo-
tive engine and cars thereto attached, which caused the said
cars to jerk or jolt, thereby throwing said plaintiff from said
car to the ground there and upon the tracks over which
said cars were being propelled, and some of said cars then and
there ran over said plaintiff, thereby crushing, mashing and
mangling said plaintilf's legs and left arm so that it became
necessary to amputate both of said legs and said arm, whereby
said plamtiff was seriously and permanently injured, and
became sick, sore, lame and disordered, and so remained from
thence hitherto, and thereby plaintiff' suffered great pain of
body and mind, and will continue so to suffer through his entire
lifetime, and has lost a large amount of wages and has been
deprived of his means of livelihood, and has expended and will
expend a large amount of money for nursing, medicines and
medical attention in endeavoring to be cured of said injuries,
which said injuries were directly and proximately caused by
the careless and negligent order of said foreman, in directing
and commanding the plaintiff to get upon and cross over to the
opposite side of one of said cars and to uncouple therefrom
certain of said cars while in motion, and by the negligence of
the foreman in carelessly causing the engineer to suddenly
PERSONAL INJURIES 877
slacken the speed of such locomotive engine and cars thereto
attached while plaintiff was attempting to uncouple said cars,
or was in the act of regaining his balance after having un-
coupled same, in obedience to a direct and specific command
and order of said foreman, to the damage, etc.
1524 Dangerous premises, invitation, action
The owner or tenant is bound to take reasonable care to see
that his premises are in a reasonably safe condition for persons
who come there upon his direct or implied invitation ; and he is
liable for an injury which results from a failure to perform
that duty to a person who has exercised reasonable care for his
own safety while using the premises for the purpose for which
the invitation was extended. ^^^
1525 Depot grounds; trespassers, action, proof
Ordinarily, the obligation of care to avoid injury of a tres-
passer arises at the time that his perilous position becomes known
to those who are in charge of the train. This has no applica-
tion to depot grounds and platforms provided for the use of the
public in the transaction of its business, where persons have a
right to be for legitimate purposes and where they may reason-
ably be expected. If they are there for a legitimate purpose
in connection with the business of the railroad company they
have a right to demand the exercise of reasonable care for their
safety. If they are simply idlers, loiterers or trespassers, the
duty of the company is only to abstain from wilful or wanton
negligence. This duty is owing to an indeterminate part of the
public generally, giving a. right of action to anyone of the gen-
eral public who suffers from a violation of that duty.^'^'' The
running of a train at night without headlight and without warn-
ing by bell or whistle over unlighted station grounds and along
a platform where persons may reasonably be expected tends to
prove a wanton and reckless disregard of such persons safety,
and no specific knowledge of their presence on track or plat-
form, or the existence of specific ill-will toward or an intention
to injure them are necessary.^ ^i
159 Devaney v. Otis Elevator Co., i«i Neice v. Chicago & Alton E.
251 111. 28, 34 (1911). Co., 254 111. 604.
160 Neice v. Chicago & Alton E.
Co., 254 111. 595, 603 (1912).
878 ANNOTATED FORMS OF PLEADING AND PRACTICE
1526 Depot grounds, Narr. (111.)
For that whereas the defendant, the , on the
day of , 19. ., and for a long time prior
thereto, owned and operated a certain line of railroad extending
through said county of and in and through the
said city of in the said county, over which said
line of railroad the said railroad company on the
date aforesaid knowingly permitted the other defendant here-
in, the railroad company, to operate trains of cars
drawn by locomotive engines; that, on the date aforesaid, the
said railroad company had a depot on the west
side of the tracks of its said line of railroad in the said city of
, which said depot was used by the patrons of the
railroad company, the railroad
company and other roads passing through the said city of ....
; that on the east side of said depot there were
lines of railroad tracks extending in a northerly and southerly
direction ; that the said railroad company had con-
structed between the second and third railroad tracks to the
east of the depot a platform for the use of the people going to
and from trains on said track, and had constructed, from the
said depot eastwardly across the said tracks to and from said
platform, a board sidewalk leading from said depot toward one
of the streets of said city of extending eastwardly from
said depot; that said platform and the walk aforesaid, were
used and frequented by large number of people every day, and
at all times, by people going to and from said depot, which fact
was known to the defendants; and that on the date aforesaid,
her intestate who had come to the said depot for the purpose
of going to , Illinois, upon one of the trains of
the said railroad company from the said depot,
was standing upon said platform, and near or upon the walk
aforesaid, waiting for the railroad company train,
which was then approaching said depot, to stop at said depot.
And that the defendant, the railroad company,
through certain of its servants in charge of a certain engine
and train of cars, with gross negligence and reckless disregard
for the safety of persons who might be upon said cross-walk
and platform, wantonly and wilfully ran and operated the said
engine and train of cars along and upon the said tracks of the
railroad company in the night time at a high rate
of speed, without ringing a bell or sounding a whistle and
without having a proper headlight burning upon said engine
and without the engineer in charge of said engine looking in
front of said engine, past said depot and platform and oyer
said cross-walk in the said city of while plain-
tiff 's intestate was standing upon said platform and cross-walk,
as aforesaid, whereby said engine was driven upon and against
plaintiff's intestate, inflicting injuries upon him from which he
PERSONAL INJURIES 879
died on the same day. (Add last two paragraphs of Section
1495)
1527 Derrick injury, Narr. (111.)
For that whereas, on, to wit, , 19 . • , said de-
fendants were engaged in the business of constructing or doing
work in and about a certain building, at or near the . .
corner of streets, in the city of . .
, county and state aforesaid, and in the course of their
said work it became necessary to tear down or break down por-
tions or all of a certain structure supporting all or a portion
of an alley, which said structure was in divisions or panels ; and
that the plaintiff was an iron worker employed in said work
and in said panels.
And it then and there became and was the duty of the
defendant company to exercise ordinary care in and about its
premises aforesaid, so that the plaintiff and others who were
then and there employed by the defendant company and en-
gaged in its work should not suffer nor be endangered by care-
lessness ; yet, the defendant, notwithstanding its duty in that
regard, wrongfully, negligently and improperly caused a large
piece of iron to be raised by means of a derrick and dropped
on the structure that it was then engaged in tearing down and
removing, without giving the defendant any warning and with-
out notifying him that such action was dangerous ; that he had
no knowledge that danger attended said operation ; said plain-
tiff avers that said operation was not done by a fellow-servant
of this plaintiff ; and that by the premises aforesaid, when the
iron was dropped, a large portion of the structure came down
carrying with it the plaintiff.
2. And it also became and was the duty of the defendant
to use reasonable and ordinary care in and about the prem-
ises, so as to provide the plaintiff with a reasonably safe place,
and appurtenances on, in and with which to do the work for
which he was employed; yet, the defendant, disregarding its
legal duty in that behalf, proceeded to destroy and break
down said structure, panel by panel, or in divisions, by drop-
ping from a height thereon a heavy brake or beam, and before
so doing had wrongfully and negligently loosened or removed
various rods, bolts, ties or supports whereby said panels in said
structure were kept in place, thereby weakening and endanger-
ing the structure, of which condition the plaintiff was ignorant,
the defendant having negligently failed to inform him; that
while the panels or divisions of the structure were in such
weakened condition the defendant negligently dropped a heavy
weight to or on the north part of said panels, and thereby while
the plaintiff*, who was in the exercise of ordinary care for his
own safety and without the fault of any fellow-servant, and
while he was working to the south of and some distance away
880 ANNOTATED FORMS OF PLEADING AND PRACTICE
from the place on which the weight was dropped, was thrown
down by the collapse or fall of the weakened structure, occa-
sioned by the wrongful dropping of the weight thereon.
By means whereof the plaintiff was injured in and about his
head, body, and limbs, and divers bones of his body were
broken, sprained and injured, his nervous system was shattered
and wrecked, and he sustained various other physical and
mental injuries, all of which injuries are permanent and incur-
able; and he became and was sick, sore, lame and disordered,
and so remained from thence hitherto. And the plaintiff avers
that by means of the premises he lost his usual gains and profits
as an iron worker, to wit, the sum of dollars per
day from thence hitherto, and he was compelled to and did lay
out a large sum of money, to wit, dollars for
medicine, care, surgery, attendance, nurses and appliances in
and about being healed and cured of his injuries aforesaid. To
the damage, etc.
1528 Drover's unsafe place, Narr. (111.)
For that whereas, heretofore, to wit, on the day
of , 19- •, the defendant was owner of, possessed,
using, and operating a certain railroad extending from ,
ill the county of aforesaid, through a portion of
said county to , in said state and elsewhere, and
was also possessed of, using, and operating divers locomotive en-
gines and trains of cars for the purpose of transporting freight
and passengers for hire and reward ; that said plaintiff was then
and there engaged in the business of buying, shipping and sell-
ing live stock, and on the day aforesaid he delivered to said
defendant at a car loaded with cattle to be trans-
ported by said defendant in its said car on its said railroad in
one of its said freight trains to the said city of
for hire and reward ; that it then and there became necessary
for him to accompany said car load of cattle on said trip for
the purpose of watching over and caring for the same; that
the defendant in consideration thereof, and of the payment of
said freight on said car load of cattle, then and there issued to
the plaintiff a drover's pass or ticket, by means whereof the
plaintiff was entitled to ride upon said freight train from
to for the purpose of watching over
and caring for said cattle while so enroute ; and that the de-
fendant, in consideration thereof, then and there undertook,
promised and agreed to carry, convey and transport the plain-
tiff in safety as a passenger upon said freight train from ......
to for the purpose aforesaid.
' And the plaintiff further avers that it then and there became
and was the duty of the defendant to furnish him a suitable
and reasonably safe place to ride upon said freight train from
.... i ........ to and to give him a reasonable
PERSONAL INJURIES 881
opportunity to inspect and care for said cattle while so enroute,
with safety to his own person. Yet, the defendant, totally dis-
regarding its said duty in that behalf then and there by defend-
ant 's conductor in charge of said train, while the plaintiff was
riding thereon in the caboose and in a place of safety, care-
lessly and negligently, well knowing the hazard of said position,
notified and directed the plaintiff to leave said caboose and
ride upon the locomotive engine while so enroute so that
time might be saved in the inspection of said cattle by the plain-
tiff during the stoppage of said train at the city of ,
where it became and was necessary to inspect said cattle, and
the progress of the defendant's said train and business might
be thereby facilitated.
And the plaintiff avers that, relying upon said invitation of
the defendant's said conductor, he then and there left said
caboose and mounted said engine and took a position upon the
gangway, using due care and caution for his own safety, for the
purpose of riding thereon to expedite the inspection of said
car of cattle which was located in said train next to said engine,
upon the stoppage of said train in the city of ;
that it was then night time and was very dark upon said
engine, and while so riding thereon, standing in the gangway
between the said engine and the tender, it became and was
necessary for the fireman, one of the defendant's servants then
and there in charge of said engine, to occupy the position where
plaintiff was standing for the purpose of tending the fire ; that
said fireman instead of directing plaintiff to a place of safety
upon said engine where he might ride without being subjected
to danger of injury, as he might have done, on the contrary,
well knowing the dangers and hazards incident to such position,
then and there wilfully and wantonly disregarding plaintiff's
safety, invited, ordered and directed the plaintiff to change his
position from said gangway to a seat at one side of said engine
cab; that that portion of said engine was very dark and was
not illuminated by a light of any kind ; that there was an open
window adjoining said seat to where he was so directed, which
rendered said position extremely hazardous to one not familiar
with its dangers, and that he, the plaintiff, was unfamiliar with
the surroundings of said position and did not know of the
dangers and hazards incident thereto.
And the plaintiff further avers that relying upon said invita-
tion and believing that said position was one of safety, he then
and there proceeded to said portion of said engine, and while
endeavoring to take a seat at said point, by reason of the dark-
ness of the surroundings, the narrowness of the position, the
open window, and the motion of the engine, he suddenly and
unavoidably lost his balance, fell and was thrown from said
dangerous position through and out of said open window upon
the adjacent track, with great force and violence, whereby the
plaintiff was greatly hurt, wounded, and the bones of one of
882 ANNOTATED FORMS OF PLEADING AND PRACTICE
his limbs was shattered, broken and fractured in two places,
and divers other bones of his body were wrenched and broken,
and he became and was sick, sore, lame and disordered, and so
remained for a long space of time, to wit, from thence hilhtrto,
and has been and will continue to be permanently crippled and
disabled, and has suffered great pain and misery, and has been
compelled to, and did pay out divers large sums of money, to
wit, dollars for nurse hire and physician's bills
in endeavoring to be cured and healed of his said injuries.
Wherefoie, etc.
1529 Electric light, action
A municipality which is engaged in furnishing electric light-
ing is not liable for negligence of its officers, agents and employ-
ees when furnishing the service for lighting its public streets,
public places and buildings, but it is liable for such negligence
when furnishing light to its inhabitants for compensation.^^^^
ELECTRIC POWER INJURIES
1530 Bridge wires, dangerous proximity, Narr. (W. Va.)
For this, to wit, that on, to wit, the .... day of ,
19. ., the date of the committing by said defendant of the griev-
ances hereinafter mentioned, said defendant was in possession
of and maintaining and operating as owner a certain power-
house and electric light plant for the purpose of operating its
cars and the manufacture and sale of electricity, electric light
and power for hire, profit and reward to the said defendant in
that behalf, in the town of , county. West
Virginia, and elsewhere ; and was then and there the owner and
maintaining and operating in connection therewith a certain
system of wires running with, over, along and upon the streets
in said town, consisting of certain wires running from its said
powerhouse as feed wires; and certain wires running along the
streets in said town used in the operating of its cars along the
line of its railroad ; and of certain wires running from its said
powerhouse along the streets in said town used by defendant
for the purpose of doing a general electric light and power
business in said town and elsewhere, and of a certain wire, a
part of said system of wires, hung and suspended over, along
and upon certain poles owned, maintained and controlled by
defendant upon and over the streets in said town called the
road, sometimes known as the
pike, which road passes through the said town of
and crosses creek in said town at a point near
162 Hodgins v. Bay City, 156 Mich.
687^ 692 (1909).
PERSONAL INJURIES 883
the mouth of said creek by means of a bridge, which bridge
is an arched bridge having its highest point at or near its
center and is known as the " bridge" and is a part
of and a continuation of said road ; that said road
and said bridge are and have been a public highway in said
town continuously for more than years last past, and
have been continuously used and traveled as a public street
and highway of said town by its citizens, as well as by other
persons, for the period last before named ; that the school house
in said town was on the day and year aforesaid situate near
the said bridge, and said bridge was constantly used by school
children, as well as others, in going to and from said school;
that the coping on the easterly side of said bridge was fre-
quently used by school children and other children as also by
adults in crossing said bridge ; that said last named wire ex-
tended along said road on said poles to a pole
owned by defendant situate near the northerly abutment of
said bridge at the easterly side thereof, and thence stretched
across the said creek to a pole owned by defendant near the
southerly abutment of said bridge and at the easterly side
thereof ; that both the said poles and the said wire were situate
on said day and for a long time prior thereto in close and
dangerous proximity to the easterly side of said bridge; that
the center of said bridge is near the center between the said
poles, and the said center of said bridge is the highest point
of the same ; that in passing over said creek from said pole
on the northerly side thereof, the said wire passed in close and
dangerous proximity to the portion of said bridge at and near
the center on the easterly side thereof; that the said easterly
side of said bridge is the side of the same designed for pedes-
trians and is the side on which the foot passage w^ay is located ;
that said easterly side was, on the day and year aforesaid and
prior thereto, and now is, the side of said bridge used by
pedestrians in crossing the same ; and that the said wire is the
middle wire of the three wires of defendant passing over
said creek at the easterly side of said bridge and at and near
said central point.
Plaintiff further avers that said defendant on the day and
year aforesaid, owned, maintained, operated and controlled
said wire in manner aforesaid as a part of its said system of
wires in said town of , for the purpose of its said
business and for hire, profit and reward to the said defendant
in that behalf; that said wire was then and there heavily
charged with electric current, and that it then and there became
and was the duty of said defendant to use such care as is
required by law to so operate, control, insulate and maintain
said wires as to prevent the same from injuring pedestrians
and others lawfully passing along said bridge, it being a part
of said road and a public street and a highway.
Plaintiff further says that through said Avire, passing as
884 ANNOTATED FORMS OF PLEADING AND PRACTICE
aforesaid within near and dangerous proximity to said bridge,
defendant, prior to and on the day and year aforesaid, was
and had been transmitting and distributing electricity in large
and deadly quantities for its use and purposes as aforesaid.
Plaintiff further alleges that all the aforesaid facts were
prior to and at said times well known to defendant.
Plaintiff further says that it was the duty of said defendant
to have insulated said wire and to have maintained such insula-
tion so that persons coming in contact therewith in crossing said
bridge on said highway or in proximity thereto would not be
injured by coming in contact with said wire ; that it was also
the duty of said defendant to have inspected said wire at rea-
sonable intervals to see that the same continued to remain in
condition so that any former insulation, if it had become defect-
ive to such an extent as to expose said wire, should be
remedied and repaired so that thereafter persons in crossing
said bridge or in proximity thereto should not bo injured by
coming in contact with such wire; that it was also the duty of
said defendant where said wire crossed said creek, and at and
near said high point of said bridge, to have placed and main-
tained said wire at a distance from said bridge and at a
lieight above said bridge, or either, as would prevent pedes-
trians from coming in contact with the same in crossing said
bridge ; that it was also the duty of said company to insulate
its said system of wires, and each of them, at all points where
said wires, or either of them, passed along or in dangerous
proximity to said passage way on said bridge ; and that it was
also the duty of defendant to see that said insulation continued
to be properly maintained so that persons crossing said bridge
near said wires, or in proximity thereto, should not be injured
by coming in contact with said wires, or any of them, at and
near said point near the center of said bridge.
Yet, the said defendant, well knowing the premises, upon the
day and year aforesaid, wholly disregarding its duties, and each
of them, aforesaid, to the plaintiff's decedent, did, wickedly,
carelessly, negligently and unlawfully without any notice to
the plaintiff's decedent, suffer the wire aforesaid passing along
and in dangerous proximity to said passage way on said bridge,
near the center thereof at the easterly side thereof to sag and
to be without proper insulation and protection at and near
said point near the center at the easterly side of said bridge,
and permitted the said wire at or near the center of said
bridge near the easterly side thereof, to sag, to such an extent
and to be so poorly insulated, or without insulation to such an
extent that by means whereof, on the day and year aforesaid,
the plaintiff's decedent, in crossing said bridge on the day and
year aforesaid, in passing from said school house in ,
along said road to his home in said town, came
in contact with said wire at or near said center of said bridge
on the easterly side thereof, which wire was then and there
PERSONAL INJURIES 885
charged with a dangerous and deadly current of electricity,
and plaintiff's decedent then and there by coming in contact
with said wire, without any fault on his part, thereby received
the electric current aforesaid into his body, by reason of which
he was instantly wounded, hurt, and injured and became pow-
erless to move himself away from the same and continued to
remain in contact with said wire by reason of being powerless
as aforesaid to move therefrom until such electric current had
passed in and through his body to such an extent that he
then and there died.
Plaintiff avers that the death of his decedent was caused by
the negligence, carelessness and unlawful acts of the defendant
aforesaid and its total disregard of its duties to plaintiff's
decedent as aforesaid.
Plaintiff' avers that his decedent, a boy of years of
age, at the time of coming in contact with said wire of defend-
ant, was passing from the said school house where he had been
assisting his mother, the janitress of said school building, along
said road to his home ; that the time was about
o'clock in the evening on the day and year aforesaid, and
that the said decedent at the time of said injury and prior
thereto, or at any other time, had no knowledge of the condi-
tion of the said wire as to its sagging and insulation, or either,
and had no knowledge that the defendant had not performed
the duties imposed upon it by law as aforesaid with reference to
himself or any other person or persons crossing along said high-
way and over said bridge and in the proximity of said wire.
Wherefore, the plaintiff' claims damages to the amount of
dollars ; and the demand of this suit claimed and
sought to be recovered, is claimed and sought to be recovered
on behalf of the mother of said decedent and his sisters
; , who are the sole heirs and distributees of said
decedent as by law provided.
And thereupon plaintiff says that by reason of the premises,
matters and things in said count mentioned, and by force of
the statute in such cases made and provided, an action has
accrued to him as such administrator as aforesaid, to have and
demand of and from the said defendant, for and by reason of
the said grievances, wrongs and injuries in said count men-
tioned, damages to the amount of dollars. And
therefore he brings this suit.^^^
1531 Bridge wires, insulation defective, Narr. (Md.)
For that heretofore, to wit, on the day of
in the year 19. ., the said defendant maintained, operated and
controlled a system of wires in the city of ,
163 Thornburg v. City & Elm Grove
E. Co., 65 W. Va, 379 (1909).
886 ANNOTATED FORMS OF PLEADING AND I'UACTICE
Maryland, and in the village of in the
election district of county aforesaid in said state,
and upon a certain public bridge then and now spanning a
navigable stream called creek in said county,
which said bridge then and there connected said city of
and said village of , and was and is, a pub-
lic highway, which said wires were hung and suspended over
and upon certain poles maintained and controlled by the de-
fendant, upon and over the streets of said city and village and
upon said bridge, for the purpose of doing a general electric
light business in said city and village for hire, profit and
reward to said defendant in that behalf; that it then and there
was the duty of said defendant to use such care as is required
by law to so control, oi>erate and maintain said wires as to
prevent the same from coming into contact with the pedestrians
lawfully using and passing along the streets of said city and
village and lawfully using and pasing over the said bridge,
which said bridge was then and there a public highway. Yet
the said defendant, not regarding its duty in that behalf, did
not use the care required by law to so operate, control and
maintain said wires as to prevent the same from coming into
contact with pedestrians lawfully upon and passing over said
bridge as aforesaid, but on the contrary, carelessly and negli-
gently failed so to do, and in disregard of its duty in that
behalf carelessly, negligently, unlawfully and in disregard of
the safety of pedestrians lawfully upon and passing over said
bridge so maintained, controlled and operated its said wires on
and over said bridge that the said wires became and were with-
out proper insulation whereby, and by reason whereof, contact
with said wires was dangerous to life, and which said danger-
ous condition of the said wires was then and there known to
the defendant, and had been so known to the defendant for a
long time previously to the injuries hereinafter complained of,
to wit, for the period of weeks ; and also the defend-
ant knowingly, carelessly, and negligently suffered and per-
mitted its said wires on said bridge to be and remain in said
dangerous condition on said day of in
the year 19. . ; and that by reason thereof the plaintiff on said
day of in the year 19. ., while lawfully
using and passing over said bridge without any negligence on
his part, came into contact with said wires, which said wires
were then and there heavily charged with electric current,
whereby he became and was greatly shocked and stunned and
his life greatly endangered, and whereby also his hands were
severely burned and injured and he w^as caused to suffer and
did suffer great bodily pain and mental anguish. And the
plaintiff claims therefor dollars damages.
1532 Poles; cross-arms defective, Narr. (Miss.)
Defendant is a public service corporation, chartered by the
state of Mississippi and domiciled at and engaged
PERSONAL INJURIES 887
among other things, in the business of operating an electric
lighting system in said city. It has its poles and wires in the
various streets of the city, and has strung on said poles a great
many wires, parallel to each other and also many connecting
wires leading into the buildings along said street. These wires
were used for various purposes, some for arc lights and for
trolley wires carrying each of them a very heavy current or
voltage of electricity sufficient to cause instant death if it
should enter into one's body, some for motor fans carrying
a less current but still sufficient to cause death from contact,
others carrying a light and not dangerous current for
the incandescent lights in the homes, stores and offices of
consumers.
One of the defendant's poles is placed at the intersection of
and streets, which is in the part of
the business district, and on said poles there were a dozen or
more wires. These rested on and were supported by cross-
arms or wood fastened to the pole and which when properly
constructed with due regard to the safety of the employees
who might go on them in discharge of duty, are mortised into
the pole and bolted to it securely braced by iron bars or rods
running from either side of the cross-arm and connecting below
the same at the pole to which they are securely bolted, or else
the cross-arms are braced by wooden pieces, nailed or bolted
to other cross-arms above or below on the same pole. The
wires on said pole ran both east and west along
street and also north along street thus necessitat-
ing several cross-arms running north and south and several run-
ning east and west, making a net work of wires. It was often
necessary to adjust or repair these wires and their fastenings
and make connections with them, and to do this, it was neces-
sary for linemen or other employees of the defendant to climb
up on pole and sit or stand on cross-arms. It was therefore nec-
essary that these cross-arms be constructed and kept by the
defendant securely braced and so firmly affixed to the pole
and adjusted so that it would not turn under the weight of an
employee sitting on it and reaching out from it, as it had to be
done, in fixing wires, making connections or wrapping wires.
On the day of , 19. ., ,
unmarried son of and a brother of the other
plaintiffs was in the employ of the defendants as a lineman or
member of its force in charge of the stringing and adjusting
and repairing of wires and was ordered by his superior officer,
the foreman of the linemen, to climb up on said pole and con-
nect or adjust a wire thereon. In the discharge of this duty he
was sitting on one of the cross-arms aforesaid and was reach-
ing over to the wire in question, his feet resting on the cross-
arm underneath when the cross-arm turned under him, causing
888 ANNOTATED FORMS OF PLEADING AXD TRACTICE
his hand or foot or both to fall, slip and come in contact with
two live or charged wires in such a way as to short circuit the
current through his body, causing instant death. Said
was years old, was strong, healthy, vigor-
ous, and earning and capable of earning to
dollars per month, and having the expectancy of life
of a healthy man of his age.
The cause of his death was the electrical current aforesaid
entering his body, and the cause of that was the gross negli-
gence of the defendants in the following respects: in failing
to provide a safe place for said , its employee, to
work, in this, that it failed to provide and maintain the usual
and ordinary and necessary braces for said cross-arms, by rea-
son whereof it turned under him while on it in the due and
proper discharge of his duty causing contact with the live
wires as above mentioned ; in failing to properly insulate and
to maintain insulation on its wires at and near the cross-arms
so that the contact caused as aforesaid would be harmless ;
in not cutting oft" entirely, the current from said wires while
being fixed and adjusted by said , so that the
discharge of the said duty committed to him would be free
from such danger ; in not acquainting with the
fact that the wires were dangerously charged and thus putting
him on his guard to prevent all danger that might be and
was by him incurred.
Plaintiffs are advised and say that by reason of the above
mentioned gross negligence of the defendant and consequent
death of said , plaintiffs' parents and said decedent's
only brothers and sisters are entitled to recover of the defendant
all damages of every kind to the decedent and all damages of
every kind to any and all parties interested in this suit. These
damages amount to a large sum, to wit, dollars
for w'hich sum plaintiffs sue and demand judgment with inter-
est and costs.
1533 Poles defective, action
A telephone company is not liable for an injury sustained by
one of its linemen caused by the falling of a rotten pole, which
the lineman was bound, by the telephone company's rules, to
inspect and test before climbing. ^*^*
1534 Poles; guards lacking, Narr. (111.)
For that whereas heretofore, on, to wit, the day of
, 19.., the defendant, D, was a corporation and
164 De Frates v. Central Union
Telephone Co., 243 111. 356, 360
(1910).
PERSONAL INJURIES 889
as such owned, controlled and operated certain lines of tele-
graph wires and poles and other apparatus necessary for the
maintenance and operation of said telegraph lines in and
through the county of and state of Illinois, and
the defendant, M, at the time hereinafter mentioned was a cor-
poration and as such owned, controlled and operated a certain
line of electric railway in and through the county of
and state of Illinois, together with the tracks, wires and poles
necessary for the operation of said railway and the transmis-
sion of electric power used in operating its cars and motors
over and upon said railway ; that, on, to wit, the time aforesaid,
llie defendant, D, was, with the knowledge and consent of M,
engaged in stringing and attaching certain wires to and upon
a certain arm attached to a certain pole which said arm and
pole were owned by M and were situated, to wit, on or near
avenue, near the , at , ,
county, Illinois; and that, on, to wit, the time and place
aforesaid, the said plaintiff was in the employ of the defend-
ant, D, as a lineman, and while in the exercise of ordinary care
and caution for his own safety, plaintiff* was ascending said
pole for the purpose of stringing and attaching said wires to
the said arm of said pole, said defendants, and each of them,
then and there carelessly and negligently failed to furnish
plaintiff a safe place in which to do said work and to warn
plaintiff of hidden and unseen dangers incident to said work
there, whereby plaintiff then and there came in contact with a
certain wire or wires suspended across and attached to a cer-
tain arm on said pole, which said pole, arm and wire or wires
last aforesaid, were owned, controlled, and operated by said
defendant M, and said wire or wires were heavily charged with
electricity, exposed and uninsulated, and said defendants, and
each of them, well knew, or by the exercise of ordinary care
might have known, that said wires were so heavily charged,
exposed, uninsulated and dangerous, and were unknown to the
plaintiff, but said defendants, and each of them, then and there
carelessly and negligently failed to insulate said wire or wires
last aforesaid, or otherwise protect and warn plaintiff of the
danger of coming in contact with said wire or wires, and that
by and in consequence of the joint and concert careless and
negligent conduct of said defendants in that behalf, as afore-
said, plaintiff was then and there severely and dangerously
and violently shocked and burned.
2. That, on, to wit, the time and place aforesaid, and while
the plaintiff was in the necessary discharge of his duties, the
foreman of the defendant, D, who was then and there in author-
ity over plaintiff, carelessly and negligently ordered plaintiff
to ascend said pole for the purpose of stringing and attaching
said wires to said arm on said pole, and while plaintiff, in the
exercise of ordinary care and caution for his own safety, was
ascending said pole pursuant to the order of said foreman, to
890 ANNOTATED FORMS OF PLEADING AND PRACTICE
string and attach said wires, as aforesaid, the plaintiff then
and there came in contact with a certain other wire or wires,
heavily charged with electricity, exposed, uninsulated and
dangerous, that were suspended across and attached to a cer-
tain other arm on said pole, which said arm, pole and wires
last aforesaid, were owned, controlled and operated by defend-
ant M, and said defendants and each of them well knew, or
by the exercise of ordinary care might have known, that said
wires, last aforesaid, were heavily charged with electricity,
exposed, uninsulated and dangerous, but which was unknown
to the plaintiff, and the defendant M well knew, or by the
exercise of ordinary care might have known, that the foreman
of the defendant D would order plaintiff to ascend said pole
for the purpose aforesaid, and said defendants, and each of
them, carelessly and negligently failed to insulate said wire or
wires, last aforesaid, or otherwise protect and warn plaintiff
of the danger of coming in contact with said wire or wires, and
by and in consequence of the joint and concert careless and
negligent conduct of the defendants in that behalf, as afore-
said, plaintiff was then and there and thereby severely and
dangerously and violently shocked and burned.
3. That, on, to wit, the time and place aforesaid, while plain-
tiff, in the exercise of ordinary care and caution for his own
safety, was ascending said pole for the purpose of stringing
and attaching said wire to an arm of said pole, it became and
was necessary for plaintiff to ascend above a certain other
wire or wires heavily charged with electricity, exposed, unin-
sulated and dangerous, and were suspended across and at-
tached to a certain other arm on said pole, which said arm was
attached to said pole below the arm to which plaintiff was to
string and attach the wire aforesaid, and which were owned,
controlled and operated by defendant M, and said defendants,
and each of them, well knew, or by the exercise of ordinary
care might have known, that said wires last aforesaid were
heavily charged with electricity, exposed, uninsulated and
dangerous and were unknown to plaintiff, and the defendants
and each of them carelessly and negligently failed to have said
pole stencilled, or to have signs of danger on said arm or pole
so as to warn plaintiff of hidden and unforeseen peril and
danger, and to warn plaintiff so that he might avoid coming
in contact with said wire or wires, which were heavily charged
with electricity, exposed, uninsulated and dangerous, and the
defendants and each of them carelessly and negligently failed
to insulate said wire or wires last aforesaid, or otherwise pro-
tect or warn plaintiff of the danger of coming in contact with
said wire or wires, and by and in consecjuence of the joint and
concert careless and negligent conduct of the defendants, as
aforesaid, plaintiff was severely and dangerously and violently
shocked and burned.
By reason whereof plaintiff was then and there severely and
PERSONAL INJURIES 891
dangerously shocked, burned, cut, bruised, strained, wounded,
and injured both internally and externally, and plaintiff's
back, spine, brain and nervous system were then and there
and thereby severely and permanently and dangerously in-
jured, and divers bones in plaintiff's limbs were thereby then
and there fractured and broken, and plaintiff's left arm was
then and there and thereby severely shocked, bruised and
burned so that amputation thereof became and was necessary
and was performed, and plaintiff was otherwise severely, dan-
gerously and permanently injured, internally and externally.
That on account of said injuries, caused as aforesaid, plaintiff
became sick, sore, lame and disordered and so remained for
a long space of time, to wit, from thence hitherto, during which
time he suffered great bodily pain and mental anguish, and
still is suffering intensely and is languishing in body and in
mind and in the future will continue to suffer from the effects
of said injury, caused as aforesaid, and will be crippled and
maimed for the rest of his natural life, and was thereby ren-
dered impotent for the rest of his natural life, and on account
of said injuries his mind has been severely impaired and
injured. That on account of said injuries caused as aforesaid,
and the sickness resulting therefrom, plaintiff was compelled
to, and did pay out and become liable for the payment of large
sums of money for doctors' bills, drugs, medicines, nursing,
care and attention in and while attempting to cure himself and
to be cured of the wounds, bruises, and injuries as aforesaid,
and was compelled to, and did expend and become liable for
the payment of large sums of money in and while procuring
and hiring others to do work for him which prior to receiving
said injuries he could and did do for himself. That prior to
said injuries plaintiff was a man of good health, strong and
robust, and his services were of the value of and
he could and did earn, to wit, ($ ) dollars
per month, but that since said injuries and as a direct result
thereof he has been unable to do any work or to earn anything
whatever or to transact any business, and has on account of
said injuries been hindered and prevented from saving and
accumulating divers large sums of money and divers great
gains and profits which he could have otherwise earned, saved
and accumulated, to the damage of the plaintiff in the sum
of ($ ) dollars, and therefore he brings
his suit, etc.
For that whereas, heretofore, on, to wit, , 19 . . ,
and for a long space of time prior thereto, to wit, for the space
of years, at, to wit, the county aforesaid, the defend-
ant was possessed of and using a certain street railway ex-
tending in and along parts of street in the
city of from street south to
avenue which railway over said street it operated by
means of electricity carried over head on cables supported by
892 ANNOTATED FORMS OF PLEADING AND PRACTICE
poles, and which said railway and use of said parts of said
street aforesaid it acfjuired from the ,
subject to all the duties and obligations of the latter as to said
parts of said street to the city of and those using
said street or any parts thereof, amongst which was the duly
imposed by an ordinance of said city passed by the city council
thereof, , 19. ., and approved by the mayor of
said city, , 19 . . , and accepted by said
, on , 19 . . , in words and figures as follows,
to wit: (Set out acceptance) and which ordinance was duly
published by said city and now appears on page , ,
, and of the book entitled ,
published section , which ordinance reads
as follows, to wit : (Set out ordinance).
Whereby it became and was the duty of said
and the defendant as its successor to stretch and maintain a
suitable guard wire along and above its electric cable on said
street at the intersection thereof with the north
line of street and for a short distance south
thereof as then and there were on , 19. ., and con-
tinued to be until , 19. ., other wires belonging to
other companies amongst which were those of the ..,
suspended above the electric cables of defendants street rail-
way company running east and west over the said point or
place aforesaid ; yet, the defendant neglecting its duty in that
behalf failed and neglected to stretch or maintain a suitable
guard wire above its said cable at the place aforesaid.
By reason whereof the plaintiff in the course of his duty,
as an employee of the said , in stretching and
taking down and handling wires of said latter company cross-
ing over said overhead electric wires and cable of defendant
at the place aforesaid, on, to wit, the day and year last afore-
said, while in the exercise of due care and caution for his own
safety, by reason of one of the wires of said ,
on which he was working breaking and falling down upon
the said overhead wire or cable of said defendant which latter
was then and there charged with electricity, the current of
electricity was conveyed therefrom by said fallen wire to the
net work of wires where plaintiff' was necessarily standing and
working, in the performance of his duties aforesaid; and said
electric current was thereby then and there carried into and
against his body and person and he was thereby then and there
badly burnt on his breast and right arm, his left knee, right
leg below the knee, his right hand and back, and his left tes-
ticle so badly burnt that it had to be removed by an operation ;
and thereby and by means thereof the plaintiff then and there
became and was sick, lame, and disordered and so remained
for a long space of time, to wit, from thence hitherto, during
all of which time plaintiff suffered great pain and was hin-
dered and prevented from transacting and attending to his
PERSONAL INJURIES 893
business, work and affairs and lost and was deprived of divers
great gains and wages that he might and otherwise would
have made and acquired, and he is permanently injured and
crippled; and also thereby the plaintiff was obliged to and
did then and there incur divers large sums of money for hospi-
tal and hospital charges, nurses, nursing, and medicine and
medical attendance, to wit, the sum of dollars
in endeavoring to be cured and healed of the said wounds and
injuries so received as aforesaid. To the damage, etc.
(Virginia)
For this, to wit, that heretofore, to wit, on or before the ....
day of , 19 . . , the company of Vir-
ginia maintained, operated, and controlled a certain system of
wires and cables in the city of in the state of Vir-
ginia upon, over and along a certain street in said city called
and known as avenue, which wires and cables
were strung and suspended on and along certain poles of said
company and which wires, cables and poles were so main-
tained and controlled by said company upon, over and along
said avenue for the purpose of doing a general
telephone and telegraph business in said city, in pursuance of
authority already theretofore granted said company by said
city for that purpose, and by virtue of said authorit}^ and in
the prosecution of its said business, said company had the legal
right to and did from time to time have its agents, servants
and employees to go up and upon said poles and perform work
on its said wires, cables and poles, removing and changing old
wires and cables and erecting on said poles new wires and
cables and doing such other work on said wires, cables and
poles as pertained to its said business; and while its said
agents, servants and employees were so upon said wires, cables
and poles and engaged in work thereon for said company, they
were lawfully upon said wires, cables and poles and were law-
fully so engaged in work thereon.
And the plaintiff says that his intestate, the said
, heretofore, to wit, on the day of ,
19. ., at the special instance and request of the said
company of Virginia was engaged in work-
ing for hire for said company on its said poles, cables and
wires strung as aforesaid along, over and upon said
avenue and in the prosecution of his said work for said com-
pany, it became necessary for plaintiff's intestate, at the spe-
cial instance and request of to go on the said
poles, cables and wires of said company and work upon and
handle its said wires and cables.
And the plaintiff says that heretofore, to wit, on and before
the day of , 19 . . , the said defendant
erected, placed, maintained, operated and controlled a certain
894 ANNOTATED FORMS OP PLEADING AND PRACTICE
system of wires in said city on, over and along said street
called and known as avenue, whieii wires were
hung and suspended over, along and upon certain poles of the
defendant, and which said poles and wires of the defendant
were so erected, placed, maintained, operated and controlled
by said defendant, on, over and along said for
the purpose of doing a general electric light and power and
street railway business in the city of for hire,
profit and reward to said defendant in that behalf; and said
wires of the defendant were practically parallel with and over
the said wires and cables of said
company of Virginia and the said poles of the said defendant
and of the said company of Virginia sup-
porting their respective wires and cables were practically in a
line with each other; and said wires of the defendant were
near said wires, cables and poles of said
company of Virginia and were from time to time heavily
charged with a dangerous current of electricity which was
being transmitted by the defendant over and along them, and
the said defendant knew or by the exercise of the care re-
(luired of it by law in such cases could have known that the
employees of the said company
of Virginia while lawfully engaged in work on the said poles,
cables and wires of said company
of Virginia had necessarily to come in close proximity to, and
were liable to come in contact with said wires of the defendant
while so charged with a dangerous current of electricity and
by reason of such contact were liable to be killed or suffer
bodily hurt.*
And thereupon it became and was the duty of said defendant
to use such care as was required by law to so erect, place,
locate, operate, control, protect, guard, maintain and properly
insulate its said wires and to so warn plaintiff's intestate as
to prevent injury to him from coming in contact with its said
wires when charged with a dangerous current of electricity
while he was lawfully on or working for said company on its
said wires, cables and poles, erected, located and maintained
as aforesaid and while he was lawfully in proximity to said
wires of the defendant.
Yet the said defendant, not regarding its duty in that behalf,
carelessly, negligently and unlawfully failed to protect and
properly insulate one of its said wires on, over and along said
avenue, which wire was, as above set out, in close
proximity to said wires, cables and poles of the
company of Virginia, and was covered with insulating material
and was to all outward appearance properly and sufficiently
insulated and seemingly harmless to anyone coming in contact
therewith while charged with a dangerous current of elec-
tricity, but the insulation of which, though intact, or appar-
ently intact and with no visible break or abrasion therein was
PERSONAL INJURIES 895
in reality totally insufficient and inadequate to prevent injury
to any one coming in contact with said wire while so charged
with a dangerous current of electricity if he should happen at
the same time to be "grounded," and there was nothing in
the appearance of said wire or the insulation thereof from a
visual examination thereof to indicate the danger in so com-
ing in contact therewith; and carelessly, negligently and un-
lawfully erected, placed, located, operated, controlled and
maintained said wire in the condition above set out, so near
to said wires, cables and poles of the com-
pany of Virginia as that anyone working on the latter com-
pany's said wire, cables and poles had naturally, necessarily
and inevitably to come in close proximity to and was liable
at any time to come in contact with said wire of the defendant ;
and carelessly, negligently and unlawfully failed to guard said
wire and to warn plaintiff's intestate of the danger in coming
in contact therewith while in the condition, location and posi-
tion above set out.
2. (Consider first count to star as here repeated the same as
if set out in words and figures.) ,
And also the plaintiff' says that at and before the time of the
commission of the grievances hereinafter set forth there was
in effect a legal and valid ordinance, of the said city of
a municipal corporation in the state of Virginia, pro-
viding that no person, firm or corporation should construct or
maintain in or over the streets of the said city any defective
or any improperly installed or improperly located wires or
electric apparatus.
And thereupon it became and was the duty of said defendant
not to construct or maintain in or over any street of said city
any defective or improperly installed or improperly located
wires or electric apparatus in such manner as to endanger per-
sons lawfully coming in proximity to or touching its said wires.
Yet, the defendant, not regarding its duty in this behalf,
carelessly, negligently and unlawfully constructed and main-
tained in and over one of the streets of said city called
avenue, near its intersection with ^
avenue one of its said electric wires, which was in close proxim-
itv to said wnres, cables and poles of the
company of Virginia, and which was defective and improperly
installed, in that, though said wire w^as covered with insulating
material and to all outward appearance properly and suffi-
ciently insulated and seemingly harmless to anyone coming in
contact therewith while charged with a dangerous current of
electricity, the insulation being intact and with no visible
abrasion or bare place, and nothing to indicate from a visual
examination thereof the latent danger therein, yet such insula-
tion was in reality totally insufficient and inadequate to pre-
vent injury to anyone coming in contact with said wire while
so heavily charged if he should happen at the same time to be
896 ANNOTATED FORMS OF PLEADING AND rR.'.CTICE
"grounded." And the plaintiff says that said wire was also
improperly located by reason of the fact that while so heavily
charged and improperly insulated, it Avas placed and allowed
to remain by the defendant so near to the said poles, wires
and cables of the company of Vir-
ginia, that anyone w^orking for the last mentioned company on
its poles, wires and cables was liable to come in contact with
and be shocked by said wire of the defendant.
3. (Consider first count to star as here repeated the same
as if set out in words and figures.)
And also the plaintiff says that before and at the time of the
commission of the grievances hereinafter set forth there was
in force and effect a legal and valid ordinance of the city of
which required that the city electrician of said
city should direct, regulate and determine the placing, opera-
tion and maintenance of electric wires in the city of
and that he should cause all such wires to be so placed, con-
structed, guarded, insulated and maintained as not to cause
accidents endangering life or property. And the defendant,
its agents and employees were aware of the existence and bind-
ing force of said ordinance and had been directed by the city
electrician of said city to so place, construct, guard, insulate
and maintain its said wires in said city as not to cause acci-
dents, endangering life or property.
And thereupon it became and was the duty of said defendant
to so place, construct, guard, insulate and maintain its said
wires in said city as not to cause accidents endangering the life
of any person lawfully coming in proximity to or touching its
said wires.
Yet, the defendant not regarding its duty in the premises,
negligently, carelessly and unlawfully placed, constructed and
maintained and failed to insulate and guard one of its said
wires over and along said avenue near its inter-
section with avenue, the same being then and
there in close proximity to said wires, cables and poles of the
company of Virginia, and being then and there
heavily charged with a dangerous current of electricity, to wit,
volts, being so conducted as aforesaid by it
along, through and over the same, in such a way as tended,
naturally and almost inevitably, to cause accidents endanger-
ing life, in this that said wire was covered with insulating
material with no visible abrasion and seemingly intact, and to
all outward appearance sufficiently protected to prevent any-
one from being shocked by the current of electricity passing
through it, should he touch said wire, but in reality said insula-
tion was totally insufficient to prevent accidents endangering
the life of one touching the same, while so charged with a
dangerous current of electricity; and in this also that said
wire was placed, constructed and maintained by the defend-
ant in the condition it was as above set out, so near to said
PERSONAL INJURIES 897
wires, cables and poles of said com-
pany of Virginia as that anyone working on the latter com-
pany's said wires, cables and poles had naturally to come in
close proximity to and was liable at any time to come in con-
tact with defendant 's said wire ; and in this also that said wire
in the condition it was as above set out and placed, constructed
and maintained by the defendant as above set out, was not
properly guarded by the defendant, as required by said
ordinance.
And the plaintiff says that his intestate, the said
heretofore, to wit, on the day of , 19 . . ,
at the city aforesaid, while lawfully on one of the poles of his
employer, the said , on said
avenue near its intersection with avenue and
engaged in working for his said employer, standing on one
of its said cables which was attached to said pole and working
on another of its said cables which he was fastening to the
cross-arm of the said pole, relying, as he had the right to do,
on the proper observance by the defendant of said ordinance,
and presuming as he had a right to do, that the said insulation
of the defendant's said wire, which was immediately above
him and so near him that it would easily come in contact with
him in the proper prosecution of his said work, would be a pro-
tection against his being shocked by the current of electricity
passing through it, should he come in contact with it, and he
being at the same time inexperienced in electrical work in-
volving such latent dangers as are hereinbefore recounted, and
without any knowledge of such latent dangers, and relying as
he had a right to do on the assumption that the defendant,
having so insulated its said wires, would protect and had
protected the same from all such hidden and latent dangers,
and without any previous warning by the defendant of the
danger in so coming in contact with the same should he at the
same time be "grounded," without any negligence on his part,
and with no knowledge of the danger in touching said wire,
came in contact with said wire of the defendant, which was
then and there heavily charged with a dangerous current of
electricity, to wit, volts, being so conducted as
aforesaid by the defendant by, through and over the same, and
which was not properly insulated, whereby and by reason of
the negligent and unlawful conduct of the defendant as above
set out he was shocked, stunned, burned and otherwise injured
by said current of electricty and caused to fall from said
pole to the ground, from which injuries and fall he suffered
great and intense mental and physical anguish and pain, to wit,
for about hours, and then and there died. Where-
fore, etc.
898 ANNOTATED FORMS OF PLEADING AND PRACTICE
1535 Transformer, defective, consumer injured, Narr. (D. C.)
For that heretofore, to wit, on defendant was,
and for a long time prior thereto had been engaged in operat-
ing a plant in the District of Columbia in which electric cur-
rent was generated, and was the owner of certain wires and
conduits used for the purpose of conducting the said electric
current so generated from said plant to divers buildings, in
the District of Columbia, and was by means of said i)lant, elec-
tric current, conduits and wires engaged in furnishing liglit
and power to, among many other places, the promises num-
ber avenue northeast in said District, and that
the said defendant used a certain machine or instrument
known as a transformer, for the purpose of reducing the cur-
rent that was being carried over one of its wires running along
its conduit on street northeast near
street in said District, from a voltage of, to wit,
to , and that said electric current of
volts was to be carried into the said premises number
avenue northeast for the purpose of lighting said premises;
but the plaintiff says that regardless of its duty in the prem-
ises, the defendant negligently and carelessly caused and
allowed the installation of a defective transformer at said place
on street northeast near street, and
that on, to wit, the day and year aforesaid said transformer
by reason of this defective condition, failed to reduce the said
high voltage, and instead of the proper electric current of
volts being carried into the said premises
avenue northeast, the full power of electric current running
along the said wire in said conduit on said street
northeast near street, to wit, a voltage of
was carried into the said premises over a cer-
tain wire or wires installed by said defendant ; and that on
account of said negligence a dangerous condition was caused
to exist in said premises without the knowledge of the plain-
tiff's intestate. That the plaintiff's intestate on
the said day of being lawfully on
the premises, did, while using all due care and without fault
or negligence on his part, then and there touch and come in
contact with a certain wire so negligently charged by said
defendant with a high voltage, or electric current, and thereby
received an electric shock which caused the death of plaintiff's
intestate hour after said contact and shock ; and
the plaintiff avers that the said intestate left surviving him his
widow and as his only next of
kin, his infant son of the age of
years, both of whom were dependent upon plaintiff's intestate
for support, and both of whom have suffered damages by rea-
son of the plaintiff's said intestate, injury and death, as afore-
said. That by reason of the statute in such a case enacted the
PERSONAL INJURIES 899
plaintiff is entitled to recover damages from the defendant
for the benefit of the next of kin and the window of said intes-
tate. Wherefore, etc.
1536 Transformer defective, inspector injured, Narr. (111.)
For that whereas, on, to wit, day of
, 19. ., the defendants did possess, maintain and operate
in the city of ,'and said county, a system of elec-
tric lights and electric street railways for which the electricity
was generated at a single powerhouse and conducted by means
of wires of various electrical currents of electricity, some of
the currents, being of greater strength, force and intensity
than others, were conveyed from the powerhouse to various
points in the said city, and it did operate, manage and con-
trol a certain electric light, street railway and power plant,
with its machinery, dynamos, wires and appliances in said
city. That the said defendants, at the time aforesaid, had a
large number of other wires and appliances which carried a
very high current of electricity that was fatal to human life,
in close proximity to a certain hereinafter mentioned wire ;
and knowing the danger in case the said higher and deadly
current of electricity came upon a lower or secondary wire,
the said defendants did adopt, install and maintain an appli-
ance or device, the use of which is usual and customary in said
electrical business, known as a fuse block or plug connected
with said secondary wire; that said fuse block or plug was a
device made out of fuse wire, the object and purpose of which
was to prevent a high and deadly current of electricity in case
it came upon said secondary wire from reaching the place
where it was the duty of to take hold of the
same ; that when properly, customarily and safely attached,
installed, maintained and adjusted, the said fuse block or plug
will prevent a high and deadly current of electricity from
going over a secondary wire, the said high and deadly cur-
rent in such cases burning out the said fuse block or plug
wire, thereby disconnecting the secondary wire from any cur-
rent whatever ; of all of which said defendants had knowledge.
That by means of a wire known as a primary wire a very
powerful current of electricity and one which is dangerous to
human life, was conveyed by the said defendants from their
power house to an instrument known as a transformer, the
object and purpose of said transformer being to modify and
lessen the character and strength of the said current of elec-
tricity and make it of a character that would not be dangerous
to human life, and to transmit the said modified and lessened
current of electricity through a wire known as a secondary
wire to the hereinafter mentioned incandescent light. That a
certain wire which terminated in a bulb containing an incan-
descent light was connected with and was a part of a certain
900 ANNOTATED FORMS OF PLE.VDINO AND PILVCTICE
circuit known as a secondary circuit, which said secondary
circuit supplied a large number of incandescent lights with
electricity besides the one first mentioned; that the current of
electricity which usually and customarily passed through the
said secondary circuit was not strong enough to be dangerous
to a person taking hold with his hand of a wire at any place
in said secondary circuit.
And that at the time aforesaid the said was in
the employ of defendants as a car inspector, cleaner and
repairer in the night time and was there at the time aforesaid
actively engaged at work in the car barn of the said defend-
ants; that at the time and place aforesaid it was customary
and usual for the said in the discharge of his
duties as car inspector, cleaner and repairer as aforesaid to
take hold with his hands of said wire which terminated in said
bulb, containing an incandescent electric light, for the purpose
of carrying the electric light bulb around in and about making
the inspection as aforesaid; all of wliich was known to the said
defendants, or could have been known to them by the exercise
of ordinary care.
And it then and there became and was the duty of the said
defendants to keep the said wires safely, securely and com-
pletely insulated so that said , while in the exer-
cise of reasonable care, should not be injured by contact there-
with; but that the said defendants, notwithstanding such
knowledge, and disregarding its duty in the premises, care-
lessly and negligently maintained the said wires and caTelessly
and negligently protected the same by defective insulation,
and carelessly and negligently failed to protect and cover said
wires with safe or sui^cient insulating material, and carelessly
and negligently permitted the covering used thereon to become
worn, defective and wholly insufficient to render it safe for
persons coming in contact therewith.
And it also then and there became and was the duty of the
said defendants to keep the said transformer in such repair and
safe and secure condition as that the said while
in the exercise of due care should not be injured by contact
with the said wires while in the performance of his said duty ;
but that the said defendants, notwithstanding its knowledge
and disregarding its duty in the premises, carelessly and negli-
gently maintained the said transformer in a dangerous, defect-
ive and unsafe condition, whereby it did not properly modify
and lessen the said powerful current of electricity.
And it also became and was the duty of the said defendants
to so maintain and operate their system of dynamos, wires
and electrical transmission that the said ••••_••_ >
while in the exercise of due care should not be injured by con-
tact with the said wires while in the performance of his said
duty; but that the defendants, notwithstanding their knowl-
edge, and disregarding their duty in the premises, while the
PERSONAL INJURIES 901
said held said wire terminating in an electric
light as aforesaid in his hands while in the course of his duty
as aforesaid, carelessly and negligently maintained their sys-
tem of wires in a dangerous, defective and unsafe condition
and carelessly and negligently maintained their said wires, and
carelessly and negligently protected the same by defective
insulation, and carelessly and negligently failed to protect
and cover said wires with sufficient insulating material and
carelessly and negligently permitted the covering used thereon
to become worn, defective and wholly insufficient to render
them safe, whereby another of defendants electrical wires be-
came crossed with the said wire ending with the said electric
light and thereby caused a different kind of a current and a
stronger and more dangerous current of electricity to pass
through the said wire ending in the electrical light.
And that, also, certain wires of said defendants which passed
over said car barn in which said was working at
the said time, were negligently, carelessly and defectively
built, constructed and maintained and were at the said time
in an unsafe and dangerous condition, by reason whereof a
primary wire of defendants, carrying a high voltage current
was in such near proximity to a secondary wire of defendants
which supplied the said incandescent electric light and wire
of defendants aforesaid described, carrying a low voltage cur-
rent, so that the electrical current that passed through the said
secondary wire became and was of a higher voltage and by
reason thereof said electrical current passing through the said
secondary wire was dangerous and fatal to the life of the
person taking hold of said secondary wire with his hands at a
point about one foot from the said incandescent light ; which
said condition was known to the said defendants or could
have been known by the exercise of ordinary care.
And it also became and was the duty of the said defendants
in putting in place the said wires and in connecting them
with the said transformer to do and perform the same with
usual and customary precautions against the coming together
of said primary and secondary wires ; but that said defendants
notwithstanding their knowledge and disregarding their duty
in the premises carelessly neglected to take such precautions
against the coming together of said primary and secondary
wares as are usual and customary, and carelessly and negli-
gently put up and placed the said wires and connected them
with the said transformer and maintained them so that the
said primary and secondary wires were crossed and within
a short distance of each other and thereby became and were
unsafe and dangerous to the said
And it also became and was the duty of the said defendants
to adopt, install, adjust and maintain a fuse block or plug
of such character and in such good and safe condition as
would prevent a high and deadly current of electricity in
902 ANNOTATED FORMS OF PLEADING AND PKACTICE
case it came upon said first meiilioned wire from reaching the
place where as aforesaid it was the duty of the said
to take hold of the same ; yet, the said defendants well knowing
the premises and carelessly neglecting to provide the said
first mentioned wire with the usual safe fuse plug or block,
did, to wit, on the day aforesaid, carelessly and negligently
install and adjust and did carelessly and negligently maintain
the said fuse plug or block in such unsafe and dangerous con-
dition as to permit a high and deadly current of electricity to
pass over the said first mentioned wire.
And it also became and was the duty of the said defendants
to inform the said of said high and deadly
current of electricity passing through said secondary circuit;
yet, the said defendants, not regarding their duty in that
behalf,\vhile they were so managing, operating and control-
ling said machinery, dynamos, wires and appliances carelessly
and negligently neglected to inform the said
of said high and deadly current of electricity passing through
said secondary circuit.
And that by means whereof, at the time and place aforesaid,
while in the discharge of his duties as aforesaid, and in the
exercise of ordinary care, said took hold with
his hand of said first mentioned ware about one foot from the
said incandescent electric light on the end of said wire, which
w^as a part of said secondary circuit as aforesaid and received
a shock from a high and deadly current of electricity which
was passing through said wire at the same time, and thereby
received said electrical current through his body and was then
and there killed. (Add last two paragraphs of Section 1495)
1537 Wire conductors uninsulated, Narr. (111.)
For that whereas on and before the day of
, 19-., and during the lifetime of said decedent, the
defendant was possessed of, maintaining, using and controlling
a system of wire conductors within the corporate limits of said
village of , extending over, above and along
certain of the public streets of said village and supported by
upright poles and which said system of wire conductors was
so possessed, maintained, used and controlled by the defendant
for the purpose of conducting and transmitting an electric cur-
rent to certain electric lamps of the defendant located and sus-
pended above and along certain of the public streets of said
village and supplying for hire electric light to such of the
citizens of said village as were using electric lamps; and
pursuant to such purpose the defendant then had one of its
wire conductors suspended overhead at or near the intersec-
^^^ of and streets in said village,
heavily charged with electricity, which said wire conductor
was supported by a wooden arm, to wit, eight inches in length
PERSONxVL INJURIES 903
attached to and extending from a certain upright pole there at
a height of, to wit, feet from the surface of the street
there, and which said upright pole was stayed and braced by
a certain uninsulated wire fastened to said upright pole at a
point near to and immediately beneath said wooden arm and
wire conductor there and extending therefrom over and across
a certain sidewalk there within easy reach of persons passing
upon and along said sidewalk and street there to and encircling
and attaching to a certain post there, said post in said street
then at a point, to wit, feet from the surface of the
ground there within easy reach of persons passing thereby
and, to wit, feet from the outer edge of the sidewalk
there. ,
And it then and there became and was the duty ot the de-
fendant to have and keep said wire conductor properly and
completely insulated and properly adjusted and safely sup-
ported on said wooden arm and said wooden arm firmly and
securely attached to said upright pole so that said wire con-
ductor would not fall down and upon said uninsulated wire
and thereby transmit and conduct a deadly current of electric-
ity to and through said uninsulated wire, thus endangering
the lives of persons passing upon and along the sidewalk.
Yet, the defendant not regarding its duty in this behalf
knowingly, carelessly, negligently and wantonly permitted said
wire conductor to be and to become and remain illy, imper-
fectly and defectively insulated and said wooden arm support-
ing said wire conductor as aforesaid to become and remain
loose and unstable upon said upright post, by reason whereof
said wire conductor fell to and upon said uninsulated wire
then and there discharging and conducting into and through
said uninsulated wire a deadly current of electricity and which
said wire conductor imperfectly and defectively insulated as
aforesaid the plaintiff avers the defendant carelessly, negli-
gently and wantonly permitted to rest upon and be and remain
in contact with said uninsulated wire there for a long space of
time prior to the time of the death of said decedent, to wit,
days prior thereto ; and while the decedent was
then* and there walking upon and along the said sidewalk
and said street with all due care, caution and diligence for his
personal safety he, said decedent, came m contact with said
uninsulated wire there charged as aforesaid with a deadly
current of electricity which passed to and through the body
of the decedent and thereby said decedent was then and there
instantly killed. (Add last two paragraphs of Section 1495)
1538 Elevator, apartment building, action
A landlord who in renting different parts of his building to
various tenants reserves the elevators, halls, stairways or other
904 ANNOTATED FORMS OF PLEADING AND PRACTICE
approaches for their common use, is under an implied duty to
keep these places in a reasonably safe condition, and is liable
to persons who are lawfully in the building and who are injured
as a result of a failure to perform that duty.^°^
1539 Elevator, appliances and construction defective, Narr.
(111.)
For that wlKTeas the defendant in the lifetime of the said
T was, and still is a corporation organized and existing under
and by virtue of the laws of the state of , and
then and there, to wit, at the city of , in the said
county of and state of Illinois, on, to wit, the
day of , 19. .. in the city, county and state afore-
said, did maintain, conduct, operate, possess and carry on
its certain business of the retail dry gootls store in a certain
building, structure or premises commonly called and known by
the name of C, situated, to wit, at the corner of
and streets, in the city, county and
state aforesaid; that prior to, and, on, to wit, tiie .... day of
, 19. ., the said defendant, D, in connection with their
said retail dry goods business at the place aforesaid did main-
tain, possess and operate a certain ascending and desecnding
mechanieiil contrivance or car commonly called and known
by the name of, to wit, an elevator, and elevator shaft and
machinery for the purpose, inft r olia, of carrying and conveying
from floor to floor of said buililing or structure passengers and
patrons of said defendant company; that prior to, and on,
to wit, the .... day of , 19. ., the said T was employed
as an elevator operator or conductor by the said defendant in
its said building situated in the city and county aforesaid, and
that while the said T was engaged in the performance of his
said duties as elevator conductor, and while the said T was
in the exercise of all due care and diligence for his own safety,
and in the usual and ordinary course of his business and
occupation as such employee of said defendant, and while the
said T in the usual and ordinary course of his employment
was operating the said car at the floor of said
building or structure, nevertheless the said defendant, well
knowing the premises and regardless of its duty therein,
negligently, carelessly and improperly constructed said ele-
vator with defective appliances, stops, brakes, rests, safeties,
dogs or grabs to catch the elevator going up or down, without
sufficient cables and cable attachments and connections, with-
out a sufficient automatic safety governor to control the mov-
ing power; negligently, carelessly and improperly failed, neg-
i«» Mueller v. Phelps, 252 HI. 630,
633 (1912).
PERSONAL INJURIES 905
lected and omitted to keep and maintain said elevator, its shaft
and machinery in a safe and secure condition; and carelessly,
negligently and improperly allowed, suffered and permitted
said elevator shaft and machinery to be and become out of
repair and in an unsafe and dangerous condition in this, that
the connection of said elevator with its controlling cable was
defective and improper and worn out and the appliances for
stopping and controlling its operation were out of order and
defective ; and the defendant by its servants then and there
negligently and carelessly failed and neglected to keep said
emergency devices designed to be used to stop the same when
accidents happened to said elevator shaft or machinery in a
safe and secure condition ; and it also became and was the duty
of said defendant to use reasonable care and diligence to keep
and maintain the said elevator and elevator shaft, its appurte-
nances and surroundings and machinery in a reasonably safe
and secure condition and state of repair in order that no
injuries should accrue to the said T by reason of any default
of the defendant in the premises.
Yet, the defendant, wholly disregarding its duty in that
behalf at the time aforesaid and at the place aforesaid, and
whilst the said T was rightfully, and with reasonable care for
his own safety, operating the said elevator at the
floor of said building, carelessly, negligently, wrongfully and
improperly permitted and allowed the said elevator and its
machinery, its stops, brakes, rests, safeties, dogs or grabs to
catch the elevator going up or down to be and become out of
repair and in an unsafe and dangerous condition.
2. That also, while the said T was engaged in the per-
formance of his said duties as elevator conductor, and while
the said T was in the exercise of all due care and diligence
for his own safety, and in the usual and ordinary course of his
business and occupation as such employee of the said defend-
ant, and while the said T in the usual course of his employment
was operating the said elevator or car at, to wit, the
floor of said building or structure, nevertheless the said defend-
ant, well knowing the premises and regardless of its duty there-
in, negligently, carelessly and improperly constructed said
elevator in this, that the cage or car of said elevator was con-
structed with a large heavy beam at the top of said cage or car,
to which said beam were attached, to wit, certain cables and
other devices for the operation of said car; that the braces,
bolts and fastenings by which the said cage or car was attached
to the said beam, were frail and insufficient, or that the said
cage or car was of itself of such light construction as to be
insufficient to support the weight of said beam, or to safely
attach said beam to the said cage or car; that the said elevator
was constructed with defective appliances, stops, brakes, rests,
safeties, dogs or grabs, to catch or hold the said elevator going
up and down, was without sufficient cables or cable attachments
906 ANNOTATED FORMS OF PLEADING AND PRACTICE
or connections, was without siiflicient automatic safety gov-
ernor or other safety devices for the reasonably safe opiTa-
tion of said car; that the defendant negligently, carelessly and
impropi^rly failed, neglected and oinitled to keep and maintain
said elevator, its shaft and machinery in a safe and secure con-
dition, and carelessly, negligently and improperly suf^'ered and
permitted said elevator car, cage, shaft and machinery to be
and remain in an unsafe and dangerous condition; that the
defendant permitted said elevator to be operated in its unsafe
and improper construction, and permitted the api)liances for
stopping and controlling the operation of said elevator to be out
of order and defective, and permitted the said safety a|>pli-
ances or devices for stopping the said car in cases of emergency
to remain in an insutKcient, unsafe and unsecure condition.
3. And that it also became and was the duty of the said
defendant to furnish and provide an inspector for the purpose
of inspecting the condition of said elevator shaft and machin-
ery; that it became and was the duty of said defeiulant to
properly insi)ect said elevator and machinery; but that the
defendant, not regarding its duty in this behalf, carelessly,
negligently and improperly failed to properly and sutlicientiy
inspect the same.
But the said defendant wholly disregarded its duty in that
behalf and permitted the said elevator or car operated by the
said T to become and remain unsafe and insecure, and per-
mitted said elevator or car to be oi)erated by the defendant
while in such unsafe and insecure condition.
By means whereof, whilst the said T was aboard said car
in the performance of liis duties as said elevator operator or
conductor aforesaid, and in the exercise of due care and cau-
tion for his own safety, the said car or cage whilst descending
from, to wit, the floor of said building, fell, broke
and parted from its fastenings and machinery and was precipi-
tated Avith great force and violence to and upon the bottom of
said elevator shaft, and the said plaintiif 's intestate was then
and there thereby crushed, bruised, maimed and wounded as
a result, whereof the said T died. (Add last two paragraphs
of Section 1495)
1540 Elevator shaft unguarded, Narr. (D. C.)
For that whereas, at the time of the grievances hereinafter
mentioned, the defendant was in possession and control of a
certain hotel in the city of , called the ,
in which hotel the defendant then and there owned, con-
trolled and operated a certain elevator, which was then and
there used as a passenger elevator for the purpose of carrying
guests and inmates of the said hotel from floor to floor : and
that it then and there became and was the duty of the de-
fendant to have said elevator provided with safe and proper
PERSONAL INJURIES 907
appliances and appurtenances and to have and keep, the
shaft in which said elevator was run so protected and enclosed
as to render the use of said elevator safe and proper for guests
and inmates of the said hotel ; but that the defendant then and
there neglected its duty in that regard, in this, that upon one
of the floors of said hotel a certain door or opening into said
elevator shaft was negligently allowed to remain open and
unprotected so that the plaintiff while a guest and inmate of
said hotel, as aforesaid, on, to wit, the .... day of ,
and while he was in the exercise of due care on his part, fell
through the said unprotected, and uninclosed door or opening
into said elevator shaft and was projected with
great force and violence to the bottom of said shaft ; and that
the plaintiff became and was thereby severely shocked and
bruised and injured and in consequence thereof his nervous
system was seriously affected and his heart became weak and
irregular and he lost greatly in weight and his general health
became much impaired ; and by reason of said injuries thus
sustained as aforesaid the plaintiff has expended large sums
of money in endeavoring to be cured of the said pains and
injuries to his nervous system, and has continued to be
shocked, hurt and seriously impaired, all to the damage, etc.
(Illinois)
For that whereas, on, to wit, the , in the city of
, county and state aforesaid, the defendant was
possessed of certain premises known as , in said city
of , and that said premises consisted of a
story building; that in the rear of said building was then and
there a certain freight elevator used by the said defendant in
the transportation of passengers and freight from the base-
ment of said building and up to the top floor of said building;
that on the said .... day of the said defendant was
then and there possessed of, and used and operated the said
elevator in the transportation of freight and passengers from
the basement of said building to and from the various floors of
said building; that said elevator then and there ran through
a certain shaft in said building and that from the ground
floor of said building said elevator then and there ran a dis-
tance of, to wit, said ground floor and into the
basement of said building; that on the said .... day of
a certain portion of the said premises of the said defendant
had been leased by the said defendant to , and
was then and there used by the said in the carry-
ing on of their business as printers and publishers; and that
the said defendant as lessor of said and under
an agreement with said , then and there trans-
ported upon its said elevator the property and the employees
of the said
908 ANNOTATED FORMS OF PI.LADINO AND I'HACTICE
Plaintiff further avers that on the day and year aforesaid he
was an infant of, to wit, years of age and tlierc
a servant in the employ of said and then and
there engaged on the ground floor of said building and near the
elevator shaft of said building in the performance of his duties
for said , and was then and there lawfully upon
said premises; that the premises of the said defendant and
the building of said defendant near the elevator shaft where
the plaintiff was then and there working and on the ground
floor of said building were on the day and year aforesaid
dimly and insufficiently lighted; tiiat the elevator shaft tlirougli
which said elevator of the said defendant then and there ran
was left without any door or protection of any kind, but was at
and near where the plaintiff was then and there situated left
entirely unguarded and unprotected so that any person work-
ing or being near said elevator shaft when tiie said elevator
was removed from said ground floor was liable and apt to
fall into said elevator shaft and into said basement below ;
that it was then and there practicable and it was then and there
necessary for the safety of the plaintilf and other persons that
might be on the ground floor of said buihiing aiul near the
said elevator shaft that said elevator shaft should be guarded
and protected with doors or protections so as to guard the
plaintiff and other persons from unavoidably stepping or fall-
ing into said elevator shaft from the ground floor of said
building.
Yet, the said defendant not regarding its duty in that behalf
then and there carelessly and negligently failed and neglected
to protect the said elevator shaft on the groinid floor of said
building with a gate or door or any covering of any kind,
and then and there carelessly and negligently left said elevator
shaft and the passage leading into such elevator shaft
unguarded and unprotected.
And the plaintiff' further avers that on, to wit, the .... day
of , while said plaintiff was then and there in the
performance of his duties for near the elevator
shaft of the said defendant on the ground floor of said building
and while then and there and at all times in the exercise of all
ordinary care for his own safety, by reason of the carelessness
and negligence of the said defendant in leaving the opening
of said elevator shaft unprotected and unguarded, said plain-
tiff unavoidably stepped into the unguarded and unprotected
opening of said elevator shaft and then and there fell down
said shaft a great distance, to wit, the distance of
feet, and was then and thereby greatly cut, bruised and
wounded and thereby lost the sight of one of his eyes and
thereby plaintiff's liver, kidneys and nervous system and brain
PERSONAL INJURIES 909
were permanently injured and he was otherwise permanently
injured and crippled. To the damage, etc.^^"^
For that whereas before and, on, to wit, the day of
, 19.., said defendants were engaged in the city of
, county and state aforesaid, in the general ware-
house business with a certain one of its storehouses used in
the prosecution of its said business located at, to wit, street
numbers from to street in said
city; and plaintiff says it was the duty of said defendants to
use reasonable and ordinary care in the construction of said
premises and all parts thereof, including elevators and elevator
shafts therein, to make the same safe for persons who might
from time to time rightfully and with due care and caution for
their own safety, enter and do work in and about said prem-
ises ; and it was also the duty of said defendants to use reason-
able and ordinary care to keep said premises and the parts
thereof as aforesaid in a reasonably safe condition of repair
and to surround the elevator shaft with a rail or guard of
some kind to prevent persons rightfully and with due care
and caution for their own safety as aforesaid in said prem-
ises, from walking into and falling down the same; and it
was also the duty of said defendants to use reasonable and
ordinary care in the lighting of said premises to make the
same reasonably safe ; and plaintiff says that, on, to wit, the
date aforesaid, he was in the employ of C, and was
ordered by said C to go to said warehouse of said defend-
ants, where said C had certain printing presses and other
machinery stored, for the purpose of bringing certain of said
presses to its, the said C's new building; and plaintiff says
that in pursuance of said order, he went to said warehouse
of said defendants, and was rightfully in and walking about
on, to wit, the floor of the same, using due care
and caution for his own safety; but he says that said defend-
ants, not regarding their duty toward him as aforesaid, care-
lessly and negligently constructed a certain elevator in said
building, which passed up and down through the various floors
thereof without enclosing by means of rail or otherwise the
opening in, to wit, the floor, upon which he, the
said plaintiff, was walking rightfully and with due care and
caution for his own safety as aforesaid, and by reason of the
failure of said defendant to properly guard the opening in
said floor by means of a railng or otherwise, and by reason of
the further failure of said defendant to properly light said
premises, he, the said plaintiff, while so in and about said prem-
ies Shoninger Co. v. Mann, 219
111. 242 (1906).
910 ANNOTATED FORMS OP PLEADING AM) I'UACTICK
ises as aforesaid, stepped into and fell from, to wit, the
or floor of said pri*niist's through the opening in
said floor to the basement below, and was thereby greatly
hurt, bruised and wounded, divers bones of his body, to wit,
one femur and its neck, were fractured and he was otlier-
W'ise injured both internally and externally, and became sick,
sore, lame and disordered, and so remained for a long sj):ice
of time, to wit, from thence hitherto, during all of which time,
he, the plaintiff, sufl'ered great pain both in body and in mind,
and still continues to suft'er such pain; and by reason of the
injuries occasioned as aforesaid he was prevented and hindered
from attending to his business, employment, occupation and
affairs, and was thereby deprived of divers wages, salaries,
incomes, profits and gains, which he might and otherwise would
have earned, ac(iuii'ed and received; and by reason of the
premises also he was compelled to and did pay out divers sums
of money in and about endeavoring to be cured of his said
wounds, bruises, hurts and fractures, occasioned as aforesaid.
Wherefore, etc.
1541 Excavation or pit unguarded, Narr. (Va.)
For this, to wit, that heretofore, to wit, on the .... day of
the di'fendants were and had been for some time
prior to that date, the owners and occupiers of a certain lot of
land in the county of , situateil on the
side of street between and
streets, and had on and before the said date dug and excavated
a deep hole and pit on saitl property, running along with
and immediately adjoining said street, to wit,
about feet deep and about feet
long, and that water to the depth of about feet
stood therein; and that thereupon it became and was the duty
of the said defendant to use due care and caution to provide
for the safety of persons passing along said
street, and to fence or otherwise properly guard the said prop-
erty so that persons so passing along said street would not
fall into the said hole, pit, or excavation.
Yet, the said defendants, disregarding their duty in this
respect, and wholly failing therein, on the day and year afore-
said, did not use due care and caution to provide for the safety
of persons passing along said street, as aforesaid,
but, on the contrary, negligently, recklessly and carelessly
failed to fence in or otherwise properly guard the property
aforesaid, wherein was a hole, pit, excavation aforesaid, of
all which said defendants on the day and year aforesaid had
knowledge; w^iereby the plaintiff's intestate without any fault
or negligence on his part, and while passing along said
street, as he had a perfect right to do, on the
day and year aforesaid, in consequence of the failure of the
PERSONAL INJURIES 911
said defendants to fence in or otherwise properly guard the
said property, fell and was thrown into the hole, pit and
excavation aforesaid, and into the water aforesaid, and was
then and there instantly drowned ; wherefore, the said plain-
tiff by virtue of the statute in such cases made and provided,
brings this suit and claims damages in the sum of
dollars.
1542 Exhibition of horses, improper management, Narr. (111.)
For that whereas, the said defendant company heretofore,
to wit, on the .... day of , 19 . . , owned and was
possessed of a certain building in the city of ,
county of and state of Illinois, that a part of said
building consisted of a large amphitheater; that said amphi-
theater consisted of a large open space or arena in the center,
surrounded by a series of stationary seats ; that at the time
and place aforesaid the said defendants offered for sale and
sold horses at public auction in said building ; that the horses
so offered for sale by said defendants were led into the said
arena and there exhibited under the direct and immediate
supervision and control of said defendants ; that in conduct-
ing said sales said defendants invited all persons wishing to
bid upon the horses so oft'ered for sale as aforesaid to enter
said building and the said arena and inspect the horses so
offered for sale.
And the plaintiff avers that, on, to wit, the day and year
aforesaid, at the place aforesaid, the said plaintiff was by said
defendants, and each of them, then and there invited to enter
said building and arena and inspect certain horses which were
then and there being exliibited by said defendants for sale;
that said plaintiff", in compliance with such invitation of said
defendants, did then and there enter said building and arena
and said defendants then and there exhibited and offered for
sale to said plaintiff and to all other persons wishing to inspect
or purchase said horses, a certain horse.
And the plaintiff further avers, that said defendants, while
exhibiting said horse for inspection and sale as aforesaid,
carelessly, negligently, improperly and wilfully whipped said
horse ; that by reason of such whipping of the said horse at
the time said horse was so exhibted by said defendants and
was so being inspected and examined by said plaintiff, said
horse was caused to suffer great pain and was thus rendered
highly nervous, excitable and dangerous ; that as said plaintiff
was so inspecting and examining said horse as aforesaid, the
said defendants carelessly, negligently, improperly, wilfully
and suddenly and without any warning to said plaintiff, struck
said horse a violent blow with a whip ; that by means of said
careless, negligent, improper and wilful conduct of said defend-
ants, and of each of them, and while the said plaintiff was
912 ANNOTATED FORMS OF PLEADING AND PRACTICE
in the exercise of all due care, caution and diligence for
his own safety, the said horse became fractious and ran upon
and against the plaintift* with great force and violence and said
plaintiff thereby then and there received injuries about the
left side of his body, left arm and about his head and about his
back, spine and kidneys, and othi-r parts of his body, inter-
nally, externally, permanently and otherwise, and became
sick, sore, lame and disabled, and so remained from thence
hitherto, during all of which time he suflered great pain, and
was hindered and prevented from attending to his afTairs and
business, and more particularly from following his occupation
as a teaming contractor and horse dealer, at which he was
capable of making and did make large sums of money, to wit,
($ ) dollars per month ; and plaintifY was
compelled to and did lay out divers large sums of money, to
wit, ($ ) dollars, in and about endeavoring
to be cured of his said injuries occasioned as aforesaid. To
the damage, etc.
1543 Explosion and panic in street car, Narr. (111.)
For that whereas, on, to wit, the .... day of , 19. .,
and prior thereto, the said defendants, C 1) and C T, were cor-
porations duly organized and existing under and by virtue of
the laws of the state of Illinois, and were engaged in the
business of transporting passengers in street cars for hire in
the city of , in the county of afore-
said, and were possessed of divers cars which were propelled
by electricty, and were commonly known as electric street
cars, and were also possessed of certain rails or tracks which
were laid upon and along a certain public highway in the said
city of , to wit, upon I) avenue; and the plaintitT fur-
ther avers that she then and there, on, to wit, the said ....
day of , 19. ., and in the county aforesaid, became a
passenger for hire upon one of defendants' said electric cars,
and then and there paid her fare as such passenger; that it
then and there became and was the duty of the said defendants
to safely transport the plaintiff as such passenger in their
said car and over their said tracks along said D avenue from
its intersection with a certain public highway in said city, to
w4t, E avenue, to the intersection of said D avenue with another
public highway in said city, to wit, C street; yet the plaintiff
avers that the said defendant corporations wholly failed in
their duty in that behalf, and by their servants then and there,
on said D avenue, at or near to the intersection of S avenue,
operated, controlled and managed said car upon which the
plaintiff was a passenger as aforesaid, so negligently and care-
lessly, and with such a want of due care for the personal safety
of the plaintiff, that by reason of such negligence and want of
care by the defendants, a sudden and violent explosion
PERSONAL INJURIES 913
occurred in or about the machinery or appliances situated at
the front end of the car, by means of which the driver of the
car, commonly known as the motorman, was accustomed to
control the motions of the car, which explosion was accompa-
nied by a dazzling flash of fire which caused the passengers
on said car to believe that the same was on fire, and as an
immediate and natural consequence of said explosion, and of
said flash of fire, a panic took place among the passengers on
said car, and a stampede for the door set in, in the course of
which the plaintifi:, while exercising due care and diligence for
her own safety, was hurled violently to and upon the floor of
said car, and while upon the floor of said car was trampled
upon by other passengers in said car, they being then in a
state of panic caused by said negligence of defendants, as
aforesaid, whereby and by reason whereof the plaintifi' sus-
tained great and severe injuries, and was greatly wounded,
hurt and bruised, and sufi'ered a violent shock to her nervous
system, and severely strained, bruised and injured her right
knee, and broke the knee cap of said knee, and became other-
wise sick, sore and disordered, and remained so for a long time,
to wit, from thence hitherto ; and by reason of the injuries
aforesaid said plaintiff suffered great pain and anguish, and
was hindered and prevented from attending to her ordinary
business and aft'airs, and was deprived of various profits and
gains which she otherwise could and would have had, and will
be hereafter hindered and delayed from following her busi-
ness and aft'airs as she otherwise could and would have done.
And the plaintiff further avers that when she was so thrown
upon the floor of said car, as aforesaid, certain eye-glasses, or
spectacles, which she wore, and which she was obliged to
wear, in order to attend to her said business affairs, were
broken and destroyed, which eye-glasses, or spectacles, were
reasonably worth the sum of, to wit, dollars.
Wherefore, etc.
1544 Explosion, carbonic acid gas, Narr. (Mich.)
For that whereas the said defendant, at the time of the
committing of the grievances hereinafter alleged, was a cor-
poration organized and existing under the laws of the state
of Michigan, and engaged in the retail drug and soda water,
etc., business in the city of That among other
places, defendant conducted at said time and for a consider-
able period prior thereto, a drug store at, to wit. No
avenue, in said city, and in the conduct of said
store, operated and maintained a fountain from which it
dispensed among other liquids, soda and vichy waters. That
in the maintenance and operation of said fountain and for the
purposes of supplying the same with such waters, it used
metal tanks which, at the time of the committing of the
914 ANNOTATED FORMS OF PLEADING AND PRACTICE
grievances hereinafter alleged and for a long time prior
thereto, it was the practice of said defendant to fill, in the base-
ment underneath the first floor of said premises, with the
waters required for said fountain and with carbonic acid gas
under a high pressure. That at the time of the committing of
said grievances, said defendant possessed, used and maintained
in the basement of said premises, an apparatus consisting of,
to wit, a pressure gauge with two hose attachments, one of
which, when in use, connects with the drum from which
carbonic acid gas is taken and the other with the metal tank
to be filled as aforesaid. That the gas contained in the drum
is released by means of the turning of a key which opens a
valve and the gas then passes from tlie drum through tiie tube
connecting with the gauge and thence through the tube con-
nected with the tank to be filled, which gauge, when in
proper order, registers the pressure in the tank while the
same is being filled with gas.
That at said last mentioned time, there was connected with
said apparatus an automatic shut-off or device which, if in
good order, could be set at any re(|uired pressure, and if so
set, would, when the required pressure was reached, automat-
ically shut off the flow of gas and thereby prevent an excess
quantity of gas from being forced into the metal tanks, and
rendered, when in perfect condition, the filling of tanks with
carbonic acid gas, at the time of the committing of the griev-
ances aforesaid, reasonably safe, especially if the tank to be
filled was not defective and capable of standing the pressure to
which the gauge was set.
That at the time aforesaid, in the filling of said tanks, it was
and had been for a long time prior thereto, the practice of
said defendant, while the gas was being put in such tank, to
require of its employees engaged therein, to rock or shake the
same in order that the water in such tank might more readily
absorb the gas and permit of greater quantities of said gas to
be put therein. That at the time of the committing of said
grievances, said tanks, when in proper condition and not
defective, would permit with safety the placing therein of a
pressure of, to wit, five hundred pounds of gas. That the filling
of such tanks Avas attended with the danger of explosion if
too large a quantity of gas was forced therein or if the said
tank was defective, there was danger of such tank exploding,
even if the gas pressure in tank was considerably less than five
hundred pounds; and plaintiff further avers that at the time
of the committing of the grievances aforesaid, there were no
means of determining the gas pressure in such tanks, except
as the same was indicated by the gauge aforesaid, and that if
the apparatus or gauge aforesaid was defective, or out of order
or failed to properly register the pressure, or the automatic
shut off was defective or out of order, or was not properly
set or regulated, there was great danger of overloading the
PERSONAL INJURIES 915
tank to be filled with carbonic acid gas and cause it to explode,
particularly a tank Avhich was defective, worn or in a weak-
ened condition; all of which facts were then and there well
known to the defendant. And plaintiff avers that by reason of
the premises, well knowing such danger, it then and there
became the duty of said defendant to provide and use only
safe and sound tanks, in no wise weak or defective and to
provide its employees with a safe place to work in while filling
the same, and to keep, use and maintain in its establishment
aforesaid, for the proper protection of its employees who
might or should be engaged in filling tanks in said basement
with carbonic acid gas, a safe and proper apparatus, gauge and
automatic shut-off and have and keep the same respectively in
good running order and not to permit the same to get out of
order or to become defective, and to have and keep the same in
charge of a competent person to operate, regulate and control
the same while such apparatus and gauge was being used in
connection with the filling of such tanks as aforesaid, par-
ticularly while the tank was being rocked or shaken; and to
see to it that the automatic shut-oft' was in good order and
properly set, and to then and there fully acquaint its employees
who were or might be engaged in or assisting in filling said
tanks, of the dangers attendant thereat as aforesaid and to
fully apprise them of the use of said gas and apparatus and
the dangers connected therewith and of the operating of said
apparatus and the gauge and automatic shut-off which regu-
lated the gas pressure, and if defective, of such condition, par-
ticularly while such tanks were being filled with gas.
That said defendant wholly neglected its duty in the several
matters aforesaid; and failed and neglected then and there at
the time of the committing of the grievance aforesaid, to fur-
nish sound and safe tanks to be filled ; and did not then and
there or at any other time, apprise plaintiff's intestate of the
dangers attendant to the filling of such tanks with carbonic
acid gas as aforesaid, or in the rocking or shaking of the
same while it was being filled with gas ; and did not then and
there or at any other time, inform him of the proper and safe
method of operating the apparatus and gauge and shut-off
used in regulating and registering the pressure of gas so put
in the tanks as aforesaid, or that such apparatus or shut-off
was out of order or defective ; and did not then and there fur-
nish a safe and perfect apparatus or automatic shut-off as
aforesaid or see to it that at the time of the committing of
the grievances aforesaid the same if in perfect condition was
properly set ; and did not then and there or at any other time
acquaint said plaintiff's intestate with the danger that might
or could arise from overloading the tanks which were to be
filled with such gas, particularly the tank which exploded and
caused the death of plaintiff's intestate as hereinafter set forth;
and did not then and there or at any other time, apprise plain-
916 ANNOTATED FORMS OF FLLADING AND PRACTICE
tiff's intestate of the defective condition of the lank aforesaid
or furnish him with a safe place to work in while assistinij in
filling said tank; and did not furnish him with safe appli-
ances to work with ; and did not then and there properly safe-
guard said plaintiff's intestate against the explosion of said
tank.
And plaintiff' further avers tiiat her said intestate, whih-
employed as a porter or helper in said defendant's drug store
or establishment aforesaid, he having entered such employ
shortly before the committing of the grievances hereinafter
alleged, to wit, the day of , 19. ., he being then
and there wholly ignorant of the danger attendant the filling
of said tanks as aforesaid, and being wholly unfamiliar with
the apparatus, gaui^'e or automatic shut-off' hereinliefore men-
tioned, and being ignorant of the defective condition thereof
respectively, on, to wit, tiie .... day of , 19. ., while
assisting, by defendant's direction, an employee of said
defendant (who had been placed by said defendant in charge
of that branch of work in its said store), in filling a tank in
the basement of said defendant's premises at
avenue, aforesaid, with carbonic aeitl gas, and in rocking or
shaking the same, and while said tank was in a defeetivi'
condition and under a pressure of less than, to wit, two hun-
dred pounds, and while said apparatus and gauge and auto-
matic shut-off aforesaid were out of order and in a defective
condition, and while said apparatus was not being operated,
regulated or controlled in a proper manner, and wliile the
same was not in charge of or being operated by a competent
l)erson, and while saiil negligence and omissions on the part of
said defendant were then and tlii're unknown to said plaintiff's
intestate as aforesaid, and were well known to the deft-nd-
ant, or if not known could or would, by the exercise of reason-
able care on its part have known thereof, and of plaintiff's
intestate's ignorance in the premises, and while plaintiff's
intestate was exercising due care, and without fault or negli-
gence on his part, said tank exploded with gi-eat force and
violence, then and there killing plaintiff's intestate and
mutilating and disfiguring his head, limi)s and body.
And plaintiff' avers that the death of her said intestate was
caused by the wrongful neglect and default of the defendant as
aforesaid, and that if death had not ensued, plaintift"s intestate
would have been entitled to maintain an action against and
recover damages from the defendant in respect thereof; and
plaintiff further avers that on, to wit, the .... day of ,
19.., she was duly appointed by the probate court for the
county of , state of Michigan, the administratrix
of the estate of , deceased, and afterwards duly
qualified as such. And plaintiff brings here into court her let-
ters testamentary, whereby it fully appears that she has been
empowered to administer the estate of said deceased; and
PERSONAL INJURIES 917
plaintiff further avers that the following are the persons
entitled by law to the general property of said deceased under
the statute of Michigan governing the disposition of the per-
sonal property of intestates, viz. : the plaintiff, who is the
widow of said deceased, and , aged .... years,
, aged .... years, respectively, or thereabouts,
children of said deceased; and plaintiff further avers that the
said widow and children were dependent upon said deceased
for their support and maintenance; that he was accustomed
to earn large wages, to wit, $ per month, in his usual
vocation, out of which he supported and maintained your
petitioner and children. That by his death they have been
deprived of the means of support and suffer pecuniary injury,
and plaintiff says that by virtue of the statute made in such
case and provided, the defendant has become liable to pay to
this plaintiff as such administratrix, $ ; and there-
fore she brings suit.
1545 Fairs and carnivals, action
A municipality is liable for an injury resulting from unsafe
structures put up for exhibitors at carnivals and street fairs
held under its authority in streets or public places, for the rea-
son that a municipality has no power to grant permission for
such purposes and that such occupancy of the streets is a public
nuisance per se.^^"* A city which invites its patrons to seats
upon platforms to witness games, sports and races is liable
for injuries sutained by a failure to exercise due care in the
erection and maintenance of these places.^^^
1546 Fairs and carnivals, Narr. (111.)
For that whereas the said defendant, , was,
on or about the .... day of , 19. ., a municipal cor-
poration, organized and existing under the laws of the state
of Illinois, and on the day and date aforesaid was in charge
of and controlled and managed certain streets situated in
the said city, county and state aforesaid, and among other
streets said city was possessed of, managed and controlled two
certain intersecting streets known as street and
avenue, in , county,
Illinois.
Plaintiff avers that it then and there became and was the
duty of the said defendant to so manage and control its said
streets as not to injure the plaintiff; yet, the said defendant
lOT Van Cleef v. Chicago, 240 111. los Logan v. Agricultural Gociet7,
318, 324, 328 (1909). 156 Mich. 537, 541 (1909).
918 ANNOTATED FORMS OF PLEADING AND PRACTICE
well knowing its duty in this behalf did knowingly authorize
and permit a certain building to be erected upon and in a
street of said city, at the place aforesaid, to wit, at and in
the intersection of . street and
avenue, which said building was erected in an
unsafe and dangerous manner, particularly in that a crrtain
stairway in and about the said building was unguardi*d by
guard rails.
2. And the plaintiff avers that it also then and thtM-r became
and was the duty of the said defendant to so control and num-
age its said streets and to so take charge of them, as not to
inflict an injury upon persons rightfully upon said streets;
yet, the said city, well knowing its duty in this behalf, on the
day and date aforesaid, allowed, authorized and permitted a
certain building to be erected at or near the intersection of
the two streets aforesaid, and within the intersection of the
streets aforesaid, and upon and in one or the other of said
streets, which said permission was granted by the city council
of said city of at the regular meeting of said
city council, held , , l*-). ., and which permission
was in words and figuies as follows, to wit: (Insert copy of
order of permission.)
Plaintiff further avers that acting u[)nn the said permission,
and ill pui'siumce thereof, a certain building was erected upon
and in said streets of said city, as aforesaid, which said build-
ing was for the purpose of giving entertainments and per-
formances, and was in direct violation of a certain ordi-
nance of the city of which was known as section
of the city ordinances of the city of ,
and which said ordinance was in full force and etl'ect at the
time, and which said ordinance was in the words and figures
following, to wit : (Insert copy of ordinance).
3, And the plaintiff avers that it also became and was the
duty of the said defendant to so keep, manage and control
its streets as not to injure persons rightfully thereupon; yet,
the said defendant, city of , on or about the date
aforesaid, knowingly permitted and allowed and authorized a
certain building to be erected and to remain for a consider-
able space of time upon or in the intersection of
street and avenue, two intersecting streets in the
city of , county and state aforesaid ; and which
said building was situated upon and in the streets of the said
city, and which had remained upon and in said streets for a
considerable space of time, whereby said building became and
was a nuisance, and concerning which the city knew or should
have known, and which said building was in an unsafe and
unstable condition in this, to wit, that the said stairs leading
to and from said building were unprotected and without a
guard rail, and concerning which the defendant knew or
should have known.
PERSONAL INJURIES 919
By reason of the several breaches of duty aforesaid,
said plaintiff, while coming out of said building, together with
a large number of other persons, and while in the exercise
of all due care and caution for her own safety, was pushed
and crowded off of and from said stairway, and by reason
thereof fell to and upon the ground and was greatly hurt,
bruised, wounded and injured, particularly in and about her
right leg, which was broken and sprained; and by reason
thereof plaintiff became and was sick, sore, lame and disabled,
and has been unable to do any work and will always remain
unable to do any work, and will always continue to be sick,
sore, lame and disabled, and has laid out and expended divers
large sums of money in and about endeavoring to be cured
of her injuries, to wit, the sum of ($ ) dollars.
Wherefore, etc.
1547 Fenders defective, Narr. (111.)
For that whereas heretofore, on, to wit, the day of
, 19. ., the defendant was possessed of and operating
a certain street railway extending longitudinally upon and
along street, then and there a public highway
in the city of , in the county and state aforesaid,
and upon wliich said railway the defendant then and there
operated certain trains of street cars; that at the time and
place aforesaid plaintitf was a minor of tender years, to wit,
years of age, and was then and there traveling
westward across defendant's said railway tracks upon said
public highway, to wit, between street and
court in said city, and while so traveling and
while he was exercising such care as could reasonably be
expected of one of his years and experience, the defendant,
through certain of its servants in that behalf, was then and
there operating a certain train of street cars southward upon
and along said railway. That there was long prior to and
then and there a certain section of a certain city ordinance
of the city of , in full force and effect, which pro-
vided as follows: (Insert fenders' ordinance). That the
southerly or front car of said train was a grip car and that
the defendant did, in obedience to said ordinance, long prior
to and then and there provide and maintain a fender on the
forward or southerly end of said grip ear of steel and of the
basket kind, attached to the front end of said grip car as and
for the purpose aforesaid ; but then and there negligently per-
mitted said fender to become and remain in such a defective
and improper condition of repair that it would not serve the
purpose for which it was so required, provided and used, in
this, that said fender was so high above the track and loose
and' dilapidated thnt it would permit a child or other person
to pass under said fender in the event of his being overtaken
920 ANNOTATED FORMS 01' PLEADING AND I'HACTICK
and struck by said fender while upon the track upon which
said car was running.
By reason of which premises said fender then and there
struck and knocked the plaintiff down, and as a direct result
and in consequence of said defective and improper condition of
said fender the plaintiff passed under said fender and car
instead of falling upon top of said fender and being sustained
by said fender, as he would have done if said fender had been
in proper condition ; that one or more of the wheels of said car
thereby then and there passed over one of plaintiff's feet, and
thereby then and there so crushed and mangled his said foot
that it became necessary to amputate his said foot and part of
his leg, and same were so amputated a short time afterwards;
that divers other bones, ligaments, muscles, tendons, and
membranes of the plaintiff's body were also thereby then and
there sprained, dislocated, broken and otherwise injured; that
he was disfigured, cut, bruised and wounded about his head,
face, limbs and body and sustained serious injuries to divers
of his internal organs and a serious shock and injury to his
spine and nervous system; and that as a direct result and in
conse(iuence thereof he has ever since sutfered and will con-
tinue permanently to suffer great pain, and has become and is
permanently crippled, sick, sore, disordered, and incapacitated
from attending to or transacting any ordinary business or
affairs, as a result of which he will be deprived of great gains
and profits which he might and otherwise would have made and
accjuired. To the damage, etc.
1548 Fenders or headlights, Narr. (Mich.)
For that whereas the defendant, at the time of the com-
mitting of the grievances hereinafter set forth, and for a long
time prior thereto, was a corporation organized under the
laws of the state of Michigan, and engaged as a common car-
rier of passengers ; that as such carrier it operated an electric
railroad running from the city of , ,
to the city of , in the state of ^Michigan, and else-
where; that it operated and ran its cars propelled by electricity
on and over tracks laid along and upon certain public avenues,
streets and alleys, in the city of ; that the usual
course of operation of the said cars within the city of
by said defendant was to run them into the city of
in a northerly direction, over and along the east
track on street ; thence over the east track upon
a bridge spanning river, which bridge is com-
monly called street bridge ; then along the east
track on avenue to street, then upon the
track on street, which is the northern terminus
of said railroad; then the said defendant would back its cars
out from the street track to the west track on
PERSON.O, INJURIES 921
avenue so that the car would face the south ; then
it would run its cars in a southerly direction along the west
track on avenue as aforesaid ; then over
street bridge on the west track ; then along the west track on
street ; that a short time prior to the grievance
mentioned it had been found necessary to discontinue the run-
ning and operating of said cars over street bridge ;
and that it then and there became necessary for the said
defendant to adopt another plan for the operating and running
of its cars within the said city of
And it then and there became and was the duty of the said
defendant in operating its said railroad and running its said
cars over and other streets in the said city of
, to adopt a plan of operating and running said cars
which would be considered good railroading under all the cir-
cumstances, and to adopt a plan which would reasonably pro-
tect plaintiff's intestate and other persons lawfully using
street aforesaid, so that the safety of their per-
sons while so engaged would not be jeopardized by the pres-
ence of defendant's cars upon said street.
Yet, the said defendant, well knowing the premises and well
knowing tiiat street is one of the principal streets
of the city of , a city of upwards of
thousand inhabitants, and as such traveled by a large number
of persons, disregarding its said duty did not adopt a plan of
operating and running said cars which would be good rail-
roading under all the circumstances, and did not adopt a plan
of operation which would reasonably protect plaintiff's intes-
tate and other persons lawfully using said street.
But on the contrary, the said defendant negligently and care-
lessly adopted a plan of operating and running its said cars
which was highly dangerous to plaintiff's intestate and other
persons lawfully traveling upon said street,
and negligently and carelessly directed and permitted its
employees to run its said cars northward bound from the east
track on street onto the track on
street bound westward, thence to the track on
place bound southward, thence to the track on street
bound eastward, thence to the west track on
street headed southward, then to back its said cars, without
fenders or headlights on the rear or any other distinctive warn-
ing or signal which would convey the idea to persons unaccus-
tomed to railroading that said car was about to run backward
along the west track of said street, a track
heretofore invariably used for cars running in a southerly
direction, in a northerly direction to its waiting room located
on the west side of street, a long distance from
street, to wit, feet, all of which di.s-
tanee from street to street being in
the busiest business section of said city of
922 ANNOTATED FORMS OF PLEADING AND PRACTICE
2. And it then and there became and was llie duty of de-
fendant, when backing its said cars on street as afore-
said, to operate said cars at a slow rate of speed and to have
them under perfect control to avoid injuring anyone tiien
using the street ; and especially it was the duty of the defend-
ant, while backing its said cars over the intersection of
and streets, which intersection is just north of
the point where the said cars started to back, and which inter-
section is designed especially for the crossing of the streets by
pedestrians and others and is located in the business district
of said city of and traveled l)y many persons, to
run said cars at a slow rate of speed and to have said cars
under perfect control and to have a man on the rear of said
cars to keep a constant lookout to avoid injuring the plaintiff's
intestate and others then lawfully using the street or crossing.
Yet, the said defendant, well knowing the premises and
well knowing that its said cars, being headed in a southerly
direction and being upon the west track, a track up to a short
time prior to the grievance hereinafter mentioned invariably
used for the south bound cars, and having no fenders or head-
light on the rear of said cars, would give the plaintiff's inte-
state and others lawfully using said street the impression that
said car was bound southward, disregarding its said duty did
not operate and run its said car under perfect control and
did not have a man on the rear of said car to keep a constant
lookout to avoid injuring those persons then and there using
said street or crossing. l>ut on the contrary, the said defendant
negligently and carelessly, in the evening of said day and after
darkness had fallen, mismanaged one of its said cars at the
point aforesaid, and then and there suddenly backed its said
car on the west track on street across the inter-
section of said and streets, without
having its said car under perfect control and without having a
man on the rear of said car to keep a constant lookout to avoid
injuring those persons then and there lawfully traveling on
said street or crossing.
3. And it then and there became and was the duty of the
defendant before backing its car on street in the
night time to give notice to those persons then and there on the
street or crossing, of its intention so to do, by proper signals
of warning, and by proper lights on the rear of said car, and
while backing its said car on said street to give notice of the
approach of said car to those persons then and there using
said street or crossing by the ringing of a gong or other proper
signal or signals, and by having such light or lights on the
rear of said car as would indicate to the plaintiff's intestate and
others then and there using said street or crossing that said
car was northward bound, and to have said car under control
PERSONAL INJURIES 923
and to have a man on the rear platform of said ear to keep a
constant lookout to avoid injuring the plaintiff's intestate and
others then and there using said street or crossing.
Yet, the said defendant, well knowing the premises and well
knowing that its said car, being headed in a southerly direction
and being upon the west track, a track up to a short time prior
to the grievance hereinafter mentioned invariably used for the
south bound cars, and having no fenders or headlights on the
rear of said car, would give the plaintiff's intestate and others
laAvfully using said street the impression that said car was
bound southward, disregarding its said duty did not before
backing its said car on street in the night time
on the date aforesaid, give notice to the plaintiff's intestate and
others then and there on said street or crossing of its intention
so to back its said car by giving proper signals of warning and
by having proper lights on the rear of said car and did not,
while backing its said car on said street, give notice of the
approach of said car to the plaintiff's intestate and others then
using said street, by the ringing of a gong or other proper sig-
nal, and by having such light or lights in the rear of said car
as would indicate to them that said car was northward bound,
and did not have said car under perfect control, and did not
have a man on the rear platform of said car to keep a con-
stant lookout to avoid injuring the plaintiff's intestate and
others then and there using said street or crossing. But on the
contrary thereof, on the said day and after darkness had fallen,
suddenly started to back its said car on street
without giving notice to plaintiff's intestate and those persons
then and there using the street or crossing of its intention so
to do by proper signals of warning and by proper lights on the
rear of said car, and then and there negligently and carelessly
mismanaged one of said cars at the point aforesaid, and then
and there backed its said car on the west track on
street across the intersection of said and
streets, without giving notice of the approach of said car, by
the ringing of a gong or other proper signal, and without hav-
ing such light or lights on the rear of its said car as would
indicate to the plaintiff's intestate and others then and there
using said street or crossing that said car was northward bound,
and without having its said car under perfect control, and with-
out having a man on the rear of said car to keep a constant
lookout to avoid injuring the plaintiff's intestate and others
then and there using said street or crossing.
And by reason of the negligent plan of operation of said
cars adopted by defendant as aforesaid, on, to wit, the
day of , 19. . , in the evening of said day and after
darkness had fallen, at the point where said
street intersects with said street, while plaintiff's
intestate was crossing . street in a northerly direc-
tion, and while said intestate was in the lawful use of said
924 ANNOTATED FORMS OF PLEADING AND PRACTICE
street and crossing, and in ihv exercise of due care and cau-
tion, and without fault or negligence on the part of him, the
said intestate, one of the cars of the said defendant, which had
just rounded the curve from street onto the west track
on street, and which car gave every appearance
of being southward bound, and which car then and there had no
one on the rear end thereof to keep a constant lookout to avoid
injuring those who were in the lawful use of said street, sud-
denly backed without giving any warning whatever and with-
out having such light or lights on the rear of said car as would
indicate to those persons who were then and there on the street
that said car was northward bound, and struck intestate of
plaintiff, while he was crossing street as afore-
said, knocking him down and running over him ; whereby he,
the plaintiff's intestate, was then and there crushed and killed.
And plaintiff avers that the death of her said intestate was
caused by the negligence and careless mismanagement of the
said car and the failure of the defendant to adopt a proper
plan of operating and running its said cars upon the tracks
along street aforesaid ; and that if death had not
ensued the plaintiff's intestate would have been entitled to
maintain an action against and recover damages from defend-
ant on account thereof.
And plaintiff avers that on, to wit, , 19. .,
she was duly appointed by the probate court for the county of
, state of Michigan, administratrix of the estate
of said , deceased, and afterwards duly qualified
as such, and the plaintiff brings here into court her letters
testamentary dated the day of , 19..,
whereby it fully appears that she has been empowered to
administer the estate of said deceased.
And plaintiff further avers that the following are persons
entitled by law to the personal property of said deceased, under
the statute of Michigan governing the distribution of personal
property of plaintiff's intestate, viz : , who
is the widow of said deceased.
And plaintiff further avers that the said widow was wholly
dependent upon said deceased for her support and mainte-
nance; that he was accustomed to earn large wages, to wit,
dollars per month in his usual avocation as a
, out of which he supported and maintained
said widow; that by his death she has been deprived of the
means of support and suffered pecuniary injury, and plaintiff
says that by virtue of the statute in such case made and
provided, being section (10,427) of the Compiled Laws of 1897,
the defendant has become liable to pay to the plaintiff the
pecuniary damage suffered as aforesaid. All to the damage,
etc.
PERSONAL INJURIES 925
1549 Fencing right of way, action
A city or village has power to require railroad companies to
fence their right of way within the limits of the municipality,
and a railroad company may become liable for a personal injurj'
which has been caused by a violation of an ordinance that
requires the fencing of the right of way within the munici-
pality.i6» A child of tender years who enters upon the unfenced ^
right of way of a railroad company and is injured cannot base
his action for the injury on the Illinois statute relating to fenc-
ing and operating of railroads-i^*^ But in IMichigan the action
is maintainable under a similar but broader statute.^ ^^
1550 Fire communicated by locomotive engine, Narr. (111.)
For that whereas the decedent on and before, to wit, the
day of , 19 . . , and during the lifetime of
said decedent was the owner of and together with her hus-
band and their children was occupying and residing upon a
certain close situated in said county of and on
which said close was located a certain dwelling house with the
appurtenances thereto belonging ; and the defendant was then
possessed of, using and operating a certain railroad, extending
from city in the state of Illinois to and across
said county of to the city of .•••;••'
and was also possessed of, using and controlling a certain right
of way to the said railroad there appertaining, extending along
and adjoining said close of the decedent and which said right
of way consisted of a strip of land of the width of, to wit, a
feet extending a distance of, to wit, feet on
each side of the central line of said railroad.
And although it was before that time and then the duty of
the defendant to keep the said right of way free from all dead
grass, dry weeds and other dangerous combustible materials so
that fire from the locomotive engines and trains of the defend-
ant on said railroad would not by means of such dead grass,
dry weeds and other dangerous and combustible materials
spread and be communicated therefrom to the said residence,
property and close of the said decedent; yet the defendant
not regarding its duty or using due care in that behalf did
not nor would keep said right of way free from dead grass,
dry weeds and other dangerous combustible materials as afore-
said, but on the contrary thereof before that time negligently
suffered large quantities of such dead grass, dry weeds and
169 Heitine v. Chicago, Rock Island i"o Bischof v. Illinois Southern
& Pacific Ey. Co., 252 111. 471; Par. Ey. Co., 232 111. 446 (1908)
•>7 sec 1. art. 5, Cities and Villages I'l Keyser v. Chicago & Grand
926 ANNOTATED FORMS OP PLEADING AND PRACTICE
other dangerous combustible materials to accumulate and then
negligently suffered the same to remain upon said right of way.
2. And although it was also before that time and then the
duty of the defendant to provide its locomotive engines used
and operated upon and along said railroad with the proper
and most approved machinery and appliances to prevent the
escape of fire from said locomotive engines and to keep in con-
stant use and proper repair such machinery and appliances;
and although it was also before that time and then the duty
of the defendant to so operate, run and manage said locomo-
tive engines upon and along said railroad as to prevent the
escape of fire from said locomotive engines to the injury of
property along and near said railroad; yet, the defendant not
regarding its duty or using due care in that behalf, did not
nor would keep its said locomotive engines on said railroad
equipped with the proper and most approved machinery and
appliances to prevent the escape of fire from said locomotive en-
gines, and did not nor would so operate, run and manage tho
same on said railroad as to prevent the escape of fire from
said locomotive engines to the injury of property along and
near said railroad. And while a certain locomotive engine of
the defendant and under its management and control was
then and there passing upon the said railroad, along the said
close, divers sparks and brands of fire then and there escaped
and were thrown from the same locomotive engine by and
through the mere neglect and failure of the defendant to pro-
vide said locomotive engine with the proper and most approved
machinery and appliances to prevent the escape of fire from
said locomotive engine and by and through the mere neglect
and failure of the defendant to so operate, run and manage
said locomotive engine on said railroad there as to prevent the
escape of fire from said locomotive engine, and set fire to cer-
tain combustible materials then on said close and right of way,
and wiiich said fire set as aforesaid, spread to upon and over
said close of decedent.
By means Avhereof fire then and there emitted and thrown
from a certain locomotive engine and train of defendant on
said railroad to and upon said right of way and dry grass and
weeds and other dangerous combustible materials there, then
and there ignited and set on fire said dry grass and weeds and
other dangerous combustible materials and thence spread and
was communicated to and spread upon said close of decedent.
And while the decedent was then and there with all due care
and caution for her own personal safety lawfully endeavoring
to suppress and extinguish said fire on said close communicated
as aforesaid and which said fire the plaintiff avers was travel-
ing, progressing and extending toward and threatening the
destruction of said dwelling house with the appurtenances
thereto belonging on said close, the clothing of decedent was
PERSONAL INJURIES 927
then and there unavoidably ignited and set on fire by flames,
sparks and brands of fire blown and thrown upon and com-
municated to the clothing of decedent from said fire on said
close; and thereby, the clothing of decedent was, then and
there, while she, the decedent, was in the exercise of all due
care and caution for her own personal safety, burned and
consumed and the decedent burned, maimed, wounded and
mortally injured ; and in consequence whereof said
died on the day of .^. 19. .. (Add last
two paragraphs of Section 1-195)
1551 Footboard on engine pilot defective, Narr. (Miss.)
That the defendant, the said , is a railroad
corporation duly chartered under the laws of the state of Mis-
sissippi, and operating a line of railroad traversing said state
from east to west and passing through the
district of county in the said state, and having
an agent residing in the of in said
district of county, upon whom
service of process can be made.
That plaintiff was, on the day of ,19. .,
and for a long time prior thereto, employed in the service of
the defendant as a brakeman and on said date he was actively
engaged in the discharge of his duties as front brakeman on
one of the defendant's trains, to wit, freight train number
which was being pulled by engine number
in charge of engineer , said train being in charge
of conductor , which said freight train had
left the , a station on defendant's road, on the
morning of said day of , 19 . . , its desti-
nation being the city of , another station on said
defendant's road, said train being a local freight train and en-
gaged in interstate commerce.
That when said train number arrived at
, a station on defendant's road about miles
east of said of , the conductor in
charge of said train, having received orders from the train-dis-
patcher to clear at said station of for passenger
train number of defendant, which was east
bound, and then due, gave orders to the crew of said train
number to put said train upon a siding.
That as front brakeman on said train, it was the duty of
plaintiff to throw open the switches in entering and leaving
the siding, and that in the discharge of said duty it was
plaintiff's custom to throw open the first switch in order that
the train might enter the siding and then to step upon the
pilot of the engine and ride to the end of the siding where he
would throw open the switch at the other end of the siding in
order that the train could pass again to the main line ; that in
riding on the pilot he would stand upon the metal footboards
928 ANNOTATED FORMS OF PLEADING AND PRACTICE
which are furnished for that purpose, and which, when properly
constructed, are fastened on both sides of the pilot with bolt
and nuts, plaintitf at the same time holding with his hands
the iron hand-hold which was also provided for that purpose,
that being the usual and customary way for the front brake-
man to ride from front switch to the end switch while engaged
in assisting in so switching his train, and being the way in gen-
eral use among all railroads, and especially being the way in
general use on defendant's said road by defendant's servants
on said date.
That on said date plaintiff was ordered by the conductor of
said train number to open the switch so that said
train might be switched upon the siding in order to clear
the main line for the said passenger train number , and
plaintiff thereupon proceeding to obey said order in the usual
and customary way, opened the first switch and was then pro-
ceeding to take his station upon the metal foot-boards on
each side of the pilot, in order that he might be transported
to the other end of the siding, where he would be ready to
open the end switch, so that the said train could again pass
upon the main line and proceed upon its journey towards
the station of , and plaintiff had placed his left
foot on the right foot-board of the pilot, and stepped with
his right foot on the left foot-board of the pilot, holding on
with his hands to the iron hand-hold, provided for such pur-
pose, and just as he stepped with his right foot on the left
metal foot-board on the pilot, and while he was discharging
his duties in the usual and customary and safe way, and with
all due and proper regard for his own safety and in the exer-
cise of reasonable care on his part, the left metal foot-board
tilted, gave way, and broke loose from its fastenings, which
were insufficient and insecure, and caused plaintiff to lose his
foot-hold, in consequence whereof he was violently thrown
from the pilot, in front of the moving engine and said engine
and a number of cars attached thereto ran over plaintiff's left
foot and leg, horribly bruising, scratching and maiming it so
that it became necessary to amputate the said left leg between
the foot and the knee.
Plaintiff says that the cause of his said fall from the pilot
of said engine, and the consequent injuries suffered by him,
was the defective and insecure condition of the metal foot-
board on the left side of the pilot of said engine, on which
plaintiff had just stepped with his right foot, in the discharge
of his duties as aforesaid, which said foot-board defendant had
negligently allowed to get out of repair and become defective
and unsafe.
Plaintiff says that it was the duty of the defendant under
the law, to furnish him reasonably safe machinery and appli-
ances with which to work, and a reasonably safe place to work ;
but plaintiff says that the defendant disregarded its duty in
PERSONAL INJURIES 929
that respect, and carelessly allowed said foot-board to become
unsafe and defective, in that it was not provided with a suffi-
cient number of bolts, and the bolls which were on the foot-
board were not fastened with nuts, as they should have been,
and was otherwise in a bad state of repair ; and plaintiff says
that said foot-board was not strong enough to hold up any
weight whatever, and was wholly unsuited for the purpose
for which it was intended, all of which defendant well knew,
or by the exercise of reasonable care and diligence on its part
it ought to have known.
Plaintiff says that the defective and unsafe condition of said
foot-board was wholly unknown to him at the time he received
said injuries.
Plaintiff' says that he is years old, and that at
the time he received the said injuries he was in robust health,
and sound in body, and that he was earning as brakeman the
sum of dollars per day.
Plaintiff says that on account of said injuries he has suffered
great physical pain and mental anguish and has been incapaci-
tated for life to perform manual labor, upon which he was
dependent for a livelihood; that he has lost much time, and
has been crippled for life and permanently disabled, and his
capacity to earn a livelihood practically destroyed. Wherefore,
etc.
1552 Foundation wall, collapse, Narr. (111.)
For that whereas, heretofore, on, to wit, the day
of , 19 . . , at, to wit, in the county of ,
state aforesaid, said defendant was the owner of and had the
control of certain lots in addition to the city of
, county and state aforesaid ; that the defendant
desired to construct a business building of brick with stone
foundation upon said lots and so undertook to construct and
did construct or cause to be constructed under his own super-
vision and direction a stone foundation wall under said pro-
posed brick business building, and in the construction of said
foundation used inferior rock and mortar, which was burnt
and wholly insufficient and unfit for such use.
And it then and there became and was the duty of the said
defendant to have said stone foundation wall so built that
the same would have been in reasonably good and safe condi-
tion upon which to erect the brick building as aforesaid. Yet,
the defendant, not regarding his duty in that behalf and well
knowing the bad and unsafe condition of said foundation stone
wall, on, to wit, the day and year aforesaid, then and there
M-rongfully and negligently suffered and permitted the plain-
tiff to be and remain in ignorance of such bad and unsafe
condition of said foundation stone wall.
2. And the plaintiff further avers that the defendant knew or
930 ANNOTATED FORMS OF PLEADING AND PRACTICE
by the exercise of reasonable care could have known that said
foundation constructed as the same was constructed out of
said inferior materials aforesaid would not support the brick
walls to be placed upon the same in the construction of the
said building, and the defendant with full knowledge of the
said weak and inferior stone foundation walls, without giving
the plaintiff any notice or warning of their said condition
induced the plaintiff and his partner, one ,
who were then brick-laying contractors, and the plaintiff
and said did enter into a contract with him,
the defendant, for the construction of said brick walls, upon
said stone wall or foundation, not knowing of the poor con-
struction and condition of the said stone foundation and not
knowing that the said stone foundation was insufficient to
support the brick walls which the defendant contracted with
the plaintiff and said to place upon the said
foundation, and without any reasonable opportunity of
acquainting the said plaintiff" of the condition of said stone
foundation wall.
And the plaintiff while engaged in laying brick upon said
stone wall in pursuance of said contract and with no notice
of the inferior construction and weak condition of the said
stone foundation wall, and while in the exercise of due care
and caution for his own safety, by reason of the weak, rotten
and inferior condition of said rock foundation wall, the same
gave way, precipitating the plaintiff with great force to the
ground and he was then and there hurt, bruised and wounded
and he, the plaintiff, was internally injured and he then and
there became and was sick, sore, lame and disordered, and so
remained for a long time, to wit, from thence hitherto, during
all of which time plaintiff suffered great pain and was hindered
from performing his ordinary affairs and business and in con-
sequence thereof was obliged to and did then and there spend
divers sums of money amounting to the sura of, to wit,
dollars in endeavoring to be cured of his aforesaid
injuries occasioned as aforesaid. To the damage, etc.
1553 Frightening horses or mules, Narr. (111.)
For that whereas, the defendant, on the day of
, 19.., was then and there driving a certain
automobile, said certain automobile being then and there
propelled by mechanical power, upon and along a certain high-
way in the state of Illinois, which said highway was not then
and there within the limits of any incorporated city or village,
and which said highway extended in a northerly and south-
erly direction on the line between the aforesaid county of ....
and the county of in said state of
Illinois; that said defendant was then and there driving the
said automobile upon the said highway, in a northerly direc-
PERSONAIi INJURIES
931
tion, at a point about miles north of the village of
in said county ; that on the day
and 'date iast aforesaid, the plaintiflf was traveling upon the
aforesaid highway, in a southerly direction, in a certain
vehicle, which vehicle was then and there hauled and pro-
pelled by two certain mules, which said mules were then and
there attached to said vehicle, and were being driven by ....
* * And while the plaintiff, with all due care and diligence, was
so traveling upon said highway, the said defendant so driv-
ing and running the aforesaid automobile, did meet and come
up to, in said highway, the team of mules and vehicle, in which
the plaintiff was then so traveling, and which the atoresaid
with all due care and diligence, was then and
there driVing. Yet, the defendant, not regarding his duty or
using due care, was then and there, with great negligence and
cont?ary to the form of the statute, driving and running said
automobile at a speed greatly in excess of fifteen miles an
hour- by means of which negligence and disregard ot the
statute and by means of the great speed of such automobile as
aforesaid, did then and there greatly frighten the aforesaid
team of mules, so driven by the said so that the
said mules, by means aforesaid, became unmanageable and
escaped from the control of their said driver, ......... and
did then and there so twist and turn the said vehicle about
that the plaintiff was, while using all due care and dihgence
for his own safety, thrown thence to the ground there, with
great violence.
2 And for that while the plaintiff, with all due care^ and
diligence, was so tr.aveling upon said highway, the said defend-
ant so driving the aforesaid automobile, did then and there
apvroach and meet and pass, in said highway, the two certain
mules, and the certain vehicle in which the plaintiff was then
and there traveling, and which the said ••.•:••• ^^7 ^^^
due care and diligence was then and there driving; and tor
that also while the said defendant was so approaching the
vehicle in which the plaintiff was then and there traveling as
aforesaid, it did then and there appear to the said defendant
so driving the automobile, as aforesaid, that the aforesaid
mules, so driven by the said and attached to
the aforesaid vehicle, were then and there about to become
frightened by the approach of the aforesaid automobile, and
when it then and there so appeared to the said defendant,
so traveling as aforesaid, that the aforesaid mules were so
about to become frightened, it then and there became and
was the duty of the said defendant, as was then and there
provided by law, to cause the aforesaid automobile, so driven
by said defendant, to come to a full stop, until the aforesaid
mules had passed said automobile ; yet, the defendant, although
it was then and there his duty to cause the aforesaid automo-
932 ANNOTATED FORMS OF PLEADING AND PRACTICE
bile to come to a full stop, and although it then and there
appeared to said defendant that said mules were about to
become frightened at the approach of the aforesaid automobile,
did then and there negligently, maliciously and contrary to the
form of the statute in such case made and provided, fail to
cause the aforesaid automobile to come to a full stop until the
aforesaid mules had passed ; wherefore, and by means of the
aforesaid negligence of the defendant, and by means of the
failure of the said defendant to cause the said automobile to
come to a full stop until such mules had passed, the aforesaid
mules became greatly frightened and unmanageable and then
and there escaped from the control of their driver, ,
who was then and there using all due care and diligence to
restrain said mules, and did then and there so twist about
and throw said vehicle, in which the plaintiff was then and
there traveling, that the plaintiff was, while using all due care
and diligence for his own safety, thrown thence to the ground
there with great violence.
3. And for that while the plaintiff, with all due care and
diligence, was so traveling upon said highway, the said defend-
ant, so driving the aforesaid automobile, did then and there
approach and meet and pass, in said highway, the two cer-
tain mules, and the certain wagon in which the plaintiff was
then and there traveling, and which the said
was then and there driving ; and while the plaintiff', with all
due care and diligence, as aforesaid, was then and there so
traveling upon said highway, in the said wagon drawn by
the aforesaid mules, the defendant then and there so mali-
ciously, carelessly and improperly and with so great negligence,
drove and managed the said automobile, that by and through
the aforesaid negligence and improper conduct of the defend-
ant, the aforesaid mules so driven as aforesaid, became and
were greatly frightened, and became and were then and there
unmanageable, and then and there escaped from the control
of their said driver, who was then and there using all due care
and diligence to restrain and control said mules, and did then
and there so twist and turn and throw about said wagon that
by means thereof the plaintiff was violently thrown out of
said wagon upon the ground there with great violence.
By means whereof, then and there, one of the arms of the
plaintiff* was broken, and one of his legs was greatly injured,
and the bones, muscles, blood vessels, nerves and sinews of the
right leg, arm and back of the plaintiff' were fractured, sprained
and lacerated, and he was otherwise greatly bruised, hurt and
wounded ; and thereby the plaintiff was obliged to and did
then and there lay out divers large sums of money, amounting
to dollars, in and about endeavoring to be cured
of the said injuries so received as aforesaid ; and the plaintiff
thereby was obliged to and did incur liabilities for sundry
and divers other large sums of money, amounting to
PERSONAL INJURIES 933
dollars, in endeavoring to be cured of the said injuries so re-
ceived as aforesaid; and also by means of the premises the
plaintiff then and there became and was sick, lame and dis-
ordered, and so remained for a long time, to wit, from thence
hitherto ; during all of which time the plaintiff' suffered great
pain and anguish of body and mind of a permanent, incurable
and continuing nature, and was hindered and prevented from
transacting and attending to his business and affairs, and lost
and was deprived of divers great gains and profits which he
might and otherwise would have made and acquired; to the
damage, etc.^'^^
1554 Frightening horses, noise of machinery, Narr. (Va.)
For this, to wit, that heretofore, to wit, on the day
of , 19, ., and for many years prior thereto there
was and existed a certain public road and highway, in part
in the county of , Virginia, in
district, in said county, which public road or highway was
indifferently called, to wit " road, " "
turnpike" and " turnpike," and which
was adjacent to the lands of and other
owners, in said county of , at a place in said
county between the city of , and the line
dividing said county and county, in said state,
the said road extending, generally in said
county in an easterly and westerly direction, and was on the
date aforesaid, and for many years prior thereto at the place
hereinafter, more particularly mentioned, in constant and daily
use by the public generally for traveling afoot and horseback
and in vehicles drawn by horses of ordinary gentleness and
training, and other modes of conveyance, in going to and
from the populous city of and elsewhere, and to
and from other places in said county of and
other counties, at, near and beyond the place hereinafter par-
ticularly mentioned, at which place, or locality, the public gen-
erally, and the plaintiff's intestate in particular, in traveling
by means of buggies, carts and other vehicles drawn by horses
of ordinary gentleness and training along and upon said public
road and highway, had the right to the use thereof for the
purposes of travel, free from any dangerous, unusual or ex-
traordinary obstructions, appliances or objects, and especially
free from any dangerous, unusual or extraordinary noises
therein or so near thereto as would have a tendency and be
reasonably calculated to frighten or scare such horses of
ordinary gentleness and training, of all of which the de-
fendant well knew or by the exercise of ordinary care could
and would have known.
172 Christy v. Elliott, 216 111. 31
(1905).
934 ANNOTATED FORMS OF PLEADING AND PRACTICE
And the plaintiff further complains and avers that, on, to
wit, the day of , 19 • • , and for many weeks
prior thereto the defendant, its agents and servants wrong-
fully, carelessly and negligently located, placed, built, con-
structed and maintained upon and within, or partially upon
and within, or very near and adjacent to said public road and
highway at a place in said county about, to wit,
one and miles distant, westerly from the cor-
porate lines of the city of , and about, to wit,
of a mile from where said public road crosses
the dividing line between said counties of and
, which place was, and is, near the property
called the property, and where traveling over
and along said public road and highway, by the means and
in the manner aforesaid, by the general public was daily, con-
stant and frequent, a large plant and structure for the crush-
ing of rock, which plant consisted, in part of a large steam
boiler and engine, rock crushing machinery, crusher bin and
elevators for transporting crushed rock from said rock crush-
ing machine to the crusher bin, and generated, produced,
maintained and used steam by, in and upon said boiler and
engine to which engine and boiler were attached large wheels,
valves and appliances and connecting belts, and which said
boiler was filled, or partially filled with water and steam, used
in the operation of said plant which created unusual and
extraordinary noises and sounds; and the above mentioned
boiler and engine, rock crushing machinery and equipment,
and appliances were so located, maintained, situated and
placed in, upon or near to said public road and highway, to
wit, along, upon and immediately adjacent to the southern side
thereof as that they occupied a considerable part thereof, and
so that there was left only a narrow passage way for travelers
over and upon said public road and highway, and so that
horses of ordinary gentleness and training being driven and
drawing vehicles occupied by travelers thereover and there-
along would necessarily come in close proximity to said steam
boiler and engine, rock crushing machinery and the other
appliances and equipments above mentioned.**
And the said location of said steam engine, boiler, rock
crushing machinery and equipment and appliances aforesaid,
so in and upon and adjacent to said public road and highway,
and the large and tall boiler and engine, and high rock crush-
ing machinery, equipment and appliances in and upon and
near to said public road and highway, were of an extraordi-
nary and unusual appearance, and the noises and sounds
made by the steam and water in said boiler and the operations
and workings of said machinery and equipment by said defend-
ant were so unusual and extraordinary as that they natu-
rally tended and were well and reasonably calculated to fright-
en horses of ordinary gentleness and training in use, as afore-
PERSONAL INJURIES 935
said, for the purposes of travel along said public road and
highway, and over and along which the defendant, its officers,
agents and servants knew, or by the exercise of reasonable
care would and should have known the public generally, daily,
constantly and frequently passed and repassed, in vehicles
drawn by horses of ordinary and reasonable gentleness.
And the said defendant carelessly and negligently failed and
omitted to exercise any proper or reasonable care or precau-
tion to warn persons, and especially the said ,
who were so traveling over said public road and highway or to
guard them in any way against the dangers which defendant
knew, or by the exercise of ordinary care would have known,
it had created and might reasonably expect to arise and
result to the general public in so traveling, and to the said
in so traveling, by reason of the location, con-
ditions, appearances and noises, as aforesaid.
And the plaintiff avers that his intestate, the said
; , was on, to wit, the day and date last aforesaid travel-
ing along, over and upon said public road or highway, near
the place where the defendant's engine and boiler, rock crush-
ing machinery and other equipments and appliances aforesaid
were located, placed, and operated by said defendant, and was
coming towards the city of , and carefully
driving a horse of ordinary gentleness and training, hitched
to and drawing a vehicle or conveyance commonly called a
cart, occupied by him, the said ; and said
horse, by reason of the defendant's recklessness and careless-
ness in creating and maintaining its said rock crushing ma-
chinery and appliances in, upon and near to said public road
and highway, and in maintaining and operating the same so
that they presented such unusual and extraordinary appear-
ance as naturally tended and were well calculated to frighten
horses of ordinary gentleness and training, and in working
and operating said plant and thereby producing unusual and
extraordinary noises and sounds, upon and near to said pub-
lic road and highway as would naturally tend and be reason-
ably calculated to frighten horses of ordinary gentleness and
training, and in failing to warn travelers, and said
in particular, driving such horses, or horse, of ordinary gentle-
ness and training, or to guard them, or him, against the fright-
ening, and the results of frightening such horses, became and
was frightened and scared by the unusual and extraordinary
appearances and character of said rock crushing machinery,
engine and boiler, equipments and appliances aforesaid, and by
the said unusual and extraordinary noises and sounds produced
thereby, and by the steam and water in said boiler and engine,
and said horse by reason of its said fright reared and plunged
and became so unmanageable as that the plaintiff's intestate,
the said , was thrown and hurled from said
cart to the ground, and was greatly bruised and wounded in
936 ANNOTATED FORMS OF PLEADING AND PRACTICE
and about his head and other parts of his body and was there-
by rendered sick, sore, lame, disordered, and suffered partial
paralysis, by reason of which said injuries so inflicted, he after-
wards, to wit, on the day of , 19. ., died.
2. (Consider first count to double star as here repeated the
same as if set out in words and figures.)
And the said defendant maintained, used and operated
instrumentalities, pipes and a valve, in connection with its
said steam boiler and engine, and which valve was commonly
called a safety or pop-valve, which operated and worked
automatically, so that the steam which was generated and
accumulated in and upon said boiler and engine from time to
time, and which the defendant knew, or by the exercise of
ordinary care would have known, would and did from time to
time accumulate in and upon said boiler and engine, would be
and was from time to time automatically ejected, emitted, dis-
charged, and released by said automatic safety or pop-valve in
sudden streams, jets and clouds, accompanied by a sharp report
and hissing, whistling and penetrating sounds ; and the defend-
ant so recklessly, carelessly and negligently placed, located,
maintained and operated its said engine and boiler and so
recklessly, carelessly, negligently and unnecessarily placed,
located, maintained and operated the said automatic safety
or pop-valve and pipe attachments that the steam which said
safety or pop-valve from time to time ejected, emitted, dis-
charged and released and the hot mist and water therefrom
were ejected, emitted, discharged and released in sudden
streams and clouds horizontally or laterally across, over,
into and upon said public road or highway and about, to wit,
five to seven feet from the ground, and the said sudden jet-
tings and streams of steam and clouds of mist produced there-
by, and the hissing, whistling and penetrating noises and sharp
report produced by the operations of said safety or pop-valve
and pipe attachments in the ejection and release of steam
were of an extraordinary, unusual and frightening apearance
and character, and such as naturally tended and were well
and reasonably calculated to frighten, terrify and cause to
become uncontrollable horses of ordinary gentleness and train-
ing, and thereby liable to cause injury and death to the pub-
lic generally in traveling upon and along said public road and
highway, driving, or riding in vehicles drawn by horses of
ordinary gentleness and training, at or near the said place,
all of which the defendant, its officers, agents and servants
knew, or by exercising ordinary care would have known.
And the said defendant also recklessly, negligently and care-
lessly failed to warn or take any precautions to guard the
public generally and especially the said , in
so traveling along and over said public road and highway of
or against the dangerous conditions aforesaid, which it reck-
lessly and negligently created and maintained, as aforesaid.
PERSONAL INJURIES 937
And the plaintiff further complains and avers that his intes-
tate, , was, on, to wit, the day of
, 19 . . , traveling along, over and upon said
public road and highway as he had a right to do, at or near
the place where the said defendant had placed and located and
was maintaining its said steam boiler, engine and said safety
or pop-valve and pipe attachments, and was exercising due
care on his part, and was occupying a cart and driving a horse
hitched to and drawing said cart, and which horse was of
ordinary gentleness and training, and was passing or about
to pass by said engine and boiler, and upon the open passage
way of said public road and highway, when there was sud-
denly ejected, discharged, and released from defendant's
said steam boiler and engine, by means of its said auto-
matic safety or pop-valve and pipe attachments, in, across and
over and laterally and horizontally across and over said pub-
lic road and highway, a sudden stream, cloud and gust of
steam and hot mist directly in front of, and at, or nearly at,
the face, head and foreparts of said horse, and the head and
body of said horse were partially enveloped in said stream
and hot mist, and at the same time there were produced by
said safety or pop-valve and attachments and the escaping
steam, hissing and whistling noises and a sharp report near
the said horse, which ejected and released steam and hot mist
in close proximity to said horse, and which said noises and
sounds in like close proximity, were of such an unusual and
extraordinary appearance and character as naturally tended
and were well and reasonably calculated to frighten and
terrify and render uncontrollable the said horse, which was, as
aforesaid, a horse of ordinary gentleness and training, and did
frighten and terrify said horse, so that said horse plunged and
reared and became uncontrollable, whereby, and by reason
whereof, the said was, at and near to said place,
violently precipitated and hurled to the ground and upon said
roadway, and thereby sustained injuries and wounds to his head
and body, producing paralysis, lameness, sickness and disorder,
from which said wounds and injuries so inflicted the said ....
afterwards, on, to wit, the day of
, 19.., died.
And the plaintiff avers that by reason of the premises, as
set forth in the foregoing two counts of this declaration, and
in each of them, an action hath accrued to the said plaintiff
to have and recover damages of said defendant, in pur-
suance of the statute for such cases made and provided; that
he has sustained, is entitled to recover and demands damages
in the sum of dollars ($ ).
And therefore he brings his suit.
938 ANNOTATED FORMS OP PLEADING AND PRACTICE
1555 Frightening horses, street car whistle, Narr. (Mich.)
For that whereas the said defendant heretofore, to wit, on
the day of , 19 . . , to wit, at the
county of in said state, to wit, at the county of
in said state, to wit, at the county of
in said state, and for a long time prior and subsequent to
said date owned, was possessed of, maintained and operated a
certain electric interurban railroad, passing through said
counties of , and
from the city of in said state to the city of
in said county of , and state of
Michigan, and from said city of to the city of
, in said state of Michigan, as well as divers
other interurban electric railroads and electric street railroads
in divers cities in said state of Michigan, known and desig-
nated as the
And that on the date aforesaid, at the township of
, in said county of , the said defendant
being also the owner, in possession of, maintaining and operat-
ing said interurban electric railway between said city of ....
and said city of , and between said
city of and said city of , as afore-
said, was then and there continually running large numbers
of freight and passenger cars propelled by electricity over its
said railway between said city of and said city
of , and between said city of , and
said city of
And the said plaintiff further avers that, on, to wit, said
of and as aforesaid, the said def end-
ant 's electric railway track was, and still is, located along and
within the boundaries of the public highway, and especially
that in the township of in said county of
, at the place where the injuries and grievances
hereinafter mentioned and set forth were committed by said
defendant, the said defendant's electric railway track over
which its freight and passenger cars then were and still are
being operated by electricity, then was and still is situated
within the boundaries of a public highway in said township
of
And the said plaintiff further avers that, on, to wit, said ....
day of , 19 • • , large numbers of teams with
carriages, wagons and other vehicles carrying passengers, prod-
uce and other goods and chattels were continually, rightfully
and lawfully passing and repassing over the aforesaid public
highway in said township of , in said county of
, through and along which said public highway,
the said defendant's interurban electric railway track was
PERSONAL INJURIES 939
located and over which said defendant was then and there
continually running large numbers of freight and passenger
cars as aforesaid.
And the said plaintiff further avers that, on, to wit, said ....
day of , 19. ., he, the said plaintiff, was driving
over and along the said public highway in said township of
, in said county of , over and
along which said public highway the electric interurban rail-
way tracks of said defendant were located as above set forth,
with a pair of safe, well broken horses attached to a wagon
in and with which said plaintiff was taking divers persons
and personal property to said city of ; and with
all due care and diligence on the part of said plaintiff, and
without any fault or negligence whatever on his part ; that
while so driving along said highway as aforesaid, in said town-
ship of in said county, the said defendant, by
its servants, agents and employees, ran one of its freight
cars and also one of its passenger cars over and along said
track, and passed the team so being driven by the said
plaintiff.
That it then and there became and was the duty of the
said defendant, its servants, agents and employees in running
its said cars over and along said railway track as aforesaid,
not to unnecessarily sound the whistle on said cars and not to
frighten the said plaintiff' 's team by sounding said whistle;
and also it became, and then and there was the duty of the
said defendant, its servants, agents and employees to use due
and proper care and reasonable diligence and care in running
said cars so as not to frighten the team of said plaintiff while
driving along said highway as aforesaid, and if said team did
become frightened by said cars or the whistle, it then became
and was the duty of said defendant, its agents, servants and
employees to stop said car and not to sound said whistle until
said plaintiff could get his said team under control.
And the said plaintiff further avers 'that, on, to wit, said
day of , 19. ., at the township of
, in said county of , the said defend-
ant wilfully and maliciously, with intent to frighten the
team so being driven by said plaintiff over and along said
highway, did run one of its said passenger cars past the team
of said plaintiff so as aforesaid then and there being driven
along said highway by said plaintiff, and when a short dis-
tance behind said team, said defendant, by its servants, agents
and employees, maliciously, negligently and wilfully and with-
out any reason or cause for so doing, sounded the whistle of
said car in such manner as to frighten the horses of said plain-
tiff so being driven along said highway by said plaintiff; that
said plaintiff then and there exercised and employed all due,
proper and reasonable care and diligence on his part to hold
and control said team, and did get said team under full and
940 ANNOTATED FORMS OF PLEADING AND PRACTICE
complete control ; that after said plaintiff had so got said team
under his control, and as said car was passing said team
on said highway as aforesaid, the said defendant, by its
agents, servants and employees, again sounded said whistle,
without any reason or cause therefor, a large number of times
for the express purpose of frightening said team and of in-
juring said plaintiff; that at the time said whistle was sounded
as aforesaid, said car was not approaching any crossing nearer
than one and one-half miles from the point where said whistle
was sounded; and there was no reason whatever for the said
defendant, by its said servants, agents and employees, to sound
said whistle ; that the said defendant, its agents, servants and
employees, then and there well knew at the time said whistle
was sounded as aforesaid, that said plaintiff's team was fright-
ened and liable to run away on account of the repeated sound-
ing of said whistle.
Yet, the said defendant, by its agents, servants and em-
ployees, disregarding its duty as aforesaid, wilfully, mali-
ciously, wantonly and negligently continued to sound said
whistle after it, the said defendant, its agents, servants and
employees well knew that the plaintiff's said team was being
frightened by said whistle and the passing of said car, and did
not stop or attempt to stop said car or cease to sound said
whistle until said team of said plaintiff was so frightened that
it was impossible for said plaintiff to control and manage said
team.
And the said plaintiff further avers that by reason of the
aforesaid, wilful, malicious, wanton and negligent acts of the
said defendant, its servants, agents and employees as afore-
said, in negligently sounding said w^histle as aforesaid, at the
time and place aforesaid, the same team of the said plaintiff
then and there became frightened and ran away from the
control of said plaintiff and overturned said wagon, and
with great force and violence, the said plaintiff' was thrown
from said wagon and greatly bruised and injured; that said
wagon was totally and entirely destroyed ; that the said plain-
tiff was severely injured in his head, face, shoulders, arras,
hands and fingers; that his skull was fractured, his shoulder
severely bruised and injured, his nose broken, his cheek bone
broken and displaced, his skull broken and displaced, his
hands and fingers severely bruised, the skin and flesh on his
face and forehead being lacerated and torn away ; by reason
whereof, the said plaintiff then and there suffered, and from
thence to the present time has continued to suffer great pain
and anguish of mind and body for his life time on account of
the permanent character of his said injuries; that from the
time of receiving his said injury as aforesaid, he has been and
still is, by reason thereof, sick, sore, lame and disordered, and
has been thereby prevented from carrying on his usual affairs
and business; and on account of the permanent character of
PERSONAL INJURIES 941
his said injury, he will for his life time be prevented from
carrying on and performing his usual affairs and business ; that
he has been compelled, and will continue to be compelled to
pay out and expend large sums of money for care, nursmg,
medicine, medical attendance and surgical attendance, and
operations in attempting to be relieved and cured of his
injuries ; that the said wagon was and is totally destroyed and
worthless ; that by reason of said injury there remains, and for
his life time will continue to remain, a long and large scar and
disfigurement of his face and person; that on account of the
frightening of said horses as aforesaid, said horses have become
nervous, easily frightened, and imsafe, and are worth a large
sum of money less than they would have been if they had not
been so frightened by the negligence of the defendant as afore-
said, by reason of which and whereby the said plaintiff has
suffered damages in a large amount, to wit, in the sum of
dollars, and therefore he brings suit.
1556 Hazardous occupation, action, damages
The employment of a child in a hazardous occupation which
results to his personal injury impliedly renders the employer
liable under the statute to an action by the child for damages,
notwithstanding that the child might have misrepresented his
age at the time of his employment. The provision of the statute
which creates this action is valid.i'^ An employer is liable for
injury- sustained by a minor regardless of whether he knew
the true age of the minor or the misrepresentation by the minor
of his age at the time of the employment. i^-* A parent estoppes
himself from recovering damages for the loss of time and inabil-
ity to work of a minor child, by bringing an action for the
minor's injuries in his name as next friend and claiming dam-
ages for loss of time, etc.^'^^
1557 Hazardous occupation, Narr. (111.)
For that whereas, the defendant, the
a corporation, was, on the day of ,
19. ., operating and managing by its agents and employees, a
certain or manufacturing establishment, m
the city of and the county of and
state of Illinois, in which said mill, steel of various kinds was
manufactured for sale, which said business was a gainful occu-
173 Beauchamp v. Sturges & Burn 1^4 American Car ^1 foundry Co v.
Mf<' Co, 250 111. 303, 305, 311 Armentraut, 214 111. 509, 514 (1905).
(I9T1V Sec. 11, Child Labor law its American Car & Foundry Co.
CHurd''s Stat. 1909, p. 1082). v. Hill, 226 lU. 227, 236 (1907).
942 ANNOTATED FORMS OF PLEADING AND PRACTICE
pation to the defendant ; that in said mill, for carrying on the
said business, said defendant had certain machinery and appli-
ance consisting of engines, shafting, pulleys, belts, furnaces,
straighteners, rollers and other machinery operated by steam
power.
And the plaintiff avers that on the day and year aforesaid,
he was * under the age of sixteen years * ^^^ and was then and
there unlawfully employed by the defendant at its said mill or
manufacturing establishment, under the direction and control
of a foreman of the defendant, said foreman having control
and authority over the plaintiff, and standing to the plaintiff
as the representative of the defendant, their common master;
that the plaintiff was put to work by the said foreman to oper-
ate steam machinery, to wit, to straighten angle bars by feed-
ing them into or running them through a straightener; that
said straightener was a machine constructed of steel and iron,
consisting of heavy steel rollers about
feet long and about to inches in diameter,
three of the smaller rollers being directly above the tangency
of the four larger rollers, the four larger rollers having grooves
circling the rollers about or inches apart,
through and into which the angle bar was fed or pushed and
held in place by the three upper rollers, around which upper
rollers, and directly above the grooves, were projecting bands
or collars to fit the grooves, all of which rollers were at each
end run in boxes or bearings firmly attaching the two frames ;
that the four lower rollers by a combination of gears, were
geared to a shaft which carried a pulley connected to a line
shaft run by steam power, by means of a belt, which revolved
the rollers towards each other at about sixty revolutions a
minute, so that the angle bar, when pushed into one of the
grooves, was caught by the rollers and carried through the
machine and straightened ; * that said work was extra hazardous
employment,* whereby the plaintiff's life and limbs were in
danger.
By means of the premises, and while the plaintiff was so
operating said machine, his left hand and arm and the first
finger of the right hand came in contact with a certain part
thereof and were drawn into said rollers, thereby crushing
and mangling the said left hand and arm of the plaintiff, and
the said first finger, so that the said arm had to be amputated
between the elbow and the shoulder, and the said first finger
amputated above the second joint, and other parts of the body
of the plaintiff were bruised and wounded and his life despaired
176 The foregoing count is under age of fourteen years" instead of
section 38, chapter 48, Kurd's Re- sixteen, etc., and omitting the phrase,
vised Statutes. A count under sec- ' ' which said work was an extra haz-
tion 33 Ibid, may be drawn in sim- ardous employment" as indicated
ilar language as above by averring by stars,
that the plaintiff was "under the
PERSONAL INJURIES 943
of, and he became sick, sore, lame and disordered and perma-
nently injured, and so remained for a long space of time, to
wit, from thence hitherto, and will so remain permanently
crippled, during all which time he thereby suffered great pain,
in body and mind, and was and will be hindered from
transacting his business and affairs ; that his injuries were the
direct result of said unlawful employment, and that said
unlawful employment was the proximate cause of his injuries.
Wherefore, etc.
6
For that whereas, on, to wit, , 19 • • ,
the defendant, , a corporation, was engaged in
the manufacture of tin, tin-ware and other metal products,
and then and there used in the manufacture of its said metal
products certain stamping machines operated by steam power,
for use in stamping sheet metal, tin-ware and other metal
products, and the plaintiff herein was in the employ of the
defendant and was engaged at work on divers of the machines
so as aforesaid used by the defendant at its said factory at,
to wit, number street, in the city of
county of and state of Illinois ; that, on, to wit,
the date aforesaid, while the plaintiff' was employed by said
defendant and while plaintiff was then and there a minor,
under the age of years, the said defendant then and
there directed the plaintiff to go to work and operate a certain
machine known as a punch press, which said punch press was
then and there being used by the defendant in the defend-
ant's said factory in stamping certain sheets of metal and
which said punch press was then and there being operated by
steam power ; and that there was then and there in full force
and effect a certain statute theretofore passed by the legis-
lature of the state of Illinois, which said statute is known as
paragraph 15, chapter 48, Revised Statutes of Illinois, which
said statute is in words and figures following, to wit: (Insert
statutory provision).
That the said defendant well knowing the premises did then
and there, on, to wit, the date aforesaid, in violation of said
statute direct the plaintiff herein to operate, manage and con-
trol said punch press and to stamp the said sheets of tin upon
said punch press, and while so engaged at his work for the
said defendant, the plaintiff then and there, without fault on
his part, and while in the exercise of all due care and caution
for his own safety in operating said punch press and by rea-
son of the violation of the statute aforesaid by the defendant,
had his right hand caught in said punch press, and the plain-
tiff's right hand was then and there and thereby greatly
crushed, wounded, and injured and divers of the bones and
fingers of the plaintiff's right hand were then and there so
944 ANNOTATED FORMS OF PLEL^DING AND PRACTICE
injured and mangled that amputation thereof became and was
necessary; and the plaintiff was otherwise injured and his right
hand, wrist and arm are, and in the future will be perma-
nently injured and disabled; and he has suffered great pain
and anguish of body and mind and he will in the future con-
tinue to suffer great pain and anguish of mind and body; and
the plaintiff has been otherwise injured and has sustained
damages in the sum of dollars.
By
his next friend.
By
his attorney.
(Michigan)
For that whereas, heretofore, to wit, on the day of
, 19 . . , at the city of , in said county,
the said defendant was a manufacturing corporation with a
plant at avenue, in the city of ,
said plant facing on avenue, and being between
said avenue and the rail-
road, and the said plaintiff at the time aforesaid was an
employee of the said defendant charged with the duty of
doing such work at the said plant as he should be directed to
do by his foreman, and other superiors and officers of the
said defendant ; that plaintiff' was at the time aforesaid, an
infant under sixteen years of age, to wit, of the age of
years; that among other duties devolving upon the plaintiff,
and the work that he was actually doing at the time he received
the injuries hereinafter referred to, it was his duty to wheel
castings from the front to the rear portion of said plant, which
was for him heavy and laborious work, he being required to
move said castings from place to place by means of a wheel-
barrow.
And the plaintiff avers that on said day of
, 19. ., he was charged wath the duty of moving heavy
castings by means of a wheel-barrow, and by reason of the
premises it became and was the duty of the said defendant
to furnish plaintiff a reasonably safe place in which to do his
work, and to furnish plaintiff' a reasonably safe passageway
through which to push said wheel-barrow loaded with castings.
Yet, the said defendant, well knowing the premises, did not
regard said duty or duties, or either of them, but on the
contrary wholly disregarded the same, and wholly failed to
furnish plaintiff a reasonably safe place in which to perform
his work, and wholly failed to furnish plaintiff a reasonablj^
safe way through which to push his wheel-barrow so loaded
as aforesaid, and permitted said passageway to become
obstructed with castings, and the plaintiff was required to
push said wheel-barrow through a temporary and unusual
PERSONAL INJURIES 945
passageway, which was not sufficiently wide to permit the
reasonably safe passage of said wheel-barrow through the
same, and which said last mentioned passageway led imme-
diately by a certain dangerous emery wheel, which was wholly
unprotected and unguarded, thereby rendering said passage-
way extremely dangerous, of all of which the said defendant,
by its proper agents and officers had due notice and full
knowledge, and of all of which the said plaintiff, by reason
of his youth and inexperience was wholly ignorant.
2. That on the day and date aforesaid said plaintiff was
engaged in the actual discharge of his duty and in the obedi-
ence of orders, and he charges that by vrtue of section 5344
of the Compiled Laws of the state of Michigan, 1897, by
reason of the fact that he was under sixteen years of age, the
said defendant was in duty bound to desist and refrain from
putting plaintiff at any employment whereby his life or limb
would be endangered, or his health likely to be injured.
And the plaintiff avers that he was at the time under the
age of sixteen years, to wit, of the age of
years; and that notwithstanding said statute and the duty
imposed upon the defendant thereby, said plaintiff was re-
quired to push a wheel-barrow loaded with castings through
a narrow and dangerous temporary passageway, passing by
an unguarded and unprotected emery wheel.
And the plaintiff' avers that on the day aforesaid, at the
place aforesaid, he was pushing a wheel-barrow load of cast-
ings from the front to the rear portion of the plant of the
said defendant through said temporary passageway; that he
was at the time in the exercise of due care and caution, and
all the care and caution of which he was capable ; that he was
wholly free from negligence that he understood and appre-
ciated; and that while so engaged in said work the front of
said wheel-barrow became entangled and obstructed with said
castings and obstructions, and while attempting to extricate
the same, without any fault or negligence on his part, and
wholly through the fault and negligence of the said defendant,
by its officers and agents, in the manner aforesaid and for
the reasons aforesaid, the back part of his right hand came in
contact with said unguarded and unprotected emery wheel
and was burned and ground by the same, and injured to such
an extent that although the same has been operated upon and
treated on four different occasions, plaintiff has not yet re-
covered from said injury; and plaintiff avers that said injury
to said hand is of a permanent character, and that he will
never fully recover from the same ; that in consequence of
said injury he has suffered the most excruciating pain and
distress, and must suffer like pain and distress in the future
indefinitely; that in consequence of said injury he became
sick, sore, lame and disordered, and will be so sick, sore, lame
946 ANNOTATED FORMS OF PLEADING AND PRACTICE
and disordered indefinitely; that he has been permanently
deprived of his capacity to earn money and wages with his
hand, and that the scar and disfiguration will be of a per-
manent character, and has caused plaintiff to suffer great
mental pain on account of said disfiguration of his hand, and
will cause him to suffer like pain in the future indefinitely;
and that he will never be restored to the full use of his said
right hand; and the plaintiff has been otherwise greatly and
seriously injured. To his damage, etc.
1558 Independent contractor, action, respondeat superior
An independent contractor is he who contracts to do a spe-
cific piece of work by furnishing his own assistants and by
executing the work either entirely in accordance with his own
ideas or in accordance with a plan previously given to him by
the person for whom the work is to be done, but not being sub-
ject to his orders in respect to the details of the work, and
regardless of the manner of paying for the same.*'^
Persons who are employed to superintend the construction of
different classes of work for which they are supplied material
and who employ men with their employer's money to do the
work, are not independent contractors of the persons whom they
employ to do the work, and the persons employed to do the work
are the servants of the persons who employ the superintend-
ents.^^^
Persons engaged in the construction of a building owe to others
engaged in the same work, a duty to use reasonable care to avoid
injury.i"^ A corporation is liable for the wrongful act of an
independent contractor who exercises, with the consent of the
corporation, some charter power or privilege of the corporation,
or where the corporation, having a public or statutory duty to
perform, permits an independent contractor negligently to per-
form that duty. Every act of a corporation is done under its
charter in the sense that if there was no corporation, it could
not have performed the act ; but if the act is one which might
have been done by an individual, no different rule obtains as
to liability merely because there is a corporation. A corporation
is not liable for the negligence of an independent contractor
iTTLinquist v. Hodges, 248 111. iTsO'Eourke v. Sproul, 241 111.
491, 501 (1911). ^'^> 580 (1909).
178 Linquist v. Hodges, 248 111.
602.
PERSONAL INJURIES 947
where there is only a right of general supervision and inspec-
tion that the contract shall be performed. ^^"
The principle of respondeat superior has no application to in-
dependent contractors where the party for whom the work is
done is not the immediate superior of those who are guilty of
the wrongful act and where he has no control over the manner
of doing the work under the contract, unless the contract directly
requires the performance of work intrinsically dangerous, how-
ever skillfully performed, or unless an individual or a corpora-
tion does work pursuant to a special franchise, or unless a mu-
nicipal corporation contracts for the making of a public im-
provement under the supervision of its own engineer or other
proper officer and subject to his orders.^si A municipality is not
liable for the negligence of an independent contractor while in
the performance of a duty which is in no way devolved upon
it.i82
1559 Independent contractor, Narr. (111.)
For that whereas, the defendant, , is a cor-
poration duly organized and existing under the name by which
it is herein sued ; that on or about , 19 . . ,
it was by and through certain servants performing certain
work and labor upon and about a certain fire escape on the
, near the intersection of street and
boulevard, which said fire escape was wholly in
said boulevard, a public street in the city of
, Illinois ; that the plaintiff was employed by cer-
tain contractors doing business under the firm name of
, who were also performing certain work and labor
about said ; that plaintiff was on said date,
while in the performance of his duties, and while exercising
due care and caution for his own safety, required to be on a
certain other fire escape which the defendant was putting up
as a contractor and which was also wholly in said
boulevard, and directly underneath the aforesaid fire escape
upon which the said servants of the defendant were then and
there working ; that while he was so there in said position, the
said servants of the defendant, did carelessly and negligently
and unlawfully cause and permit a large iron drill to fall
from where they were working as above stated, and that the
same struck the plaintiff on the head, and thereby fractured
180 Boyd V. Chicago & Northwest- 182 Thompson v. West Bay City,
ern Ey. Co., 217 111. 332 (1905). 137 Mich. 94, 99 (1904).
181 Chicago V. Murdock, 212 111.
9 (1904).
948 ANNOTATED FORMS OF PLEADING AND PRACTICE
his skull, and he was thereby greatly and grievously injured
both physically and mentally; that he has been and will be
hindered and prevented from performing his usual occupation
and employment; that he has and will suffer great pain and
mental anguish, and has and will be reciuired to spend large
sums of money for medical aid and attention. To his damage,
etc.183
For that whereas the defendant is a corporation duly
organized under the name by which it is herein sued, and
engaged in the building construction business, and on or
about , 1 . . , was engaged in certain construc-
tion work on what is known as the building,
between and , near
street, ,
And the plaintiff was on said date working as a laborer
in the basement of said building for another contractor, to wit,
, who was also doing certain construction work
on said building. And the defendant knew, or should have
known, that plaintiff was then and there so working. And the
said defendant prior to the day aforesaid, carelessly, negli-
gently and unlawfully built and constructed a certain floor
or scaffold about five or six feet wide and sixteen or eighteen
feet long, on, to wit, the fifth floor of said building above the
point where the plaintiff was on the date aforesaid working,
in a dangerous and unsafe manner, and in a way that rendered
it liable to tip up or collapse, and drop material on to the
people and the plaintiff working below, all of which defendant
knew, or should have known, in that the defendant did not
put a firm and secure plank or support under one end of the
said floor or scaffold, but did simply nail a cleat five or six
feet long on to one side of a plank and rest one end of the
boards composing said floor or scaffold upon said cleat; that
on said plank on the side of which the said cleat was nailed
rested a certain derrick, which for the time made said plank
firm, which derrick was owned and operated by a certain other
contractor, to wit, , which was doing the iron
construction work on said building, and which plank was
placed there by the said for the sole and only
purpose of resting the sill of said derrick upon and which der-
rick would in the course of the work be required to be re-
moved in a few days. That the defendant knew, or should
have known, that the said would soon be
required to remove said derrick to an upper floor, and that as
soon as it was so removed and the weight taken off said plank
i83Langan v. Enos Fire Escape
Co., 233 111. 308 (1908).
PERSONAL INJURIES 949
that the said floor or scaffold would not carry any large
amount of weight, but if any considerable weight was placed
on the end of said floor or scaffold it would tip down ; and the
defendant knew, or should have known, that prior to the
date aforesaid, the said derrick had in the course of the work
been removed to an upper floor, and that one end of said scaf-
fold was insufficiently supported, and that the same was dan-
gerous and unsafe; and yet said defendant allowed said der-
rick to so remain there with rubbish, brick and material and
short planks lying upon the same, and did not secure, make
safe, or otherwise support said end of said floor or scaffold.
That the defendant knew, or should have known, that work-
men about said building were likely to walk upon said floor
or scaffold. That it was usual and customary for workmen
to walk upon any of the floors and scaffolds in said building,
and on the day aforesaid one of the workmen employed in the
construction of said building did walk on to said floor or
scaffold, it being then and there in the condition above stated,
and that when his weight was added to the weight already
on said floor or scaffold, the aforesaid end thereof tipped down
a distance of, to wit, four or five feet and a large amount of
the material thereon and a piece of plank was precipitated
and thrown therefrom, and the said piece of plank fell, to wit,
six stories and struck the plaintiff* upon the right shoulder with
great force and violence, and he was rendered unconscious,
and his shoulder blade was broken, and thereby he was made
sick, sore, lame and disordered and otherwise was permanently
injured, and made to suffer great pain and mental anguish,
and rendered unable to perform his usual occupation and
employment. To the damage, etc.^^^
1560 "Jim Crow" car, white person compelled to ride in, Narr.
(Va.)
For this, to wit, that before and at the time of the commit-
ting the grievances herein mentioned, the said defendant was
a common carrier of passengers for hire and reward in and
by certain trains of railway cars from
county to county ; and while the
said defendant was such common carrier of passengers afore-
said and operating a line of cars with white and colored
people apart as required by law, the said plaintiff, who is a
white married woman over twenty-one years of age, hereto-
fore, to wit, on the day of at the
special instance and requests of said defendant, became and
was a passenger in and upon the train of the said defendant
to be comfortably, conveniently and safely carried as a white
184 Flanagan v. "Wells Bros. Co.,
237 111. 82, 88 (1908).
950 ANNOTATED FORMS OF PLEADING AND FR.\CTICE
passenger thereby on a certain journey, to wit, from
to as aforesaid over the said defend-
ant 's road for a certain fare and reward to the said defend-
ant in that behalf, and the said defendant then and there
received the said plaintiff as such passenger to be carried as
aforesaid.
And thereupon it became and was the duty of the said
defendant to transport the said plaintiff as a white passen-
ger in a separate car or apartment set part by the said defend-
ant company for white passengers, from to
and for the conductor of the said defendant to
act in good faith to seat her in the car thus set apart, as
provided by law.
Yet, the said defendant not regarding its duty in that
behalf, through its conductor, did not in good faith seat, but
on the contrary, knowing, or by the exercise of proper care
could have known, that the plaintiff was a white person, failed
and refused to give her a seat in the car set apart and occupied
by white passengers for said journey, in this that the said plain-
tiff, upon boarding ?aid train, undertook to go in the car set
apart for white people along with other white people, who got
on said train at said station, but the said con-
ductor not acting in good faith as aforesaid, and knowing said
plaintiff to be white, or could have known by the exercise of
proper care, ordered her to the car set apart for the colored
people, and the said plaintiff on taking hej- seat and realizing
that she was in the colored car, immediately undertook to
depart therefrom, but the said conductor demanded her to
keep her seat and arrested and imprisoned the said plaintiff in
said colored car, in which she had to remain in what is known
as the "Jim Crow" car, in a seat among seats occupied by
colored people, until she had reached , at
which place she was released ; that said colored car at the
time and during the continuation of the whole journey, to wit,
from said station to contained
and was occupied by colored passengers or persons of African
descent.
And by reason of said action of said defendant, through
its conductor, the said plaintiff was greatly humiliated and
insulted, and compelled to bear all of the injuries, unpleasant-
ness, hardships, inconveniences, discomforts, humiliations,
indignities and fatigues which are and were the very reasons
of the separation of the colored race from the white race upon
the railroad trains ; and the said plaintiff became nervous and
sick and disordered, and so remained and continued for a long
space of time, to wit, from the day of ,
to the present, during all of which time, the said plaintiff
thereby suffered and underwent great pain, and being a mar-
ried woman over twenty-one years of age and transacting busi-
ness of her own she was hindered and prevented from per-
PERSONAL INJURIES 951
forming and transacting her necessary affairs and business,
and did necessarily pay out money in and about endeavoring
to be cured of her nervous injuries occasioned by the said
defendant as aforesaid. And other wrongs the said defendant
did to the said plaintiff to the great damage of the said plain-
tiff, and against the peace of the commonwealth. Wherefore,
etc.
1561 Ladles, adjusting, Narr. (111.)
For that whereas, heretofore, to wit, on , 19. •,
to wit, at the county aforesaid the defendant., w....
possessed of and using and operating certain ladles or recep-
tacles for molten metal which were moved upon cars or wheels
along a track of which the defendant. . w. . . . also then and
there possessed and w. . . . using; and it then and there became
and was the duty of said defendant. . not to permit and cause
said ladles or receptacles for metal to be moved nor to bring
anything into contact with the same while the laborers in
its employ were adjusting said ladles or receptacles for metal.
And the plaintiff avers that on the day and year and at the
place aforesaid he was a laborer in the employ of the defend-
ant. . and was in the discharge of his duty by means of certain
appliances engaged in adjusting one of said ladles or recep-
tacles for metal, when the defendant. . without fault or
negligence on the part of the plaintiff carelessly, negligently,
wilfully and wantonly in the night time, and without notice
to the plaintiff, by means of certain car ladles or engines mov-
ing on wheels along said track moved said ladle or receptacle
for metal which the plaintiff was then and there engaged in
adjusting violently forward so that the same without fault or
negligence on the part of the plaintiff and by reason of the
careless, negligent, wilful and wanton misconduct of the de-
fendant. . then and there ran upon and struck violently against
the plaintiff.
By means of which said plaintiff was greatly cut, bruised and
wounded and rendered permanently sick, sore, lame and dis-
ordered and one of the plaintiff's (Describe specific injuries).
And the plaintiff by reason of the premises suffered great and
excruciating agony and pain and will permanently suffer the
same in the future and the plaintiff's spine was permanently
injured and his nervous system greatly shocked and perma-
nently shattered. And the plaintiff was put to great expense,
to wit, dollars for medical attendance, medicines
and nursing in an endeavor to be cured of the injuries afore-
said and will permanently in the future be compelled to make
like expenditures for the same purpose. And also by reason
of the premises the plaintiff has been from thence hitherto
and will permanently in the future be hindered and prevented
from attending to his lawful and necessary affairs and busi-
952 ANNOTATED FORMS OF PLEADING AND I'UACTILE
ness and has been permanently crippled and rendcrt'd unable to
work. And also by reason of the premises the plaintiff has
been and is otherwise greatly injured and damaged, to wit,
at the county aforesaid. Wherefore, etc.
1562 Ladles, incompetent servant, Narr. (111.)
For that whereas, the defendant, heretofore, on. to wit, the
.... day of , at , in t he county of
and state of Illinois, was engaged in the foundry business in
the manufacture of various articles of iron and metals, con-
nected with a certain plant which it there had for that pur-
pose; that it then and there had certain ladles, vessels or
pots, with appliances attached thereto, used by it in its said
business, filled with metal in a molten state, slag and other
substances, in a dangerously high and heated temperature and
condition; that he was then and there employed and engaged
by said defendant to work in and about said manufacturing
business of said defendant as a molder; that being so employed,
the plaintiff and the servants of the defendant were then and
there on the day and year aforesaid, ordered and directed by a
signal to go to a certain vessel or ladle for the purpose of nudv-
ing certain molten metal therefrom, to be used by said plaintiff
and the servants of said defendant in molding certain ........
shoes or other manufactured articles in and about the business
of said defendant.
And it then and there became and was the duty of said
defendant to operate, conduct and manage said foundry busi-
ness in a careful manner and to employ foi- that pur])Ose com-
petent, sober and careful servants, wiio would use due care and
caution while handling and operating said ladles filled with
molten metal, for the safety of those then and there engaged in
the business of said defendant. Yet the defendant in utter dis-
regard of its duty in that behalf then and there negligently
and carelessly employed an incompetent, careless and reckless
servant, and suffered and permitted such incompetent servant
of said defendant to work, operate and manage said ladles
filled with molten metal as aforesaid, of which incompetency
of said servant the defendant knew or by the exercise of reason-
able diligence might have known, and which was unknown to
the plaintiff.
By means whereof, while the plaintiff' was engaged as afore-
said, and exercising due care and diligence for his safety, the
defendant then and there by its said servant or servants so
wrongfully, carelessly and negligently worked with and
operated said ladle filled with metal in a dangerously high
and heated temperature as aforesaid, that it caused said metal
or substance in said ladle to spill, flow and explode to and upon
the ground, whereby said metal and substance was then and
there thrown with great force and violence to and against the
PERSONAL INJURIES
953
head, chest, abdomen, limbs and various parts ^^d port ons of
the body of said plaintiff; by means whereof, said plamtiff s
head was fractured, chest broken, and the whole body of the
said plaintiff was injured and skin and flesh of various parts of
the person and body of the plaintiff were then and there severely
burned, scalded, torn, lacerated, and injured; and by reason
of the said injury so received as aforesaid, the brain of said
plaintiff was then and there exposed, and injured and various
parts of his body and person were then and there bruised,
sprained, injured, fractured and broken, thereby and there-
from causing plaintiff to then and there become and he was
sick, sore, lame and disordered and he so remained from
thence hitherto, and he will ever so remain, during all ot
which time the plaintiff sutt'ered great and excruciating mental
pain and anxiety, and he will ever so suffer; and in conse-
quence of said injuries he was then and there permanently
injured and disabled from following his said employment
and to do the work aforesaid, or any kind of work, and by
reason thereof, he was then and there and will be permanently
deprived of his means of support; and by means of the
premises, the plaintiff was forced to and did ay out divers
sums of money and incurred divers large indebtednesses
amounting to, to wit, the sum dollars in and about
Savoring to be cured of his wounds, hurts and bruises
occasToned^s aforesaid; and the plaintiff was otherwise
permanently injured by reason of the negligence of said
defendant in the manner and form as aforesaid, to the damage,
etc.
1563 Ladle oven, collapse, Narr. (111.)
For that whereas, heretofore, to wit, at and before all the
times hereinafter mentioned the said defendant., w
possessed of and operating a foundry in the city of . . . .... ...»
in the countv of and state of Illinois,
aforesaid, and in connection therewith had a small room called
to wit, the ladle oven, which it was the duty of said plaintiff,
who was then and there one of the servants ot said defendant. .,
to occasionally enter as such servant and which said room
had a cover or roof with heated sand thereon which it was
the duty of said defendant. . to keep in a safe condition so
as not to be dangerous to the servants of said defendant
whose duty it was to enter said room; yet, said defendant.,
well knowing the premises, but not regarding . .h. . duty m
that behalf, permitted said cover or roof to become and remain
unsafe so that by reason thereof, on, to wit the .. day ot
., and without any negligence on the part ot said
plaintiff a portion of said cover or roof together with the
heated sand thereon fell upon said plaintiff, who in the dis-
charge of his duty as such servant had with all due care and
954 ANNOTATED FORMS OF PLEADING AND PRACTICE
diligence on his part just entered said room, and said i>laintiff
was thereby then and there injured as hereinafter alleged.
2. And whereas also, heretofore, to wit, at and before all the
times hereinafter mentioned, said defendant ..w.. possessed
of and operating a certain other foundry in, to wit, the city of
, in the county of and state of
Illinois aforesaid, and in connection therewith had a small
room, called, to wit, the ladle oven, which it was the duty of
the said plaintifl", who was then and there one of the servants
of said defendant.., to occasionally enter as such servant,
and which said room had a cover or roof with heated sand
thereon, which it was the duty of said defendant. . and . .h. .
then superintendent and foreman to keep in a safe condition
so as not to be dangerous to the servants of said defendant. .,
whose duty it was to enter said room; yet, said defendant.,
through . .h. . then foreman who tlien and there liad the
charge and control of certain servants of said defendant. .
including said plaintiff, and whose <luty it was to direct said
last mentioned servants including said plaintiff in the per-
formance of their services and in the doing of their work for
said defendant. . and in the discharge of their duties in and
about said ladle room, well knowing that said roof or cover
on said ladle room had become unsafe and was likeh' to fall
upon any of said last mentioned servants including said plain-
tiff, who might from time to time enter said ladle room, there,
on, to wit, the .... day of , failed to warn said plain-
tiff that the said roof or cover of said ladle room had become
unsafe, and was likely to fall ; by means whereof, as said plain-
tiff, in the discharge of his duty and without any notice of said
danger, and with all due care and diligence on his part, had
entered said ladle room, he was then and there struck by a
portion of said roof or cover with the heated sand thereon,
which fell upon said plaintiff' while he was so in said ladle
room in such a manner that said plaintiff's head and left arm
were badly bruised and injured and said plaintiff was badly
burned by said heated sand in and about his head, face, arms,
hands and feet; and said plaintiff's left arm and portions of
his body were permanently injured and his face, arms, hands
and feet were permanently disfigured by reason of the prem-
ises; and by reason thereof said plaintiff underwent great
pain and suffering, and expended a large sum of money, to wit,
dollars, in and about endeavoring to be cured of
his said injuries, wounds, hurts and bruises ; and was thereby
prevented for a long space of time, to wit, , from
attending to his usual work and occupation, and lost the earn-
ings which otherwise would have accrued to him therefrom,
to wit, dollars ; and said injuries were of such a
serious and permanent nature that said plaintiff has been much
weakened in his strength and ability to work or earn wages
therefrom, and in consequence thereof has lost a large sum
PERSONAL INJURIES 955
of money, to wit, dolars, which he would other-
wise have been able to earn if he had not sustained such
injuries; and said plaintiff will never be able to do as hard
work nor earn as large wages as he was doing and earning
before he received such injuries by reason of the premises.
Wherefore, etc.
1564 Ladles, spattering, not warned, Narr. (111.)
For that whereas on, to wit, the day of , 19. .,
at the city of , in the county of and
state of Illinois, the defendant was engaged in the manufac-
ture and reduction and shaping of iron and steel and other
metals, and was then and there possessed of and was using and
operating a certain large vessel or receptacle, commonly known
as a vessel, used in said manufacturing and reduction of iron
and steel and other metals aforesaid ; that in such use and
operation of said vessel or receptacle aforesaid the same con-
tained a large amount of iron, steel, slag, and other substances
in a semi-liquid and molten state and heated to a dangerously
high temperature and condition; that at a certain time, point
or stage in said use and operation of said vessel and receptacle,
certain particles of said iron, steel, slag, and other substances,
so heated as aforesaid, were liable and apt to, and in the
ordinary course of said business would then and there be hurled
and thrown, and would fly and spatter from and out of said
vessel and receptacle aforesaid to a great distance from the
same, to wit, the distance of feet, thereby endanger-
ing the lives and limbs of persons working at and near the
same and within said distance aforesaid of the same ; that at
another time, point or state in said use and operation of said
vessel or receptacle aforesaid, the said substances aforesaid or
any part thereof would not be hurled, thrown and spattered
around and over the same ; all of which facts aforesaid the
defendant then and there ought to have known and knew.
And the plaintiff further avers that he was then and there in
the employ of the defendant as a common servant for hire,
and as such was then and there engaged in and about his work
and employment at and near said vessel or receptacle afore-
said and within said distance of, to wit, feet of the
same, and was in the exercise of ordinary care for his own
safety.
And the plaintiff further avers it then and there became
and was the duty of said defendant to have notified and warned
the plaintiff that said time, point or stage in said use and opera-
tion of said vessel and receptacle aforesaid was about to be
reached, when said particles aforesaid were apt and liable to,
and in the course of said business would then and there be
hurled and thrown and would fly and spatter from and out
of said vessel and receptacle aforesaid, so that the plaintiff
956 ANNOTATED FORMS OF PLEADING AND PRACTICE
might have a reasonable opportunity to adopt such measures as
would protect himself from said particles being hurled, thrown
and spattered from and out of said vessel or receptacle as
aforesaid.
Yet, the defendant, did not regard its duty in that behalf,
but on the contrary thereof then and there carelessly and negli-
gently failed to warn and notify the plaintiff of tiiat said time,
point or state in said use and operation of said vessel and
receptacle aforesaid was about to be reached, when said par-
ticles aforesaid were apt and liable to, and in the ordinary
course of said business would then and there be hurled and
thrown, and would fly and spatter from and out of the vessel
and receptacle aforesaid, so that the plaintitf might have a rea-
sonable opportunity to adopt such measures as would protect
him from said particles so being hurled and thrown and spat-
tered from and out of said vessel or receptacle as aforesaid ; by
means and in consequence whereof, while the plaintiff was then
and there in the exercise of reasonable and ordinary care for
his safety, so engaged and employed as aforesaid and unaware
of the fact that said time, point or stage in said use and opera-
tion of said vessel and receptacle aforesaid, when said particles
aforesaid were apt and liable to, and in the course of said busi-
ness would then and there be hurled and thrown and would fly
and spatter from and out of said vessel and receptacle afore-
said, was about to be reached and was reached, so that the
plaintiff might have a reasonable opportunity to adopt such
measures as he should think proper to protect himself from said
particles so being hurled and tlirown and spattered from and
out of said vessel or receptacle, the said particles of said sub-
stance as aforesaid were then and there hurled and thrown
and did fly and spatter from and out of said vessel and recep-
tacle aforesaid around and against the plaintiff and into the
eye of the plaintiff without the plaintiff having a reasonable
opportunity to adopt and without having adopted such meas-
ures as he might deem proper to protect himself from said
particles so being hurled and thrown and spattering and flying
from and out of said vessel and receptacle as aforesaid.
2. And the plaintiff further avers that it then and there
was the usage and custom of the defendant that Avhenever the
time, point or stage when said substances would be so hurled
and thrown and would fly and spatter from and out of the ves-
sel and receptacle aforesaid was about to be reached, a warning
of the fact that said time, point and stage was apt to be
reached w^as then and there given and a certain whistle was
then and there blown; that the plaintiff then and there knew
of said custom, and relied thereon for the protection of him-
self against said particles so being hurled, thrown and spat-
tered from and out of said vessel and receptacle aforesaid ; all
of which facts the defendant ought to have known and knew ;
and that it then and there became and was the duty of the
PERSONAL INJURIES 957
said defendant to have notified and warned the plaintiff that
said time, point and stage aforesaid was about to be reached,
and to have blown said whistle as aforesaid prior to the reach-
ing of said time, point and stage as aforesaid, so as not to
unnecessarily endanger the life and limbs of the plaintiff and
other persons then and there so engaged as aforesaid.
Yet, the defendant did not regard its duty in that behalf,
but on the contrary thereof then and there carelessly and negli-
gently, and contrary to said usage and custom aforesaid, failed
to warn and notify the plaintiff" as was usual and customary
as aforesaid, and failed to blow said whistle as aforesaid prior
to the reaching of said time, point and stage aforesaid; by
means and in consequence whereof, the said substances so being
hurled, throAvn, spattered, and flying at said time, point and
stage aforesaid, then and there struck upon and against the
body and limbs of the plaintiff and into the eye of the plaintiff.
By means and in consequence whereof the sight of said eye
was destroyed, and the other eye severely injured, and he was
otherwise greatly bruised, hurt and wounded, and he became
therefrom forever crippled and diseased, and was and will be
sick, sore and disordered during the remainder of his life, dur-
ing all of which time the plaintiff' has suffered and will suffer
great pain and has been and will be prevented from attending
to and transacting his affairs and business; and by means of
the premises the plaintiff was forced to and did lay out divers
sums of money, and incurred divers large indebtedness,
amounting to, to wit, ($....) dollars, in and
about endeavoring to be cured of his wounds, hurts and bruises
as aforesaid, and has lost and will lose divers great gains and
profits which he otherwise would have acquired. (To the dam-
age, etc.)
1565 Loading and unloading cars, car shoved without warning,
Narr. (111.)
For that whereas, prior to and on, to wit, the .... day of
> 19 . • , the company was possessed of and
operating large steel mills at in the county and state
aforesaid, and there were then and there certain railroad tracks
in and about said steel mills which, with the consent of the
defendant, were customarily used to hold cars loaded with
material for said steel company, and which were there unloaded
by said steel company, through its servants in that behalf, and
which said servants while unloading said cars were required to
be on and about said cars and in such position as exposed them
to great danger of bodilj^ injury in the event of other cars
being shoved against the cars they were unloading without
timely warning to them ; all of which facts the plaintiff alleges
the defendant knev\', or by the exercise of ordinary care in that
behalf could have known.
958 ANNOTATED FORMS OF PLEADING AND PRACTICE
And the plaintiff further alleges that defendant by virtue
of an agreement or understanding between it and said steel
company was accustomed to deliver cars to and haul cars away
from said mills for said steel company and to switch cars in and
about said tracks, and at the time and place aforesaid there
was a certain car loaded with material for said steel company
standing on one of said tracks for the purpose of being there
unloaded by said steel company; that he was then and there
employed by said steel company and in the discharge of his
duty, and while he was exercising ordinary care and caution
for his own safety, he was then and there upon said standing
car engaged in unloading it for said steel company, and was in
such a position upon said car that he was likely to be injured
if the other cars were shoved against said car without warn-
ing to him; that the defendant without his knowledge was then
and there about to shove certain other cars against said stand-
ing car; and that by reason of the premises it then and there
became and was the duty of the defendant to exercise ordinary
care toward learning if any one was engaged in unloading said
standing car, and if so to warn such person that it was about
to shove other cars against said car, and that if it had exer-
cised such care it could have learned that he, the plaintiff, was
so engaged in unloading said car and could have learned of his
said position of danger ; but that the defendant, not regarding
its said duty, and in utter violation thereof, wrongfully and
negligently failed and neglected to exercise ordinary care for
the purpose aforesaid ; and as a result thereof did not learn
that plaintiff was engaged in unloading said car, or give him
any warning that it was about to shift other cars against said
standing car; and as a result thereof plaintiff, through no want
of ordinary care on his part did not know or learn that said
other cars were about to be shoved against said standing car
which he was engaged in unloading; that defendant then and
there negligently shoved said other cars violently against said
car which plaintiff was so unloading as aforesaid without
warning to him and he, by the compact or collision of said cars
and the car which he was engaged in unloading as aforesaid,
was thereby then and there thrown down upon the track there
and the wheels and certain parts of said cars then and there
passed over his left leg, thereby so crushing and mangling his
said leg that it became necessary to amputate the same and it
was amputated, and he thereby then and there sustained (De-
scribe injuries, loss and damage in detail).
1566 Loading and unloading, supports removed, Narr. (111.)
For that whereas, on, to wit, the day of ,
19.., at the county aforesaid the defendants were dealers in
lumber and in said business necessarily employed workmen,
laborers and servants ; that R was then and there employed by
PERSONAL INJURIES 959
said defendants as a laborer and workman in a certain lumber
yard of the defendants in the city of , to assist in
unloading lumber from railroad cars ; that on the day and year
aforesaid, at the county aforesaid, the said R and, to wit, six
other persons similarly employed, were engaged in the work
of the said defendants, and the said R and said other persons
were then and there all under the orders of one J, a foreman of
the said defendants, and were all bound to obey the orders of
said foreman in all the details of said work ; that the said fore-
man then and there ordered the said R and certain of said per-
sons, employees and servants of the said defendants, as afore-
said, to unload a certain car then and there loaded with lumber
which said lumber was then and there held in place on said
car by certain sticks, standards or stauncheons that had been
and were placed there to assist in holding said lumber on said
car ; that he, the said R, then and there, in compliance with the
said order of the said foreman, proceeded with all due care and
diligence to assist in unloading said car, and while the said
R was so doing, he, the said foreman, ordered the said R and
certain other of said persons employees of the said defendant
to take out, to wit, four of said sticks on one side of said car,
leaving, to wit, two of said sticks still remaining on said one
side of said car; that thereupon and after said four sticks had
been so removed as aforesaid, he, the said foreman, then and
there ordered R and certain other of said workmen and serv-
ants to move said car while he, the said R, was near the same
and was working at unloading the same as aforesaid.
And the plaintiff avers that the said foreman carelessly and
negligently by his order aforesaid first above mentioned caused
too many of said sticks to be removed and carelessly and negli-
gently by his said order secondly above mentioned caused said
•car to be moved as aforesaid while said lumber was not suffi-
ciently held in place by a sufficient number of said sticks or
standards; that by reason of the carelessness and negligence
aforesaid of the said defendants by their said foreman, who
was then and there and in that behalf acting as the agent of
the said defendants, and without any fault or negligence of the
said R, and by reason of the removal of said sticks and the
moving of said car, the said lumber then and there fell off said
car, and fell on the said R, and caused his death.
And the plaintiff further avers that the said R had then and
there been employed in said business a short space of time,
to wit, one hour, next prior to said injury, and was wholly
without experience in the matter of unloading lumber, of which
ignorance and inexperience of the said R the said defendants
and the said foreman then and there had notice. And so the
plaintiff says, that by the mere carelessness, negligence and
improper conduct of the said defendants by their said fore-
man as aforesaid, and without any negligence or fault of the
said R, he, the said R, was killed as aforesaid ; that said injury
960 ANNOTATED FORMS OF PLEADING AND PRACTICE
was not caused by any act or thing incident to the said R's
employment as a servant of the defendant as aforesaid, nor
by the negligence of any fellow-servant of the said 11; that
the said R left him surviving the plaintiff, his widow, and the
following named children as his next of kin, to wit :
, and that by means of his death she has been
deprived of her means of support, and the said children have
been deprived of their means of support and education.
(Proffer letters of administration)
Wherefore, etc.
1567 Loading and unloading, switch engine run into, Narr.
(111.)
For that whereas, on, to wit, the day of
19.., at, etc., the defendant, a eorj)oration, etc., owned and
possessed, and controlled a certain railroad, and a certain
switch and side-track at said village of , and also a
certain locomotive engine, and certain cars in and about the
said railroad of said defendant and its said side-track and
switch at said village of ; that it has been, for
a long time, and was, on said day of ,
19. ., (while still in possession and control of said railroad cars,
side-track and switch at said ,) the custom of
said defendant by its agents, servants and employees, to place,
and it did so, as aforesaid, at divers times, before, and on the
day aforesaid, place loaded cars on its said side-track and
switch; that it was then and there in the custom of allowing
and directing, and did allow and direct (while still being in
possession and control of said railroad ears and side-track), the
person or persons whose freiglit or loads in and upon said cars
(so placed on side-track as aforesaid), were, or to whom said
freight or loads belonged, to enter upon said side-track and
said cars so placed, as aforesaid, and with their servants and
emploj'ces, to then and there unload and draw away the
freight or loads of said cars so placed, as aforesaid, on said
track; that it is and for a long time past has been, and on,
etc., to wit, said day of , 19.., was the
custom of said defendant with its agents, servants and em-
ployees in charge of a certain locomotive engine and cars
belonging to or under the control of said defendant, to dis-
charge, switch, or place loaded cars on said side-track and
switch from the main track of said defendant, at said ,
and also in the same manner to remove unloaded empty cars
from said track and switch on to the main tracks aforesaid;
and at such time when the said work of switching or placing
said loaded cars on said side-track or switch, and removing said
unloaded or empty cars from said side-track or switch as afore-
said, was completed, with its said servants, agents and em-
ployees, to withdraw or remove said locomotive engine from
PERSONAL INJURIES 961
said side-track or switch to the main track aforesaid; and
thereupon, to permit and allow the owner of freight on said
loaded cars by his or their agents, servants or employees to
enter upon said loaded cars and said side-track and remove
such freight as aforesaid.
And, plaintiff avers that, on, etc., to wit, the said
day of , 19. ., the said defendant, by its said
servants, agents and employees did so as aforesaid, switch or
place loaded cars on said switch or side-track and remove un-
loaded or empty cars therefrom, and by its said servants,
agents and employees, did remove said locomotive engine from
said side-track.
And plaintiff avers that thereupon the said ,
in his life time, on, etc., to wit, said day of
, 19. ., with the knowledge, approval and consent
of said defendant, and having been first given to understand
by the said servants, agents, and employees of said defendant,
that said locomotive engine and said cars would not again be
run on said switch or side-track on that day, went and entered
upon a certain loaded car then standing upon said switch or
side-track aforesaid to unload the freight then upon said car,
with all due care and caution; and while exercising due care
on his part, and being the agent and servant of the owner of
said freight, commenced unloading said car; and while so
employed and while exercising due care on his part, the said
defendant, by its said agents, servants and employees afore-
said, having the management and control of said locomotive
engine and cars, and while working in the line of their employ-
ment as such servants, agents and employees, wrongfully and
negligently, and without any warning or signal, and without
ringing any bell or sounding any whistle on said locomotive
engine, drove the said locomotive engine upon and against the
cars which were at that time on the same side track with the car
in which the said , deceased, was in his life
time, so as aforesaid employed, and thereby drove said cars
upon and against the said car upon which said
was employed as aforesaid, with great force, speed and
violence, and then and there and thereby the said
was precipitated and fell between and in under the cars so as
aforesaid, standing upon the side-track of the said defendant,
said cars running upon and over said , and said
was then and there and thereby greatly bruised,
mangled and hurt, by reason of which said injuries the said
, did, on, etc., to wit, said day of
, etc., at said village of , die.
And the plaintiff avers that the railroad of the defendant so
causing the death of said aforesaid was used
in the said county of (Add last two para-
graphs of Section 1495).
962 ANNOTATED FORMS OF PLEADING AND PRACTICE
1568 Loose rail, Narr. (W. Va.)
For this, to wit, that heretofore, to wit, on the
day of , 19- •, in the county and state aforesaid,
the said defendant was lawfully possessed or was the owner
of a certain large car manufacturing plant and property,
being so possessed thereof as aforesaid, and was then and there
engaged in making, manufacturing, constructing and erectnig
and putting together railroad cars upon the aforesaid property,
and in the use and manufacturing, constructing and erecting
the aforesaid railroad cars at said plant as aforesaid, and in
connection with the aforesaid manufacturing of said railroad
cars, said defendant used a certain lot of railroad tracks and
switches in operating the aforesaid car manufacturing plant,
and said defendant handled a large lot of lumber and a large
lot of iron of various and divers dimensions in the operation
and construction of manufacturing the aforesaid railroad cars
and in moving the aforesaid iron and lumber as aforesaid to
the various parts of their plant, they used the aforesaid rail-
road tracks and railroad switches and operated cars of divers
dimensions upon the aforesaid railroad tracks or railroad
switches or side tracks as aforesaid; and it then and there
became and was the duty of said defendant to see that the
aforesaid railroad tracks and railroad switches and side tracks,
were properly constructed and properly fastened down and
made safe and secure in every respect and that the railroad
cars of various dimensions as aforesaid, were safe and secure
in every respect, to be used by the plaintiff and other employees
of said defendant ; and it became the duty of said defendant to
use due and proper care and caution that said plaintiff" and all
other employees should be provided with good, proper, safe and
suitable machinery and appliances to be used by plaintiff and
other employees in said employment as aforesaid, and that the
said plaintiff should be secure and safe in all respects in his
employment for said defendant and all other employees should
be safe and secure in their said work for said defendant, from
any injury incident thereto, against which ordinary care and
skill could have availed, while engaged for defendant in said
work; but, said defendant wholly disregarded and neglected
its duty in that behalf, and did not use proper care and cau-
tion that said plaintiff and other employees should be provided
with good, proper, safe and suitable machinery and appliances
to be used by said plaintiff in his said employment as afore-
said, and that the said plaintiff should be secure and safe in
all respects in his employment, in which ordinary care and
skill could have availed while said plaintiff was engaged for
said defendant in said work from any injury incident thereto ;
and on the contrary, said defendant then and there provided
for and suffered to 'be used by said plaintiff in and while said
plaintiff was engaged in the work of manufacturing, construct-
PERSONAL INJURIES 963
ing, erecting and building railroad cars for said defendant, as
aforesaid, a certain insecure and unsafe and unsuitable switch
or railroad track with the rails placed upon said railroad track
in an insecure and unsafe condition, in this, to wit, they were
not nailed to the ties, and the ties used were unsafe and inse-
cure ties and the said plaintiff was directed by one of the
defendant's officers or agents then in charge of said defendant's
plant, to push a certain railroad car or truck, used in moving
the aforesaid lumber and iron as aforesaid over one of the
aforesaid railroad tracks or switches, owned, used and operated
by said defendant in constructing, erecting and manufacturing
said railroad cars as aforesaid for handling material, and while
said plaintiff was unaware that it was unsafe and in an insecure
conditon ; that he was careful and cautious in pushing said rail-
road ear as aforesaid as directed by said defendant's officer or
agent then and there in charge so to do; and that he had no
knowledge or information that the aforesaid railroad track was
in an unsafe and insecure condition, or was loose and unnailed
or in improper shape or was unsuitable to be used for the work
which said plaintiff was directed to use it for by said defend-
ant's officer or agent as aforesaid.
And plaintiff further alleges and charges that the aforesaid
railroad track was in an unsafe and insecure condition and
when said car or truck run over the aforesaid track, then and
there owned and operated by said defendant, said rail being
loose, flew up and hit said plaintiff between the legs, with great
force and violence, with such great force, that said plaintiff
was ruptured by reason of the lick received from said rail as
aforesaid, and was greatly injured, and said plaintiff was hurt
internally and other members of his body were broken, bruised,
mashed and crushed and said plaintiff was greatly bruised,
mashed and hurt and injured by means of the premises as
aforesaid ; that said plaintiff became and was sick, sore and
lame and disabled and remained so for a long space of time
and will continue to remain during all of his natural life and
is permanently crippled and still is injured and will remain a
cripple during the remainder of his natural life, unable to work
or perform labor; that said plaintiff suft'ered great pain and
great mental anguish and was and has been prevented from
transacting and attending to his lawful and necessary affairs
and business, and was deprived of great gains, profits and ad-
vantages of which he might otherwise and would have derived
and acquired had it not been for defendant's carelessness; that
said plaintiff has spent large sums of money, to wit,
dollars to effect a cure of the aforesaid injury received at the
hands of the defendant ; that said plaintiff will have to expend
large sums of money in the future for treatment ; and plaintiff
964 ANNOTATED FORMS OF PLEADING AND PRACTICE
says that he has been damaged in the sum of dol-
lars. He therefore brings this suit,^*^
1569 Man-hole frame on pavement, Narr. (Md.)
For that the plaintiff on or about the day of ......
, 19. ., while working along the side
of , a public higliway in the city of
stumbled and fell over a large iron man-hole frame lying on
the pavement of said side of ,
the existence and location of which this plaintiff was unaware,
and thereby received injuries, dangerous and permanent, on
and about her right leg between the knee and foot, her head
was badly bruised, her system generally shocked, and she was
caused to suffer excruciating pain and great mental anguish;
that she was thereby and has bet-n since, caused to be confined
to her room and has been prevented from attending to her
household avocations, as well as that of seamstress; that she
has been put to great expense for medical attention and medi-
cine ; and that other great and permanent wrongs and injuries
have been thereby sustained by her,.
That the said plaintiff, at the time of the happening of the
acts aforesaid, was exercising due care and caution on her part
but that the said injuries were occasioned by the negligence,
default and want of care on the part of the defendants, their
officers, agents and employees, in placing said iron man-hole
frame upon the pavement aforesaid and in permitting the same
to remain there for a long space of time, and in failing to pro-
vide any light or signal of any kind whatsoever, marking said
iron man-hole frame or warning pedestrians of the location of
the same. And the plaintiff claims, etc.
1570 Manufactured articles, action
A manufacturer is liable for injuries which result to third
persons by placing upon the market for sale of a highly danger-
ous article, without notifying the public by proper label, or
otherwise, of its dangerous character. ^^^
• MINE INJURIES
1571 Mining act, nature and scope
The owners, operators, and managers of coal mines are liable
tinder the Illinois Mining act for personal injuries resulting
from all dangerous conditions in coal mines which endanger
185 Denny v. American Car & Mich. 293, 295 (1907); CTement v.
Foundry Co., 69 W. Va. 405 (1911). Crosby & Co., 157 Mich. 643 (1909).
186 Clement v. Crosby & Co., 14S
PERSONAL INJURIES 965
life, limb or health of the persons working in them, notwith-
standing the failure of the mine examiner to properly mark or
indicate the particular dangerous condition in his record, or to
report the same to the mine manager.^^^ This liability extends
to a person who is injured as a result of a conscious or wilful
failure to perform the statutory duty to have the mine examined
and to have the dangerous places designated by statutory marks.
If the mine is in a dangerous condition the examination and the
marking of the mine are peremptory' and must be made regard-
less of the mine owner's or operator's opinion of whether the
examination is or is not necessary. ^^^ The mere failure to exer-
cise ordinary care, or mere negligence, creates no liability on
the part of the operator of the mine under the statute. The vio-
lation of the statute must be conscious or wilful. '^^ The mere
failure of the mine inspector to go through the useless operation
of re-marking or re-tracking of his old marks of the dangerous
places in the mine, is no violation of the statute, when the marks
of danger which had been previously placed are plainly visible
at the time of a re-visit to the mine.^®*^ Since 1911, a mine exam-
iner's duty to make examinations is limited to the underground
working of the mine.
In Illinois, the mine owner or operator is liable for personal
injuries resulting from a wilful failure of the mine manager or
mine examiner to perform any duty required by the ^Mining act,
the mine manager and mine examiner not being considered fel-
low-servants of a miner. ^^2 Jq West Virginia the mine operator
or agent is regarded as having fully discharged his statutory
duties by employing a competent mine boss and as being exempt
from liability for any injury resulting to a miner from the fail-
ure of the mine boss to observe statutory requirements imposed
upon him.^^^
An action for personal injuries brought under the Mining act
is not penal in its nature.^^^
187 Mertens v. Southern Coal & isi Eogers v. St. Louis-Carterville
Mining Co., 235 111. 540, 544, 545 Coal Co., 254 111. 104, 108 (1912);
(1908). Laws 1911, p. 388 (111.).
188 Aetitus V. Spring Valley Coal 192 Henrietta Coal Co. v. Martin,
Co., 246 111. 32, 38 (1910). 221 111. 460, 466 (1906).
i»» Cook V. Big Muddy-Carterville i93 Williams v. Thacker Coal &
Mining Co., 249 111. 41, 51 (1911). Coke Co., 44 W. Va. 599, 605 (1898).
180 Kilduff V. Consolidated Coal i^-* Davis v. Illinois Collieries Co.,
Co., 255 111. 617, 620 (1912). 232 111. 284, 291 (1908).
966 ANNOTATED FOKMS OF I'LEADING AND PRACTICE
1572 Parties
All persons who are employed in the mine, such as engineers,
firemen, pumpmen, shot-firers, drivere, and other workmen and
employees are within the protection of the daily inspection pro-
vision of the Mining act.i»^ In minis in which coal is blasted
with more than two pounds of powdiT Tor any one blast, and in
mines in which gas is generated in dangerous (|uantities, a
shot-firer is charged with the duty of determining for himself
whether the shot is prepared in a practical and workmanlike
manner, and his judgment is conclusive upon this question. i-'«
But whether a person injured in a mine was or was not a shot-
firer is a question of fact, in the absence of clear proof to the
contrary. A miner's certificate of competency is merely evi-
dence that the holder possesses the qualifications to do the work
of miners, and does not show that he possesses the practical
experience re(iuired of a shot-lirer.^^^
A wilful failure, refusal, or neglect to comply with the pro-
visions of the Short-fires act of 1907 resulting in a fatal injury,
gives no right of action to the widow of the person thus
injured. ^^8 Persons who are not exposed to any dangers or
perils peculiar to the mining trade or business, as those who
are engaged in erecting and repairing buildings and repairing
cars for a mining company, are not operative coal miners within
the meaning of the :Mining act, and are not entitled to its pro-
tection. ^'-^^ An action under the Mining act may be instituted by
the widow, if there is one, by the lineal heirs or adopted children,
if there is no widow, or by any person who was dependent for
support upon the person that was killed, if there is neither
widow, lineal heirs nor adopted children.^oo
1573 Declaration requisites
A count upon section 21 of the Illinois Mining act must aver
that no place of refuge of the required size was cut in the side
losBrennen v. Chicafro & Carter- in 1909 (Kurd's Stat. 1911, p.
ville Coal Co., 241 111. 610, 619 1566).
(1909)- Hougland v. Avery Coal & iss HoUings-u-orth v. Chicago &
Mining'Co., 246 111. 609, 614 (1910). Carterville Coal Co., 243 111. 98, 106
i96Kulvie V. Bunsen Coal Co., 253 (1909).
Ill 386,388 (1912); Short-firer 's act loo Sogers v. St. Louis-Carterville
of 1905 as amended in 1907 (Kurd's Coal Co., 254 111. 108, 110.
Stat. p. 1564). -fio Cook v. Big Muddy-Carterville
197 Kulvie V. Bunsen Coal Co., 253 Mining Co., supra.
lU. 388, 390; Act of 1908 as amended
PERSONAL INJURIES 967
of the wall of the mine at the working place where the miners
were obliged to be or to pass to and from their work while in
the performance of their duties.^oi ^ count which is based
upon section 33 of the IMining act must allege mlful injury on
the part of the defendant, but it need not state that the plain-
tiff had exercised due care or that he was not guilty of contribu-
tory negligence-^*^-
1574 Collision, Narr. (Dl.)
P'or that whereas the defendant, a corporation of the state of
Illinois, on, to wit, the day of , 19. .,
was, and for several years prior thereto had been, engaged in
the business of mining and shipping coal at ,
to wit, at the county of , aforesaid, and being so
pngaged then and there had in its employ for carrying on of
said business divers persons, including the plaintiff.
And the plaintiff avers that it was the duty of said defend-
ant to prescribe and have proper rules and regulations for the
conduct of its said business, and to properly make the same
known to its said employees, clerks, foremen, superintendent
and others in its employ, and to properly enjoin and enforce
the observance of such rules and regulations for the reasonable
and proper protection of the plaintiff from injury whilst en-
gaged in said employment.
Yet, the said defendant, on, to wit, the day of
, 19. ., and before said date, at, to wit, the county
aforesaid, not regarding its duty, neglected and failed to pro-
vide such proper rules or regulations or to properly make the
same known to its said employees, clerks, foremen or superin-
tendent, or to properly enjoin or enforce upon its said employ-
ees the observance of such rules or regulations, whereby and
by reason of such neglect the plaintiff, on, to wit, the day and
year and at the county aforesaid, whilst with due care engaged
in the "work of defendant loading with coal a certain car which
had been placed and was standing on a certain track at a point
alongside of a certain chute, certain other employees, not fellow-
servants with the plaintiff, but engaged in the work of the
defendant, switching cars, allowed a certain car or cars to col-
lide with and jam against the said car which the plaintiff was
helping to load as aforesaid, thereby forcing said last men-
tioned car against the plaintiff and crowding and crushing him
against a certain platform and thereby then and there seriously
and permanently injuring him as is hereinafter alleged.
201 Cook V. Bie Muddy-Carterville 202 Bradley v. Chicago-Virden Coal
Mining Co., 249 111. 48; Sec. 21, Min- Co., 231 lU. 622, 627 (1908).
ing a«t.
968 ANNOTATED FORMS OF PLEADING AND PRACTICE
2. For that whereas, also, the plaintiff and the defendant
being engaged as in the first count set forth, it was the duty of
the defendant to provide and employ such number of persons
as were reasonably necessary to do the work of loading eoal
and switching cars with reasonable safety against accident and
against injury to the plaiiititY.
Yet, the said defendant, on, to wit, the day of
, 19. ., at , to wit, at the county
aforesaid, neglected its said duty in that regard and thereby
the plaintiff, who, with due care on his part was then and there
helping to load a certain car which was standing on the track
at a point opposite to a certain coal chute, was unable to warn
certain other of defendant's employees who were then and
there switching cars for said defendant, but who were not
plaintiff's fellow-servants, that he, the said plaintitf, was thus
helping to load said car and was notwithstanding the use of
reasonable care on his part in a dangerous position so that if
said car shouhl be moved whilst the plaint itT was so engagi'd
and thus situated he might be killeil or seriously injured, and
by reason also of such neglect the said defendant's employees,
who were then and there switching cars as aforesaid, could
not by the use of reasonal)le care discover that tiie plaintiff" was
in a position to be seriously hurt if other cars shoukl collide
with said car, whereby and by means of which said neglect the
plaintiff', who was thus with due care helping to load said car
and therefore in a dangerous position was seriously and per-
nuinently injured by another car or cars then and there being
switched as aforesaid coming against said car so being loaded
and forcing said car last mentioned against the plaintiff and
crowding and crushing him against a certain platform, and
thereby then and there seriously and permanently injuring him
as is hereinafter alleged.
3. For that whereas, also, the defendant being engaged as
in the said first count set forth, and the plaintiff being in the
employ of said defendant as a laborer, it was the duty of said
defendant, by its agents and foremen, to use reasonable care
when setting the plaintilf to work not to unnecessarily expose
him to damage or injury.
Yet, the said defendant, on, to wit, the day of
, 19. ., at , to wit, at the county
aforesaid, neglected said duty, and a certain foreman of said
defendant, to wit, one , who was not a fellow-
servant of the plaintiff, negligently and carelessly ordered and
directed the plaintiff to tend the shutter of a certain coal chute
through which coal was then and there being or about to be
run into a certain car, which was then and there standing on
a certain track at a point opposite to said chute ; that the said
foreman then and there knew, or by the use of reasonable care
would have known, that certain other cars on said tracks were
being switched or were about to be switched and that unless
PERSONAL INJURIES
969
the employees of said company who were doing or about to do
said Svitching were informed that the plaintiff was thus en-
gaged teSdin| such shutter said ^--^^^"-^-r t°nla^n?S
rim said cars upon and against the car which the plaintiff
was thus helping to load as aforesaid, and thereby injure the
plamtiff. That said plaintiff properly and with due care obeyed
said order and whilst he was with due care attending said
chute the said switchmen, who were not fellow-servants ot
the plaintiff, switched a certain car or cars upon said track on
which the car being loaded as aforesaid stood, and said cars
so switched ran with great force against the said car so being
loaded and thereby forced and jammed the car last aforesaid
upon and against the plaintiff and then and there crowded
him against a certain platform or structure with such force
and violence as to then and there seriously and permanently
injure him, to wit: breaking his left collar bone depressing
his chest and lungs, and forcing his eyes from their sockets
and impairing and destroying his eyesight and doing to him
other injuries, whereby and by reason whereof the plaintitt
was caused to suffer and still suffers great pain and distress ot
body and mind, and whereby he has been and still is disabled,
sick sore, lame and disordered and is prevented from pursuing
his usual business and earning and receiving his usual income
as a laborer, and whereby he has been put to the expense ot,
to wit . . . dollars in employing physicians and pur-
chasing medicines to be cured of said injuries, and whereby
it will be necessary to continue such expense hereafter, to the
damage, etc.
1575 Coupling cars, Narr. (W. Va.)
For this, that heretofore, to wit, on the day of . . . .... .,
19 and for sometime previous thereto, the said defendant
was the owner and operator of a certain €oal mine in the county
aforesaid, and that the same was opened, operated and mined
by means of a main drift or entry running into the said mine
with side entries or drifts leading therefrom, and that in said
main drift or entry was a railway over which loaded and empty
cars were hauled and driven into and through the said mine,
and in said railway at a distance of feet from the
main entry of said mine there was a parting, that is to say, the
railway track running along said main entry as aforesaid was
converted by means of switches into two tracks, on one ot
which the cars used by the said defendant in operating its mine
were placed when the same were empty ; and on the other ot
which tracks the cars used by the said defendant as aforesaid
were placed when the same were loaded, which parting
extended for a distance of feet along said main
entry where it was converted by means of switches into one
track which track continued along said main entry ; that on
970 ANNOTATED FORMS OF PLEADING AND PRACTICE
the day and year aforesaid, the plaintiff at the special instance
and re(iucst of the said defendant became and was engaged in
the employment of the said defendant in its said mine, and
that as part of his duties in said employment he was rcfjuired
to couple and uncouple the cars used by the said defendant
in its mine as aforesaid; and the said j)laintitf says that on the
day and year aforesaid he was a mere lad, a boy of tender
years, just past thirteen years of age, and not yet fourteen
years old, inexperienced in the operation and dangers of the
employment in which he was engaged by the said defendant,
and wholly and entirely incapable of comprehending and
understanding the dangers and hazards incident to his said
employment; and the plaintitf says that no caution or warn-
ing whatsoever was given to him as to hov; said work should
be performed with reasonable safety to life and limb.
The plaintiff avers that the said employment was very dan-
gerous and was accompanied with great risks and hazards
beyond the comprehension of this plaintiff" by reason of his
youth and inexperience, even though he had been fully
instructed, cautioned and warned as \o the dangers incident
to his said employment ; that the said defendant, well knowing
his age, inexperience and incapacity to comprehend and appre-
ciate the dangers incident to his employment, and well know-
ing that he could not comprehend and appreciate any instruc-
tions given to him in regard thereto, even if such instructions
had been given, on the day and year aforesaid, while he was at
his post of duty, taking the coupling from the cars used by the
said defendant in its mine as aforesaid, for the purpose of
handling and hauling the coal mined therefrom as aforesaid,
wholly disregarded its duty to the said plaintiff' and wrong-
fully, carelessly and negligently caused one of its said cars,
which was being taken and removed from one point to another
in said mine, and without notice or warning whatsoever to the
said plaintilf, to be suddenly dashed with great force and
violence against and upon the said plaintiff', and against and
upon the cars from which the said plaintiff was so removing
and coupling as aforesaid ; and by reason thereof the said
plaintiff w^as caught between the bumpers of the said cars,
which were being so used by the said defendant as aforesaid,
and was wounded, bruised and injured and thereby became
sick, sore, lame and disabled in so much and to such an extent
that it became necessary to amputate his right leg, and that the
same was amputated. And he was confined to his bed for a
long space of time, and thereby and in consequence thereof
he suffered great pain of body and endured and suffered great
mental anguish, and was unable to do any work for a long
space of time, to wit, from the day of , 19..,
thence hitherto.
The plaintiff says that the defendant wrongfully, negligently
and unlawfully engaged and employed the plaintiff in the said
PERSONAL INJURIES 971
position iu said mine, he being a boy of tender years, without
experience in mining operation, and the plaintiff says that it
became and was the duty of the defendant to have shown and
instructed the plaintiff in the method of performing his duties
incident to his employment, but on the contrary the plaintiff
says that the said defendant wholly failed to discharge his
duty in that respect, and that the said defendant did not exer-
cise due and reasonable care in that behalf, but on the con-
trary negligently, carelessly and wrongfuly permitted the
plaintiff' to shift for himself; to take all risks and dangers
incident to his youth, incapacity and inexperience in the work
which he was engaged to perform for the said defendant as
aforesaid; and in the performance of which he sustained the
injury of which he herein complains.
The plaintiff' says that the said defendant failed and refused
to discharge any of the said several duties aforesaid, Avhich
he owed to him, the plaintiff', but wrongfully and negligently
failed and refused to do so, and thereby caused to him the
injury aforesaid. And by reason thereof the said plaintiff has
been permanently disabled, injured, lamed, disfigured and
crippled and rendered unfit for the active pursuits and occupa-
tions of life.
Wherefore and by means of the premises and of the wrongs,
grievances and injuries hereinbefore mentioned and set forth,
the said plaintiff' has sustained damages to the amount of
dollars. And therefore he sues.^^s
1576 Dangerous condition, action
The operator of a mine is liable for any injury sustained in
a mine from a live wire, for the reason that the statute covers
all dangerous conditions found in the mine whether permanent
or temporary.-*^ •*
1577 Dangerous condition, gob, Narr. (111.)
For that whereas, heretofore, on, to wit, the .... day of
, 19. ., the defendant was in possession of and operat-
ing a certain coal mine in said county of and
state of Illinois, known as , that said coal mine
was then and there operated by means of a perpendicular
shaft, and certain roadways and entries were driven in
said mine off of which certain rooms were turned and coal
drawn from said rooms to the bottom of said perpendicular
shaft by mules hitched to certain cars; that in said mine cer-
tain men were employed to dig coal and others to drive the
203Ewing T. Lanark Fuel Co., 65 Coal Co., 239 111. 457, 458, 459
W. Va., 726 (1909). (1909).
204 Dunham v. Black Diamond
972 ANNOTATED FORMS OF PLEADING AND PKACTICE
mules in hauliug coal from said rooms to the bottom of said
perpendicular shaft, all of whom were then and there in the
employ and under the direction of said defendant ; that on
said date plaintiff was then and there employed in said mine
as a mule driver; and that in and about the course of his
employment it then and there became and was necessary for
him to be on a certain car drawn by a certain mule in the
entry off of the main west entry between rooms
numbers and
Plaintiff further avers that there was then and there in
full force and effect the following provision of statute law:
(Set out statute).
That under said law it then and there became and was the
duty of the defendant to cause its mine inspector to visit said
mine before the men were permitted to enter it and to observe
whether there were any recent falls or obstructions in rooms
or roadways or accumulation of gas or other unsafe conditions,
and to examine said entry between rooms and
for said purpose and to make a daily record of
the condition of the mine as he found it, between said rooms
and and other places in a book
kept for that purpose, and to allow no person to remain in said
mine nor to enter therein to work, except under the direction
of the mine manager until all conditions had been made safe.
That the defendant disregarding its duty, as aforesaid, Avil-
fully and knowingly permitted the plaintitT to enter said mine
to work therein without being under the direction of the mine
manager on said date, and to be and about said entry between
rooms and , well knowing that there then and
there existed in said mine between said rooms and
in said entry a dangerous condition caused by
allowing a large amount of rock and debris, commonly called
gob, to accumulate and be along said roadway between pjjid
points, which said rock and debris at said time and for a long
time prior thereto formed an obstruction to said roadway, and
extended from the rail of said roadway along the side of said
track to a great height, to wit, feet and extended
so near to said track that some of said gob would catch upon
cars passing on said roadway, which said rock and debris so
piled along the side of said roadway then and there formed a
dangerous condition in said mine at said point.
2. And plaintiff further avers that it then and there became
and was the duty of the defendant to furnish the plaintiff with
a reasonably safe mule with which to do said work.
But disregarding said duty said defendant carelessly and
negligently failed to use reasonable care to furnish the plaintiff
with a reasonably safe mule with which to do his work and
then and there carelessly and negligently furnished plaintiff
with a dangerous and unsafe mule, which mule was unsafe
because of its well known habit of balking, which was
PERSONAL INJURIES 973
extremely dangerous in said mine on account of the track being
on a slight incline. That the defendant then and there knew
of the disposition of said mule to balk, or by the exercise of
ordinary care might well have known it, and that the plaintiff
had no knowledge of the disposition of said mule.
3. Plaintiff further avers that it was then and there the duty
of the defendant to use reasonable care to provide for the
plaintiff a reasonably safe place to work; but that the defend-
ant disregarding its said duty carelessly and negligently failed
to use reasonable care to furnish the plaintiff a reasonably
safe place to work, in this, that in said entry off of the main
west entry in said mine, between rooms and
, the defendant negligently and carelessly per-
mitted a large amount of loose rock, slate and dirt commonly
called gob to accumulate along the side of said track so close
to said track that it then and there impeded the passage of
said car along said track and caught upon the sides of the
same, and by reason thereof then and there formed a dan-
gerous condition at said point.
By means whereof, on the .... day of 19. ., while
plaintiff was then and there in the usual course of his employ-
ment in hauling coal along said roadway, and while riding on
the front end of a car, said roadway at said point being on a
slight incline, and while exercising due care and caution for
his own safety, the said gob which was then there piled
along said roadway at said point as aforesaid and which had
then and there carelessly and negligently been permitted to
remain along said driveway, and in close proximity thereto,
caught upon the side of the car on which the plaintiff
was then and there riding and caused the mule which the plain-
tiff was then and there driving to become unmanageable and
said mule did throw the plaintiff' off of said car between the
rib of said entry and said car, whereby he was greatly bruised
and mashed in various parts of his body, and he was injured
internally ; that said injury so occasioned is permanent ; that
in consequence of said injury the plaintiff became sick, sore,
lame and disordered and so remained for a long time, to wit,
from thence hitherto, during all of which time he suffered great
pain in body and mind and was hindered, and prevented from
transacting his ordinary aft'airs, and was compelled to pay out
and become liable to pay out a large sum of money, to wit,
dollars in and about endeavoring to be healed of
said wounds and sickness. Wherefore, etc.
1578 Dangerous condition, live wire, Narr. (HI.)
For that whereas, heretofore, on, to wit, the .... day of
, 19. ., in the county and state aforesaid, the defend-
ant was then and there a corporation engaged in the business
of mining coal, and was then and there operating a certain coal
074 ANNOTATEP FORMS OF PLE.VDING ANh PRACTICE
mine with a certain shaft, entries, rooms and certain roadways
and had then and there certain eh'ctric wires for the con-
veying of electric power tlirough said mine, and along the
entries thereof, in and along and through which certain
employees were engaged and employetl in and about the work
of driving certain mules then ami there hitched to certain coal
cars; and at the time and place aforesaid, the plaintift" avers
that he was then and there employed by the defendant in the
capacity of a driver of a certain mule then and there hitched
to a certain coal car, in a certain entry in said mine at a point
where one of said wires was then and there located along the
walls of said entry, at a j)oint where the same was easily
touched by the said mule.
And the plaint ilf avers that the aforesaid wire at the time
and place aforesaid was then and there charged with electricity
and was then and there left without any insulation or other
protection to prevent a shock to any person or mule coming
in contact ther«'with, and that there wa.; then and there in
close proximity to the track then and there located in said
entry, and upon which certain coal cars were then and there
being drawn by said mule a certain post, and that the said
charged wire, in an unprotected condition, in close proximity
to the track aforesaid and the post near the same then and
there constituted a dangerous condition in said mine.
And the plaintift' avers that the defendant had then and
there wilfully failed and wilfully neglected to comply with
the statute of the state of Illinois, in this, that the mine man-
ager of said defendant did not visit all the various working
places in said mine as often as practicable, and did not see
that all the dangerous places above and below were properly
marked, and that danger signals were displayed at the afore-
said place which was then and there in the entry
of said mine, and which was then and there dangerous as
aforesaid to the plaintift' while driving and controlling said
mule.
2. And also it then and there was among other things pro-
vided by the statute of the state of Illinois as follows to wit:
"No one shall be allowed to enter the mine to work therein,
except under the direction of the mine manager, until all
conditions shall have been made safe.''
And the plaintiff avers that the defendant then and there
wilfully failed and wilfully neglected to comply with the afore-
said provisions of the said staute by then and there alloAviug
the plaintiff to enter its said mine to work in the capacity
of a mule driver therein, and not under the direction of the
mine manager, at a time when there was then and there in said
mine and at the place where the plaintiff was required to work
a certain dangerous condition, which had not then and there
been made safe, to wit, a certain live wire charged with elee-
PERSONAL INJURIES 975
tricity, which was then and there on the walls of the entry in
which the plaintitf was then and there at work driving and con-
trolling a certain mule hitched to a certain coal car on the
track in said entry, and which was then and there wilfully
placed within the reach of the aforesaid mule and was then
and there left without any insulation or other protection
to prevent an electric shock to said mule when coming into
contact therewith.
And the plaintiff avers that the defendant then and there
knew or by the exercise of reasonable inspection would have
known of the unprotected condition of said wire, and wilfully
failed to exclude the plaintiff from said working place until
said condition was made safe.
3. And the plaintiff avers that the defendant had then
and there wilfully failed to comply with the statute of the
state of Illinois therefor provided, in this, that it did not then
and there have a mine examiner who made an examination of
the mine and a record of its conditions in compliance with the
statute aforesaid; that the mine examiner employed by the
defendant did not visit said mine and inspect the same at all
places where men were expected to pass or to work and
observe whether there were any unsafe conditions; and he
did not then and there place at the place aforesaid in the entry
aforesaid, inscriptions on the wall with chalk, showing the
day and month of his visit; and he did not then and there
place a conspicuous mark at the aforesaid dangerous place,
as notice for all men to keep out ; and he did not at once
report to the mine manager the dangerous condition and the
presence at the aforesaid place of an electrically charged wire
which was not then and there insulated or otherwise protected
from the contact of mules in said entry, which condition
had theretofore been discovered by him ; and he did not then
and there prevent the plaintiff and other employers from
entering the said mine at the time aforesaid to work therein
until all conditions were made safe, the plaintiff being then
and there at work not under the direction of the mine man-
ager; and the said mine examiner did not then and there make
a daily record of the conditions of the mine as he found it, in
a book kept for that purpose; and he did not make the said
record before the said plaintiff was permitted to enter the said
mine.
And the plaintiff avers that he was then and there at work
as aforesaid, in a certain entry in said mine at the place of
said unprotected and charged wire, in drivng and controlling
a certain rule then and there hitched to a certain coal car
which was then being drawn by said mule along a certain track
in said entry ; and while he was so engaged the said mule then
and there came in contact with the aforesaid wire, and then
and there was frightened and caused to lunge and jump, and
976 ANNOTATED FORMS OF PLEADING AND PRACTICE
thereby threw and pulled said car in such manner as to throw
the plaintiff between said car and a certain pole then and there
in close proximity to said track; and thereby then and there
the plaintiff had his pelvis bone and divers other bones of his
body broken and divers ligaments and nerves of his body
strained and injured, his back lamed, his body and limbs
crushed and mangled; and other injuries to his body and
nerves he then and there sustained ; and by reason thereof he
has been permanently injured, and he has been obliged to
lay out divers sums of money, to wit, dollars,
in an endeavor to be healed and cured, and ht' has suftVred
great pain and distress and has been prevented from following
his usual and accustomed work and has lost divers great sums
of money because thereof.
To the damage, etc.
1579 Elevator, air-bralce defective, Narr. (Va.)
For this, to wit, that before and at the time of the com-
mitting of the several grievances hereinafter next complained
of, the said defendant was the owner of and was operating a
certain mine, commonly called the " mines," in
the said county of for the purpose of obtaining
therefrom certain ore, commonly called "pyrites." That
before and at the time of the committing of said grievances
the said plaintift"s said intestate was an employee of the said
defendant in the capacity of a common, or unskilled laborer
in and about its said mining operations within said mine.
That at the time of said employment of the said intestate by
the said defendant, the latter undertook to carry, or transport
him from the surface of the earth to and from whatsoever
place within said mine it might be the duty of the said intestate
to work, during the existence of such employment, by hoisting
and loM-ering the latter within the shaft of said mine, which
was not a vertical, but an inclined shaft, at an angle of thirty
degrees from the vertical, and which was not cased up so as
to prevent a person on board of one of the cars of the said
defendant, as the said intestate was as hereinafter set forth,
from being thrown from such car, as the said intestate was
thrown and killed as hereinafter also set forth ; and the
machinery used for such last named purpose by the said
defendant at the time of such emploj'ment was reasonably safe
and suitable therefor, having regard to the character of said
shaft, being such machinery as was in use at such mine at the
time that said employment commenced.
That thereupon it became and was the duty of the said
defendant, after said employment began, not to change such
machinery, by substituting and using for so carrying, or
transporting the said intestate, other machinery in its place
not reasonably safe and suitable and not kept in a condition
PERSONAL INJURIES 977
reasonably safe and suitable for such purpose, without giving
notice to the latter of any increased danger, or risk to his safety
caused thereby, known to the said defendant, and unknown
to the said intestate, which was not obvious, or visible to, and
which the latter could not discover by the exercise of reason-
able care and observation on his part.
Yet, the said defendant not regarding its duty in that behalf,
after such employment, and a very short time before the death
of said intestate, (which occurred as hereinafter set forth),
to wit, about two weeks before such death, did, carelessly and
negligently, change such machinery by substituting and using
other machinery in its place not reasonably safe and suitable
and not kept in a condition reasonably safe and suitable for
said last named purpose, in this, to wit, that the said defend-
ant installed and used for said transporting and carrying of
the said defendant a new and different kind of hoisting
machinery from that theretofore used by it, not reasonably
safe and suitable and not kept in a condition reasonably safe
and suitable for such purpose, in this, to wit, that, at the time
of the injuries to said intestate which caused his death as
hereinafter set forth, the means furnished by such new hoisting
machinery used by the said defendant for stopping and holding
the car, skip or bucket, (as the cars used by the said defendant
for carrying, or transporting said intestate and other employees
of the said defendant to and from their places of work in said
mine are variously called), in the shaft of said mine, was to
operate by compressed air the brake controlling the holding
and lowering of such car, (which brake when so operated
will be hereinafter referred to as "air-brake") which air-
brake was unreliable because, as originally constructed and
installed the air leaked therefrom, and after such new machin-
ery was installed as aforesaid it was allowed by said defend-
ant to become out of repair so that the air leaked therefrom
and by reason thereof it was likely to fail in its control of
such car and allow such car when it was attempted to be held
hereby in any place in said shaft, to escape control ; and such
air-brake as originally constructed and installed, and as it con-
tinued to be was likely to stop such car with a sudden and
violent jar, when attempt should be made to stop same when
in motion going down said shaft ; all of which defects and said
results likely to be caused thereby as aforesaid, were, before
and at the time of said injuries to said intestate, well known
to the said defendant, or would have been so known to, or
foreseen by it, by the exercise of reasonable care and fore-
thought on its part for the safety of its employees including
the said intestate ; but were wholly unknown to the said
intestate ; were not obvious or visible to, and could not have
been discovered by him by the exercise of reasonable care and
observation on his part; and that the said old machinery,
which such new machinery displaced as aforesaid, was fur-
978 ANNOTATED FORMS OF PLEADING AND PRACTICE
nished with a similar brake opcratctl by baiul and foot power,
which was not likely to fail in the control of said car, or allow
it to escape control in any of the situations above mentioned;
and was not likely to stop sueli car with a violent and sudden
jar, when attemi)t should be nuide to stop same when in motion
going down said shaft; but would, on the contrary, have
operated in both of such situations, with reasonable certainty,
without causing such results, all of which was, before and at
the time of said injuries, well known to the said defendant.
2. And for this also that before and at the time of the com-
mitting of the several grievances hereinafter next complained
of, the said defendant was the owner of and was ojn-rating a
certain mine, commonly called the " mines," in
the said county of , for the purpose of obtaining
therefrom certain ore, commonly called "pyrites," which
business was dangerous, complicated and carried on by a great
number of emj)loyees — dilYerent employees having ditferent
duties to perform — and that especially were the duties of the
employee, hereinafter designated as the "hoist man," and like-
wise the machinery he operatt'd complicated and abnoiMiially
dangerous to the safety of the plaintiff's intestate and his
co-emplo3'ees, unless such duties were pei-l'ormed and such
machinery was operatetl in a reasonably safe method.
That before and at the time of the committing of said griev-
ances, the said plaintiff's said intestate was an employee
of the said defendant in the capacity of a common, or unskilled
laborer in and about its said mining operations within said
mine.
That at the time of said employment of said intestate by the
said defendant, the latter undertook to transport, or carry
the said intestate from the surface of the earth to and from
whatsoever place within the said mine it might be his duty to
work during the existence of such employment, by means of
hoisting machinery equipped with a brake, which might have
been oj)erated by hand, (which when so operated will be
hereinafter referred to as "hand-brake"), by another
employee of the said defendant who operated the said hoisting
machinery for the said defendant, and who was commonly
known and designated as a "hoistman;" that said machinery,
if so operated, would have controlled and held the car here-
inafter mentioned, from which the said intestate was thrown
and killed as hereinafter set forth, and would have prevented
the loss of control of such car and the sudden stopping of the
same also hereinafter set forth, all of which was well known
to the said defendant before and at the time of the said injuries
to said intestate which caused said death ; that said machinery
was then and there equipped with the same brake aforesaid,
which might have been operated by the said hoistman for the
said defendant also by compressed air (which when so operated
will be hereinafter referred to as "air-brake,") by turning
PERSONAL INJURIES 979
the full pressure of such air on such brake and continuing such
air so turned on, to hold the car hereinafter mentioned, from
which the said intestate was thrown and killed as hereinafter
set forth; that, if so operated, it was unreliable because th*?
air leaked therefrom and by reason thereof it was likely to lose
control of said car, and not hold the same, but did usually con-
trol and hold, and would likely have controlled and held such
car, in the situation in which the car was placed Mdth said
intestate on board of it as hereinafter set forth ; that if said car
\vas operated with said air not turned on and with such air con-
tinued so turned on to its full pressure, said machinery would
not control or hold such car in such situation because of the
leaking of the air from said air-brake, and if used to stop such
car after control of it was lost, as it was used as hereinafter
set forth, the air-brake was likely to cause a sudden and violent
stop and jar of such car, such as that which threw the said intes-
tate off therefrom and caused his death as likewise hereinafter
set forth, but which, in such case, might have been so used as to
stop such car without such sudden and violent jar, by the
exercise of reasonable care and skill (which reasonable care
and skill, however, under such circumstances, would have
required exceedingly great care and skill on the part of such
hoistman, and his being in fit condition physically and men-
tally, and possessed of presence of mind and' having control of
his nerfous system), by said hoistman gradually and by degrees
slowly turning said air upon said air-brake so as to gradually
increase the air pressure thereon, while such oar was running
wild down said shaft, until such increasing pressure brought
such car to an easy stop; all of which defects and said results
likely to be caused thereby as aforesaid were, before and at
the time of said injuries, well known to the said defendant,
or would have been so known, or foreseen by it, by the exer-
cise on its part of reasonable care and forethought for the
safety of its employees, including the said intestate, but were
wholly unknown, were not obvious, or visible to, and could not
have been discovered by the said intestate by the exercise of
reasonable care and observation on his part.*
That thereupon it became and was the duty of the said
defendant to make and enforce some reasonable rule, or regu-
lation, directing and requiring the hoistman operating the said
hoisting machinery to use said hand-brake to control said car
and to hold and stop the same in the situations aforesaid, and
not the said air-brake.
Yet, the said defendant, not regarding its duty in that behalf,
did not make, or enforce any rule, or regulation directing,
or requiring such hoistman operating the said hoisting machin-
ery to use said hand-brake to control said car and to hold and
stop the same in such situations as those aforesaid and not the
said air-brake; but wholly neglected so to do, and, on the con-
trary, at the time of said injuries to the said intestate directed,
980 ANNOTATED FORMS OF PLEADING AND PRACTICE
or knowingly allowed such hoistman to neglect to use said
hand-brake and to use and rely entirely upon said air-brake
for such purposes.
3. (Consider second count to star as here repeated the same
as if set out in words and figures.)
That thereupon it became and was the duty of the said
defendant to use reasonable care and diligence to provide a
fit person as hoistman to operate said hoisting machinery and
brakes, that is to say a person who was not unfit because of
lack of experience, or by reason of his physical or mental con-
dition and one who was of a reasonably careful disposition and
who was likely to have sufficient regard and consideration for
the safety of his co-employees, including the plaintiff's
intestate, to use said hand-brake, instead of air-brake, in the
situation aforesaid, and one not likely to use said air-brake
instead of sand hand-brake in such situation, thereby increas-
ing the danger and risk to the safety of said intestate beyond
that ordinary incident to the said transporting or carrying of
him by the said defendant.
Yet, the said defendant, not regarding its duty in that behalf,
did not use reasonable care and diligence to provide such fit
person as hoistman, but wholly neglected so to do, and, on
the contrary, on the .... day of , 19. ., at about
o'clock of the noon of that day, in the county afore-
said, the said defendant provided an unfit person as hoistman
to operate said hoisting machinery and brakes with reasonable
care and skill in this, to wit, that such person so provided by
the said defendant had not had sufficient experience wherewith
to operate said air-brakes with reasonable care and skill as
aforesaid, and independent of this he was a man of nervous and
excitable temperament even when in good health and condi-
tion, and who was then and there, at the time and place last
aforesaid, sick with pleurisy, and in a feverish and otherwise
weak and debilitated condition, resulting from such sickness,
and also from excessive use of intoxicating liquor, so that then
and there his nervous system was not under control, and his
mind was abnormally excitable and unreliable in its operation
and was not of a reasonably careful disposition, but who was
one who had for a long time before the said day of ,
19. ., habituall.Y shown a lack of regard and consideration for
the safety of his co-employees, including the said intestate, by
using said air-brake, instead of said hand-brake, in raisng,
lowering and holding said car in said shaft when loaded with
such co-employees, and had during such time habitually neg-
lected to use said hand-brake to hold such car when stopped
in such shaft and to control or stop such car when descending
such shaft when so loaded; that this disposition and conduct
and unfit condition of such hoistman were well known to the
said defendant at the time of such conduct or by the exercise
PERSONAL INJURIES 981
of reasonable care and diligence on its part would have been
so known to it ; but that notwithstanding this, the said defend-
ant, instead of discharging said hoistman continued him in
its employment.
And that accordingly, on the .... day of , at about
o 'clock in the noon of that day, in
the county aforesaid the said defendant, with such hoistman,
undertook to transport or carry the said intestate from the
place within said mine where it was then and there his duty
to work, to wit, from the level or excavation therein
hundred feet below the surface, up said shaft to the surface of
the earth; and to perform such undertaking, the said defend-
ant, contrary to its said duty in that behalf as aforesaid, used
said new machinery and operated said air-brake for such pur-
pose, without then giving, or having at any time given any
notice whatsoever to the said intestate of any increased dan-
ger or risk to his safety caused thereby and the said unfit hoist-
man so provided by the said defendant as aforesaid; that by
reason of such unfitness, then and there said defendant did
not operate said machinery and brakes with reasonable care
and skill so as not to increase the danger and risk to the safety
of the said intestate beyond that ordinarily incident to the said
transporting or carrying of him by the said defendant, but,
on the contrary, operated said air-brake, although the' said
defects of said air-brake and said results likely to be caused
thereby as aforesaid, were, before and at such time well known
to the said defendant, or would have been so known to, or
foreseen by it, by the exercise by it of reasonable care and fore-
thought as aforesaid; and were wholly unknown, were not
obvious, or visible to and could not have been discovered by
the said intestate by the exercise of reasonable care and obser-
vation on his part, as aforesaid ; that after the said intestate
had been and there boarded one of said cars, in the position in
which it was, before and at such time customary for the said
defendant to so transport, or carry the said intestate and other
employees of the said defendant from said mine, and it was
unknown to said intestate that such hoistman was operating, or
would then operate such machinery, and after the said defend-
ant had been notified that the said intestate and other
employees of said defendant were on board of such car, ready
to be transported or carried up said shaft to the surface of
the earth, the said defendant negligently and carelessly used
and relied, and allowed the said hoistman to, and the latter
accordingly did use and rely, upon the said air-brake, instead
of using and relying upon said hand-brake to hold such car
where it then and there was in said shaft, loaded with said
intestate and said other employees of said defendant, before
starting such car up said shaft ; that while the said defendant
was then and there through the agency of such hoistman using
and relying upon said air-brake, because of the leaking of the
982 ANNOTATED FORMS OF PLEADING AND PRACTICE
said air-brake, it failed in its control of such car and such ear
escaped such control and ran down said shaft with great
speed, with the said intestate and said otiier employees tiiercMju
as aforesaid, towards the bottom of said shaft, which bottom
was then and there some feet below said surface
of the earth; that thereupon the said defendant ne^dit^t-ntly
and carelessly allowed the said hoistman to, and the latter
accordingly did, undertake to stop said car by the use of saifl
air-brake, by not turning said full air pressure on such brake
and continuing same so turned on, but by turning same on and
then turning off any further continuing sui>ply of air thereto,
and instead of with the said hand-brake, which caused a sud-
den and violent stop and jar of such car, when it had gone
about feet down said shaft below wliere it had
been held as aforesaid, (to wit, to about feet
below said surface, and about feet above the
bottom of said shaft), whereby the said defendant threw the
said intestate from such car down said shaft, causing him
to receive severe bodily injuries, whereof, upon said .... day
of , 19.., at the county aforesaid, the said intestate
died; by reason whereof right and action accruecl pursuant to
the statute in such case provided, to the said plaintiff, who has
since the death of the said intestate duly qualified as his
administratrix.
1580 Explosion, Narr. (111.)
For that whereas, heretofore, to wit, on the .... day of
, 19. ., in the city of , in the county of
, in state of Illinois, the defendant was engaged
in the business of operating a certain coal mine or shaft for
the purpose of winning, mining and hoisting coal; that a part
or portion of said mine was known as the room
of the south, west passageway, or
long wall, from which room the coal had been removed prior to
the date of , 19. ., and in which room or entry the
tracks, which had been used for the purpose of removing the
coal from said room were yet remaining; that the mouth or en-
trance of this said room or entry was, on the date aforesaid,
about feet in height, and at a distance of al)out
feet from the said mouth or entrance of the said
room, the roof was much higher; that in this higher chamber
or dome of the said room or entry large (juantities
of poisonous, inflammable and explosive gases had accumulated
prior to the said date, and had been allowed to remain in said
room or entry, on and about the said date ; and that in the said
room the servants of the defendant, including the plaintiff,
were required to be and to work in the course of their regular
employment.
And the plaintiff being then and there employed by the
PERSONAL INJURIES 983
defendant in the said mine, it was the duty of the said plain-
tiff in the regular course of his employment to clean out and
remove obstructions of dirt, slate, stone and other material
which had accumulated on the tracks of the passageways of
the said mine where the cars of said defendant were moved
about ; and it was also the duty of the plaintiff in the course
of his employment to load this slate, dirt, stone and other
material in a car furnished by the defendant to the plaintiff
for the purpose and to take the same and unload it at
and in some room or entry designated by the defendant, from
which the coal had been previously removed ; that upon the
night of , 19- •, the plaintiff was directed by the
defendant, that he in company with another servant of the
defendant take a certain large sized coal car belonging to
the company, and brush the entries and passageways in the
part of the mine and in the vicinity of the said
room of the south, west passageway
and load the dirt, slate, stone and other material so found in
the said entries and passageways into the said car and deposit
it in some room or entry adjoining the passageway known as
the south west passageway or long
wall ; that this the said plaintiff and other servants of the
defendant, proceeded, then and there, to do ; and that they were
compelled to unload the said dirt, slate and stone so loaded in
the said car by them in the said room of the
south, west passageway, by reason of its being the
only room in that vicinity, the mouth of which was of suffi-
cient height to admit the said car.
And the plaintiff avt-rs that it then and there became and
was tiie duty of the defendant to use reasonable care to keep
and maintain the said passageways, rooms, and entries in a
reasonably safe condition for the use of the said employees,
aforesaid ; but that the defendant, not regarding its duty in
that respect or behalf, negligently and carelessly suffered and
permitted large quantities of inflammable gas (sic) to accumu-
late and remain in certain of the passageways, entries, and
rooms wherein it was the custom, duty and business of the
employees of the mine to be and work; of which gas (sic) the
plaintiff was wholly unaware, and the presence of which gas
the defendant did then know, or by the exercise of reasonable
care ought to have known.
2. And plaintiff further avers that it then and there also
became and was the duty of said defendant to use reasonable
care to keep said passageways, rooms, and entries where its
employees were directed and required to work reasonably free
from the accumulation of explosive or inflammatory gas (sic) ;
but wholly neglecting its duty in this behalf, said defendant,
as aforesaid, had then and there allowed a large quantity of
gas (sic) to accumulate in said entry or room at the point
984 ANNOTATED FORMS OP PLEADING AND PRACTICE
where the plaintiff was unloading the said dirt, stone, slate,
and other material, of the presence of which gas (sic) the
plaintiff was wholly unaware and the risk of which he did
not assume, and concerning the presence of the said gas (sic)
the defendant did know, or by the exercise of reasonable care
ought to have known.
3. And that it then and there also became and was the duty
of the defendant to use reasonable care to keep the mine, and
the rooms, entries, and passageways therein reasonably free
from all inflammable, noxious and explosive gases, and supplied
with a sufficient quantity of fresh, pure and wholesome air, and
to keep closed and seaU'd all rooms and entries wherein there
was not a (piantity of pure, fresh and wholesome air, sulhcieut
for the health and safety of all men and animals employed in
the said mine and to use reasonable care to keep the roof of
the rooms, entries, and passageways reasonably free from the
accumulations of noxious, inflammable and explosive gases
wherein the men were reiiuin-d to be and work in the course
of their employment by the defendant ; but the said defendant
disregarding its duty in this behalf, carelessly and negligently
failed to provide or have suflieient (puintities of fresh, pure
and wholesome air in certain entries and rooms, where the
plaintiff, in the due course of his employment was re(iuired to
work, and be, to wit, the first room of the south,
west passageway or long wall, but the current
passed along the adjoining passageway and did not enter in
the room or entry aforesaid, wherefore large quantities of
inflammable and explosive gases accumulated by reason of the
absence of sut!icient (juantities of fresh air, as aforesaid, and
had negligently been permitted to remain in the said room
or entry where the plaintiff was required in the course of his
employment to be and work, the presence of which gas (sic)
was then and there known to the defendant, or by the exercise
of reasonable care might have been known by the defendant,
but was unknown to the plaintiff and the risks arising there-
from he did not assume.
4. And it then and there also became and was the duty of
the defendant to maintain currents of fresh air, on the date
aforesaid, in the said mine and the rooms, entries and passage-
ways therein, sufficient for the health and safety of all the
men and animals employed therein, and it was the duty of
the defendant to force said currents of air through every work-
ing place throughout the mine, so that all parts of the said
mine should be reasonably free from deleterious air, as by the
statute of the state of Illinois in such case made and provided,
namely, section , chapter 93, Kurd's Revised
Statute ; that there was in the said mine, then and there a part
known as the room of the south,
PERSONAL INJURIES 985
west passageway, from which said room or
entry the coal had been previously removed, and in which said
room or entry the tracks which had been used for the purpose
of running coal cars thereon at the time the said coal was
being removed and hauled out of said room were yet remain-
ing on the said date of , 19. ., that it became
and was necessary for the employees of the defendant company
to be and work in and about the said room of the
south, west, passageway in the reg-
ular course of their employment ; that it then and there became
the dut}'' of the said defendant to maintain currents of fresh
air sufficient in the said room of the
south, west, passageway for the health and safety
of all the servants of the said defendant, who were re([uired to
be, and work in, and about the said room of the
south, west passageway in the due
course of their employment, so that all the parts of the
said room of the south,
west passageway should be reasonably free from the delete-
rious air of every kind ; but the said defendant wilfully dis-
regarding its duty in this behalf did not maintain in and about
that part of the said mine and in the said room or entry,
known as the room of the south,
west passageway currents of fresh air sufficient
for the health and safety of all the men employed and about
the said part of the said mine ; and the said defendant did not
on the date aforesaid, then and there, force the said currents
of fresh air into that part of the said mine, known as the
room of the south,
west passageway, so that the air in the said room was reason-
ably free from deleterious air of every kind on the said date
of , 19. ., but wholly neglecting its duty in this behalf
defendant did then and there permit the air currents to pass
along the adjoining passageway or entry in front of the said
room, wherefore large quantities of inflammable and explosive
gases had accumulated, by reason of the absence of sufficient
air, as aforesaid, in the said room of the
south, west, passageway, large quantities of gas
then and there accumulated in the said room and had been
permitted to remain therein.
5. And that it then and there also became and was the duty
of the defendant, bj' reason of the statute in such case made
and provided, namely, section , chapter 93, Hurd's
Statute 19. ., to employ a mineexaminer to visit the mine each
morning before the men were permitted to enter it and to
inspect the said mine, including the said room
or entry of the south, west passage-
way, or long wall and the parts adjacent thereto, and to observe
whether there were any recent falls or obstructions in said
room or entry, or roadways adjacent thereto, or accumulations
986 ANNOTATED FORMS OP PLEADING AND PRACTICE
of gas or other unsafe conditions, as above set forth, in said
portion of the mine ; and as evidence of his examination of the
said place, to inscribe on the wall tiiereof the month and day
of the month of his visit; and when the accumuhition of gas
was discovered in the said room or entry, it was the duty of the
said mine examiner to place a conspicuous mark thcrt-at, as
notice for all men to keep out, and at once to report his tind-
ing to the mine manager; and it was the further duty of the
defendant to permit no one to enter the mine to work therein,
except under the direction of the mine manager, and until
all conditions were made safe; but the said defendant wilfully
disregarding its said duty in this behalf, did not have a mine
examiner who visited the mine, and all the parts thereof where
the servants of the defendant were expected to pass and work
each morning before the employees, including the plaintiff,
were permitted to enter it, and who visited the said portion of
the mine, known as the room or entry of the
south west passageway or long
wall, before the employees of the defendant were permitted to
enter it, and who did on the said dates inspect that portion of
the mine, known as the room of the south,
w^est passageway or long wall, and the part of
the mine adjacent thereto, and as evidence of his visit, inscribe
on the wall of the said room of the south,
west passageway or long wall and month and the day of the
month of his visit, and w'ho had previous to that date, when
accumulation of gas had been discovered in said room or entry
placed a conspicuous mark thereat, as notice to all men to
keep out, and who at once reported the conditions of the said
room to the mine manager; but the said defendant disregard-
ing its duty in this behalf carelessly and negligently failed
so to do; and the said defendant knowing the said conditions
were unsafe, permitted divers persons, then servants of the
defendant, including the plaintiff, to enter the said mine to
work therein, otherwise than under the direction of the mine
manager, before the said conditions had been made safe.
6. And that it then and there also became and was the duty
of the defendant, by reason of the statute in such case made
and provided, namely, section . . . ., chapter 93, Kurd's Statute
. . . ., to employ a mine examiner to visit the mine each morn-
ing before the men were permitted to enter it, and to inspect
all parts of the said mine where the men were expected to
pass or to work, including the said room or entry
of the south, west passageway or
long wall, and the parts adjacent thereto, and to observe
whether there were any recent falls or obstructions in said
room, entries or roadways, adjacent thereto, or accumula-
tions of gas or other unsafe conditions, as above previously
mentioned, in that part of the said mine, known as the room
PERSONAL INJURIES ^^'^
of the south west pasageway, and
as the evidence of his examination of the said place it was the
duty of the mine examiner to inscribe On the walls theieot
the month and the day of the month <>/ his visit and when
the accumulation of gas was discovered m the said room or
entry, it was the duty of the mine examiner to place a con-
spicuous mark thereat, as notice to all men to keep out, and
to report his finding to the mine manager, and it was tne
duty of the mine examiner after making such inspection to
make a daily record of the condition of the mine, as he found
it, in a book kept for that purpose; and ^^ ^^^s^^^^^, ^^^.^y. °/
the defendant to preserve said book in the office foi' the infor-
mation of the said defendant, the inspector, and all other per-
sons interested; and it was the duty of the mine examiner
to make this record in the said book each morning before the
servants of the said defendant, including the Plai" i^ were
permitted to descend into the mine, as by the statute of the
state of Illinois in such case made and provided, namely sec-
tion . . . ., chapter 93, Kurd's Statute .... •; but said defend-
ant disregarding its said duty in this behalf did not have a
mine examiner, who immediately prior to the date of . ... ....
19 daily visited the said mine, and all places therein
where the men were expected to pass or work, including the
part known as the room of ^^'^ .- ' V i:''--^:
south .... west passageway, and examined the same
as required by the statute in such case, and who made a daily
record of the conditions of the mine as he found it, in a
book kept for the purpose; but the said mine examiner failed
in his daily reports of the said mine on and for a long time
prior to the said .... day of .... . . ., 19. to make a record
of the conditions, as he found them in that portion of the
mine known as the room of the . . ■;••••••'
south west passageway ; and the defendant wholly
failed to keep such record of the condition of the said portion
of the mine for said dates aforesaid, in the office for the infor-
mation of the defendant, the inspectors, and all other persons
interested; and the examiner did not make the daily record
on the said .... day of , 19. ., as required by the
statute, before the plaintiff was permitted to descend into the
""'A^'d that while the said plaintiff was thus engaged in about
the said room or entry wherein the gas (sic) had accumulated
and in which in the due course of his employment he was
reuuired by the defendant to unload this dirt slate, stone,
and other material, and while he was ignorant of the dangerous
condition of the said mine by reason of the defendant s neg-
ligence aforesaid, and while the plaintiff was using due care
and caution in and about his work of unloading the car,
aforesad under the directions of the defendant, guided by the
HglU of the customary miners' torch or light worn m his cap
988 ANNOTATED FORMS OF PLEADING AND PRACTICE
for the purpose of givng light in the proper performance of
his duties, the poisonous, inllammable and explosive gas (sic),
aforesaid, which had accumulated in the said room or entry,
known as the room of south,
west, by reason of the defendant's negligence as aforesaid,
became ignited and exploded with great violence from the
torch required by defendant to be worn by the plaintiff;
whereby plaintiff was greatly and grieviously burned, injured,
bruised, both internally and externally; that the plaintiff's
head, face, arms and hands were thereby, then and there
severely, dangerously and permanently injured and the plain-
tiff's sense of sight was then and there and thereby dangerously
and permanently impaired; and the plaintiff was otherwise
severely, dangerously and permanently injured both internally
and externally, and has been sick, sore, and injured from the
time of such explosion; and he has thereby suffered great
bodily pain and mental anguish and still is languishing and
intensely suffering in body and mind, and in future will con-
tinue to suffer from said injuries for the rest of his natural
life ; and is hindered from attending to his usual business affairs
and employment and will be hindered from attending to his
employment for the rest of his natural life, in consequence
thereof ; and by means of the premises the plaintiff was forced
to and did then and there lay out divers sums of money in and
about endeavoring to be cured of said hurts and injuries occa-
sioned, as aforesaid. Wherefore, etc.
(West Virginia)
For this, to wit, that before and at the time of the committing
of the grievances hereinafter mentioned, to wit, on the
day of , 19. ., the defendant was the owner and oper-
ator of a certain coal mine, in the county of afore-
said engaged in mining coal and manufacturing coke ; that
said plaintiff on the day and year aforesaid was in the employ
of the said defendant, then and there engaged in the Avcrk
and labor of mining coal in said mine, and loading same into
mining cars of the said defendant, and in the said employment
of the said plaintiff, and in the discharge of his duty in that
behalf it became and was necessary for the said plaintiff to go
into the entries, headings and working places of said mine to
dig, mine and load coal as aforesaid ; that said defendant then
and there knowing that said mine generated fire damp gases
and other dangerous gases in dangerous quantities, and that
the same accumulated and existed in the entries of the said
mine, negligently failed to employ a competent fire boss ; neg-
lected and failed to keep at said mine safety lamp or lamps
as required by law; failed to have said mine examined, and
to notify its employees of the accumulation and existence of
said fire damp and other dangerous gases in said mine; negli-
gently failed and refused to ventilate said mine; negligently
PERSONAL INJURIES
989
failed and refused to provide the necessary traveling ways, oiit-
et !and other means of escape from said mine, there bemg more
thai twenty persons employed therein; and negligently failed
to provide ample means of ventilation and to cause air to be
ch'culated through the said entries, headings and working
;"aces of said mine so as to dilute, render harmless and carry
off said dangerous and noxious gases, all of which was then and
there the duty of the said defendant.
And the plaintiff says that the fire damp and other danger-
ous gases, which had been carelessly, negligently and know-
Wly%ermitted to gather and accumulate and exist therein
bv the said defendant as aforesaid, without the knowledge of
the said plaintiff, exploded with great power and violence,
and ignited and burned with great heat in and about where
the said plaintiff was engaged in the discharge of his duties as
such employee as aforesaid; by means whereof, he the said
plaintiff, was then and there at the county aforesaid bruised,
wounded, burned, suffocated and injured
And whereupon the plaintiff avers that by the reason of the
premises and matters and things hereinbefore alleged and by
virtue of the statute in such case made and provided an
action has accrued to him to have and demand of and from
the said defendant, for and by reason of said grievances
wrongs and injuries in this declaration mentioned, damages
in the sum of dollars.-^^
1581 Hole unguarded, Narr. (W. Va.)
For this, to wit, that, on the .... day of -'J^; •' ^V^
defendant was and now is the owner and operator of ceitain
coal mines and coal works in the county ., vvesi
v'rg/nia, known as the coal mines or coal works
and was then and there engaged in operating said mines, m
mning, marketing and removing the coal from said mines
Zd in such operations and incident and appurtmant thereto
and in furtherance thereof defendant had constructed tram-
ways, tracks, cars, tipples, entries, testles and other appur e-
nances fixtures and appliances thereto necessary m the min-
ing and removal of said coal, and among other appliances and
appurtenances of the mines aforesaid of the defendant, defend-
a fkept and maintained a track from its mam entry of said
mines through and out of said main entry, passing out of said
e ry at the mouth thereof, kno^vn as the " bank-mouth
ad from thence a short distance to its bank tipple, where
coal is unloaded or dumped from the small cars coming out of
said banC into other cars to be transported to the river or
railway for shipment; that the small loaded bank cars are
required to be pushed by hand from near said bank-mouth
over said bank track to the bank-tipple aforesaid, there to
205 Snuilache v. Tidewater Coal &
Coke Co., 64 W. Va. 337 (1908).
990 ANNOTATED FORMS OF PLEADING AND PRACTICE
be unloaded as aforesaid; that the ground from said bank-
mouth to said bank-tipple is a steep hill-side, and to get a
proper for said road from the bank-mouth to the bank-tipple,
trestle work has been constructed which causes said tracks
to be elevated near said tipple above the original surface ; and
that to prevent injury to persons necessarily walking on or
along said tracks on said trestle work and to prevent their
slipping or falling through the same, defendant did heretofore
until the day and year aforesaid keep boards closely laid on
said trestle work at a level with the bottoms of the ties on
said tracks and paralled to the said ties, on the girders or
sills on which said ties are laid thus heretofore affording a
safe, secure way for persons who were recjuired to walk on
or along said tracks from being injured thereby, or from
falling or slipping through said trestle between said ties.
The plaintiff avers that it was then and there the duty of
said defendant to exercise reasonable care to keep the said
tracks properly underlaid with boards so that persons who
were required to walk over, on and along said tracks to the
bank-tipple would not be in danger of slipping or falling, or
falling through said trestles between any of said ties on which
said tracks are laid, or otherwise be injured therefrom; but
plaintiff avers that defendant did on the day and year afore-
said allow and have an opening to be made in the boards along
and under said tracks, by a removal of boards therefrom,
thereby creating great danger of slipping through or falling,
to those persons who were reriuired to walk over, on or along
said tracks, which removal of, and opening in, said boards ren-
dered said tracks dangerous, defective and insecure and unsafe
to persons required to walk upon them as aforesaid, and of
which the plaintiff did not have knowledge or notice.
That on the day and year aforesaid plaintiff was in the
emplov of said defendant as a laborer then and there engaged
in pushing the small l)ank cars from near said bank-mouth
over, along and on said tracks to the bank-tipple, there to be
dumped or unloaded as aforesaid; that in said work of push-
ing said cars on, over and along said tracks, plaintiff' was
required to walk on, over and along the said tracks, behind the
cars or at the side thereof on the ends of said ties, necessarily
being in a position to obstruct from plaintiff's view the tracks
aforesaid, so often as it became necessary to push from the
bank-mouth the loaded cars aforesaid; that on the day and
year aforesaid plaintiff was so employed by defendant and
was at the said time pushing loaded bank cars on, over and
along said tracks from said bank-mouth toward said tipple,
and while then and there so employed and necessarily walk-
ing along, over and on said tracks and without fault of
plaintiff, by reason of the opening made in said walk-way by
the removal by defendant of the boards aforesaid from
between said ties, and by reason of unsafeness, insecurity,
PERSONAL INJURIES 991
defectiveness and danger resulting from the removal of said
boards and of the opening made by such removal, which defend-
ant well knew and of which plaintife did not know, plaintiff
did slip and fall partly through said opening and in such
manner that plaintiff's right arm was thrown under the bank
car which he was then and there pushing, and could not be
extricated therefrom, and the wheels of the bank car then
and there passed over plaintiff's right arm, so crushing, wound-
ing, and breaking the same that it thereby became necessary
for 'plaintiff to have said arm amputated, which was done.
By reason of which said injuries resulting from the unsafe-
ness, insecurity, defectiveness and danger of the tracks and
walk-way aforesaid, caused by the removal by defendant of the
boards from the tracks and walk-way aforesaid, and the
injuries sustained by the plaintiff's fall caused thereby plain-
tiff was injured not only by the wheels passing over his arm
as aforesaid, but from the fall itself and the blow thereof,
and from the effects of said blow and fall and from the effects
of the said wheels passing over his arm and crushing and
bruising and breaking the same ; plaintiff was then and there
greatly bruised, wounded, hurt and injured, both externally
and internally and had to have his right arm amputated as
aforesaid, and by reason of said bruises, woundings, hurts
and injuries plaintiff was and is peimianently and forever
disabled and prevented from following and pursuing his usual
business, being that of laborer, and from performing any labor
whatever; that by reason of said injuries plaintiff became
and is sick, sore, lame and diseased and has so continued from
the day and year last aforesaid, and hath during all of said
time and still continues, and has by reason of said injuries dur-
ing all of said time suffered great pain, and has during all of
saFd time, been prevented from attending to any of his lawful
business or labor, and has been deprived of and lost divers
great gains, profits and advantages which he might and other-
wise would have derived and acquired; that he has also, by
reason of said injuries, been obliged to pay and expend a large
sum of money, to wit, the sum of $ in endeavor-
ing to be cured of said bruises, hurts and injuries, and has paid
large sums amounting in all to $ for care and
nursing him in his sickness and disabilities aforesaid, and has
been compelled to expend a large sum, to wit, the sum of
$ . for medical and surgical attention caused by
reason 'ofhis injuries aforesaid and by the amputation afore-
said And by reason of the injuries aforesaid plaintiff has
become permanently crippled and so injured as to disable him
permanentlv, and to prevent him during his lifetime from
pursuing his usual calling or any calling, or from supporting
himself or his family.
992 ANNOTATED FORMS OF PLEADING AND PRACTICE
Wherefore, plaintiff says that lu' is injured nud has sua-
tained damages to the amount of $ ''"«
And therefore lie brings this suit.
1582 Insuffident light, Narr. (111.)
For that whereas, on, to wit, , 19. ., the defend-
^jjt was possessed of, usnig and operating a
certain coal "mine at county, Illinois, commonly
called mine number , and tiie planitiff was a miner
employed by the di-l'cndant working in said mine; that the stat-
ute of the state of Illinois then and there in force provided as
follows: (Set out section or provision).
And the plaintiff further avers that the defendant not regard-
ing its duty and the provisons of the statute in that behalf,
wilfully failed to comply with the said provisions of the
statute, and by means thereof, on, to wit , 19. .,
the said descended into said mine to go to his
work, and, while exercising due care and caution for his own
safety, fell over a block of wood there at the bottom of said
shaft at the landing; and thereby his right leg between the
knee and the thigh was crushed and bruised, and he was per-
manently injured and confined to his bed for a long time, and
thereafter was compelled to go on cruUhes for several weeks,
and was unable to do or perform any of his usual work for
several months, and lost the moneys whieli he could and
would have earned; and by means of said injuries plaintiff suf-
fered great pain both in body and mind, and still suffers and
will continue to suffer therefrom, and was compelled to become
liable for the services of a physician, medicine, etc., while at-
tempting to be cured of his said injuries; and by means thereof
and on account of said injuries aforesaid, plaintiff has suffered
loss and damage to the amount of dollars, and
therefore he brings this suit, etc.
1583 Props, action
The mine operator is liable for an injury sustained by a
miner by reason of the operator's failure, after ckmand of the
same by the miner, to supply props, cap-pieces and cross-bars
for the purpose of securing the over-hanging roof of the mine,
although the mine manager, after a visit to the mine, was of
opinion that the timbers, props, and caps were suffieient.^o-
206 Priddy v. Black Betsev Coal & -o^ Springfield Coal Miningr Co. v.
Mining Co.,' 64 W. Va. 242 (1908). Gedutis, 227 111. i», 11 (1907).
PERSONAL INJURIES
993
1584 Props, Narr. (111.)
For that whereas, the defendant was, on, to wit, the day of
and still is and was for a long time prior thereto,
the owner of and was operating a coal mine in • •
county Illinois ; said coal mine consisting, among other parts,
of a shaft, underground passages, passage-ways, entries, rooms,
pillars, etc. ; that on said day the plaintift' was working for
and in the employ of the defendant, as a coal miner or coal
dic'ger in the defendant's said mine and had been so working
for and in the employ of the defendant for some time prior to
^^ And^tiie plaintiff avers that it then and there became and
was the dutv of the defendant to have provided plaintiff with
a sufficient supply of props, caps and timbers, delivered on the
miner's cars at the usual place, as nearly as possible in suitable
lengths and dimensions for the securing of the root ot the
working place of the plaintiff on the day aforesaid ; that he,
the plaintiff had prior to the injury herein complained ot made
demand of defendant's mine manager, for props, caps and
timbers • yet, the defendant wilfully and knowingly tailed and
neglected to provide plaintiff with a sufficient supply of props,
caps and timbers, on the day aforesaid, after demand theretor
as aforesaid, delivered on the miner's ears at the usual place,
as nearly as possible in suitable lengths and dimensions tor
the securing of the roof in plaintiff's working place, as is by
statute made and provided; whereby and by reason ot the
premises and by reason of the wilful failure and neglect on
the part of the defendant a large quantity of slate, rock and
dirt in plaintiff's working place fell from the roof of said
place upon and against the plaintiff and he was thereby and
by reason of the premises injured as hereinafter alleged.
2 And the plaintiff avers that on the day aforesaid and
for some time prior thereto, there was and had been a danger-
ous condition existing in plaintiff's said working place, con-
sisting of a large quantity of loose slate, rock and other sub-
stances forming and composing a part of the top or root ot
plaintiff's said working place, of which dangerous condition
of said mine the defendant knew or by the exercise of reason-
able care should have known; that on the day aforesaid and
on the morning of said day, before plaintiff entered said mine
to work therein, said dangerous condition aforesaid then ex-
isted- that defendant wilfully permitted plaintiff to enter
said mine, and wilfully failed and neglected to prevent or
attempt to prevent plaintiff from entering said mine and said
working place on the day aforesaid; but, on the contrary wil-
fully suffered, permitted and allowed the plaintiff to enter said
working place to work therein, without the directions or with-
out being under the direction of the mine manager, before
said dangerous place was made safe and while such dangerous
994 ANNOTATED FORMS OF PLILVDING AND PRACTICE
place then existed, whereby and by reason of the premises,
plaintiff entered his said working plaee on tlie day aforesaid
to work therein.
And while so working therein he was struck by said loose
rock, slate and other substances which fell from the roof afore-
said,' and which fell upon and against the plaintiff; and plain-
tiff was thereby and by reason of the premisea crushed,
bruised, and wounded, the bones of his legs broken, the bones
of his feet and ankles crushed, broken and otiier bones of his
body broken and crushed, his ankle joints sprained, strained
and the ligaments of his ankle and legs strained and twisted;
and he was otherwise severely and permanently injured, and he
became and was sick, sore, lame and disordered and disfigured,
and so remained from thence hitherto; and by reason thereof
has suffered and still suffers great piiysieal and mental pain
and anguish; and he was hindered and prevented from attend-
ing and transacting liis business and afTairs and was compelled
to and did lay out and become liable for large sums of money,
to wit, dollars, in and about endeavoring to be
healed and cured of his said injuries; and he will thereby con-
tinue to suffer pain and loss; wherefore, etc.
(West Virgfinia)
For this, to wit, that at and before the time of the com-
mission of the grievances, wrongs and injuries by the defend-
ant hereinafter complained of, to wit, on or about the
day of , 19 . . , in the said county of ,
the said defendant was the owner and operator of a certain
coal mine in the said county of and was then and
there operating the said mine, in which said mine there were
main drifts and entries, air courses, passage ways, main head-
ings, cross headings, etc., under the surface of the earth, and
extending from the main drift and entry of said mine were
many lateral drifts or rooms in the interior of the said mine,
in which said mine the defendant carried on the business of
mining and excavating large (juantities of coal which was
mined, excavated and taken therefrom by the said defendant
and its servants and employees.
That the said defendant in conducting its said business of
mining and excavating coal as aforesaid, employed a large
number of men Avho worked in its said coal mines for the said
defendant at its instance and request for hire and reward
to them in that behalf; that before and at the time of the
committing of the grievances, wrongs and injuries by the said
defendant hereinafter complained of, the plaintiff was in the
service and employ of the said defendant as a laborer in its
said mine in the county aforesaid, and was engaged in digging,
mining, excavating and removing coal for the said defendant
PERSONAL INJURIES
995
in its said mine aforesaid at the request and solicitation of the
said defendant. , -, . c .u a
And it then and there became and was the duty ot ttie saia
defendant to furnish to the plaintiff a reasonably safe place
wherein to work while so employed as its servant and laborer
in its said mine as aforesaid and to use all due care, caution
and diligence to prevent dangers, accidents and injuries to the
said plaintiff w^hile so engaged as a servant and laborer m the
said defendant's mine as aforesaid, and to cause all loose coal,
slate and rock overhead in the rooms, air courses, drifts, pas-
sage ways and working places in said mines to be removed or
carefully secured, and to see that its said mine, drifts, air
courses, rooms, passage ways, etc., w^ere kept in a reasonably
safe condition so as to prevent danger and accident to persons
employed in said mine and, especially to the plaintiff, ^yho ^yas
then and there employed by the defendant in its said mine
as its servant and laborer.
That the said defendant wholly disregarding and neglect-
ing its duty in this behalf did not use all due care, reasonable
and proper means and precaution, nor any means and precau-
tion whatever, to provide a safe and convenient place for the
said plaintiff to work in ; that the said defendant did not use
due care and means nor take reasonable and proper precau-
tion to cause all loose coal, slate and rock overhead in the
rooms, air courses, drifts, passage ways and working places in
its said mine to be removed or carefully secured so as to pre-
vent danger and accident to persons employed in said mine, and
especially to this plaintiff while so employed in said mine by
the defendant as its servant and laborer therein; but on the
contrary thereof, the said defendant did unlawfully, negli-
gentlv, wrongfully and knowingly, refuse to furnish to the
said plaintiff' while in its employ as aforesaid, a reasonably safe
place in which to work and refused to cause all loose coal, slate
and rock overhead in the rooms, air courses, drifts, passage
ways and working places in said mine to be removed or care-
fully secured so as to prevent danger and accidents to the
said plaintiff while so employed as a servant in the said mine
of the defendant ; and the said defendant did unlawfully, un-
skillfully, wrongfully and knowingly permit loose coal, slate
and rock to remain overhead in the rooms, air courses, drifts,
passage ways and working places in its said mine without
removing the same or causing it to be safely secured so as
to prevent danger and accident to the plaintiff, as aforesaid,
while so working in its said mine, as aforeaid, of which said
negligent and unskillful acts of the said defendant, said plain-
tiff was wholly ignorant.
2. Also it became and was the duty of the said defendant
in order to better secure the safety of its said mine, drifts,
entries, air courses, passage ways, rooms, etc., for the security
and safety of persons employed therein, to employ a competent
996 ANNOTATED FORMS OF PLUVDINO ....' l UACTICE
and practical insid*- nr he called 'mining boss," who
shall be a citizen and r. : ienced coal miner or a person
having two years' experience in a coal mine.
Yet, the said defendant wholly disregarding its duty in this
respect, knowingly, negligently and unlawfully refused and
failed to employ a competent inside overseer, to be known as
and called a mining boss, in order to better secure the safety
of its said mine as ; 1. that *' -n, to wit, one ....
, so ' 1 by th» -ndant as aforesaid
as inside overseer and mining boss waa incapable and incom-
petent to discharge the duties re<juired of him by law and was
careless, indifferent and negligent in the discharge of his duties
as said inside overseer and mining boss as aforesaid ; all of
which was then and there well known to the said defendant
and was unknown to this plaintiff.
And the plaintiff says that by reason of the said careless,
negligent and wrongful acts of the said defendant in perrait-
ling said loose coal, slate and rocks to remain overhead in
the rooms, air courses, drifts, passage ways and working places
in said mine and in failing and refusing to cause the same to
be removed or carefully secured so as to prevent danger and
accident to the plaintiff while in the employ of the said defend-
ant as a laborer in its mine as aforesaid, and by reason of the
failure and refusal to employ a competent inside overseer, to
wit, on the day of , 19 . . , in the
said county of , and while the said plaintiff
was engaged in the service of the said defendant as a laborer
in its said mine as aforesaid and while said plaintiff was using
due and reasonable care for his own safety while so employed
in said defendant's mine, as aforesaid, and without any knowl-
edge on the part of th<- ' ' iff of the dangers to which
he was then and there : without any negligence or
default upon the part ot .said plaintiff, a large piece of loose
slate, hanging overhead in said mine at the place where the
said plaintiff was then and there at work in the lawful and
proper discharge of his duty as a ser>'ant of the defendant
aforesaid, fell upon the said plaintiff, without any want of
care or negligence on his part, and that he was thereby greatly
bruised, mangled and injured upon his legs, hips, arms, head,
and body and has sustained permanent and lasting injuries by
rea.son thereof, and has suffered great pain and anguish and
does still suffer great pain by reason of the injuries inflicted
as aforesaid, and that he has been compelled to incur great
expen.se in his effort to be cured and healed of his said injuries
and hurts incurred as aforesaid, to wit, the sum of
dollars.
Wherefore an action hath accrued to the said plaintiff to
have and demand from the said defendant for and by reason
of the wrongs. injurie=! and grievances heretofore complained
of, and the plaintiff avers that bv reason of the matters and
PERSONAL DCJrMES 997
thingfs heretofore alleged, the plaintiff has sustained damages
to the amount of dollars, and therefore he
sues.
1585 Tools, machinerj defective, action
Xo action for the violation of sections 16 and IS of the Min-
ing act can be based upon defective tools or maehinerr which
are not a part of the physical condition of the working plaow
of the mine making that part dangerous.-^*
1586 Tramway track, ooBsAnMtim, acticm
The laying of a track near the rib of a mine is not a violation
of the statutory provision concerning the construction of tram-
way tracks in the run-around, if a sufficiently clear space or
place of refuge at the working place of the men is left on either
side of the track.-'''*
1587 Trapper, ventilation, action
Mine owners or opverators are liable for an injury resulting
from the failure to keep ar. n and closse the door
used in guiding, directing --.....:,-._: arrent in a mine.*^''
Any doorway which is essential to the ventilation of any portion
of the face of the coal where miners are at work and which is
in frequents regular and habitual use for the hauling of cars
while coal is being mined, is a principval doorway within the
meaning of the statute; and whether a particular doorway is
within the foregoing rule is a question of fact. The owner or
op>erator of a coal mine is charged with knowledge which of
the doorways of the mine is a principal doorway, and the failure
to provide a trapper at a principal doorway constitutes a wilful
violation of The st^^tuie,*^^
1588 Trapper, want of, Narr. (EL)
For that whereas, the defendant, the , a eor-
pvoration, organized and doing business under and by virtue of
the laws of the state of Illinois, was, on. to wit, the
Jiv of 19. ., the owner and operator of a cer-
sos Pate V, Blair-Biff Muddr Ooal "* MacIisKMi Coal Oft, v. Hares, 215
Co. ^\^i: III 1??;. i^cwC i?iH (i9iiv, ni. 6-5, 6-6, ee: (i9a?\
^ ,^ ,0 -ir- • ^ ift,%A vn \ *^i Karkowsfci t. La Salle Cotrntr
Sec5L 16, 1^, MiniTur art 190? ^I1L>. ^.^^^^ ^.^^ ^.^^ ,^^ ^^ ^^^ jj^
swOciftl: T. Bi^ Mudt^T-CartM-rille ;ic><) dOH) ; CL f. 9««c 19, ifining
Mininc Oft„ 2*<> Til 49, art 1.CH">9.
998 ANNOTATED FORMS OF PLEADING AND PRACTICE
tain coal mine located in the eastern extremity of the city of
county of and state oi Illinois,
known'is 'the " " ^vhich said coal mine was
operated by means of a perpendicular shait extending many
feet down below the surface of the earth and by mam entry-
ways and passageways, leading at right angles away from the
bottom of said perpendicular shaft, and by other i)assageway8
and entryways with rooms thrown off the same, driven off of
and leading away from said main entryways, into and up to
the face of the coal or workings where the various miners then
in the employ of the said defendant were mining or digging
And whereas the plaintiff on the day aforesaid, and for
sometime prior thereto was in the employ of the said defendant
in and about its said coal mine as a driver, and in and about
the performance of his duties in that capacity for the said
defendant, it became and was the duty of the paintiff to haul
cars loaded with coal by the said various miners who were
then and there mining said coal in the said entryways and
rooms, through, over and upon a certain pair of tracks then
and there laid along and upon the said entryways and passage-
ways that lead from the face of the coal out to the bottom of
the' said perpendicular shaft where said cars were brought for
the purpose of being hoisted to the surface; that in order to
perform the duties assigned to him, plaintiff was supplied by
the said defendant with a certain mule and with certain coal
cars, such as are ordinarily used for the conveyance of coal
in mines of this character; all of which were then and there
the property of the said defendant.
And the plaintiff" avers that on the day aforesaid, among
other entryways and passageways, into, over and upon which
the plaintiff was compelled to go in the performance of his
duties in the capacity as aforesaid, was a certain entryway
known as the north entry off of the west
entry off of the main north entry in said shaft; that in this
said entryway at or about the foot of an incline or hill in said
entryway and about feet from the head of said entry-
way, the said defendant had and maintained a certain principal
doorway, constructed of wood and of large and heavy timbers,
through which the cars loaded as aforesaid, by the said min-
ers working at the face of the coal, were hauled by the plain-
tiff, when taking the same out to the bottom of said perpendi-
cular shaft.
And the plaintiff avers that it then and there became and
was the duty of the defendant, under and by virtue of the
statutes of the state of Illinois to have and maintain at said
principal doorway, through which the said cars were hauled
by the plaintiff, an attendant or "trapper" for the purpose
of opening and closing said door when trips of cars, so being
hauled by the plaintiff, as aforesaid, were passing to and from
PERSONAL INJURIES 999
the workings or the face of the coal, so being mined as
aforesaid.
Yet, the defendant, disregarding its duty in that behalf, on
the day aforesaid, to wit, on the day of
19. ., and for a long time prior thereto, to wit, for a period of
months, knowingly, deliberately, consciously and wil-
fully and in express violation of the statutes of the state of
Illinois failed and neglected to have an attendant or a "trap-
per" employed and stationed at the principal doorway afore-
said, for the purpose of opening and closing the said door
when trips of cars were passing to and from the said workings
or the face of the coal at the head of said entry, notwithstand-
ing that on the day aforesaid, the plaintiff was compelled to
and did, in the performance of his duty, haul trips of loaded
coal cars through said principal doorway.
By means whereof, the plaintiff, on, to wit, the day afore-
said while in the direct line of his employment, and in the dis-
charge of his duties as a driver, Avas passing along, over and
upon the said north entry off of the west
entry off of the main north entry, and while engaged in haul-
ing a trip of loaded coal cars from the workings at the head
of said entry, the i)laintiff ai)proached said principal doorway
and on account of the said deliberate, conscious, knowing and
wilful violation of the said statutes of the state of Illinois by
the said defendant, in failing to have an attendant or "trap-
per" stationed at said principal doorway for the purpose of
opening and closing the same, when the said trip of ears were
passing to and from the said workings at the head of said
entryway, the said door was not opened but remained securely
closed and fastened; and the said mule being driven by the
plaintiff' then and there collided with and ran upon and against
said principal door; and said mule then and there tried and
attempted to force or push his way through the said prin-
cipal door or doorway, and the said trip of cars ran upon and
against said mule and became entangled with him; and the
plaintiff was then and there thrown to and from the said trip
of cars, then being hauled by him, as aforesaid, and the
said mule and the said cars then and there ran upon and
against the said plaintiff and he was then and there crushed
and pushed up and against the said door and the framework
of said door and the side of said entryway ; and thereby then
and there the plaintiff was badly crushed, bruised and
mangled; and the plaintiff's left leg was crushed and broken
and seriously and permanently injured; and the plaintiff's
arms, legs, back, chest and spinal column were seriously
crushed, bruised and injured; and he became sick, sore, lame
and disorded and so remained for a long time, to wit, from
thence hitherto; during all of which time he suffered great
pain and was hindered from transacting his business and
affairs; and also by means of the premises he was obliged to
1000 i^NNOTATED FORMS OF PLEADING AND PRACTICE
and did lay out divers sums of money amounting to .........
dollars, in and about endeavoring to be healed of his said
wounds, sickness and disorder; and the plaintiff avers that
his said injuries are permanent. Wherefore, etc.
1589 Motor or trolley unsafe, Narr. (111.)
For that whereas the defendant was heretofore, to wit, on
or about the day of , 19. ., a corporation,
etc., and as such corporation was possessed of and operated
and controlled a certain street railroad in the county afore-
said, which was then and there laid on and along a certain
street commonly called street, which street was
then and there a public highway; that on, to wit, the day and
year and at the county aforesaid, plaintiff was an employee
of the said defendant in the capacity of a conductor upon a
certain motor or trolley car of the defendant, which was then
and there used upon and along said street railroad ; that on,
to wit, the day and year and at the county aforesaid, the
defendant was then and there possessed of a certain other
motor or trolley car, which was then and there used by the
said defendant for the purpose of conveying passengers on
and along said street railroad, which said other motor or trol-
ley car was then and there under the care and management of
divers then other servants of the defendant, who were then
and there driving the same upon and along said street railroad
near a certain other street commonly called
street.
And the plaintiff avers that it then and there became and
was the duty of the defendant to furnish to its other servants
as aforesaid a reasonably safe and proper motor or trolley
car; but not regarding its said duty in this behalf, the said
defendant then and there furnished to its said other servants
an improper, unsafe and defective motor or trolley car, which
improper, unsafe and defective condition of said motor or trol-
ley car was to the defendant well known, or which, by the use
of reasonable diligence, might have been known ; by reason
whereof the said motor or trolley car then and there, and
while the plaintiff was then and there using due diligence
for his own safety, ran and struck with great force and violence
upon and against the plaintiff.
2. And the plaintiff further avers that the said defendant
furnished to its other servants, who were then and there in
charge of said other motor or trolley car as aforesaid, an im-
proper, unsafe and defective instrument, commonly called a
reverse lever, or power handle, wherewith to operate and con-
trol the motor or trolley car, last aforesaid ; which improper,
unsafe and defective condition of said instrument was to the
defendant well known, or by the use of ordinary care might
PERSONAL INJURIES 1001
have been known ; and by reason of such improper, unsafe and
defective reverse lever, or power handle, the said motor or trol-
ley car then and there ran and struck with great force and
violence upon and against the plaintiff, who was then and
there upon said railroad in the line of his duty as an employee
of the said defendant as aforesaid, and who was then and
there using due care and diligence for his own safety.
By means whereof plaintiff was then and there thrown with
great force and violence to and upon the ground there, and
was thereby then and there greatly bruised, hurt and wounded,
and divers bones of his body were then and there broken ; and
he became and was sick, sore, lame and disordered, and so
remained for a long space of time, to wit, from thence, hither-
to ; during all of which time the plaintiff suffered great pain
and agony, and he thereby became and was and is permanently
injured, and was thereby hindered and prevented from attend-
ing to and transacting his affairs and business ; and by means
of the premises the plaintiff was obliged to and did then and
there lay out divers sums of money, amounting to
dollars, in and about endeavoring to be cured of his said hurts,
wounds and bruises, occasioned as aforesaid. Wherefore, etc.
1590 Moving steam cars, action
An attempt to get on or off a moving train of steam cars
without the direction of an agent of the railroad company is
not negligence per se in Illinois. But whether a person is guilty
of such contributory negligence as would bar his recovery for
an injury caused by stepping on or jumping off a moving train
of cars is a question of fact to be determined by the jury under
all of the attendant and surrounding circumstances.212
1591 Moving street cars; action
An injury caused by the negligent increase of speed of a
slowly moving street car is actionable, as it is not negligence per se
to get on and off a slowly moving car propelled by horse-power,
cable or electricity.^i^
1592 Nitric acid, workman injured, Narr. (Mich.)
For that whereas, the said defendant is a corporation or-
ganized under the laws of the state of Michigan, and at the
time of the committing of the grievances hereinafter alleged
was engaged in the manufacture of nitric acid at its plant or
212 Ardison v. Illinois Central R. 213 Chicago Union Traction Co. v.
Co., 249 111. 300, 302 (1911). Hanthorn, 211 111. 367, 369 (1904).
1002 ANNOTATED FORMS OF PLEADING AND PRACTICE
establishment on avenue, in tli.- city of
That the nitric aciii so inanufactured by said
defendant is a dangerous chemical or article to come in contact
with, and when exposed gives out noxious and dangerous
fumes and rapidly eats its way into objects that it comes in
contact with and renders vessels or receptacles in which it is
placed, including crocks or jars, brittle, so that a very slight
jar or concussion thereof will cause such crock or jar to
break and release its contents of nitric acid, more especially
when such vessel or receptacle is full or nearly full. That
when the acid comes in contact with the body it burns the
flesh and rapidly eats its way therein; all of which facts were
then and there well known to said defendant.
That at the time of the committing of the grievances here-
inafter alleged in one of the rooms of said di-fendant's plant
or establishment it kept and maintained a pit of approximately
the following dimensions: about eight (8) feet in length by
four (4) feet in width, and having a depth of about five (5)
feet below the floor level, which pit was walled in by brick,
and the floor of which was up to a short time prior to the com-
mitting of said grievances, entirely paved with brick, but in
which shortly before said time, said defendant caused to be
dug an opening in the floor of said pit along one side thereof
about six (6) feet long by two (2) feet wide and of a depth
of about two (2) feet, the sides and floor of which it caused
to be cemented, and which pit at the time of the committing
of the grievances hereinafter mentioned, contained three (3)
large, heavy jars or crocks or receptacles used by said defend-
ant for storing nitric acid, and which in height were almost
level with the top of s:iid [)it and had a eai)acity of about
gallons of nitric acid each, and some of
which were at the time aforesaid partially tilled and others
nearly full thereof, and which while containing acid were kept
covered to prevent the noxious fumes from escaping.
That said pit at the times aforesaid had no means of entrance
or exit except to jump in and climb out as best one could and
was a dangerous place to work in, particularly while said
jars, crocks or receptacles were being moved from where they
were located therein to other parts of said pit, and which jars,
crocks or receptacles aforesaid had been used by the defend-
ant for storing nitric acid therein for a long period of time,
to wit, years and upw^ards prior to the commit-
ting of said several grievances; all of which facts were well
known to said defendant and unknown to the plaintiff, who
had entered said defendant's employ about a month previous
thereto.
That it then and there became and was the duty of said
defendant to furnish safe and sound crocks, jars or receptacles
for the storage of nitric acid while the same were in said pit,
and to exercise great caution to ascertain whether the same
PERSONAL INJURIES 1003
had not become brittle and weakened by reason of the action
of the nitric acid contained therein; and to cause due inspec-
tion to be made thereof at reasonable intervals, so that defects
and weakness therein due to the action of nitric acid could be
discovered and thereby guard against the use of brittle, un-
sound or defective crocks, jars or receptacles of said
description.
And it then and there also became the duty of said defendant
to acquaint those who were required to work in said pit in the
moving of said crocks, jars or receptacles, of the result of
such inspection and of the brittle and weakened condition of
said crocks, jars or receptacles; and not to sanction or allow
them to work in said pit in the moving about of said crocks,
jars or receptacles while the same were in a brittle, weakened
or unsound condition as aforesaid.
That it then and there also became the duty of said defen-
dant to provide ladders or steps or other means of getting out
of said pit, so that in the event of said crocks, jars or re-
ceptacles breaking and the contents being emptied or partly
emptied into said pit, the person or persons working therein
might quickly escape therefrom without the necessity and dif-
ficulty of climbing up and out of the same, and thus to avoid
coming in contact with said acid or any quantities thereof.
That it further then and there also became the duty of
said defendant while persons were working in said pit to use
good, safe and sound crocks, jars or receptacles in which
nitric acid was stored therein, so that there would be no
danger of their breaking while being moved around in said
pit or through any jar or concussion which might take place
during the moving thereof; and that at and before the time
of the committing of the grievances aforesaid, it became and
was the duty of said defendant to inform those whom it
required to enter and be in said pit, and who might or should
be engaged in moving said crocks or jars about therein, of their
brittle, unsound and unsafe condition and of their likelihood
to break through any jar or concussion while the same were
being moved.
That the said defendant wholly neglected its duties in the
several particulars aforesaid, and while so neglecting its said
several duties in the several particulars aforesaid, to wit, ....
, 19.., said plaintiff Avho was unfamiliar with the
brittle, unsafe and unsound condition of the crocks or jars con-
tained in said pit, and who had never worked therein prior to
the occasion hereinafter set forth, or in the moving of said
crocks, jars or receptacles, was directed by the foreman and
superintendent of said defendant to enter into said pit and
move some of said crocks, jars or receptacles from where they
were stationed to other parts of said pit.
That on the day and year last aforesaid, pursuant to said
direction and request, plaintiff entered said pit and proceeded
1004 ANNOTATED FORMS OF PLEADING AND PRACTICE
to move one of the crocks, jars or receptacles therein, which
was nearly filled with nitric acid, from one part of said pit
to another, and while engaged in so moving the same without
fault or negligence on his part, a crock, jar or receptacle
(which w^as then and there brittle and defective but which
defects were then and there unknown to plaintiff and were
well known to the defendant, or if not known should have
been, in the exercise of due and proper care on its part)
cracked and broke and a section thereof fell out and released
the contents of nitric acid therein, which ran in and over
the said pit and onto, over and against said plaintiff; and by
reason thereof, and of there being no ladder or means of
exit from said pit, except by climbing out therefrom, said
plaintiff' was horribly burnt by said nitric acid coming in con-
tact with his person, particularly his back, legs and feet, which
acid ate into his flesh, destroyed the muscles, tendons, arteries,
tissues and veins therein, caused sores and ulcers to form
thereon and caused him to become permanently crippled, dis-
abled and disfigured, and caused him great pain and suffering
and injury to his health, and caused him to languish in great
pain and to be confined to his bed for a long period of time,
to wit, w'eeks and upwards, and caused iiini then and
there to become greatly disordered in mind and body thereby
preventing him from following his employment and earning
a livelihood in the capacity in which he had been employed
by said defendant and otherwise; and then and there caused
great wounds and sores to form upon his back, limbs and feet,
and permanently injured his health and permanently unfitted
him for heavy or difficult labor, and rendered it difficult and
impossible for him to stand any length of time on his feet, and
to bend over and to become cured in his body and health ;
and thereby greatly shortened his life, and then and there
caused him to incur large outlays for medical attendance,
nurses and medicines in and about his efforts to cure himself.
Plaintiff further says that prior to the coming in contact
with the nitric acid as hereinbefore set forth, he was a strong,
healthy, able-bodied man, capable of doing all sorts of labor,
and that since his injuries aforesaid, he is no longer able to
work as before or do heavy labor, and is greatly broken in
health and mind, and continues to suffer great pain from his
wounds aforesaid ; and his nervous system has by reason of
the injuries and the shock therefrom, become greatly impaired
and permanently affected.
That by reason of the premises and of the wrongful acts
and negligence of the said defendant aforesaid, said plaintiff
has suffered great damage in, to wit, the sum of
dollars ; ( ) wherefore he brings this suit.
PERSONAL INJURIES 1005
1593 Obstruction in street, Narr. (111.)
For that whereas, the defendant was on the day
of , 19 • . , possessed of a certain public street known
as .'.*. street, extending in a northeasterly direction
between avenue and avenue, in
said city,' and that thereupon it became and was the duty of
the defendant to use reasonable care to see that the said street
was in a reasonably safe condition for public travel; but the
defendant, not regarding its duty in that behalf, negligently,
after due notice thereof, permitted a dangerous obstruction
to be and remain in said street, at about feet south-
west from said avenue between the intersection
of the said avenue and the said
avenue in the said city.
And the plaintiff avers that on the day of ,
19. ., while driving along and upon said street and in the ex-
ercise of due care and caution for her own safety, and without
being aware of the presence of said obstruction in said street,
she came in collision with said obstruction and was thereby
thrown violently to and upon the ground there, and was there-
by greatly injured about her body, limbs and internal organs,
nerves and nerve centers ; and thereby she became, was and is
paralyzed in her left side and left leg; and she became and
was sick, sore, lame and permanently injured and disordered,
and so remained for a long space of time, to wit, from thence
hitherto; during all of which time, the plaintiff thereby suf-
fered great pain and was hindered and prevented from per-
forming and transacting her affairs during that time to be
performed and transacted ; and also thereby the plaintiff was
obliged to and did necessarily lay out divers sums of money,
amounting to dollars, in and about endeavor-
ing to be healed of the said bruises, wounds, sickness, soreness,
lameness, and disorder so by the defendant occasioned as
aforesaid.
And the plaintiff aver that on the day of . . .,
19 being within six months of the date of the injuries afore-
said,' she caused to be filed in the office of the city attorney of
the said city of and also in the office of the
city clerk of ' , a statement in writing in the words
and figures following : , p -,
To the city of the city attorney thereot and
the city clerk of said city. .
You are hereby notified, that received an
injury while driving in a one-horse carriage m, along and
upon street, between avenue and
. . avenue in the city of county of
in the state of Illinois, by her said carriage com-
ing in collision with an obstruction in the said street, on the
evening of the day of , 19. ., at about
1006 ANNOTATED FOKMS OF PLEADING AND PRACTICE
the hour of o'clock .. M. ; that the place particularly
where the injury occurred is on street about
feet southwest from said avenue and between the said
avenue and the said avenue ; that
the name of the person injured is ; that a cause
of action has accrued to the said by reason of
the said injuries, received as aforesaid ; that she is about to
bring an action against the said city for the injuries so re-
ceived, as aforesaid; that the place of residence of the said
is street in the city of ,
Illinois ; and that the attending physician of the said
is residing at street.
Received copy, etc.
2. And for that whereas, the defendant on the
day of , 19. ., was possessed of a certain public
street known as street in said city, extending
between and intersected by avenue and
avenue in said city, it therefore became and was tlu' duty of the
defendant to use reasonable care to see that the said street
was in a reasonably safe contlition for travel thn-oon ; but, the
defendant, not regarding its duty in that bt'half, negligently
permitted a dangerous obstruction, to wit, two posts, to be
and remain in said street, at a point about feet south-
west from said avenue, in the said city of
and which said posts had remained in said street
for such a length of time that the said city by the exercise
of ordinary care, should have known of their existence in time
to have removed the same prior to the said day of
,19...
And the plaintiff avers that on the day of
, 19. ., in the evening of said day, after dark, while driv-
ing in a one-horse carriage along and upon said street and in
the exercise of due care and caution for her own safety, and
without being aware of the presence of the two said posts in
said street, the carriage in which the plaintiff was riding,
came in collision with the said posts, and she was thereby
thrown violently from her said carriage to and upon the
ground there and was thereby so greatly and seriously injured
about her body, limbs and internal organs, and her nerves,
nerve centers and nervous system were so greatly shocked,
injured and disordered that she became, was and is per-
manently injured ; and the plaintiff thereby suffered great pain
and was hindered from performing and transacting her affairs
during that time to be performed and transacted; and the
plaintiff thereby was obliged to and did necessarily lay out
divers sums of money, amounting to dollars, in
and about endeavoring to be healed of her wounds, sickness
and disorder so by the defendant occasioned as aforesaid.
PERSONAL INJURIES 1007
And for other wrongs the defendant to the plaintiff then and
there did, to the damage of the plaintiff, and against the peace
of the people of this state. AVherefore, etc.
h
For that whereas, long prior to and, on, to wit, the
day of , 19 . , , the defendant was a
municipal corporation and was then and there possessed of
and in control of a certain east and west public highway
known as street, within the corporate limits of
said city in the county and state aforesaid ; that the defendant
was long prior to and then and there possessed of
and in control of a certain street railway running laterally
along said public highway ; that said defendant
prior to the time of the injury hereinafter complained of wrong-
fully and negligently threw or dumped such large quantities
or piles of cinders along side of its said railway in the vicinity
of the intersection of said public highway with
street, as to create a dangerous obstruction to travel in vehicles
upon said public highway, and it then and there wrongfully
and negligently suffered and permitted said cinders to so re-
main on said public highway during the day and night time.
And the plaintiff further alleges that said railway company
had been accustomed to so dump or throw such cinders on said
highway and to permit the same to remain there for a sufficient
length of time prior to the occasion in question so that the de-
fendant, the city of knew or by the exercise of
ordinary care in that behalf could have known of said rail-
way company so throwing or dumping said cinders and per-
mitting the same to remain on said public highway as afore-
said before and upon the occasion in question ; but the said
defendant city of wrongfully and negligently
suffered and permitted the said defendant to so throw or dump
said cinders on said highway, and it wrongfully and negli-
gently suffered and permitted said cinders so thrown and
dumped on said highway by said defendant as
aforesaid to be and remain on said highway until the time of
the injury hereinafter complained of.
And the plaintiff further alleges that said piles of cinders
constituted a dangerous obstruction to travel in vehicles along
said public highway ; and that it was then and there the duty
of each of said defendants to exercise reasonable care toward
placing or seeing that a light was placed and maintained on
said piles of cinders during the night time, so as to warn per-
sons riding along said public highway of the existence and
presence of said piles of cinders ; but that each of said defend-
ants not regarding their said duty wrongfully, negligently and
improperly failed to exercise reasonable care toward placing a
light or seeing that a light was placed and maintained on said
1008 ANNOTATED FORMS OF PLEADING AND PRACTICE
piles of cinders, and as a result and in conseciuence tlicreof, no
light was placed or maintained on said piles of cniders on the
occasion in question whieli was in the night time, but therein
wholly made default. .
And the plaintiff further alleges that at the time and place
aforesaid he, tlie plaintiff', was an officer, to wit, a marshal or
battalion chief of the fire department of the city of .,
and upon the occasion in (luestion which was m the night time
and while dark, the plaintiff, in the discharge of his duties as
such officer was riding in a wagon westward along said public
highway and while so riding, and while, as he alleges, he was
exercising ordinary care and caution for his own safety, by
reason and as a direct result of the absence of a light to
indicate the presence or existence of said piles of cinders so
dumped and permitted to remain on the said public highway
as aforesaid, his buggy ran against and upon said piles of
cinders and plaintiff was thereby then and there thrown vio-
lently from said buggy to the ground there, and his left leg
was thereby then and there broken near the thigh and his left
knee was wrenched, sprained and otherwise injured and divers
other bones of his body Avere thereby then and there otherwise
seriously and permanently injured externally and internally,
and he sustained a serious and permanent shock to his spine
and nervous system ; and as a direct result and in conseciuence
of his said injuries, sickness and disorders occasioned as afore-
said he became and was crippled, sick, sore, lame and dis-
ordered, and so remained for a long space of time, to wit, from
thence hitherto, and so will continue to remain permanently,
during all of which time he has suffered great pain, and has
been hindered and prevented from attending to and transact-
ing his ordinary business, and will continue permanently to
be hindered and prevented from attending to and transact-
ing his business and affairs; and thereby has been and will con-
tinue permanently to be deprived of great gains and profits
which he might and otherwise would have made and acquired;
and has been compelled to and did incur, expend and lay out
divers large sums of money amounting to, to wit, ;••.••
dollars, in and about endeavoring to be cured of his said in-
juries, sickness and disorders occasioned as aforesaid. To the
damage, etc. (Add averment of notice as in Section 1613)
1594 Open switch, Naxr. (111.)
For that whereas, heretofore, to wit, on the day of
, 19. ., at, to wit, in the county aforesaid, the said
defendant was possessed of and was operating a certain line
of railroad extending through the city of in said
county to a certain other point, to wit, the village of
in said county, upon which the said defendant was then and
there operating divers cars by means of electric power for the
PERSONAL INJURIES 1009
carriage of passengers for hire ; that in consideration of a cer-
tain reward by her paid to said defendant in that behalf, plain-
tiff then and there became and was a passenger upon one of the
said cars, to be carried from a certain street in the said city of
in a northerly direction to a certain station
upon the said line of railroad, to wit, the village of ,
in said county; that when said car in which said plaintiff was
then and there riding as a passenger, as aforesaid, thereafter
reached a point, to wit, a point on its said right of way about
mile north of the said city of , at and
near what is known as the " , " at said point, and
at and near a certain siding or switch track belonging to and
used by said defendant, and connected by means of a certain
switch with the main track upon which said car was then and
there proceeding, a certain other car then and there belonging
to and used and operated by the said defendant was then and
there left standing upon said siding or switch track in such
position that but for the negligence of the said defendant here-
inafter charged, the said car upon which the said plaintiff was
then and there riding could have passed over and along said
main track and around the car so standing upon said siding
or switch track, as aforesaid.
And while the said plaintiff with all due care and diligence
was then and there riding in the said car along and upon the
said defendant's right of way at the place aforesaid, the said
defendant then and there by its said servants, so carelessly
and improperly drove and managed the said car in Avhich the
said plaintiff was riding as a i)assenger as aforesaid, that by
and through the lU'gligence, mismanagement and unskillfulness
of the said defendant by its said servants in that behalf, the
said car then and there ran into and struck with great force
and violence upon and against a certain other car belonging
to and then and there used and operated by the said defendant.
2. And the said plaintiff avers that it also then and there
became and was the duty of the said defendant so to move
its said car and so to arrange and adjust its said switch that
the passage of these two cars would be effected without injury
or peril to any of its said passengers; but the said defendant,
not regarding its duty in this regard, then and there negli-
gently and carelessly caused the said car upon which the said
j)hiintitt' was then and there riding to approach the said car so
standing upon the said siding or switch track, as aforesaid,
with great and dangerous speed, and then and there negligently
omitted to have its said switch so fixed and adjusted that the
said car upon which the said plaintiff was then and there rid-
ing Avould safely pass the said car so standing upon the said
siding or switch track, as aforesaid, but, on the contrary, and
not regarding its duty in that behalf, the said defendant then
and there negligently omitted to have the said switch closed,
and the said switch was then and there open, and the said car
1010 ANNOTATED FORMS OP PLEADING AND PRACTICE
upon which the said plaintiff was then and there riding
turned in upon the said switch track and continued to ap-
proach the said standing car with great and dangerous speed,
to wit, at the rate of miles per hour, and the said
car upon which the said plaintiff was then and there riding
then and there ran into and struck with o;reat force and vio-
lence upon and against said car so standing upon said switch
track, as aforesaid.
3. And it also then and there became and was the duty
of the said defendant to use and exercise great care and cau-
tion in the management and operation of its said car by its
servants, in that it was then and there the duty of its said
servants to run and operate its said car at such a rate of speed
that the said car could be controlled by said servants and
stopped if it became necessary so to do, in order to prevent
the said car from entering into and upon the said switch and
side track; but the said defendant, wholly regardless of its
duty in that behalf and while the said plaintiff' was then and
there in the exercise of due care and caution for her own
safety, then and there so carelessly and negligently drove
and operated its said car at a great and dangerous rate of
speed, to wit, at the rate of miles per hour, that the
said defendant could not control and stop said car when it
approached said switch, which said switch was then and there
open, and the said car then and there left the main track upon
which it had theretofore been running, and ran upon said side
track and ran into and against, and then and there struck
with great force and violence upon andagainst a certain other
car which was then and there in the possession of the said
defendant, and which was then and there being used by the
said defendant.
4. And it also then and there became and was the duty of
the said defendant to use and exercise great care and caution
in the management and operation of its said car by its servants,
in that it was then and there the duty of the said defendant
by its said servant to look ahead and observe as to whether
said switch would be open so as to cause said car to enter
into and upon said switch and said side track, or whether said
switch would be closed, so that said car would remain upon
the said main track and continue to run upon and along said
main track upon which said main track said car was then and
there being run and operated; but the said defendant, wholly
regardless of its duty in that behalf and while the said plain-
tiff was then and there in the exercise of due care and caution
for her own safety, then and there so carelessly and negli-
gently failed to look ahead and to observe the condition of
said switch, that said car then and there ran into said switch,
which said switch was then and there open, and the said car
then and there left the main track upon which it had thereto-
fore been running, and ran upon said side track and ran into
PERSONAL INJURIES 1011
and against and then and there struck with great force and
violence upon and against a certain other car which was then
and there in the possession of the said defendant, and which
was then and there being used by the said defendant.
5. And it also then and there became and was the duty of
the said defendant to lock the said switch so that no person,
unless duly authorized so to do, could turn the said switch;
but the said defendant, wholly regardless of its duty m this
behalf, and while the said plaintiff was then and there m the
exercise of due care and caution for her own safety, so care-
lessly and negligently failed to lock the said switch that said
switch then and there became and was improperly turned
and thrown, so that the car of the said defendant upon which
the said plaintiff was then and there a passenger, as afore-
said, ran into said switch and upon said side track at a great
and dangerous rate of speed, to wit, at the rate of ........
miles per hour, and then and there with great force and vio-
lence ran into and against a certain other car of the said de-
fendant which was then and there standing upon the said side
track at the place aforesaid.
6. And it also then and there became and was the duty of
the said defendant properly to watch and guard said switch,
so that if said switch were improperly turned it could be
properly turned before the approach of any of said defend-
ant's cars towards said switch; but the said defendant wholly
regardless of its duty in this behalf, and while the said plain-
tiff was then and there in the exercise of due care and caution
for her own safety, so carelessly and negligently failed prop-
erly to watch and guard the said switch that said switch then
and there became and was improperly turned and tlirown,
so that the car of the said defendant upon which the said
plaintiff was then and there a passenger, as aforesaid, ran into
said switch and upon the said side track at a great and danger-
ous rate of speed, to wit, at the rate of miles per
hour, and then and there with great force and violence ran
into and against a certain other car of the said defendant
which was then and there standing upon the said side track at
the place aforesaid. ^ j ^.^ ^
By means whereof the said plaintiff was then and there
thrown with great force and violence in and about the said
ear in which she was then and there a passenger, as afore-
said, and said plaintiff was then and there and thereby greatly
bruised, crushed, maimed, lacerated, hurt, wounded and other-
wise disabled, and otherwise permanently injured, and divers
bones of her bodv were then and there and thereby broken,
and divers bones of her body were then and there and thereby
wrenched and dislocated, and the nerves, muscles, tendons,
sinews, and ligaments of the said plaintiff were thereby then
and there severely and permanently injured and as a tuither
result of said injuries, said plaintiff has suffered, and is now
1012 ANNOTATED FORMS OF PLEADING AND PRACTICE
suffering, and will continue to suffer, from severe pains and
nervous disorders, and has become permanently injured and
disordered; and by reason of the premises, the said plaintiff
was obliged to and did lay out and expend, and become liable
for, divers large sums of money in and about endeavoring to
be relieved and cured of her said injuries, and has been
hindered and prevented from attending to and transacting her
ordinary affairs and business, thereby being deprived of divers
large sums of money which she might and otherwise would
have earned. To the damage of, etc.^i-*
(Virginia)
For this, to wit, that heretofore, to wit, on the .... day of
, 19. ., the said defendant was a railroad com-
pany and owned and operated a railroad from ,
Virginia, to , Virginia, and to other points,
with its principal office in the city of , Virginia,
and that a part of said railroad ran through the county of
, Virginia ; that the i)laintiff 's decedent on the day
and year aforesaid was a locomotive engineer in the service of
said company, and on the day and year aforesaid was the en-
gineer of the engine attached to passenger train No. . . running
from to , Virginia.
And thereupon it became and was the duty of the defendant
to use ordinary care to provide antl maintain a safe track upon
which the engine operated by plaintitf's decedent was to run;
and to use ordinary care to keep all obstructions off of said
track; and to use ordinary care to see that all the switches
connecting the said track with side tracks or other tracks in
the yard of the defendant at , Virginia, were
closed and kept closed ahead of the said engine; and to use
ordinary care to provide and keep in proper order and condi-
tion safe and suitable switches connecting its main track upon
which the engine operated by the plaintiff's decedent was
being run, with side tracks and yard tracks and to keep said
switches closed ; and to use ordinary care to provide and main-
tain suitable and sutftcient targets attached to said switches;
and to keep the same so painted as to give timely and sufficient
notice to the plaintiff's decedent approaching said switches
upon the engine of the defendant that the switch was open so
as to enable the said decedent to stop his engine and train in
time to avoid an accident ; and to use ordinary care to so locate
the said switch and target that it might, if open, be seen, far
enough ahead of the engine to permit the stopping of the train
in time to prevent an accident.
Yet, the said defendant, not regarding its duty in this behalf,
214 Elgin, Aurora & Soufhern
Traction Co. v. Wilson, 217 111. 47
(1905).
PERSONAL INJURIES 1013
negligently and carelessly failed to provide and maintain a suit-
able switch and target at a point which said switch connected
its main track with one of its yard tracks on the west end of
. • yard ; and negligently failed to so locate the
said switch and target, that the same could have been seep
by plaintiff's decedent as the engine operated by him was
approaching the said switch in time to prevent an accident;
and failed to keep said switch closed. And the said defend-
ant carelessly permitted the yard engine to remain upon the
said track connected by the switch aforesaid with the track
upon which No. . . was running ; and permitted the said switch
to remain open. And because of, and on account of, said negli-
gence of the defendant the engine attached to No. . . passenger
train and which was being operated by plaintiff's decedent
without any negligence or want of care on his part, and while
said engine was running only a few minutes behind its regular
schedule, ran into the said switch, so carelessly and negli-
gently permitted to remain open by the said defendant, and
left the main track upon w^hieh it was running and ran into
one of the yard tracks upon which the yard engine was stand-
ing, and with great force and violence ran against and upon
tlie said yard engine.
2. (Consider first count to star as here repeated the same as
if set out in words and figures.)
And thereupon it became and was the duty of the said
defendant to use ordinary care for the protection of the plain-
tiff's decedent and to see that he was not injured by reason
of the negligence of a co-employee charged with the duty of
transmitting orders with reference to the switeli on the west
end of . , yard which connected the main track
upon which train No. . . was running on the day of the acci-
dent with one of the other tracks in said yard.
Yet, the said defendant, not regarding its duty in this
behalf, did through one of its employees who was charged with
transmitting orders from the division office at ,
with respect to said switch, negligently, wrongfully and im-
properly caused and permitted a message to be sent to the
employee of the defendant having charge of the switch afore-
said, directing him to keep said switch open for an approaching
freight or other train which said employee having charge of
said switch did, by reason whereof, and when the plaintiff's
decedent was in the faithful discharge of his duty as engineer
of the engine attached to train No. . . going east at the time
of the accident, and while said engine was running only a few
minutes behind its regular schedule, ran into the said switch
so carelessly and negligently permitted to remain open by
the said defendant, and left the main track upon which it was
running, and ran into one of the yard tracks upon which the
yard engine was standing, and with great force and violence
1014 ANNOTATED FORMS OF PLEADING AND PRACTICE
ran against and upon the said yard engine, wrecking botli
engines.
By means whereof the plaintiff's decedent was greatly
bruised, mangled and otherwise injured and from which he
suffered great and intense mental and physical pain and
anguish for the space of about two and a quarter days, when
by reason of said injuries so carelessly, negligently and
wrongfully committed by tho said defendant against the said
decedent, he then and there died.
Wherefore, the said plaintiff says that damages have been
sustained to the amount of $ , and that by virtue of the
constitution and laws of Virginia, she is entitled to recover
the said amount, and therefore she brings suit, etc.
For that whereas, before and at the time of the commission
of the grievances hereinafter complained of, to wit, on the
.... day of , 19 . . , to wit, in the county of
, Virginia, and within the jurisdiction of this
court, the said defendant was the owner, occupier and user of
a certain line of railway extending in part from
county, Virginia, to , Virginia, a point al^out
miles south of the city of , in the county of
, Virginia, aforesaid, which line of railway was and is
used by the said defendant for the purpose of
running thereon and thereover its locomotives, engines and cars,
propelled by steam, for the transportation of passengers,
freight, material, etc., from point to point, along its said line
of railway ; that at said point on its said line of railway, to wdt,
, Virginia, the defendant had established and was
maintaining a signal station and telegraph office, and at said
point there were certain side tracks and switches owned and
used by said defendant for the purpose of
shifting and changing cars and engines and turning the same
from, and on to the main line of said railway of said defend-
ant at said point ; that the said signal station,
telegraph office and said tracks and switches, so used as afore-
said, were under the management, control and supervision of
one of said defendant's agents, servants and employees; and
the plaintiff avers that it was the office and duty of the said
agents, employees and servants of the said defendant ,
so in charge of the said signal station, telegraph office, tracks
and switches at said point, to wit, , Virginia,
to give all due, proper and correct signals to the locomotive
engineers running and operating the engines attached to the
trains of the defendant approaching said signal
station, and to superintend, guard and have said switches at
said point properly thrown, placed and kept in proper posi-
tion, so as to secure a clear, free and safe track for the engines
PERSONAL INJURIES 1015
and coaches of the defendant passing over and
along its main track at said point; and especially so for the
train and engine which the plaintiff's intestate, as a locomo-
tive engineer in the discharge of his duty and as an employee
of the defendant , was driving and carrying
over and along said track at said point at the time of the griev-
ances hereinafter complained of, to wit, on the day of
, 19...
And the plaintiff further avers that at the time of the com-
mission of the grievances hereinafter complained of, to wit, on
the day of , 19.., the said plaintiff's
intestate, , was an employee of the said
defendant , as a locomotive engineer on the pas-
senger trains of the defendant running in part
between the said points of , in the county of
, Virginia, and said , in the county
of , Virginia, on the line of defendant's railway;
that as such locomotive engineer he was, at the time of the
commission of the grievances hereinafter complained of, to
wit, on the day of , 19. ., running and mov-
ing one of the passenger trains and engines of the defendant
over the line of defendant's railway between said
points ; that when he had reached a point on said railway a few
miles south of , Virginia, and within a short distance,
to wit, alx>ut three or four hundred yards from the said signal
station of the said defendant at the said point of
, Virginia, on the line of the defendant's railway,
that in the discharge of his duty as locomotive engineer in
charge of and running and operating said engine and train
of the defendant , and in obedience to the rule
of the said defendant , the plaintiff's intestate,
by due and proper signals, notified and advised said station
agent of defendant , at its signal station at
, ., of the approach of his said train and engine
towards said station, going south, and asked for signals from
said station agent as to the condition of the track between his
train and enfjine and said station, and at and beyond said sta-
tion. And the plaintiff avers that in response to said notice
and call for signals the agent of the defendant at
said station, in charge of said signal station, switches and
tracks at said point, to wit, at its said station at ,
Virginia, as aforesaid, in disregard of his duty in the prem-
ises, carelessly, negligently and recklessly signalled plaintiff's
intestate, so in charge of the said train and engine, that the
track was safe and clear, and to "proceed" on his way south;
that plaintiff's intestate, relying upon said signal thus given
him that the track ahead was clear and safe, did "proceed,"
and propelling forward his engine with the train attached,
reached the point on the northern or western track of the
defendant , opposite or a little beyond and south
1016 ANNOTATED FORMS OF PLEADING AND PRACTICE
of its said station, where said engine and ears attached ran
into a railway switch left open by the carelessness and negli-
gence of the defendant's station agents, servants and eiii[)loy-
ees, whereby said engine, so in charge of plaintiff's intestate,
was deflected from its proper track and conrse, derailed and
overturned and the plaintiff's intestate caught under the same,
scalded, bruised, mangled and killed.
And so the plaintiff says that by the said wrongful acts,
gross carelessness and negligence of the said defendant
, by and through its agents, servants and employees, or
some one or more of them, in this, that by reason of the failure
of the said defendant to have said switch at
said station duly and properly closed, and by giving to plain-
tiff's intestate, wrong, erroneous and misleading signal as afore-
said, at the said time and place aforesaid, the said ,
plaintiff's intestate, came to his death as aforesaid.
And so the plaintiff avers that by reason of the premises as
above set forth, an action has accrued to the said plaintiff to
have and recover damages of the said defendjuit
in pursuance of the statute in such cases made and provided,
and that she has sustained, is entitled to recover and demands,
damages of the defendant to the amount of
($ ) dollars.
And therefore she brings her suit.
1595 Pile of barrels in packing house, Narr. (111.)
For that whereas, on, to wit, the day of
, 19. ., the defendant Avas possessed of, and operating a
certain establishment, commonly called a packing house ; that
plaintiff' then and there was in the employ of said defendant,
as a laborer, and as such was working for defendant, with
all due care and caution for his own safety, at and near a certain
pile of pork barrels, which were piled in rows one upon another
to a great height, to wit, feet.
And plaintiff' further avers that it then and there became
and was the duty of the defendant to keep and maintain said
piles of barrels in such condition that they would not spread,
tilt, or fall upon plaintiff while working for the defendant
at and near the same, and not to do anything with or to said
pile of barrels which would cause them to spread, tilt or fall
upon the plaintiff while working at or near them in the busi-
ness of the defendant.
Yet, the defendant, in utter disregard of its duty in this
behalf, then and there, carelessly and negligently, kept and
maintained said row of barrels, defectively piled in rows one
upon another, and while so defectively piled, drove in the head
of one of said barrels, and took therefrom the contents thereof,
to wit, certain brine and pork, so that the said barrel was then
PERSONAL INJURIES 1017
and there greatly weakened and rendered unable to support
the weight of the barrels piled above the same.
And by reason of the carelessness and negligence of defend-
ant, in manner aforesaid, and while plaintiff was in the exer-
cise of all due care for his own safety, the said barrels spread,
tilted, gave way and fell upon and against the plaintiff, and
thereby plaintiff was thrown and cast to and upon the gTOund
there, with great force and violence; whereby the plaintiff
was then and there severely bruised, contused, lacerated and
Avounded, and the leg of plaintiff was then and there broken;
and the plaintiff was then and there otherwise greatly and
permanently bruised, wounded and disabled, in so much that
he then and there became sick, sore, lame and disordered, and
so remained for a long space of time, to wit, from thence,
hitherto; during all of which time plaintiff' suffered great
pain, and was hindered and prevented from transacting and
attending to his business and affairs; and by reason also of
the premises, plaintiff was forced to and did expend large
sums of money, to wit, the sum of dollars in
and about endeavoring to be cured of the said wounds and
injuries, received in manner aforesaid. Wherefore, etc.
1596 Poisonous food stuffs, Narr. (111.)
For that the defendant in the lifetime of the said J and,
to wit, on the day of , 19 . . , at the county
of and state of Illinois, were and for a long time
previous thereto had been manufacturers and venders to the
public of a certain article of food called and known as
, in the name of the E P Co. guaranteed by said defend-
ant to be absolutely pure mince meat and a proper and whole-
some article of food, which said defendants knew to be danger-
ous to human life unless properly made of proper and whole-
some material ; that previous thereto said defendant had sold
and delivered, with other packages of mince meat, to a certain
wholesale dealer in meats and provisions, then and there doing
business under the name of S & Co., to be resold by them in the
regular course of their business, a certain package of said
mince meat so manufactured and guaranteed by it and sold
and put upon the market by said defendant as a pure and
wholesome article of food; that said S & Co. thereafter then
and there sold and delivered the said package of mince meat
in the regular course of their business as wholesale dealers to
one H, a retail dealer in groceries and provisions at
in the county of and state of Illinois ; that
thereafter the said H, then and there at afore-
said, to wit, at county, sold and delivered said
package of mince meat in the regular course of his trade and
business to one S, at said , for use and consump-
tion in her family, of which the said J was a member.
1018 ANNOTATED FORMS OF PLEADING AND PRACTICE
And that thereupon it became and was the duty of the said
defendant then and there to manufacture, compound and put
up and sell to the trade for use as food by the public as afore-
said, only such mince meat as was pure and wholesome and
not 'poisonous or destructive to human life when the same
should be duly prepared for use and used as food; and to
put the same up in such reasonably safe and proper packages
that the same should be and continue pure, safe and wholesome
as food, and not become poisonous or destructive to human
life, while the same should be and remain in the hands of deal-
ers awaiting sale to the consumers for use as food as aforesaid.
Yet, the defendant, not regarding its duty in that behalf,
so negligently, carelessly, unskillfully and improperly manu-
factured and put up for sale and sold and put upon the market
for public use as aforesaid the said package of mince meat so
sold and delivered as aforesaid by the defendant to said S &
Co. and by said S & Co to said H and by said H to said S, and
by her duly made into a pie, duly prepared for food for her
family of which the said J was a member as aforesaid; that
by and through the carelessness and negligence of the said
defendant, its servants and employees, in the manufacture and
putting upon the market of the said package of mince meat,
the same became and was poisonous and destructive to human
life.
2. And that it was also then and there the duty of the said
defendant to so manage and conduct its business that only
pure and wholesome mince meat should be so manufactured by
and put up and put upon the market by it for sale to and
use by the public, as aforesaid, and to put the same up in such
packages or in a manner suitable to keep and preserve such
mince meat in a pure and wholesome condition as food for
whomsoever should become a purchaser thereof and use the
same.
Yet, the defendant, not regarding its duty in this behalf, so
carelessly, negligently, unskillfully and improperly conducted
its said business in the making and putting up for sale of the
said mince meat that by and through the carelessness, negli-
gence and unskillfulness and default of itself and its servants
in the selection of the material and in the manufacture of said
package of mince meat and in the enveloping and putting the
same up for sale and use as food as aforesaid, the same then
and there became and was unfit for food and unwholesome,
and a deadly poison and destructive to human life, which the
defendant, its servants and employees, well knew, or by the
exercise of reasonable care and caution in the preparation
thereof might have known, to be poison and destructive to
human life.
PERSONAL INJURIES 1019
3. And it was also then and there the duty of said defend-
ant to manufacture and sell to the trade for public use as
aforesaid only such mince meat as was pure and wholesome and
not injurious to life and health of individuals or poisonous
when duly prepared for and used as food by those to whom
it should come in due course of trade for use and consump-
tion; and also put the same up and envelope the said mince
meat in such suitable covers and in such manner as to pre-
vent and keep the same from becoming unwholesome and
poisonous and destructive to human life in course of trans-
mission from the said manufacturer to the said consumer in the
due and usual course of trade.
Nevertheless, the defendant, not regarding its duty in this
behalf, so carelessly, negligently, unskillfully and improperly
conducted its business in th€ making and compounding of said
mince meat and putting the same up for sale that by and through
the carelessness, negligence, unskillfulness and default of the
defendant, its servants and employees in the selection of material,
the manufacture of said mince meat and in the manner of en-
veloping the same in packages for sale to the trade and to the
public, a certain package of said mince meat so manufactured
and put up and sold by the defendant as aforesaid, was so care-
lessly, negligently and improperly made and compounded and
was so defectively put up and enveloped for sale to the trade
and to the public that the same then and there became and was,
and was well known to the defendant, or by the exercise of reas-
onable care and caution in the manufacture thereof might have
been known to the defendant, its servants and employees, to be
unwholesome, poisonous and destructive to human life.
And that said package, having come into the hands of one H
in the usual course of his trade as retail dealer in groceries
and provisions at in the county of
and state of Illinois, was by him sold in the usual course of his
trade to one S of the same place for consumption and use as
food in her family; that said J, testator of the plaintiff, was
then and there a member of the family of the said S ; that said
S then and there duly made said package of mince meat or part
of the same into a pie, whereof the said J, as a member of her
family, without negligence on his part, did eat as he lawfully
might, believing said pie to be fit and wholesome for food, and
was then and there poisoned and made sick and died in conse-
quence thereof at
And plaintiff avers that she was the wife of the said J, her
testator as aforesaid, and so continued to be until the time
of his death ; and that the said J, on the day aforesaid, and for
a long time previous thereto, was a contractor and builder and
derived from his said business and employment a yearly income
of, to wit, dollars ; and by means thereof was
enabled to and did provide a comfortable and liberal mainte-
nance for himself as well as for the plaintiff, his wife; and
1020 ANNOTATED FORMS OF PLEADING AND PRACTICE
that by the death of the said J as aforesaid, so by the defend-
ant caused as aforesaid, plaintiff is injured in her means of
support and is deprived of the same, and is compelled to sup-
port herself by her own exertions.
And plaintiff further avers that it is provided in section ....
of chapter .... of the general statutes of the state of ,
enacted in the year , 19- •, and in section .... of chapter
.... of General Statutes of , compiled
in the year . .. ., 19. ., and now in full force and effect, that
"when the death of one is caused by the wrongful act or
omission of another, the personal representatives of the former
may maintain an action therefor against the latter if the former
might have maintained an action against the latter for an
injury for the same act or omission. And that the damages
cannot exceed ten thousand dollars and must inure to the ex-
clusive benefit of the widow and children, if any, or next of
kin, to be distributed in the same manner as personal prop-
erty of the deceased." Wherefore, etc.
1597 Premises unsafe, action
The owner or occupant of land is liable to persons who are
invited through independent contractors to go upon the premises
and injury results from its unsafe condition, if such condition
is known to the owner or occupant and is not known to the per-
son injured.215
1598 Protecting property from another's negligence, action
An action for damages is maintainable against a pei*son or
corporation whose negligence causes injury to or death of another
person while attempting to save or protect his property from
such negligence and the effort to save it is such as an ordinary
prudent person would make under the particular circum-
stances.216
1599 Pulley bursting, machinist injured, Narr. (W. Va.)
And thereupon the said plaintiff says that said defendnnt
was then and there, at and before the time of the committing
of the grievances hereinafter mentioned, to wnt, on the
day of , 19. ., the o\vner, operator and proprie-
tor of a certain large mill or foundry located in said county
of and state of West Virginia, and, being such
owner, operator and proprietor, was then and there engaged
215 Calvert v. Springfield Electric 216 Illinois Central B. Co. v Siler.
Light & Power Co., 231 111. 290, 293 229 111. 396. For Narr., see Section
(1907). 1550.
PERSONAL INJURIES 1021
in manufacturing, milling and finishing iron molds and cast-
ings. The plaintiff avers that, in said mill or foundry as afore-
said, there was then and there a certain large gas engine and
two other gas engines of smaller size and a generator on
each side of said gas engines, which said gas engines and
generator were then and there used for the purpose of gen-
erating and were generating electricity of great power and
force, which said electricity was then and there transmitted by
wires to a horsepower electric motor located on
top of a certain machine known as an "end milling machine"
used for the purpose of milling and finishing the ends of cast-
ings. The said gas engine and generator, being used to gen-
erate electricity as aforesaid and the said electricity being so
generated and transmitted as aforesaid, were then and there
used to move and work, and were moving and working said
electric motor as aforesaid. And the said electric motor in
turn was then and there used to move and work and was mov-
ing and working machinery, mill gearing, shaftings, belting
and pulleys, and said mill gearing, shafting, belting and pul-
leys were then and there used to move and work and were
moving and working said "end milling machine," used as
aforesaid.
The plaintiff further avers that the said .
company, being such owner, operator and proprietor of said
mill or foundry in said county and state aforesaid, and being
so engaged as aforesaid, then and there employed said plain-
tiff for hire and wages to take charge of, run and operate
the said "end milling machine" described and used as afore-
said; and that it then and there became and was the duty of
said defendant to use proper care and caution, that the plain-
tiff should be provided with good, proper, safe and suitable
machines and appliances and especially to provide good, safe,
proper and suitable belting and pulleys to be used by him in
said employment as aforesaid, and that the said plaintiff should
be secure and safe in all respects in his employment from any
injury or accidents incident thereto, against which ordinary
care and caution could avail, while so engaged by and for said
defendant in said work ; yet, the said defendant not regarding
its duty in that behalf did not use proper care and caution
that said plaintiff should be provided with good, proper, safe
and suitable machines, appliances, belting and pulleys to be
used by him in said employment as aforesaid; and that said
plaintiff should be secure and safe in all respects in his em-
ployment against which ordinary care and caution could avail,
while so engaged by and for said defendant in said work from
or against any injury or accident incident thereto ; but, wholly
neglecting its duty in that behalf and to the contrary, said
defendant provided for and suffered to be used by said plain-
tiff, in and while engaged in operating said "end milling
machine" for the purpose and use of milling and finishing
1022 ANNOTATED FORMS OF PLEADING AND PRACTICE
ends of castings, along with the pulleys aforesaid, a certain
cracked, insecure, weak, unsafe and unsuitable pulley, and a
certain unsafe and unsuitable belling located at the lower left
corner of the central portion of said "end milling machine;"
all of which was to the plaintilf unknown.
And the last mentioned pulley, because of its being cracked
and because of its insecurity, weakness, unsafeness and unsuit-
ability, of said last mentioned belting, all of which was to the
plaintiff unknown as aforesaid, and while it was then and there
being used as aforesaid, and while the said plaintiff was then
and there using the said "end milling machine," for the pur-
pose and use aforesaid, to wit, for milling and finishing ends
of castings as aforesaid, broke and parted and a portion thereof
struck the plaintiff on the head with great force and violence,
whereby said plaintiff then and there became and was dazed
and was then and there throAvn down and one of his arms, to
wit, the right arm, was caught in said last mentioned and de-
scribed pulley and belting aforesaid and was torn and cut
off about two inches below the elbow, that the elbow joint was
so badly crushed by said last mentioned pulley and the belting
aforesaid, that it then and there became and was necessary for
the surgeon in attendance to amputate the said right arm
above the elbow; and the plaintiff' was otherwise badly bruised,
hurt and injured, and so remained for a long space of time,
to wit, from thence hitherto, during all which time the plaintiff
suffered and underwent jjjreat pain and augnish of body and
mind and was thereby prevent 'm1 from attending to and fol-
lowing his usual avocation, to wit, that of a machinist, and from
earning large sums of money from said avocation, which but
for said injury he would have earned and received ; and by
means of the premises, said plaintiff became permanently
injured and crippled, and will so remain during the rest of his
natural life.
AVherefore, said plaintiff says that he has been injured and
has suffered damages by reason of the negligence of said de-
fendant in the sum of ($ ) dollars, and
therefore he brings this suit.
1600 Railroad crossing-, gate ordinance, action
It is the duty of railroad companies to take notice of properly
passed ordinances for the construction of gates at railroad
crossings.-^'^
1601 Railroad crossing, Narr. (Fla.)
For that whereas the defendant in said was
on the day of the owner of and did on
217 Eosentl-al v. Chicago & Alton 27, par. 62 (Sec. 1, art. 5), Cities
B. Co., 255 III. 552, 558 (1912); CI. and Villages act (111.).
PERSONAL INJURIES 1023
said date own and conduct and operate a railroad business in
said county of and state of Florida by then
and there running engines and cars on its said railroad track
in said county and state, which said railroad track extended
through the city of in the county of
and state of Florida, and Avas operating and conducting the
same subject to all the rules and regulations, restrictions,
liabilities and provisions of law applicable to railroads doing
business under the laws of the state of Florida; that on the
day of , 19 • • , the plaintiff had occa-
sion to walk a short distance on the railroad track of the
defendant at a point about yards west of
station in county, Florida, and about
.... yards east of where one of the public streets of said
WW crosses the said track of the defendant, the same
being then and there used as a public crossing of said
in the usual course of foot travel, as had been and
was then the custom, then and there and before and since to
be used as a public thoroughfare by the citizens of said city
with the knowledge and consent of the said defendant then
and there and since then and for several years previous to
said date with the knowledge and consent of said defendant;
and while the plaintiff was then and there using due caution
as a reasonable and prudent man without any negligence on
his part, the defendant then and there by its agents, servants
and employees ran one of its trains at a great and unlawful
rate of speed without giving any warning of approach of same
by ringing a bell or blowing a whistle, and carelessly and
negligently and wantonly ran said train unlawfully as afore-
said along the track of said defendant as aforesaid, and
struck the said plaintiff violently and then and there ran up
to, against and over plaintiff and thereby then and there ran
over and crushed and mashed off both of plaintift"s legs, and
thereby rendering the plaintiff wholly incapable of earning a
livelihood for himself, and thereby causing the plaintiff great
pain and suffering and agony and permanent injury to the
plaintiff. , „ , ^ ,,
And the plaintiff further charges that before and up to the
time of the injury aforesaid he was a strong and healthy man
of years, was earning wages at the rate of
to '.'.".'. per day and was receiving that amount per
day when' the aforesaid injury occurred; and that plaintiff is
an uneducated man and unable to earn a living for himseli
except by manual labor; and that he is now wholly without
means of earning a living for himself on account of the injury
aforesaid; which injury was then and there caused by the
carelessness and negligent way in which defendant by its
agents servants and employees were then and there running
said train ; that the said train was then and there running at a
great and unlawful rate of speed and without ringing a bell
1024 ANNOTATED FORMS OF PLEADING AND PRACTICE
or blowing a whistle, and that the same was along a public
much traveled thoroughfare in said and
within yards of a public street crossing of said ....
in a thickly popuhited section of said ;
and that the negligent, careless and unlawful way in which
said defendant by its agents, servants and employees were then
and there running said train at the time the said injury afore-
said occurred was without regard to public safety and was
without regard to the plaintiff aiul his rights as a citizen ; and
that because of carelessly aiul negligently injuring of plain-
tiff as aforesaid by then and there striking him and running
over him and cutting and mashing oft' both of plain! ifl"s legs
as aforesaid with defendant's train as aforesaid, and thereby
permanently injuring plaintiff as aforesaid, the plaintiff is
thereby deprived of any means of making and earning a liv-
ing for himself; and plaintiff has also suffered other internal
injuries and has otherwise suffered great pain and agony by
reason of the injury aforesaid ; therefore, i^laintiff claims dam-
ages in the sum of dollars.
2. And for a second count the plaintiff avers each and
every allegation of the first count and further avers that the
striking, the wounding, the crushing and the mashing off the
legs of plaintiff by defendant's train as aforesaid was caused
by the gross carelessness of defendant's agents, servants and
employees in running said train at a groat and unlawful rate
of speed, to wit, miles per hour contrary to the
laws of the state of Florida, being less than miles of
said depot aforesaid, and within yards of a street
crossing of said aforesaid, and the negligence
of the defendant's agents, servants and employees in not seeing
the plaintiff as aforesaid as the plaintiff was then and there in
full view of the said train, and also by said agents, servants
and employees of the def(>ndant failing to ring the bell and
blow a whistle and give plaintiff warning in time for him to
get off the said track and thereby avoid the injury aforesaid;
and that the running of said train near the depot aforesaid in
a thickly populated section of said aforesaid
at and near and across one of the public street crossings in
said as aforesaid at such a rate of speed as
aforesaid in the corporate limits of said was
gross negligence on the part of the defendant ; therefore plain-
tiff claims damages in the sum of dollars.
3. And for a third count the plaintiff avers each and
every, the allegations of the first and second counts and further
avers that plaintiff had the right under the circumstances then
and there existing and the conditions then and there existing
to expect and believe that the defendant by its agents, servants
and employees aforesaid would operate its trains at a rate of
PERSONAL INJURIES 1025
speed required by law at the place where plaintiff was then
and there at, and that he would be warned of the approach of
said train by the blowing of a whistle and the ringing of a bell
as required by law of trains running through incorporated
towns and cities and across public street crossings ; and that if
such had been the case plaintiff then and there could have and
would have gotten off the track in time to have prevented the
said injury to happen as aforesaid ; but that the defendant as
aforesaid did not give warning as aforesaid of the approach of
the train as aforesaid, nor did it so operate its trains at a rate
of speed required by law under the circumstances then and
there that would insure the safety of plaintiff and other per-
sons that might be passing then and there, or who might be
walking along said street crossing; and the failure of said
defendant by its agents, servants and employees aforesaid to
so operate its train at a rate of speed then and there as required
by law and to give warning of its approach then and there as
required by law, caused the said injury aforesaid to plaintiff;
and that the same was gross negligence on the part of the
defendant's agents, servants and employees aforesaid in so
operating said train ; and therefore plaintiff claims damages in
the sum of dollars, and brings this suit.
(Illinois)
For that whereas, on, to wit, the day of
, 19. ., the said , during his life time, was
then and there rightfully walking on a certain public highway
in the city of , in the county of and
state of Illinois, known and called street, at a cross-
ing of said public highway and a certain railroad crossing of
the defendant in the county of aforesaid, using
all due diligence and care in that regard.
And the defendant was then and there possessed of a cer-
tain locomotive engine and cars thereto attached, commonly
known as a passenger train, which were then and there under
the care and management of divers then servants of the defend-
ant, who were then and there at the place aforesaid required
to run said locomotive engine and cars thereto attached at a
proper rate of speed. But plaintiff avers that said locomotive
engine and cars thereto attached were negligently and improp-
erly, carelessly and unskillfully propelled, run, driven and
operated at a greater rate of speed than miles per
hour, and therein the defendant wholly failed and made de-
fault, contrary to section of the code of the city of
, state of Illinois, which recites among other things
that^'isTo railroad corporation shall, by itself or employees,
run any passenger train upon or along any railroad track
within the corporate limits of the city of .,
at a greater rate of speed than miles per hour. "
1026 ANNOTATED FORMS OF PLEADING AND PRACTICE
2. And so being such owner of and using and operating
said railroad, as aforesaid, the defendant then and there
negligently and carelessly drove a certain locomotive engine
and cars thereto attached upon and along said railroad up
to and across the said public highway at the crossing of the
same and the said railroad, and in so doing the defendant failed
and neglected to ring the bell or blow the whistle which were
attached to said locomotive engine, as it was required to do
by section 6 of chapter 114 of the Revised Statutes of Illinois
of 1874, which was in full force and effect at that time, to wit,
on the day of , 19 . . , and which recites
as follows: "Every railroad corporation shall cause a bell of
at least thirty pounds of weight and a steam whistle placed
and kept on each locomotive engine, and shall cause the same
to be rung or whistled by the engineer or fireman at the dis-
tance of at least eighty rods from the place where the said
railroad crosses or intersects any public liiglnvay, and shall be
kept ringing or whistling until such highway is reached." But
plaintiff avers that neither the bell was rung nor the whistle
blown at the distance of at least eighty rods from the said public
highway, nor was the bell rung or the whistle blown at the dis-
tance of eighty rods from the said public highway and kept
ringing or whistling until such public highway was reached by
said locomotive engine, and that neither the bell was ringin«]r
of said locomotive engine nor the whistle blowing when said
locomotive engine and cars thereto attached approached the
crossing aforesaid; but therein the defendant wholly failed
and made default contrary to the provisions of the statute in
such case made and provided and above recited.
3, And so being such owner as aforesaid, and using and
operating said railroad aforesaid, the defendant drove a cer-
tain locomotive engine and cars thereto attached upon and
along said railroad up to and across the crossing where the
said was passing the tracks as aforesaid, and
in so doing the defendant then and there failed and neglected
to ring the bell as by section of the municipal
code of the city of and state aforesaid, it was
required to do, and which section was in full force and effect
at that time, to wit, the day of , 19 . . ,
and which recites as follows: "The bell of each locomotive
engine shall be rung continually while running within said
city except locomotives running upon railroad tracks situated
east of avenue on the shore of ,
between station and of said city,
when no bell shall be rung or whistle blown except as signals
of danger." But plaintiff avers that said place where said
crossed the tracks of the as afore-
said, was not east of avenue on the shore of
between and , and that the bell
PERSONAL INJURIES 1027
of said locomotive engine was not ringing continually while
running within said city as aforesaid, and was not ringing
when said locomotive engine and cars thereto attached ap-
proached the crossing aforesaid; but therein the defendant
wholly failed and made default contrary to the provisions of
the section above recited.
4. And so being such owner as aforesaid, the defendant
then and there at the said crossing aforesaid had its gateman
stationed and placed whose duty it was to lower the gates
maintained at said crossing by the said defendant when any
train was about to cross the said crossing upon the tracks of
the said defendant, and the said gateman wholly failed and
neglected to lower the gates at said crossing as the said
was about to cross the tracks of the
defendant, and therein the defendant wholly failed and made
default.
5. And so being such owner as aforesaid, and using and
operating said locomotive engine and cars thereto attached as
aforesaid, the defendant then and there at said crossing had a
flagman improperly stationed and placed, whose duty it was to
signal persons traveling in the direction of said crossing, and
warn them of the approach of any locomotive engine or any
impending danger. But plaintiff avers that no signal was
given to said by the flagman thus improperly
and negligently stationed and placed at said crossing, of the
approach of the said locomotive engine and cars thereto at-
tached; but therein the defendant wholly failed and made
default.
6. And so being such owner as aforesaid and using and
operating said locomotive engine and cars thereto attached as
aforesaid, while the said was then and there with
all due care and diligence walking upon said public highway
at said crossing, it became and was the duty then and there of
the defendant to place upon said locomotive engine a fireman
who was reasonably skilled in that behalf, whose duty it was in
operating said locomotive engine over and upon its tracks at
and near the point aforesaid to look ahead and give notice or
warning to persons whose duty it was to cross the tracks as
aforesaid, and to be about and upon the same when said fire-
man was aware of persons being upon said tracks or when by
the exercise of reasonable diligence he could have seen persons
upon said track. Yet, the said defendant in utter disregard
of its duty in that behalf then and there negligently and care-
lessly placed upon said locomotive engine a fireman who was
incompetent and unskillful and who possessed a defective
eyesight, to wit, one of his eyes being entirely gone, and the
Bald fireman then and there negligently and carelessly and by
1028 ANNOTATED FORMS OF PLEADING AND PRACTICE
reason of such defective eyesight wholly failed to observe or
see the said deceased who was approaching the track from the
same side that the said fireman was stationed upon said engine,
and warn the said deceased of the approach of said locomotive
engine.
7. And being such owner of and using and operating, as
aforesaid, the said locomotive engine and cars thereto attached,
the said locomotive engine and cars thereto attached, as afore-
said, while the said , deceased, was then and there
with all due care and diligence on his part, walking upon said
public highway at said crossing aforesaid, the defendant then
and there by its servants so carelessly and improperly drove
and managed its said locomotive engine and cars thereto
attached by running the same at a high rate of speed and by
failing to keep a proper watch for persons about to pass over
said crossing, or to give such signals as would apprise such per-
sons using due care and diligence of the approach of the said
locomotive engine and the cars thereto attached, and by fail-
ing and neglecting to stop or endeavor to stop said locomotive
engine and cars thereto attached so as to prevent injury to the
said upon said crossing.
By means and in consequence of which default and neglect
of the defendant, as aforesaid, the said locomotive engine and
cars thereto attached then and there struck with great force and
violence upon and against the said who was
then and there thrown with great force and violence to and
upon the ground there, and was then and thereby greatly
bruised, torn, hurt, wounded, mangled in his limbs and divers
bones of his bod}^ were broken and injured, whereby and where-
from he died on the day of , 19 . . , in the
county aforesaid. (Add last two paragraphs of Section 1495)
For that whereas , on, to wit, the day
of , 19. ., in the town of , in said
county, the plaintiff was walking along and
upon a certain public highway known as in
said town of at the intersection of said
with another public highway there known as
in said town of in said county of
; and whereas the defendant was then and there
operating a certain railroad upon and along the said public
highway known as , in the town of
aforesaid, and was then and there operating a certain locomo-
tive engine with a certain train of cars then attached thereto,
■which said locomotive engine and train were then and there
PERSONAL INJURIES 1029
under the control, care aid management of divers then serv-
ants of the defendant, who were then and there driving the
same upon and along the said railroad near and towards the
crossing of said and • • • • • • • atore-
said and while the plaintiff, with all due care and diligence was
then and there walking across the said railroad at the said
crossing upon the said public highway there, the defendant
then and there, by its servants, so carelessly and improperly
drove and managed the said locomotive engine and train that
by and through the negligence and improper conduct of the
defendant by its said servants in that behalf, the said locomo-
tive engine and train then and there ran and struck with
great force and violence upon and against the said plamtift and
thereby the plaintiff was then and there thrown with great
force and violence to and upon the ground there and was
thereby then and there injured as hereinafter alleged.
2 And for that also whereas at the time of the commit-
ting of the grievances hereinafter stated, there was in force
in the town of in said county, an
ordinance in words following, to wit :
"No railroad corporation shall by itself, agents or employees
run any passenger train upon or along any railroad track
within the corporate limits of the town of at a
greater rate of speed than ten miles per hour, nor shall any
such corporation, by itself, agents or employees, run any freight
car or cars upon or along any railroad track withm said town
at a greater rate of speed than six miles per hour."
Yet, the defendant, on the day of .... . . ,
at the said town of in the county aforesaid, was
possessed of, using and operating a certain railroad track cross-
ing a certain public street there known as in the
said town of , and wholly disregarding said
ordinance, and in violation thereof, on said day of
, at the said town of , m the
county aforesaid ran a certain freight train upon and along
a certain railroad track within the corporate limits of said
town of , to wit, at the crossing of said
" ' _ and at a greater rate of speed than
'[ miles an hour, in consequence of which a certain
locomotive engine draAviug a certain freight train run by the
defendant, ran against and struck the plaintiff, who was then
and there, with all due care and diligence walking along and
upon said across said railroad track at said
crossing, and thereby the plaintiff was then and there with
great force and violence thrown to and upon the ground there,
and was thereby then and there injured as hereinafter alleged.
3. And for that whereas also the defendant, on the ........
day of in the town of , m the
1030 ANNOTATED FORMS OF PLEADING AND PRACTICE
county aforesaid, was possessed of and used and operated a
certain railroad extending througli a part of the county afore-
said, which said railroad crossed a certain public highway
there, to wit, , in said town of ,
in the county aforesaid, at a certain place in the said public
highway where the same is intersected by another highway
there known as in said town of ,
in said county of , and so being tiie possessor
of and using and operating the said railroad as aforesaid, the
defendant then and there drove a certain locomotive engine
upon and along the said railroad up to, upon and across the
said public highway known as at the said cross-
ing of the same and the said railroad, and in so doing no bell
of at least thirty pounds weight or steam whistle placed on
the said locomotive engine was rung or whistled by the engi-
neer or fireman thereof at the distance of at least eighty rods
from the said crossing and kept ringing or whistling until
the said crossing was reached by the said locomotive engine;
but therein the defendant wholly failed and made default con-
trary to the form of the statute in such case made and pro-
vided ; by means and in consequence of which default and
neglect of the defendant as aforesaid, the said locomotive
engine then and there ran and struck with great force and
violence upon and against the plaintiff, who was, then and
there, with all due care and diligence, walking along and upon
the said public highway known as aforesaid
at the said crossing, and thereby the plaintiff was then and
there with great force and violence thrown to and upon the
ground there and was thereby then and there greatly bruised,
hurt and wounded and divers bones of h. . body were then
and there broken and ..he was thereby greatly shocked and
h. . nerves wholly shattered and h.. brain injured and ..he
became and was sick, sore, lame and disordered and was other-
wise greatly injured and so remained for a long space of time,
to wit, from thence hitherto; during all which time ..he, the
plaintiff, suffered great pain and was unable to sleep and was
prevented and hindered from attending to and transacting h. .
affairs and business, and by means of the premises the plaintiff'
was forced to and did then and there lay out divers sums of
money, to wit, dollars, in and about endeavoring
to be cured of h. . said disorders, wounds and hurts occasioned
as aforesaid; and plaintiff avers, that by reason of the injury
so received as aforesaid, ..he was and is now, permanently
injured. Wherefore, etc.
c
For that whereas, the plaintiff, on the day of
, 19. ., was riding in a certain buggy drawn by a cer-
tain horse upon and along a certain public highway there, to
wit, street, at a certain crossing of the said
PERSONAL INJURIES 1031
Street and a certain railroad of the defendant, in the city of
county and state aforesaid ; and the defendant was
then and there possessed of a certain locomotive engine with
certain passenger cars attached thereto, which said locomotive
engine and cars were then and there under the care and man-
agement of divers then servants of the defendant who were
then and there driving the same upon and along the said rail-
road and near and towards the crossing aforesaid.
And thereupon it became and was the duty of the defend-
ant to ring the bell and blow the whistle of said locomotive
engine as it was required to do by section 6 of chapter 114 ot
the Revised Statutes of Illinois, which said section was m full
force and effect at that time, to wit, the day ot
19. ., and which reads as follows : (Insert said
section). , . ,
Yet the defendant not regarding its duty m the premises
aforesaid, and contrary to the provisions of the statute in such
case made and provided wholly failed and neglected to ring
the bell of the said locomotive engine or blow the whistle at the
distance of at least rods from the crossing, and the
said public highway.
2. And also, thereupon, it became and was the duty of the
defendant's gateman stationed and placed there to lower the
gates maintained at said crossing by the said defendant when
any engine or train was about to cross the said crossing upon
the tracks of the said defendant, and to apprise travelers and
persons then and there rightfully walking or driving upon
the said highway when it should be safe to cross the tracks
of the defendant at the point aforesaid ; but plaintiff avers that
the said gateman carelessly and improperly and negligently
failed to lower the gates at the said crossing where the said
was about to cross the tracks of the defendant ;
and further that the said gateman carelessly and improperly
raised the gates (which had been lowered at the time plaintiff
drove up to the crossing aforesaid to permit several freight
trains to pass by) and signaled the plaintiff to cross the tracks
aforesaid.
By means and in consequence of which default and neglect
on the part of the said defendant, said locomotive engine and
cars then and there struck with great force and violence upon
and against the buggy of the plaintiff in which he was then and
there riding with alf due care and diligence, upon said public
highway, aforesaid, and thereby the plaintiff was then and
there thrown with great force and violence from and out of
the said buggy to and upon the ground there, and was thereby
then and there greatly bruised, hurt and wounded, divers
bones of his body were and there broken, and he became and
was sick, sore, lame, and disordered, and so remained for a
long space of time, to wit, from thence hitherto; and as a
1032 ANNOTATED FORMS OF PLEADING AND PRACTICE
further result of the injuries, so occasioned, as aforesaid, the
left shoulder of the i)laiiitifl' was disloeated and Ills sliouhliT
blade badly bruised and ruptured, his le^s were bruised and
he was injured internally, his lungs and heart sustained serious
injuries, from the result of whicii serious and permanent in-
juries, plaintiff has suffered from constant headaches, pains in
the back, and does now suffer from constant headaches and
pains in tlie back, and will hereafter suffer from headaches and
pains in the back; and as a furtiier result of the injuries so
occasioned, as aforesaid, the phiintiff suffered severe and ex-
cruciating bodily injury and great mental torture and physical
anguish and pain, and will liereal'ter suffer severe and excru-
ciating bodily injury and great mental torture and physical
anguish and pain; and by means of the premises plaintiff has
been hindered and prevented from attending to and transact-
ing his* affairs and business, and will hereafter be hindereil and
j)revented fiom attentling to and transacting his atVairs and
business; and plaintitV is now and will hereafter be deprived
of large gains and profits, which he might and otlierwise would
have acquired; and plaintiff was forced to and did then and
there lay out divers sums of money, amounting to about
dollars in and about endeavoring to be cured of his said wounds,
hurts, and bruises, occasioned as aforesaid; and also by the
running and striking of the said locomotive uj)on aiid against
the said buggy, aforesaid, at the time and place aforesaid, the
said buggy then of the value of dollars, and a certain
set of harness by means of which the said buggy was then and
there attached to said horse then and there of the value of ... .
dollars, and whereof the plaintiff was then and there
lawfully possessed, was crushed and destroyed, and then and
there became and was of no use or value to the plaintiff; and
the said horse which the plaintiff" then and there ov^ned, which
was then and there of the value of dollars, was in-
jured badly in the legs, and has become of no use or value to
the plaintiff. Wherefore, etc.
d
For that whereas, the defendant, the , a corpora-
tion, on, to wit, the day of was pos-
sessed of and using and operating a certain railroad extend-
ing through a part of the county of and was also
then and there possessed of a certain locomotive engine and
train of cars attached thereto, which said locomotive engine and
train of cars were then and there under the care and manage-
ment of divers then servants of the said defendant ; that the
defendants, corporations, were then and there
possessed of and using and operating a certain line of street
railway in the city of , county of and
state of Illinois, extending upon and along a certain public
highway of said city, county and state aforesaid, known as
PERSONAL INJURIES 1033
with certain electric cars running and going
thereon for the conveyance of passengers for a certain reward
to the said defendants in that behalf paid; that on said date
plaintiff became and was a passenger on one of said electric
cars then and there going on said railway in an easterly direc-
tion for a certain reward in that behalf paid.
Plaintiff further avers that it then and there became and
was the duty of the said defendants, the ,
to exercise reasonable care for his safety; but wholly neglect-
ing their duty in this behalf and while plaintiff' was then and
there upon said electric car in the exercise of all due and rea-
sonable care for his own safety, the said defendants through
their servants then and there in charge of said electric car and
said locomotive engine and train of ears, then and there so
negligently, improperly and carelessly managed, controlled
and operated said electric car and said locomotive engine and
train of ears and each of them, that they collided at the inter-
section of said railroad and ; and thereby plaintiff
Mas then and there thrown with great force and violence from
and out of said electric car to, upon and against the ground,
pavement, and divers other objects there ; by means whereof he
was seriously injured in and about the body, head and limbs,
both internally and externally, and divers of tiie bones of his
body were then and there broken, and the muscles and liga-
ments of his body were then and there torn, bruised, and
lacerated, and he did then and there receive a great nervous
shock from which he will never fully recover; by means whereof
lie became and was sick, sore, lame and disordered and so re-
mained for a long time, to wit, from thence hitherto, and in the
future will so permanently remain ; during all of which time he
has suffered and will suffer great pain and inconvenience both
of body and mind on account of said injuries; and by means
of the premises he has been hindered and prevented from
thence hitherto and in the future will permanently be hindered
from transacting his affairs and business; and also by means of
the premises it became necessary and he did expend large
sums of money in and about endeavoring to be cured of his
said injuries, sickness and disorders occasioned as aforesaid,
and it will be permanently necessary to expend large sums of
money for said purpose in the future. To the damage, etc.
e
For that whereas, the said defendant, on or about the
day of , 19. ., owned and operated a cer-
tain street railway for the conveyance of passengers for hire,
through certain portions of the city of , and
through and along a certain street called avenue
there in said city ; that the said was on or about the
date aforesaid a passenger on the car of the defendant going
north on said street; that there also was a certain steam rail-
1034 ANNOTATED FOKMS OF I'LEAUINU AND PRACTICE
way crossing at the intersection of said street and
street in said city ; that it thereupon became and was the duty
of the defendant when approaching said crossnig to exercise
all due and proper care to ascertain and to know tiiat no rail-
way trains were approaching tiiat were ai)t to run into said
street car at said crossing; but that in this the defendant
wholly neglected and defaulted and carelessly and negligently,
and while said was in the exercise of due care for
her own safety, ran said street ear in which the said .... was
riding, through the gates which were lowered, breaking and
smashing said gates, and ran said street car on to the steam
car tracks where the said street car was struck by an approach-
ing train and thrown from the tracks ; by means whereof the
gaid was knocked down from said street car and
her body and head were bruised, hurt and injuretl, internally
and externally, and she became sick and sore and disabled and
so remained for a long space of time, to wit, from thence hith-
erto, and that the said is permanently injured and
disabled in mind and body, and became liable to pay out divers
large sums of money in and about curing herself, to wit, the
sum of ($ ) dollars ; to the damage, etc.-^«
(Maryland)
For that the defendant possesses and operates a railroad
with engines and cars thereon in said county and
state of Maryland; that at the town of , in said
county and state, near the passenger station of the defendant,
the tracks of said d-efendant's railroad cross the public road at
grade ; that the defendant (by its servants) so negligently and
unskillfully managed said railroad and the engines and cars
thereon, in and about said grade crossing, that a certain
, a daughter of the e(iuitable i)laintiti' of the age of
years, while using said public road in crossing the tracks of
said railroad at said grade crossing and while exercising due
care, was, on , 19. •, struck by an engine and cars
of the defendant ; whereby the said .••;•; T^^
thrown down and injured and, in consequence of said injuries,
then and there died ; and that the equitable plaintiff was, by
the negligence of the defendant, deprived of and has lost the
service of the said , to which he was entitled, and
has suffered great mental pain and suft'ering as the result of
the said negligence of the defendant; whereupon, the plaintiff
brings this suit and claims dollars damages
therefor.
218 Casey v. Chicago City By. Co.,
237 111. 140 (1908).
PERSONAL INJURIES 1035
(Michigan)
For that whereas, heretofore, on, to wit, the day of
, 19. ., and for a long time prior and subsequent to
said date, the said defendant was possessed of, maintained and
operated a certain railroad passing through said county of
state aforesaid, from the city of
in said state, to the city of in the state of
, which said railroad is double-tracked, and inter-
sects and crosses a certain public street or highway known as
avenue, in the city of in said
county, said street passing through said city in a northerly
and southerly direction, and said railroad approaching and
crossing the same in, to wit, a northeasterly and southwesterly
course, and which said street, before and at the time of com-
mitting the grievances by said defendant, hereinafter men-
tioned and set forth, and from thence hitherto was and still
is a common and public highway for all persons to go, return,
pass and re-pass in and upon, by and with carriages, wagons
and other vehicles, also upon foot, at their free will and pleas-
ure, to wit, at the city of in said county, and over
and along which said public street the people of said city of
, county of and state of Michigan,
were in great numbers frequently passing and re-passing, as
well on foot as in carriages, wagons and other vehicles, at their
free will and pleasure as foresaid.
And the said plaintiff avers that by reason of, to wit, build-
ings, trees, bushes, various poles and other obstructions, to-
gether with an embankment caused by a deep cut in grading
for said railroad, along and adjacent to the tracks and right
of way of said defendant, on the westerly side thereof and
east of said public street, the locomotives and trains of cars
of said defendant on approaching said crossing from the east
upon said railroad tracks could be seen but a short distance by
persons approaching said crossing from the north along and
upon said public street or highway ; that, to wit,
feet southwesterly along the northerly main track of said
defendant's railroad from its intersection with the wagon or
carriageway upon said public street, said track did then and
there, and still does, intersect and cross the main track of the
railroad, a railroad then and still maintained and
operated by the railroad company, a corporation
between the city of and the city of
in said state of Michigan ; that, to wit, ( . . ) feet
southwesterly from said street crossing and, to wit,
( . . ) feet northeasterly from said railroad crossing with the
railroad track, on said defendant's right of way
and on the northwesterly side of defendant's said tracks, was
then and still is maintained a post, with board attached thereto
inscribed with the word "Stop !" facing along said defendant's
1036 ANNOTATED FORMS OF PLEADING AND PRACTICE
track to the northeast as a warning to all trains runnint,' to the
southwest over its said track to be stopped before passing said
"Stop board" or attempting to pass over the said .
railroad track at said railroad crossing; that, to wit,
(. .) feet northeasterly from said publie street cross-
ing was, at the time aforesaid, for a long time prior thereto,
and from thence hitherto, maintained and kept on the northerly
side of defendant's said track a certain post, with board
attached inscribed with the words, "Reduce speed to
miles per hour," facing to the northeast along said track, as a
regulation and warning for all locomotives and trains of cars
running to the southwest over defendant's said road to reduce
speed not exceeding ( . . ) miles per hour before
passing over any of the streets of the said city of
and not to run any of its locomotives or trains of ears at a
greater speed than, to wit, ( . . ) miles per hour
over or across any of such streets; and that at the time and
place aforesaid, on, to wit, the day of ,
and at the city of in said county, the said defend-
ant being then and there possessed of and operating and con-
trolling its said railroad, passing through said county of
and city of intersecting and
crossing said street thereof known as avenue
as aforesaid, and over and across which street crossing afore-
said its locomotives and trains of cars propelled by steam
locomotives were being continuously and at frequent inter-
vals run and propelled, it then and there became and was the
duty of the said defendant to use and employ reasonable
care, caution and diligence in running and propelling its said
steam locomotives and trains of cars over and along its said
railroad, in approaching and over and across said public street
of said city of known as .
avenue, at the crossing aforesaid, so as not to injure the said
plaintiff or any other persons lawfully traveling over said
street crossing; to give due notice and warning of the
approach of any such trains of cars or steam locomotives to all
persons lawfully traveling along said public street toward and
over said street crossing, by sharply sounding the whistle
upon any and all such locomotives at least
( ) rods before reaching said street crossing, and after
sounding the whistle to continuously ring the bells upon any
and all such locomotives until such crossing should be passed ;
to run such locomotives and trains of cars over such street
crossing at a moderate speed not exceeding, to wit,
(....) miles per hour ; to have and maintain such proper look-
out from and control over its said locomotives and trains of
cars as to make the stops required by law and prevent injury
to any person or persons lawfully passing over or attempting
to pass over said street crossing ; to use, apply and employ all
reasonable necessary means, precautions and care within its
PERSONAL INJURIES 1037
power to stop its trains, or to otherwise avoid injury to the
plaintilSt' or any other person or persons known to it to be in
danger of injury wliile passing or attempting to pass over said
street crossing aforesaid ; and not to violate its own rules and
regulations for running its locomotives and trains of cars over
such crossing, nor the provisions of the ordinance of said city
of , then and still in full force and effect, therein -
regulating the speed of railroad trains while passing over
the streets and avenues of said city, the same being an ordi-
nance entitled "An Ordinance relative," etc., duly passed by
the common council of said city of on the
day of , and still remaining in
force as aforesaid.
And the said plaintiff further avers that, on, to wit, the said
day of , 19 . . , at about the hour of ....
o'clock in the of said day, at the city of
in said county, he, the said plaintiff, together with his
wife, were traveling over and along said public street known
as avenue, in the city of afore-
said, from the north and going south to and toward said
crossing of defendant's main tracks of its railroad, upon
and over said street, then and there riding in a certain one-
seated carriage to which was attached a certain single horse
of the plaintiff, being then and there driven by the said plain-
tiff to and toward said last mentioned crossing at a moderate
gait; that the said plaintiff' and the said wife in her life-time,
were then and there using, exercising and employing all neces-
sary, due and reasonable care and diligence on their part, and
on the part of each of them, in and about approaching and at-
tempting to pass over said street and railroad crossing, and
all due care, caution and diligence required to be used on their
part, and on the part of each of them.
Yet, the said defendant, well knowing the premises and not-
withstanding its duty to use and employ all such reasonable
care, caution and diligence in running and propelling its said
steam locomotives and trains of cars over and along its said
railroad, in approaching and over and across said public street
known as avenue, in said city of ,
so as not to injure the said plaintiff' or his said wife, or any
other person or persons lawfully traveling over said public
street and crossing; to soimd the whistle and ring the bell upon
all its said locomotives approaching and passing said street
crossing as aforesaid ; to run its locomotives and trains of cars
at a moderate and lawful speed not exceeding the rate of,
to wit, (.•..) miles per hour over and across said street
crossing; to maintain and have such proper lookout from and
control over its said locomotives and trains of cars as to be able
to make the stops required by law and prevent injury to plain-
tiff or his wife, or any other person or persons, while passing
or attempting to pass over said street crossing ; and to apply
1038 ANNOTATED FORMS OF PLEADING AND PRACTICE
and use all reasonable and necessary care, precaution and
means to prevent injury to any person or persons in danger of
life or limb while passing or attempting to i)ass over said public
street crossing, by stoi)ping its locomotives and trains of ears,
or otherwise avoid injury to the plaintitf or any other person
or persons while passing or attempting to pass over such ':;ross-
ing; not to violate its own regulations for running its locomo-
tives and trains of cars aforesaid, nor the provisons of the
ordinance of the city of above specified and
counted upon herein ; not to run its locomotives and trains of
cars over said crossing at a higii, dangerous and unlawful rate
of speed without having sounded the whistle upon any such
locomotives as an alarm at such crossing, or to plaint ill" or
other person or persons passing or attempting to pass over the
same, until within, to wit feet of such crossing ;
and not to sound such whistle when so running its locomotives
and trains of cars and within said distance of such crossing
aforesaid, so as to frighten the horse of the plaintiff or any
other person while passing over, or attempting to pass over
such crossing aforesaid, thereby causing or tending to cause
injury to said plaintiff or any other such person, did then and
there so negligently, wilfully, recklessly and carelessly, and
while the said plaintiff was driving with his said horse and car-
riage, as aforesaid, over said street crossing, with all due,
proper and reasonable care, caution and diligence on his part,
as also on the part of his said wife, run and i)ropel by steam,
to wit, its certain steam locomotive and train of baggage and
passenger cars attached thereto, along said railroad to the
southwest, on the northwesterly main track thereof, and over
and across the said public street crossing, at a high, dangerous,
unlawful, wilful, and reckless rate of speed, to wit, at the rate
of (....) miles per hour, without having
sounded the whistle on said locomotive or rung the bell thereof
on approaching and passing over said crossing, as re(iuired by
law, and without keeping any proper or sufficient lookout for
danger to said plaintiff and his said wife, or other person or
persons lawfully traveling upon said street and over said street
crossing, or having or keeping such control over said locomo-
tive and train of cars last aforesaid as to make the stop
required by law or prevent injury to the said plaintiff or other
person or persons so traveling over said street crossing as
aforesaid, and without having used and employed the reason-
ably necessary means within its power to prevent injury to
the said plaintiff and his said wife, by stopping its said train
or otherwise avoiding injury to said plaintiff and his said wife
while passing over said street crossing aforesaid, all in neg-
ligent, wilful and reckless disregard and violation of its duty
aforesaid, as also of its own regulations and the ordinance of
said city of as hereinbefore set forth and alleged ;
and said defendant did, then and there, while said plaintiff
PERSONAL INJURIES 1039
and his said wife were passing over such crossing, with all
due care, caution and diligence on their part, as aforesaid,
negligently and carelessly give, to wit, sharp,
short sounds with the whistle of its locomotive aforesaid, in
rapid succession, and within, to wit, feet of such
crossing and of said horse and carriage, thereby so frightening
said horse that it then and there turned suddenly back upon
the track of said defendant in front of its said locomotive and
train of cars aforesaid, and became so unmanageable that
the plaintiff was wholly unable to get said carriage off such
track in time to avoid accident and injury from said locomo-
tive and train of cars aforesaid; whereby and by reason
whereof said locomotive and train of cars of the said defend-
ant with great force and violence ran against and collided
with said carriage, in which said plaintiff and his said wife
were seated as aforesaid and passing over said crossing with
all proper care, caution and diligence, and without negligence
on their part, or on the part of either of them, whereby and by
reason Avhereof said carriage was overturned, broken to pieces
and destroyed, and the said plaintiff and his said wife were
thereby, then and there, with great force and violence, struck,
precipitated, cast and thrown a long distance, to wit, the dis-
tance of (....) feet, against, among and upon
divers, to wit, the ties and iron rails of said defendant's
northwesterly main track last aforesaid, the wreckage of
said carriage, plank, stone and posts, and upon the ground,
and were then and there thereby greatly bruised, wounded,
mangled and crushed, insomuch that the said wife of said
plaintiff, was thereby then and there killed, and did then
and there forthwith die from such injuries so received as
aforesaid; that the left foot and ankle and the left arm,
and the bones thereof, of the said plaintiff were then and
there so mangled, torn, lacerated and crushed by reason of,
to wit, the wheels of said locomotive having run and having
passed over the same that it became and was necessary to
amputate said left foot and leg at a point, to wit, about
inches above the ankle joint, and his said left
arm at a point, to wit, about inches below the
elbow; and that the said left foot and left leg and said left arm
of the said plaintiff' were thereupon amputated on, to wit, the
.... day of , 19. ., by reason and in consequence of
the said wilful, reckless, and careless conduct and acts of said
defendant, and the injuries then and there received as afore-
said, and were wholly lost to said plaintiff.
And the said plaintiff avers that, by reason of the premises
aforesaid, he became sick, sore, lame and crippled for life, and
has been and is greatly injured, and put to large expense
and trouble in and about procuring necessary nursing, care and
attention for himself, and in and about the procuring of the
necessary care and medical and surgical attendance of and
1040 ANNOTATED FORMS OF PLEADING AND PRACTICE
for himself, and in and about the funeral and burial expenses
of his said wife; that said plaintilV l»y reason of the premises
has been caused great suffering of mind and body, and pre-
vented from following his usual and necessary occupation and
employment for a long space of time, to wit, from thence
hitherto, and also by reason of said injuries so received by
him as aforesaid, he, the said plaintiff, will continue to suffer
great pain of body and mind and will continue to be largely
prevented from following or carrying on his necessary avoca-
tion, employment or business, and will also be deprived of the
services, society and comfort of his said wife for a long space
of time, to wit, for and during his, the said plaintitT's natural
life. All to the great damage and injury of the said plaintitf,
to wit, the sum of dollars.
1602 Railroad platform, Narr. (111.)
For that whereas, the is, and at all times here-
inafter mentioned was a corporation organized and existing
under and by virtue of the laws of the state of Illinois; and as
such corporation was in possession of and using and operating
a steam railroad extending through the county of
in said stiite and was then and there and now
is a common carrier of persons for hire.
That on or about the day of ,
19.., plaintiff became a passenger on a certain car of de-
fendants on said railroad to be carried from near
street in the city of to station in
said city, county and state; and thereupon was accordingly
carried in said car as a passenger of defendant, for certain
compensation then and there paid to the defendant by plaintitT.
And it then and there became and was the duty of the
defendant to provide proper, suitable aiul safe platforms at its
said station at on which passengers and
plaintiff in particular could safely alight when leaving defend-
ant's cars, and so that the public and plaintiff as such pas-
senger in particular, in alighting therefrom, might do so in
safety to life and limb; but therein defendant \yholly failed
and made default, and on the contrary thereto did carelessly,
recklessly, negligently, Avilfully, unlawfully, and wantonly
fail to furnish a proper, suitable and safe platform at the
said station, which was then and there one of
defendant's regular stopping places and stations for the receiv-
ing and discharging passengers, at the place where plaintiff was
required to alight and on which plaintiff might safely alight;
and that by reason of the carelessness and negligence of the
defendant "in this behalf, while plaintiff* was such passenger
and in the exercise of all due care and caution, was attempting
to get off of defendant's said car at the station,
she was thereby then and there thrown with great force and
PERSONAL INJURIES 1041
violence off said car to, upon and against the ground, and
upon and against said car, and thrown backward striking her
head and body against the car and ground, and rendering her
insensible and unconscious ; and plaintiff was then and there
and thereby disordered and injured and is still languishing
and is intensely suffering in body and in mind, and in the
future will continue to suffer from the effects of said injuries
for the rest of her natural life, and she was hindered and pre-
vented from attending to her necessary business and affairs
and lost and was deprived of divers great gains which she might
and otherwise would have made and accumulated, and she
was compelled to and did pay out, expend and become liable
for the payment of divers large sums of money for doctor bills,
drugs, medicines, nursing, care and attention in and while at-
tempting to cure herself and to be cured of the wounds, bruises
and injuries occasioned as aforesaid.
Wherefore, etc.
1603 Roof, covered hole, Narr. (111.)
For that whereas, on, to wit, , 19. ., and for
a long time previous thereto, at, to wit, the county aforesaid,
the deceased, , was in his life time, an employee of
the said defendant D, in and about the business of making and
repairing boilers, smoke-stacks, etc., and was accustomed to do
his work as a servant and an employee of said D in his said
business wherever directed by said D.
And the plaintiff avers that on and long previous to said last
mentioned date, at, to wit, the county aforesaid, the defendant,
the S company occupied and had possession of a certain build-
ing including the roof and certain large pipes or smoke-stacks
protruding and extending through said roof situated and being
on the southwest corner of and
streets in the city of ; and being desirous of having
said large pipes or smoke-stacks removed from said roof, on, to
wit, the day of , 19. ., at, to wit, the county
aforesaid, applied to the said defendant, D, through his serv-
ants and employees to undertake the work of removing said
pipes or smoke-stacks; that the said defendant D, after an
examination of said pipes or smoke-stacks on said roof, did, on,
to wit, , 19. ., accede to said request, and did
then and there undertake and agree to send his servants and
employees on said roof to remove the same, and accordingly
did for said purpose, send and direct his servants, including
said , on, to wit, , 19 . . , to go upon
said roof and remove said large pipes or smoke-stacks; that
the said roof, at the time and place aforesaid, had in it near
one of the stacks, which said was directed to
take down and remove, a large hole which was covered over
with tar paper so that its danger was hidden ; that said hole
1042 ANNOTATED FORMS OF PLEADING AND PRACTICE
SO covered over and without any barrier or notice of its dan-
gerous condition, had so existed for a long space of time pre-
vious to said date, to wit, for the space of weeks; that
the defendant, the S company, with knowledge of its condi-
tion and the situation, had known of said going
on said roof to do his work, as aforesaid, but had given him
no notice or warning of said danger; and that the said defend-
ant D who also had knowledge of said condition and whose
duty it was to use reasonable care in providing a reasonable
safe place for said to do such work wholly
neglected and failed so to do, or to give any notice
of the dangers then existing on the roof aforesaid.
And the plaintitf further avers that said , while
in the exercise of due care and caution for his own safety, and
with no knowledge of said danger, while in the performance
of his work in preparing said stack for removal, and in remov-
ing the same, necessarily and unavoidably, stepped on said
tar paper covering said hole as aforesaid, and was suddenly
without any warning, precipitated down said hole for a great
distance, striking his head and limbs against a cross-beam and
irons in there, whereby, his head was crushed, his legs and
body bruised and he sustained serious and fatal injuries from
which, in a short time thereafter, he died. (Add last two para-
graphs of Section 1495)
1604 Running board of street car, Narr. (111.)
For that whereas the defendant before and at the time of the
grievances herein complained of was the owner of and was
operating a certain street railway in the city of
in said county and state, by means of cars run upon iron rails
and propelled by means of electricity, and that such street
railway was operated by the defendant for the conveyance of
passengers for hire and reward; that on the day of
, 19. ., said plaintiff became a passenger upon
one of defendant's cars in the said city to be carried from
to street in said city for a certain
reward to the defendant; and that thereupon it became and
was the duty of the defendant to safely carry the plaintiff to
the place of his destination along the line of said street railway.
Yet, the defendant did not regard its duty in that behalf, but
negligently permitted more persons to become passengers on
said car, after the plaintiff had become a passenger, than said
car would reasonably accommodate, and b}^ reason of such a
large number of persons being by said defendant so neglig-
ently permitted to ride upon said car, a great crowd of persons
was collected on said car so that the same became and was
greatly over-crowded, and the plaintiff was thereby forced to
ride upon the platform and steps of said car; and while the
plaintiff was in the exercise or of ordinary care for his own
PERSONAL INJURIES 1043
safety in so riding on such platform and steps of said car, the
crowd of persons so negligently permitted by the defendant
to take passage upon said car and who were then and there
compelled to ride upon the platform and steps of said car, Avere
by the motion of said car thrown and forced over and against
the plaintiff, whereby the plaintiff was forced off and pushed
from the platform and steps of said car where he was com-
pelled to ride by reason of said such over-crowded condition
of such car.
2. And thereupon it also became and was the duty of the
defendant to run its car at such a rate of speed as would be
least dangerous to the passengers on said car commensurate
with the practical operation of said car.
Yet, the defendant did not regard its duty in that behalf,
but after the defendant had taken passage on said car, other
persons continued to come upon said car with the permission of
the defendant, through its servants, in such numbers that said
car would not accommodate them and its seating capacity was
greatly over-crowded by reason of such number having taken
passage on said car, and the plaintiff thereby was forced, with
other persons, to ride upon the steps and platform of said car
which defendant's servants in charge of said car then well
knew; that the servants of said defendant so in charge of said
car, not regarding their duty, negligently ran the said car at a
highly dangerous rate of speed while the plaintiff' and other
l^assengers were so riding on the platform of said car and such
other passengers were surged and tossed over and against the
plaintiff by reason of the excessive speed of said car, and
Avhereby, while the plaintiff was using ordinary care for his
own safety, he was crowded and pushed off the platform and
steps of said car.
By means of which, the wheels of said car caught and
passed over the left foot and leg of the plaintiff' and the same
was thereby crushed, broken and lacerated so that it had to be
and was amputated ; that by reason of said injury, the plaintiff
has endured, and will endure, great pain and suffering and was
and is prevented from carrying on his business and affairs
and was and will be thereby deprived of great gains, and has
laid out a large sum of money for physician's services and medi-
cines and has become obligated to pay out a large sum of money
for nursing, care and medical treatment in being treated for
his said injury; and that he has sustained lasting and perman-
ent injuries : to the damage, etc.
(Michigan)
For that whereas, the defendants are common carriers of
passengers for hire, and as such operate a line of electric rail-
way in the township of , upon what is known
as the turnpike highway, or the
1044 ANNOTATED FORMS OF PLEADING AND PRACTICE
road, said road being an old establislied highway of an exist-
ence of upwards of twenty years past.
And plaintiff avers that he being in the village of
upon tlie day of , 19 . . , and
desirous of going to a place known as ,
took passage upon an electric car of said defendants, duly
manned by a motorman and conductor, and paid to the con-
ductor of defendant his fare by ticket for transportation ;
whereupon, plaintift" avers, that it became and was the duty of
the defendants to afford him (plaintiff') a safe place to ride
and safe ingress and egress from said car. And plaintiff avers
that the defendants, notwithstanding their legal duty in the
premises, did not afford to plaintiff a safe mode of exit from
said car. But notwithstanding the fact that plaintitT noticed
defendants' conductor of where he desired to alight, both
orally and by bell, the defendants and its said servants pro-
pelled the car in which plaintiff" was at a terrific rate of speed,
and at a rate exceeding, in plaintiff's judgment, .... miles an
hour around curves and figure S, formed by said track at tiie
destination of plaintiff", without slackening its speed; and
plaintiff avers tliat he, believing that he was to be let oft" the
car in which he then was, at the place indicated, was expecting
said car to slow up and permit him (plaintiff) to alight in
safety, but that said car, contrary to his expectations, did
not so slacken up its speed, but on the contrary continued
on at its great speed, about .... o'clock in the evening; and
plaintiff avers that by tiie momentum and curve-like motion of
the car, so going, as aforesaid, he was thrown from the rear
platform of said car upon the highway upon which said
electric car was being propelled by the defendants' servants
and agents, and severely injured by the wrongful and negli-
gent acts of the defendants, its servants and agents, and with-
out any wrong doing or contributing negligence upon the part
of plaintiff. And plaintiff' avers tiuit he was seriously and per-
manently injured by the treatment he so received; that his face
and head and trunk and body and legs were bruised and in-
jured, his Mesh bruised and his bones broken and injured, his
muscles and tendons and internal parts torn, wrenched and
injured and he himself permanently disabled and caused to
suft'er great pain and injury and be rendered sick, sore, lame
and disordered, a condition in which he (the plaintiff) has re-
mained from thence hitherto.
And plaintiff avers that he was forced to employ nurses,
physicians, drugs and medicines in and about the assuaging of
himself of his pain and suffering from thence hitherto; and
that he will be forced to lay out large sums of money in the
future for the same purpose, all to a large sum of money, to
wit, dollars.
That plaintiff's occupation is that of a laboring man, he
being a teamster, and that by reason of said injuries plaintiff
PERSONAL INJURIES l^^^
WHS hindered and prevented from following his usual avoca-
tions f^om Whence ifitherto, and ^fjj^' ^^''''^' ^« ^'' ^''^'
'"^And the'^ptinii'ff 'avers that' he did'then and there receive
otlfer wrongs and injuries from the wrongful acts and domgs
fnd unlawful action's of the defendants without wrongdoing
"^li'l'^f wScfis to the great damage of the plaintiff of
_ dollars; and therefore he brings this suit.
(West Virginia)
and over intervenin.^co^n-y to^and U.oug^^^^^^
and proprie'tor' of 'certain cars and carriages propelled on and
'overpaid railroad by the means of ^leetncity for the carriage
of Dassengers, and was a common carrier of passengers tor
h re and Kw^rd to the said defendant in that behalf from
and near the state line the eastern terminus of said railroad
and the intermediate points to the city ot . . . • • •., ^o wii,
at thrcouuty aforesaid; and the said defendant being such
proprietor of'the railroad and car and carriage and such com-
mon carrier of passengers heretofore, to wit, on the day
of . . . ., in the year 19. ., the said . . . . . • • • • • • • •»
at the 'special instance and request of the said defendant be-
l^Z rvf as aforesaid, for a certain fare and
rewa?d Vo 'the 'said' 'defendant in that behalf, and the said
defendant then and there received the said . • . • • ^s
such passenger; and thereupon it became ^^^ was the duty of
the said defendant to use due and proper care that the said
should be safely carried by the said railroad
eom'nanv'on'the said journey: and it was its duty to furnish
Jh^saTd ........ a safe place to ride in its said car or
carriage 'on Vaid journey, and it was the duty of said defend,
ant to furnish sufficient cars or carriages to carry and trans^
?%U'<^tv?f ''' '""''"' Tyt fhe'said defendantl^n^t
regarding its dut'y in 'that behalf, did not use due and proper
P«?e that the said should be safely carried by its
said ca? or carr age on his said journey, but wholly neglected
so to do and suffered and permitted the car or carriage upon
wh ch the said took passage to be so greatly
1U46 ANNOTATED FORMS OP PLEADING AND PRACTICE
over-crowded with passengers that the running' boards and
front and rear platform and the inside thereof were occupied
and crowded with passengers, and while the said car or car-
riage was so over-crowded with passengers the said defendant
received and accepted and collected the regular fare from
him, and after the said had b»M-n received and
accepted by the said defendant as a passt-nger, as aforesaid,
the car or carriage of said defendant upon wliieh he took pas-
sage was so over-crowded with jjassengers, that the said ....
was unable to secure a seat therein, but on account
of the over-crowded condition of the said car or carriage \yas
compelled to and did sit on the edge and rich* on tlie outside
on what is commonly known as the running boards of said car
or carriage, and after receiving and accepting the said
as a passenger upon its said car or earriage in its then
over-crowded condition and when the said
was sitting and riding upon the edge of said car or carriage
or running boards as aforesaid, the said defendant company at
a great rate of speed, and when the car or carriage upon which
the said was then riding was passing another car
or carriage of the said defendant company's going in an oppo-
site direction, at a point on said railroad track east of tlie sta-
tion thereon known as so negligently,
carelessly and decklessly drove and propelled the car
or carriage upon which the said
was then and there riding that the said
by reason of the rocking and shaking and jarring of said car
or carriage and by reason of the over-crowded condition there-
of, and the failure of the defendant to furnish him a safe
place therein to ride was thrown from the said car or car-
riage and killed.
And the plaintiff avers that by reason of the matters and
things in this count mentioned the plaintiff has sustained dam-
ages to the amount of ($ ) dollars ; and
therefore he sues, etc.
1605 Scaffold injury, Narr. (111.)
For that whereas, on or about the day of ,
19. ., the defendant was in the business of contracting, and on
and prior to the date afore-mentioned, was engaged in the
construction of a certain elevator, to wit, elevator
of at or near street, in the city of
, county of and state of Illinois, and
was then and there particularly engaged in the placing of a
certain line shaft in the said building and over and above cer-
tain bins in said building or elevator, at a point a great distance
from the ground, to wit, about feet from the ground,
and had then and there in his employ, as a millwright and for
other certain labor, plaintiff's intestate, , who
PERSONAL INJURIES 1047
was then and there assisting in the placing of the said line shaft
and was boring holes in the said building for the purpose of
furnishing a means of holding the said line shaft in place ; and
there was then and there within the bins and at the top thereof,
and about feet from the ground, certain scaffolds
which were placed within the said bin for the purpose of fur-
nishing a place for the plaintift"s intestate and others to work
upon, while placing the said line shaft into position ; and the
said platforms, as aforesaid, were two in number in each bin
and were composed of two stringers or beams each, and upon
the said beams or stringers at right angles to the same, were
placed certain planks, for the purpose of furnishing a platform
for the said employees aforesaid, and said stringers rested
upon certain logs, projecting from the sides of the said bin,
and the said scaffolds were then and there used by the employ-
ees of the said defendant, and the said employees were directed
to work thereon, and the platform was a place to work fur-
nished by the said defendant and especially to the said plain-
tiff's intestate; and plaintiff alleges that it was then and there
dark upon the said scaffold by reason of the proximity of the
said scaffolds to the roof and because there was little or no
means of throwing light upon the said scaffolds, so that it was
difficult for those walking upon the said scaffolds to observe
definitely the said scaffolds.
And plaintiff' avers that it was then and there the duty of
the said defendant, , to use care to furnish a
reasonably safe place for plaintiff's intestate to work upon and
in, and to use care to furnish a reasonably safe scaffold upon
which he was to M'ork ; and plaintiff* avers that it was then
and there the duty of the said defendant to inspect the said
scaffold before ordering the said plaintiff"s intestate to work
thereon ; but that tiie defendant wholly and utterly failed in
its duty ip this regard, and failed to inspect the said scaffold,
which was then and there defective by reason of certain boards
thereon being missing, removed and absent, so that there was a
break in the i)latform, through which one might fall to the
bottom of the bin,-^'^ which said break or hole could have been
observed by the exercise of proper inspection ; so that by rea-
son of the negligence aforesaid, the plaintiff's intestate who
was then and there ignorant of the existence of said hole, and
while exercising all due care and caution for his own safety,
was walking over and upon the said platform, under the direc-
tions of said defendant, the , and while engrossed
219 The declaration in this case of ^vhich the defendant knew, or
contained four counts. Counts three could have known, in the exercise of
and four were dismissed. The first care for the safety of plaintiff's in-
count was substantially the same as testate, and all of which the plain-
the second except that it did not tiff 's intestate was ignorant. " Dick-
charge the duty of inspection and it son v. Swift Co., 238 111. 62 (1909).
alleged after the word "bin" "all
1048 ANNOTATED FORMS OF PLEADINQ AND PRACTICE
in his work and while relying upon the said didVudant having
furnished him a reasonably safe seall'old, lie came to and
stepped into the hole, where the boards had been removed or
were missing', and he was then ami there preeipitatcd to the
bottom of the said bins, by reason of the negli<,'rnee of the said
defendant aforesaid, and he was killed. (Add last two para-
graphs of Section 1495)
b
For that whereas, heretofore, on. to wit. the day of
, 19. ., the defendant, in the city of .,
county of and state of Illinois, was engaged in
the construction of, and was assisting as a e()ntraetor and
otherwise in the construction of a certain building, to wit, a
powerhouse for the company, and was employ-
ing certain servants then and there in said work, and had
charge of and tvas using in said work on the interior of said
building, certain scalVolding made of planks and i)oards; and
whereas the plaintilV was then and there employed (but not by
the defendant), in and about a certain ash hopper therein, which
fact was then and there well known to the defendant and his
said servants, or might have been known to them by the exer-
cise of ordinary care on their part; it became and was the
duty of the defendant by his servants in that behalf then and
there to use ordinary and reasonable care in and about the
work of the defendant, so as not to injure the plaintitT and so
as not to exi)Ose him to unreasonable danger; yet, the def<>nd-
ant, not regarding his duty in that behalf, by his said serv-
ants then and there negligently knocked, pushed and pulled
down a part of said scaffolding and the planks and boards
thereof, and suffered the same to fall with great force down
to and upon a certain timber then and there, whereby said
timber was then and there caused to fall with great force and
violence upon and against the plaintiff, who was then and
there and at all times herein mentioned in the exercise of due
care for his own safety, inflicting upon him the injuries here-
inafter mentioned.
2. And for a second count in this behalf, the plaintiff
avers that, being so engaged as aforesaid, it also became and
was the duty of the defendant by his servants in that behalf
then and theVe in removing said scaffolding, planks and boards,
as aforesaid, to exercise reasonable care to prevent the same
then and there from injuring the plaintiff" or causing injury to
the plaintiff'; yet, the defendant, not regarding his duty in that
behalf, by his said servants negligently failed then and there
to have and use in the removing of said scaffolding, planks and
boards as aforesaid an appliance or appliances reasonably
adapted to arrest and check the sudden and forcible fall of
said scaffolding, planks and boards, in consequence whereof
PERSONAL INJURIES
1049
the same then and there, while the defendant by h s sa d
servants was removing them as aforesaid, fell sudden y and
with great force upon a certain heavy timber then and there
and caused the same to fall suddenly and with great force
then and there upon and against the plaintiff, who was then
and there and at all times herein mentioned in the exercise
of ordinary care for his own safety, inflicting upon him the
injuries hereinafter mentioned.
3 And for a third count in this behalf, the plaintiff avers
that, being so engaged as aforesaid, it also became and was
the duty of the defendant, by his servants in that behalt, then
and there to warn the plaintiff of the knocking, pushing and
pulling down, and the causing to fall, as aforesaid, ot said
scaffolding, planks and boards.
Plaintiff avers that the defendant, however, not regarding
his duty in that behalf, by his said servants negligently failed
to warn the plaintiff then and there as aforesaid, in conse-
quence whereof, the plaintiff, who was then and there, and at
all times herein mentioned, in the exercise of ordinary care
for his own safety, was unable to get out of the way ot and
escape said heavy timber, and did not get out of the way ot
and escape the same, and in consequence thereof said timber
then and there struck with great force against the plaintitt.
And the plaintiff avers that the fall of said timber, as afore-
said crushed and shattered his right hand then and there, so
that' a part of the same had to be amputated, and by reason
thereof plaintiff then and there became and was sick, sore
lame, disordered and permanently injured, during all of which
time, to wit, from thence hitherto, he thereby suffered great
^^Plaintiff avers also that by reason of his said injuries he
was then and there obliged to expend and become liable for
divers large sums of money in endeavoring to be cured and
healed of his hurts and wounds occasioned as aforesaid ; that he
has been hindered from attending to his ordinary affairs and
business during all the time from thence hitherto, and has
been hindered from engaging in his usual occupation, to wit,
that of a boiler maker's helper; that he has thereby been pre-
vented from earning divers large sums of money as wages, to
wit $ . . per day, and that by reason of said injuries he will
be prevented from engaging in said occupation during the rest
of his life. Wherefore, etc.^^o
(Michigan)
For that whereas, for a long time prior to and on the ....... .
day of 19-., said plaintiff had been employed at
his trade or business as a carpenter and builder in and about
22oO'Boiirke v. Sproul, 241 111.
576 (1909).
1050 ANNOIATKU FORMS UF I'LEADING AND I'UACTICE
the said city of and elsewhere, and had at that
time acquired great skill and proliciency thereat, whereby he
was able to earn and did earn good wages, to wit, the sum of
($ ) dollars to ($ ) dol-
lars per day.
On the said .... day of aforesaid, at or about
o'clock in the afternoon thereof, said plaintitf
was engaged at his said trade or business erecting and tinish-
ing a certain building at the corner of
avenue and street in the said city of ,
where said plaintiff was working upon a scaffold on the out-
side of said building, about ten feet from the ground, duly
and lawfully engaged in pursuit of his said trade or business,
using due diligence, care, caution and prudence in and about
his said work that it might be carried on with safety to his
person witii regard to the nature of said work.
Plaintiff" further avers that whilst he was so engaged, working
at said building on said scaft'old, aforesaid, said defendants, who
were engaged in carrying on and conducting the business of
painting buildings, among other things, in and about the said
city of , were by their agents or servants engag«'d,
on the said .... day of aforesaid, in painting the
said building aforesaid, where said j)laintiff was engaged at
his carpenter work as aforesaid, and on the same side of
said building where said plaintiff* was working as aforesaid.
Said defendants, their agents or servants so engaged in paint-
ing said building as aforesaid, were using a long heavy ladder
in their work, which, when the bottom end tiiereof rested upon
the ground would reach up upon the side of said building sev-
eral feet higher than plaint ilY was when he was upon said
scaffold at work as hereinbefore stated. Said defendants, their
said agents or servants, used said ladder in and about their
said work of painting said building, ascending and descend-
ing upon it, moving it about from place to place upon said
building as a means to reach their said work of painting said
building, upon the day and hour hereinbefore mentioned
aforesaid.
And plaintiff further avers that it then and there became
and was the duty of defendants, their agents or servants and
each of them, to use ordinary and reasonable care, caution,
diligence and prudence in and about the premises and to
handle, fix, place, support, use and control said ladder in
using it in and about their said work of painting the said
building upon which said defendants, their said agents or
servants and said plaintiff were at work at one and the same
time as aforesaid, so that said ladder would not fall upon
or strike said plaintiff and thereby do him injury and
damage.
Yet, the defendants, the said and
, their said agents or servants, and each of them, well
PERGONAL INJURIES 1051
knowing their said duties in the premises and being iu default
thereof, and wholly neglecting and disregarding said duties,
on the said day of , 19. ., at or about
o'clock thereof as aforesaid, did handle, fix, place, support,
control and use said long heavy ladder in such a negligent,
careless, heedless, and reckless manner in and about their said
work of painting said building aforesaid, where said plaintiff
was at work aforesaid, as to cause or permit said long, heavy
ladder to fall upon said plaintiff while he was lawfully and
with due regard to his safety at work upon said scaffold at
said building aforesaid, said ladder striking said plaintiff a
very severe and violent blow upon his head, cutting a large,
severe and painful gash on his head, causing him to become
unconscious so that he fell upon said scaffold, said ladder then
knocking said scaft'old and plaintiff' violently to the ground, a
distance of nine or ten feet, breaking said phiintiff"s right
collar bone, breaking his right elbow, and causing him severe
and permanent injuries to his head and the bones thereof, his
scalp, his right shoulder, his right arm, the elbow thereof and
permanent injuries to the bones, muscles, cords, flesh, tendons,
ligaments and nerves thereof. Said injuries causing plaintiff
the permanent loss of the ordinary use of his said right
shoulder, right elbow, right arm and the hand thereof. Said
injuries then and there causing said plaintiff to become sick,
sore, lame, wounded, bruised and disordered from thence
hitherto, causing liim much severe mental and physical pain,
anguish and suffering.
AVhereof and whereby said plaintiff has been and now is
deprived of the ordinary use of his said right hand, arm and
shoulder and has constantly been and now is troubled with
severe pains in liis head, said right arm and shoukler, and is
and has been thereby permanently rendered unfit and unable
to attend to his said business and the ordinary aft'airs of life.
So that he has there and thereby suffered great loss in his
earnings as a carpenter at a salary of ($.,..)
dollars per day to the amount, to wit,
($ ) dollars. And whereof and whereby said plaintiff
has been obliged and compelled to pay out and expend large
and divers sums of money in procuring for himself various
drugs and medicines, medical and other attendance in order
to care for himself, and in endeavoring to be healed and cured
of his said injuries hereinbefore mentioned and the ill effects
and results thereof aforesaid to the amount of
dollars and upwards. To plaintiff's damage in the sum of ....
dollars, and therefore he brings his suit.
1606 Scenic railway, action
Persons or corporations operating a scenic railway a/e liable
in damages for the failure to exercise the highest degree of care
1052 ANNOTATED FORMS OF PLEADING AND PRACTICE
and caution for the safety of their passengera, and for an
omission to do all that human foresight and vigilance can rea-
sonably do consistent with the mode of the conveyance, and
the practical operation of such railway, to prevent accidents
to passengers while riding on the cars, the same as common
earriers.221
1607 Scenic railway, Narr. (111.)
For that whereas, the defendants, on, to wit, the day of
, 19. ., were corporations duly organized and engaged
in the management and operation of a certain pleasure resort
or place of amusement known as, to wit, , in the
township of , which said park was generally
advertised as containing interesting attractions including con-
veyance on, to wit, a scenic railway, which consisted of small
open cars discharged at an elevation on a narrow gauge rail-
way the surface thereof being uneven with sharp inclines and
short turns and when the cars were released on said railway
they would encircle the track at the rate of, to wit,
miles per hour, of their own momentum acquired at the start
from said elevated point of release, and the subsequent descend-
ing grades in said railway, so as to return to a point, to wit,
feet from the starting place, of their own motion.
And the plaintiff avers that it then and there became and
was the duty of the defendants to exercise reasonable care
and diligence in the construction, maintenance and operation
of said railway and ears thereon, and also to inspect, examine
and repair their said railway and cars at frequent intervals
so as to keep them in reasonably safe condition and repair for
the safe conveyance of persons patronizing said railway and
so as not to injure persons riding on said cars while in the
exercise of reasonable care and who had paid the fare de-
manded of them by the defendants; yet, the defendants, not-
withstanding their said duties on, to wit, the date aforesaid,
carelessly, negligently and wrongfully maintained and oper-
ated said railway with one of its cars in an improper and
unsafe condition, and failed and neglected to inspect, and
examine, repair and maintain said scenic railway and cars
thereon in a reasonably safe condition for the conveyance of
passengers; but the defendants permitted and allowed said
scenic railway and the cars thereon to become impaired,
defective and unsafe, of which defendants in the exercise of
reasonable care could have had notice ; and as the plaintiff, on
the date aforesaid, was riding in one of the cars of the defend-
ants on said scenic railway and w^as in the exercise of reason-
221 O 'Callaghan v. Dellwood Park
Co., 242 111. 336, 3-i3 (1909).
PERSONAL INJURIES 1053
able care and had paid his fare therefor, by reason of the
defendants negligence in not inspecting and repairing said
railway and cars and allowing the said railway and the cars
to become defective and unsafe, the car in which the plaintiff
was then and there riding at the rate of, to wit, miles
per hour, without notice, warning or knowledge on the part of
the plaintiff, then and there suddenly decreased its speed and
stopped in a violent manner and partially tipped forward,
whereby the plaintiff was thrown from said car to and on
the hard surface of the ground there, a distance of, to wit,
feet ; and the plaintiff was then, there and thereby
seriously and permanently injured in divers parts of the body
including his head, arras, stomach and nervous system, which
said injuries caused the plaintiff' great pain and distress from
that time hitherto, and he still suffers therefrom, and the plain-
tiff lost wages amounting to, to wit, dollars and
incurred expenses amounting, to wit, dollars in
endeavoring to be healed and cured of said injuries, to the
damage, etc.
1608 Shafts and openings unprotected, action
The barrier or railing required to be erected around shafts
and openings in floors of buildings in process of construction or
repair must be of a character to afford substantial protection to
men who are engaged in work in such buildings, and the owner
and contractor are civilly liable for injury resulting from a
failure to perform this duty. The statute which imposes the
foregoing duty is constitutional. 222
1609 Shafts and openings unprotected, Narr. (111.)
For that whereas, heretofore, on, to wit, the day
of , 19 . . , the defendant, , , was
the owner of a certain high building which was then and there
in the course of construction and erection on, to wit,
street, in the city of in the county and state
aforesaid, and was then and there a building contractor by
occupation, and as such was then constructing and erecting a
part of said building for said and each and
both of said defendants, prior to and then and there had charge
of the construction and erection of said building, and the
, deceased, was then and there a plumber by
trade, and as such was then and there employed by a con-
tractor, who had a contract with the said
222 Claffv V. Chicago Dock & Canal
Co., 249 ill. 210 (1911); Sec. 7,
Laws 1907, p. 314.
1054 ANNOTATED FORMS OF PLEADING AND PRACTICE
for the doing of part of the work in and about the construc-
tion and erection of said building, and the deceased as such
plumber earned, to wit, dollars per day.
And the plaintiff further alleges that the said . .••;••
was, prior to and then and there using within said building
a certain elevator or hoist for the purpose of lifting materials
to be used in the construction of said h\iil(ling from the ground
to the upper floors of said building, and which said elevator or
hoist, was then and there operated up and down through a
certain shaft or opening in, to wit, the floor of said
building. And by reason of the premises and of the statute
in such case made and provided, it was prior to and then and
there the duty of the defendants and each of them, to cause
said shaft or opening in said floor to be inclosed or fenced
in on all sides by a substantial barrier, or railing, at least
eight feet in height; but the plaintiff alleges that the defend-
ants, and each of them prior to and at the time and place
aforesaid, wilfully failed to cause such shaft, or opening, in
said floor to be inclosed, or fenced in, on all sides by a sub-
stantial barrier or railing at least eight feet in height, or by
any other safe and suitable barrier or railing, but thereni
wholly failed, and made default.
And the plaintiff further alleges that at the time afore-
said, deceased in the discharge of his duty to his said employer
was working upon said floor upon and about a certain pipe,
which was alongside of and close to said shaft, or opening, in
said floor, and the erection and placing of which pipe at the
place was part of the work required of his said employer by
his contract with the said And the plaintiff
further alleges, that while the deceased was so working upon
said floor, and upon or about said pipe, as a direct result and
in consequence of the defendants' said wilful failure to cause
said shaft, or opening, in said floor to be inclosed, or fenced
in, on all sides by a substantial barrier or railing, at least
eight feet in height, or by any other safe and suitable barrier,
or railing, he thereby then and there accidentally fell into and
down through said shaft, or opening, a great distance, to wit,
stories, and he thereby then and there sustained such
bodily injuries, that he died as a result thereof a short time
afterwards, in the county and state aforesaid.
And the plaintiff further alleges that the deceased then
and there left him surviving the plaintiff", who alleges she was
his wnfe and is his widow, and his children, and
all of whom, she alleges are still living, and that she and they,
before and at the time of deceased's death, were dependent
upon deceased for their support, and that by reason of the
death of the deceased, she, the plaintiff, and his said children
have been deprived of large suras of money and pecuniary
services which deceased would otherwise have contributed and
rendered to her and them for her and their support, care and
PERSONAL INJURIES 1055
Otherwise. And the plaintiff further alleges that she brings
this suit for the benefit of herself and said children. To the
damage, etc.
SIDEWALK INJURIES
1610 Generally
A municipality is liable for an injury sustained upon a side-
walk which it had permitted to become unsafe.223 i^ Michigan
the liability of a municipality for an injury sustained by a
private person from a failure to repair sidewalks, highways,
etc., is purely statutory and is limited to bodily injuries and to
damages to certain property interests. The loss of a ^^^fe's
services on account of an injury sustained upon a sidewalk is
not considered a property interest within the meaning of the
statute.224
1611 Declaration requisites
In charging negligence in keeping a sidewalk in repair, the
location of the sidewalk is an essential element of the cause of
action. 22 5 In an action against a municipality for an injury
sustained upon a sidewalk, it is necessary in Michigan to ex-
pressly allege that the street within which the accident happened
was open to public travel and that it had been a public street
or highway for a period of ten years and upwards. It is not
necessary to expressly refer to the statute upon which it is
founded, provided the cause is so stated as to bring the defend-
ant within the liability created by the statute ; 226 and unless
demurred to, the declaration which fails to count upon the stat-
ute will sustain a judgment. 22 7
1612 Elevated private sidewalk, Narr. (El.)
For that whereas, before and, on, to wit, the day
of , 19. ., the defendant was the owner of cer-
tain premises with a certain building thereon located in the
city of , county of aforesaid, at,
to wit, ; that being so the owner of the said
premises the defendant prior to the date aforesaid leased the
223 Chicago V. Jarvis, 226 111. 614., 220 Clark v. Xorth Muskegon, 88
618 (1907). Mich. 308 (1891).
224 Roberts v. Detroit, 102 Mich. 22- Fuller v. Jackson (City), 82
64, 66 (1894). Mich. 480, 482 (1890).
22n Gillniore v. Chicago, 224 111.
490, 494 (1906).
1056 ANNOTATED FORMS OF PLEADING AND PRACTICE
said premises for the purpose of being use-d as a residence,
and after said leasing the tenant of the said defendant re-
mained and was in tlie possession of the said premises to and
on the date aforesaid; that the phiintift' on the date aforesaid
was a minor of tender years and lived with .
parents in said building; that at the time of the leasing of said
premises and building by the defendant there was in front of
and adjoining said premises a certain public viaduct and side-
walk elevated at a great distance above the ground, to wit,
feet ; that at and before the date aforesaid the
defendant maintained a certain private sidewalk extending
from said public sidewalk to the said building for the purpose
of ingress and egress of the said tenant and people living in
said house including the i)laintiff herein, and said sidewalk was
elevated above the ground a great distance, to wit,
feet; that it then anil there became and was the duty of the
said defendant to use all reasonable care to cause the said
private sidewalk to be so constructed and so maintained
with suitable guards, railings and protection so that the same
would be reasonably safe for the people who have lawful
occasion to pass over said private walk. Yet, notwithstanding
its duty in that behalf, the defendant during all the time here-
inbefore mentioned, maintained said private walk in a danger-
ous condition in that it was elevated, to wit
feet above the ground, and was not provided with reasonable
guards, railings or protection to prevent children and others
having lawful occasion to pass over it from falling therefrom
to the ground ; that on the day of ,
19.., the plaintiff, while in the exercise of such reasonable
care as might be expected from a child of years and
intelligence, on account of said negligent construction and
maintenance of said private sidewalk, unavoidably fell from
said sidewalk to and upon the ground below, and thereby
was severely injured in and about the body and
limbs, and leg was then and there broken by said
fall; that in consequence of said injury h. . became sick, sore,
lame and disordered and so remained from thence hitherto ;
during all of which time . .h. . has suffered pain and inconveni-
ence; by means whereof . .h. . says . .h. . has been damaged
to the amount of dollars, and therefore ..h..
brings suit.
1613 Hole or washout, Narr. (111.)
For that whereas, the defendant, a municipal corporation,
in the county of and state of Illinois, before
and, on, to wit, the day of > 19. ., and
for a long time prior thereto, was possessed of and had con-
trol of a certain public sidewalk on a certain public street
called , in the said city in the county aforesaid,
PERSONAL INJURIES 1057
and it was the duty of said city, during the time aforesaid, to
have kept and maintained the said public sidewalk in good and
safe repair and condition. Yet, the defendant, not regarding
its duty in that behalf, and while it was so possessed of and
had control of said sidewalk, to wit, on the day last aforesaid,
and for a period of at least a month prior thereto, wrongfully
and negligently suffered and permitted a portion of said pub-
lic sidewalk located on the west side of said street,
about feet north of the northwest corner of the in-
tersection of and streets in the said
city of , to be and remain in bad and unsafe con-
dition and repair, and at the place aforesaid wrongfully and
negligently sull'ered and permitted a hole, gutter or washout
to be and remain in said sidewalk, of great depth, to wit, of
about the length of feet, and of about the width of
feet, thereby making said sidewalk unsafe and
dangerous for public travel. And plaintiff avers that the said
defendant knew the condition of said sidewalk on the day
aforesaid, or, by the exercise of reasonable and ordinary care
in the premises, said city would have known of said unsafe
and dangerous condition of said sidewalk at tne place
aforesaid.
By means whereof, the plaintiff, who was then and there
passing along and upon said public sidewalk, upon the west
side of said street aforesaid, about feet
north of the northwest corner of the intersection of
and streets, as aforesaid, and who was then and
there in the exercise of all due care and caution for her own
safety, then and there necessarily and unavoidably, in walk-
ing along and upon said sidewalk, stepped into said hole, gut-
ter or washout, then and there being in said sidewalk, all as
aforesaid, and thereby one of the lower limbs of the said plain-
tiff was then and there tAvisted, turned and wrenched, and the
ankle of said limb, and its component parts, severely torn,
broken, misplaced, fractured, and permanently injured, and
the plaintiff was otherwise seriously and permanently injured,
and she became sick, sore, lame and disordered and so re-
mained for a long time, to wit, from thence hitherto ; during
all of M'hich time she thereby suffered great pain and was
hindered from transacting her household duties and other busi-
ness and aft'airs, and her injuries in the respect aforesaid are
permanent : and also by means of the premises, the plaintiff
was obliged to, and did, lay out divers sums of money, amount-
ing to dollars, in and about endeavoring to be
healed of the said wounds, sickness and disorder.
And plaintiff avers further that after the time of the hap-
pening of the grievances heretofore herein set forth and de-
scribed, and on the and days of
, 19. ., respectively, the said plaintiff, by her at-
torneys, , caused to be filed, and did file, in the
1058 ANNOTATED FORMS OF PLEADING AND PRACTICE
office of the then city clerk of said city of , and
the then city attorney of the said city of re-
spectively, a certain notice, as is retiuired hy the statutes of
the state of Illinois, in the words and figures following, to wit :
State of Illinois, Lg
County of )
To the city of county of , and
state of Illinois, and to , city attorney of, in and
for said city of
You are hereby notified, that a cause of action has accrued
to , who resides at street, with her
husband, , by reason of the fact that said
, while in the exercise of all due and proper care
and caution for her own safety, did, on the day
of , 19. ., between the hours of o'clock and
o'clock .. 'SI., of said day, and after dark, step into
an open uncovered and dangerous hole, gutter, or washout in
and within street, in said city, on the west side
of said street, about feet north of the
northwest corner of the intersection of and
streets; said hole, gutter or washout being in
the cinder and dirt foot passageway or sidewalk on the said
west side of said street ; which said hole, gutter
or washout had existed at said place for a considerable length
of time, to wit, month. ., and thereby by the said
stepping into said hole, gutter or washout said
did then and there turn, twist, wrench and injure her
foot and the ankle and lower limb on side of her body,
so that she has been very severely and permanently injured
by' reason thereof ; that her attending physician was, at the
time of the accident, and still is, , who resides at
the corner of and streets, in the
city of aforesaid.
By ,
her attorneys.
And the plaintiff further avers that the said city clerk of
the city of , and the then city attorney of said
city each separately acknowledged the receipt of said notice,
and receipted therefor on an original copy of the same, on
the said and days of ,
19. ., respectively, which said original copy, together with said
proof of service of said notice, as is required by statutes, was,
on the day of , 19. ., filed in the office of the
clerk of this court, and is now a part of the files of this cause.
To the damage, etc.
PERSONAL INJURIES 1059
1614 Loose plank, Narr. (111.)
For that whereas, heretofore, on, to wit, , at,
to wit, , and said county and state, the defendant
was possessed, and had control of a certain public sidewalk,
on, to wit, , near, to wit, , in said
city ; and the defendant carelessly and negligently, and in vio-
lation of its duty in the premises, then and there, and for a
long time previous thereto, had and kept said sidewalk out of
reasonable repair and condition and full of divers holes and
weak and insecure, and insufficient, so that, while the plaintiff
was then and there, to wit, in the night time, with all due
care on her part, lawfully passing upon and over said sidewalk,
a certain, to wit, board, to wit, plank constituting a part of
said sidewalk then and there, by reason of the premises, flew
up and gave way and tripped the plaintiff and she thereby,
without fault on her part, fell into a certain hole then and
there in said sidewalk, and a certain board in said sidewalk
then and there broke, and by reason of the premises, the plain-
tiff then and there fell upon and against said sidewalk, to wit,
through said sidewalk, to wit, to the ground then and there;
whereby the plaintiff was greatly and permanently injured,
both internally and externally, and was rendered permanently
sick, sore, lame, crippled and disordered; and also, by reason
of the premises, the plaintiff suffered severe and permanent
concussions of the brain and spine and a severe nervous shock,
and was rendered permanently subject to headaches, vertigo,
sleeplessness and melancholia, and divers other troubles of the
head; and divers of the bones of the plaintiff's chest and other
parts of her body and of her limbs were thereby broken and
dislocated and greatly and permanently bent, strained and
otherwise injured ; and also by reason of the premises, divers
of the nerves, sinews and muscles of the plaintiff were greatly
and permanently strained, sprained, ruptured and injured; and
other parts of her body were greatly strained, sprained, rup-
tured, and injured ; and the plaintiff was rendered permanently
subject to spitting of blood, nausea and vomiting, and was
confined to her bed for a long time, to wit, from thence hitherto ;
and also by reason of the premises, the viscera and internal
organs of the plaintiff and her heart and lungs were greatly
and permanently strained, sprained, ruptured and injured ; and
her bladder and w^omb were greatly and permanently injured
and rendered incapable of performing their normal functions
properly, and she suffered from bleeding from her private parts
and was rendered incapable of child bearing; and also by
reason of the premises, the plaintiff has been rendered unable
to work, or to follow her usual occupation of housewife, or to
perform her usual duties ; and was put to a great expense, to
wit, an expense of ($ ) dollars for medi-
cines, nursing and medical attendance, in endeavoring to be
1060 ANNOTATED FORMS OF PLEADING AND PRACTICE
cured of aforesaid injuries, and will be obliged to incur like
expenditures permanently in future for the same purpose; and
also by reason of the premises, the plaintiff has been and is
otherwise greatly and permanently injured, to wit, at said
county wherefore, she says she is injured and has sustained
damages in the sum of ^'^V;;"^ '^''^''''■'' '
therefore she brings this suit, etc.-28 (Add averments con-
cerning notice as in preceding form)
1615 Obstructed sidewalk, Narr. (D. C.)
For that whereas, on the day hereinafter mentioned, and
for a long time prior thereto, there was and still is a certain
common public street or highway in the city of -,
in the District of Columbia, called avenue, south,
a certain other common and public street or highway in said
city and District called street, south, and a cer-
tain other common and public street and highway in said city
and District called street, west, which said
avenue intersects with said street
and with said street, and which said
avenue, and streets, were and are
used as such streets and liighways by the public for passing
and repassing on, over and across the same, on foot as well
as otherwise; and whereas said defendant, well knowing the
premises, was bound to keep said street and highways, and
each of them in such condition as to render them safe for pass-
age and transit as aforesaid on, over and across the same;
yet, nevertheless, the plaintiff alleges that theretofore, to wit,
on the day of , the said defendant,
not performing or regarding its duty as aforesaid, wrongfully
and negligently caused, permitted and allowed the said com-
mon and public streets and highways, to wit, at the southeast
corner of their said intersection with each other, to become
and remain in a dangerous and unsafe condition, to \yit, by
causing or permitting an obstruction, to wit, a large pipe, or
hose of great diameter, to wit, of a diameter of
inches, to be placed and to lie and be upon, across and over,
and to project from and above the sidewalk or sidewalks of
the said avenue and streets at or near the said southeast corner
thereof formed by their said intersection, and especially upon,
across, over and from and above the sidewalk of
street, at or near the said locality, there to remain, be and
continue for a long, unnecessary and unreasonable length of
time, when not in use, unattended and without any barricade,
precaution, warning, or notice of any kind for the protection
of persons lawfully passing along, upon and over the said walks,
228 Karczenska v. Chicago, 239 HI.
483 (1909).
PERSONAL INJURIES
1061
or to prevent the said obstruction from causmg nijury to
them • by means and in consequence of which gross negligence
and f'ailure on the part of the defendant to perform its duty m
that respect as aforesaid, the plaintiff then and there to wit
on the day and year aforesaid, Avhile walking moderately and
carefully along the said street, was tripped by and caused
to stumble over the said obstruction, which was then and
there and for a long time had been so as aforesaid unlawtully
and wrongfuimy caused, permitted and allowed to be m and
upon the sidewalk of the said streets and avenue, unguarded
and unprotected in any manner whatsoever, through the gross
ne-ligence and default of the defendant as aforesaid ; whereby
the plaintiff was then and there thrown heavily down to and
upon the ground, and whereby the plaintiff"s arms became
greatly bruised, hurt, wounded and injured and the elbow-joint
of her said arm was fractured, sprained and bruised and other-
wise seriouslv hurt, cut and maimed, causing permanent and
extensive adema and stiffness of the joint and serious and
permanent impairment of the function of the arm, and whereby
the plaintiff suffered great pain and mental and bodily anguish ;
and so by means of said injury, the plaintiff was renderexl sick,
sore lame and disordered ; and from thence hitherto continued
and' will ever continue to suft'er great pam and mental and
bodily suffering; and was for a long space of time from
thence to the present time, and will ever continue to be hin-
dered and prevented from attending to and performing her
ordinary and necessary affairs and duties; and she is seriously
and permanently injured in her bodily health and strength;
and in attempting to cure herself of her said injuries as atore-
Lid "he was'put'to great expense, and from thence hitherto
has been and will always be put to great expense for the
services of phvsicians to treat her said injuries and for medi-
cine in the treatment of much injuries; to the damage, etc.
(Maryland)
For that the defendant the mayor and city co^fcil of
tor that tne ^^^^.^ .^ ^ .nunicipal corporation of the state
TTvVoVJianrl' Ph-irtred bv the law with the duty of caring tor
^nd SSi^g fe^^s^^^^^ alleys and sidewalks of the city
and mamtaining ^^^ ^^ ^^^^.^^ ^^^^ ^^^^^ ^^ ^^^^^ f f
wL' ;;nvp{ 'and charcred with the duty to remove and abate
Ll nuisaiiLhnd ob^^^^^^^^ on said streets, alleys and side-
all nuisances ana u ^.^.^^ ^^ ^^^ ^^^y . ^^^
Stas at 'the ime of the injuries hereinafter mentioned and
llT^L^sT^^Xf^-^ disregarding and neglecting said
1062 ANNOTATED FORMS OF I'LLADINO AND PRACTICE
duty and obligation imposed upon it tin- said defendant tin-
mayor and city council of did on the .... day
of , 19.., and for a long time prior thereto permit
the said , and who
conducted a hotel known as hotel on the north-
west corner of and streets hi the
said city of , it being the same property described
in a deed from to the said dated
the day of , , and recorded among the land
records of county in liber No ,
folio ...., to stack beer kegs on or near said
street one of the public traveled streets of said city at or
near its intersection with street and near said
hotel in such a negligent manner as to be dangerous to per-
sons passing along and upon said street, and failed ami neg-
lected to remove the same and failed and neglected to require
the said , and to re-
move the said beer kegs so negligently stacked by them on
or near the side of said street; that on the day of
, 19.., the date above mentioned a number of beer
kegs were negligently stacked on or near said
street at or near its interseetion with street and
near the hotel so conducted by the said ...,
and to the height of about eight
feet by the said , and
or their agents and servants; and that on the said day and
date, while the said infant plaint ilY was passing along and
upon the sidewalk on said street at and near its
intersection with street where the jiublie using
said street travel at all times, and using due care for her own
safety, by reason of the negligent and dangerous manner in
which they had been piled, one of said beer kegs fell upon said
infant plaintiff knocking her down and injuring her left leg
so seriously that as a result of said injury the said left leg
of said infant plaintiff had to be amputated below the knee;
and other injuries Avere inflicted upon her; and as a result
of which said injuries, said infant plaintiff has suffered great
pain, and is permanently injured ; and that the said infant
plaintiff was using due care and caution and was not guilty
of negligence contributing directly to the happening of said
accident.
And therefore the plaintiff claims $ damages.
1616 Stairway and passagev^ray, action
A landlord who rents different parts of a building to various
tenants and retains control of the stairways, passageways, hall-
ways, or other methods of approach to the several portions of
PERSON.VL INJURIES
1063
the building for the common use of the tenants has resting upon
him an implied duty to use reasonable care to keep these places
in a reasonably safe condition and is liable for injuries which
result to persons lawfully in the building from a failure to
perform this duty. ^ 29
1617 Stairway and passageway, Narr. (D. C.)
For that heretofore, to wit, on the day of ••••••••'
at the city of ..:...., District of Columbia, the defend-
ant was the lessee and in control and possession of certain
premises situate in the said city and District, ^f^^'^'f f
theatre, upon which premises the said detend-
ant'tiien and there conducted a public entertainment or
theatre and charged prices of admission to all Persons enter-
ing the said premises for the purpose of witnessing the sa d
entertainment. That the said defendant produced on said
premises afternoon and evening theatrical perforinances
known as polite vaudeville entertainments for which entrance
fees were by him charged to and required of persons desir-
ing to witness the said performances. That the said plaintiff
on the afternoon of the day and year above mentioned, desir-
ing to witness the said performance lor that afternoon had
purchased for her of the defendant a ticket entitling her to
admission on that afternoon to the said Pf^^^^^^ f J^^^^?^^^
seat in a lower box on the right hand side of the said theatre^
That the said plaintiff was at the time ^fo^es^^^^^^.^y ^f ""^^^
by the defendant upon presentation of the said ticket to the
said theatre and box. That it then and there became and
was the- dutv of the said defendant to so construct and mam-
tain the said premises and especially the aisles and passage-
wavs of the siid theatre that they would be in a reasonably
safe and proper condition for persons properly on said prem-
ses and desiring to enter and leave the said P/3«^«/-d
the aforesaid box during the said entertainment and at the
conchision thereof. And also to keep the same properly
lighted until such persons had a reasonable opportunity to
eave the said box and premises at the conclusion of said
entertainment. But the plaintiff avers that on the occasion m
quest on the defendant unmindful of his duty in the premises
ne^ gently suffered and permitted the said right hand side
aisle of said theatre leading from and beyond the entrance to
said box, a seat in which the plaintiff occupied, to the exit
f?om said theatre, to be in a dangerous and unsafe condition
in this- That the usual and necessary entrance to said box
was bv'a passageway leading thereto from the right hand aisle
of the ground floor of said theatre; that the said passageway
229 Shoninfier Co. v. Mann, 219 111.
242, 245 (1906).
1064 ANNOTATED FORMS OF PLEADING AND PRACTICE
■was separated from said aisle by a curtaiu hung at the
entrance to said passageway from said aisle, which could be
drawn aside at either end so as to allow p«'rsons access to said
passageway from said aisle and to said aisle from saiil passage-
way ; that there was then and there a descending step in said
aisle which extended entirely across said aisle of the height
of, to wit inches, and that the said step was con-
structed across the said aisle just beyond the point of exit
on said aisle from said passageway from said box and
at a short distance, to wit, • inches, from said
point of exit, and extended as aforesaid across aforesaid
aisle; that the existence and location of the said step at the
place aforesaid in said aisle constituted and was a danger-
ous construction and a trap both in its construction, itself
and also in this; that unless the premises aforesaid at the
location of the said step were clearly lighted, a person pass-
ing along the said aisle and turning to enter the said passage-
way and passing along said passageway and turning to enter
the said aisle could not see the said step: that said premises
were so constructed and maintained that daylight was excluded
therefrom and the same were lighted with artiticial lights
which could be and were by servants of the defendant turned
on and off, lowered or heightened by mechanical appliances
as occasion should require.
And the plaintiff avers that on the occasion in <iuestion the
defendant unmindful of his duty in the premises, negligently
suffered and permitted the right aisle of said theatre leading
from and beyond the said box, a seat in which the plaintiff
occupied, to the exit from said theatre, to be in a dangerous
and unsafe condition in that there was then and there in
said aisle the aforesaid step and also in that the said defendant
after the close of the said performance anil before the plaintiff
had reasonable time to leave the said theatre negligently
suft'ered and permitted the above mentioned artificial lights
which were necessary to a reasonable and proper lighting of
the said premises to be turned down and extinguished and
thereby caused the said premises to be and remain in a dark
and improperly lighted condition ; and that the said defendant
further negligently permitted the said curtain to remain over
the entrance to said passageway from said aisle.
By reason whereof the said plaintiff while using due
care and caution on her part, in leaving the said box and
going along the passageway on the said occasion in order
to depart from the said theatre could not and did not
see the said step immediately and after leaving the said
passageway and was precipitated and thrown violently down
the said step extending across the said aisle, to the floor of
said theatre, while drawing the said curtain aside in order
to allow a companion free access to said aisle from said
passageway, and her body was much cut, bruised and
PERSONAL INJURIES l^^^
«?Ul is sick sore, and lame, aud has endured and will con-
W to endure great pain and bodily anguish; and has been
Ind Jill continue to b'e, by reason of said i^Xfher'ne'et
and prevented from performing and transacting her neces
sarv affairs and business; and further the said plaintiff was
forced and obliged to pav out a large sum of monej , to wit
the tum of . dollars in and about endeavoring to
be cur^d of* 'the injuries aforesaid, and in the expenses of
med'dne rendered Lcessary by reason thereof, and w^ll in
future be obliged to pay out large sums of money
for the same purposes; to the damage, etc.
(Michigan)
That he is and has been for many years continuously, both
mat ne is anu uds "^^ professional musician, pro-
before and since , 19- v ^ P, ^ TTik. « fir«;t class
ficient on the horn, flute, violin and especiall> a fij^t class
ar St with the viola, and had been continually en^ag^m the
practice of his profession, as a teacher, and Pl^jmg ^th and
leading bands and orchestras, at a very high pa> and was able
to and did earn thereby from $ to $ per
annum. is a private corpora-
That the
business in the stone ..^y^. --■ o hmilevard
t.on orgamzcu a 5 occupies and conducts its
Susl^e'rin'the ;i;n;VronVbuirdiug known^s the
lilding, o]
That the a«enaam ....-- ^ ^^^^^ ^^ ^^^
ro\t^as'=:^''^••.••.■.•on••s| ...:,......• boulevard,
^^X Stf iln^Twf ^I't^oX both-pore- and
L':e"sa'id date opeva.cd and conducted a vartet.v theater. ^^^
That on or about^sa.d ^-^ • -^^^-.f^^ j„, ^ ,[-, '.^ ,
: •■■*' f hnlletins to announce the results ot public
";i:s ir Mh r'"^u^vents and had been as well giv
games. «iuu u ,,p. k: ' concerts, through ,
"^ ' Wra and bfnd itader, hired and arranged with plain-
Jiff Tnd a c'onsider We number of other musicians to gtve on
^Srt^eot^^fio^tc:;^^^^^^^^^
That in connec ^^^^,^^,3 a„ arrangement bv agreement,
whereby and ^hereunder the defendant agreed
1066 ANNOTATED FORMS OP PLEADING AND PRACTICE
to let it have the use of a balcony extending out and over the
sidewalk in front of and immediately contiguous to the north
side of said theater building of said , located
next door west of said , in order to seat for said
said musicians and for them to provide said
concert therefrom.
That it became and was therefore the duty of said defend-
ant and of said dcl'tndant , and of
each of them, to provide for said musicians, including plain-
tiff, a place safe, convenient and comfortable for them to
play at and upon, and to furnish said musicians there also
a safe place and moans, with convt'iiicnt doors, entrances and
stairways with sufticient railings thereon, and hallways, all
well lighted or attentled, bolli to get into and tln-ough said
theater to said platform, as well as to get away therefrom
and out of said theater; and that said defendants, and each
of them, in so providing said balcony and inviting and per-
mitting said musicians thereto and thereupon, held out and
represented to plaintiff and said otliei's that said doors,
entrances, stairways, hallways, etc., leading into and out of
said building were so as set forth sound and safe for ingress
and egress.
That in accordance with said understanding between plain-
tiff' and said and said and each of
them, and the holding out and offerhig of and the said repre-
sentations by said defendants and
in relation to said premises, plaintiff and s-aid nuisicians about
.... o'clock in the evening of said day went up the stairway
of said theater building, and thereupon went
back through the room adjacent to and out upon said balcony,
and gave said concert; that about .... o'clock of said even-
ing, after they had concluded the concert, they crawled back
through one of the windows into said theater building, went
back through the room adjacent to the balcony and into which
the windows opened, and the greater part of them went out
ahead through the doorway thereof and found their way
through the hallway, onto the stairs and went down into the
street; that plaintiff remained behind, the only musician left
in said room, put his French horn into the bag which he had
therefor, after which he took the F'rench horn under his right
arm, and his music stand in his left hand and went out through
the doorway, and upon reaching the hallway found it unlighted
and dark ; that he carefully felt his way from the wall up the
short stairs that are at the left of the doorway going out, and
passed across the hallway, carefully feeling his way to the
approach erected at the head of the stairway leading down
and out of said theater building ; that he had never before been
in the building or on the stairway, except while coming up
that evening, when it was already past dusk and dark ; that
while coming up said parties noticed that the stairway and
PERSONAL INJURIES 1067
hallway were unlighted; that they were talking to each other
and plaintitt' paid no particnlar attention while coming uj)
to either the length, position or condition of the stairway or
of the hallway; that therefore he was unacquainted with his
surroundings and used extreme care in endeavoring to go out,
walking carefully across said hallway to the eas-t wall, felt his
way along this right side and started carefully to descend
said stairs; that after he had descended only tv\-o or three
stairs, being unable to steady himself with his right hand, and
finding no railing on that side, he turned partly around and
started to cross over to the left side of said stairs, to ascertain
if there were on that side a railing on which he might steady
himself with his left hand, which was partly disengaged; that
when (as he believes) plaintiff was about half way across the
stairs, he became bewildered on account of the darkness, lost
his bearings and sense of direction, slipped over the stair on
which he walked and pitched down the stairway, fell on his
left arm, side and head, broke his arm at the elbow, was
knocked unconscious, and has no recollection of what further
transpired until he returned to consciousness on the sidewalk
in front of said theater, where he is informed that he had
been carried by some one who found him unconscious after
the fall ; and plaintiff is informed that two or three of the
other musicians who went on ahead of him stumbled on said
stairs in going down, and that one of them pitched forward
and down said stair and would have fallen and received a
violent injury had he not been caught by the music director
who was ahead of him.
And plaintiff' alleges that by and through said accident his
arm was severely fractured and splintered at the elbow and
he received concussion of the brain and suffered great loss of
blood; his body, arms and legs were skinned, bruised and
contused ;. his abdomen was bruised, black and blue ; and he
was internally shocked, shaken and injured; his left eye and
back were injured and his back was so lame that for a long
time he could not walk; and his kidneys and bladder were
so badly injured that for some time he was unable to urinate
and became in danger of sepsis; and so on this account and
because of his advanced age ( years) his condition from
said causes became too dangerous to permit an operation
such as was required to properly bring said fractured arm
back into its socket and restore it to its original form and
condition; and that had it not been for plaintiff's previous
good health he would have died; that in setting said arm it
became necessary to draw it inwards and upwards, leaving
part of the bone of the elbow projecting, and the arm has
become stiffened and partially helpless; that plaintiff was con-
fined to his room for weeks under continuous skilled
medical attendance and nurses, and upon getting out v,-as
for a long time unable to walk without a cane ; and that until
1068 ANNOTATED FORMS OF PLtL\DlNG AND PRACTICE
of that year he was continually under the cure
and advice of a skilled siirgt'on, endeavoring to get his arm
re-formed and a better use thereof; that the sight in said
injured eye is almost entirely destroyed, and he has been
informed by skilled oculists that the optic nerves have been
partially destroyed and that he will never regain his sight;
that he suffered great mental and pliysical pain ami anguish,
and was put to great expense for metlieiiu', meilieal attend-
ance and appliances, nursing and additioiuil care and for
other and miscellaneous articles and things reijuired and used
by him in and about endeavoring to be healed and cured,
and still suffers almost continual pain in both said injured
eye and arm; that the arm is i)artially stiffened and he can
bend the same up to within only inehes from his
mouth, on account of whieh he is unable to play any instru-
ment other than the French horn, whieh he is obliged to hold
almost wholly in his right hand whik' playing the same; that
he has no trade or profession other than that of being a
musician, and that the denumd for French horn players is
so small and his emi)loyment thereat so limited that his earn-
ing capacity has been through said injuries reduced to almost
nothing.
And plaintiff alleges that contrary to their said duty and
representations, the said defemlants and each of them pre-
pared, kept and left the said premises in the aforesaid condi-
tion, that they failed to keep said iiallway and said stairway
lighted, so that persons ujuiequainted with the conditions and
surroundings could readily iind tiieir way over and through
the same, and that tlu-y failed to have and keep some one in
said hall or on said stairway, or in cliarge of said musicians to
point out to them the conditions therein and thereof or to lead
them into and out of said theater in safety, and failed to pro-
vide a railing along the east side of said stairway for per-
sons so ascending or descending to steady themselves thereon ;
all of which was or ought to have l)een known to the defendants
and each of them; and that the said premises being and having
been left in said state were in a dangerous condition for use,
such as was contemplated by plaintiff, of which plaintiff' ought
to have been informed or warned ; which said omissions could
and ought to have been prevented and the failure so to do con-
stituted negligence of the defendants and each of them; and
that on account of the said negligence of said defendants and
each of them plaintiff* so fell and was injured as aforesaid, with-
out his fault ; to plaintiff's damage of $ ; wherefore he
brings this suit.
1618 Street crossing-, action
Those who are in charge of a street car must keep a sharp
lookout as they approach a street crossing, and must slacken the
PERSONAL INJURIES 1069
speed of the car sufficiently to enable them to have it under
control to avoid injuring those who may be crossing the street.^^*^
1619 Street crossing, Narr. (Va.)
For this, to wit, that heretofore, to wit, on the .... day of
, 19.., and for a long time prior thereto, the said
defendant was, and had been a common carrier of passengers
for hire and reward, over and along a certain line of railway
between the city of in the District of Columbia, and
the city of , state of Virginia, the motive power
whereof was electricity and the operation whereof was by
electrical machinery and appliances, with certain stations or
stopping places along its said lines for the taking on and dis-
charging of passengers; that on the day and year aforesaid
and for a long time prior thereto, it was and had been the
custom, usage, and practice of the said defendant to provide
and display a light, known, to wit, as a head-light, and other
lights, on or from each of its said trains, so run as aforesaid,
on its said line of raihvay, between the said city of
in the District of Columbia, and the said city of ,
in the state of Virginia, whenever the said trains were run
over or on the said line of railway during or in the night
time, said lights being so placed and arranged as to be easily
visible from the exterior of said train and sending a reflection
for a long distance, to wit, to the distance of three hundred
feet ahead ; that the said defendant, being such common
carrier, of passengers, as aforesaid, on the day and year afore-
said, was engaged in the operation of a certain train of cars
or coaches along its said line of railway from its station in
the city of , District of Columbia, aforesaid, to the
city of , state of Virginia, aforesaid, with said sta-
tions or stopping places as aforesaid, for the taking on anc
discharging of passengers as aforesaid, which said train of
cars or coaches departed from the said station of the defend-
ant company in the city of aforesaid, at a cer-
tain time, to wit, about .... o'clock P. M., it being the night
time of that day, when the said plaintifl:', at the special instance
and request of the said defendant, became and was a pas-
senger on said train of cars or coaches, to be carried on a cer-
tain journey, to wit, from the defendant's said station in
the city of District of Columbia, to a certain
station or stopping place along the said line of the said
defendant in the county of , state of Virginia,
between the cit}^ of aforesaid, and the city of
aforesaid, known, to wit, as " ," for a
certain fare and reward in that behalf paid to the said defend-
230 United Rys. & E. Co. v. Kolken,
114 Md. 160, 168, 171 (1910).
1070 ANNOTATED FORMS OF PLEADING AND PRACTICE
ant ; that the said plaintiff, being such passenger, alighted from
the said train of cars or coaches at the said station of
" " at which said station there is a public road
crossing at grade; that in crossing the said defendant's tracks
to get to the station shed, there being double tracks at that
point, the said plaintiff was using the said public road
crossing.*
That thereupon, it became and was the duty of the said
defendant, its servants, agents and employees to provide and
display a light, known to wit, as a head-light, or other lights
as was its custom, usage, and practice, aforesaid, on each of
its trains, running over or upon its said tracks or line of
railway at that point at that time; but, notwithstanding its
duty in that behalf, and wholly failing and refusing to perform
or fulfil its obligations to the said plaintiff, and without any
fault or neglect on the part of the said plaintiff", so negligently
conducted itself, through its agents, servants and employees,
that when the plaintiff was crossing the eastern track of the
said defendant's said line of ralway, at the said station or
stopping place known as , a train operated by
the said defendant, its servants, agents and employees not dis-
playing any light or lights which were visible from the exterior
of the train was allowed to strike the said plaintiff with great
force and violence and to injure him as hereinafter set forth.
2. (Consider first count to star as here repeated the same as
if set out in words and figures.)
And it also then and there became and was the duty of the
defendant to use due, ordinary, and proper care to safely
carry the said plaintiff along and upon the said journey and to
safely land him at his destination ; but the said defendant, not
regarding its duty in this behalf, and w^holly failing to use,
due, ordinary and proper care, and without any fault or neg-
lect on the part of the said plaintiff, so conducted itself
through its servants, agents and employees, in this that, when
the said train of cars or coaches had reached the said station
or stopping place known as , in the said county of
, as aforesaid, and the said plaintiff had alighted
from the said train of cars or coaches, another train of cars
or coaches, operated by the said defendant, through its serv-
ants, agents and employees, and running in an opposite direc-
tion to the one from which the said plaintiff had alighted and
on the eastern track of the said defendant's line of railway,
was so negligently run, by the said servants, agents or
employees of the said defendant in that no head-light was
displayed and whistle w^as blowm, and said train of cars was
allow^ed, without any fault or neglect on the part of the said
plaintiff, and without any warning to the said plaintiff, to
strike him, the said plaintiff, with great force and violence,
and to injure him as hereinafter alleged.
PERSONAL INJURIES 1071
3. (Consider first count to star as here repeated the same as
if set out in words and figures.)
That thereupon it also became and was the duty of the
said defendant, its servants, agents and emplo3'ees, to use due
and proper care to give reasonable warning to the said plain-
tiff of the approach of trains on its said tracks by providing
and displaying a light or lights on its said train, so approach-
ing the said public road crossing, said lights being so placed
and arranged as to be easily visible from the exterior of said
train, and sending a retiection for a long distance, to wit, two
hundred feet ahead; but the said defendant, not regarding
its duty in this behalf, and wholly failing and refusing to per-
form its obligation to the said plaintiff, and without any fault
or neglect on the part of the said plaintiff so negligently con-
ducted itself, through its servants, agents and employees, that
when the said plaintiff was crossing the eastern track of the
said defendant's said line of railway at the said station or
stopping place known as " " in the said county
of , state of Virginia, it being in the night time,
a train of cars or coaches operated by the said defendant, its
servants, agents and employees, and not carrying or displaying
any light or lights which were visible from the exterior of
said train of cars or coaches, was so negligently run as to
strike the said plaintiff with great force and violence, throw-
ing him a long distance, and greatly injuring, wounding and
crushing the body of the said plaintiff, and greatly injuring
the said plaintiff in and about his head, back, spine, hips, legs
and feet, thereby causing the said plaintiff great bodily suf-
fering, injury and pain, so that the plaintiff has been pre-
vented from following his usual occupation and preventing
said plaintiff from obtaining a large sum of money which he
otherwise would have obtained in and about his regular em-
ployment, and permanently injuring said plaintiff in his
mind and body and causing said plaintiff to expend large suras
of money in and about his efforts to be cured of his hurts, cuts,
bruises and injuries, to the damage of the said plaintiff in
the sum of dollars.
And therefore he brings his suit, etc.
1620 Streets and highways, action
Permitting uninsulated wires to remain in the public streets
endangering persons passing along the same, renders a munici-
pality liable for injuries caused thereby. 23i A municipality is
not liable for an injury resulting from an obstruction of its
231 Palestine v. Siler, 225 HI. 630,
637 (1907).
1072 ANNOTATED FORMS OP PLEADING AND PRACTICE
streets by a licensee, unless the licensee performs a work in the
street in an unusual and negligent manner with the municipal-
ity's permission after notice.-^- A municipality is liable for
an injury which occurs from a defect in a street or higiiway
which could have been foreseen and avoided by the authorities of
the municipality by the exercise of ordinary care and pnidence,
and of which defect the municipality had actual or constructive
notice. Whether a municipality had notice of the defect is a
question of fact where there is a conflict of the evidence; it is
a question of law where the facts are undisputed and but one
reasonable inference can be drawn from tliem.-^^ A munici-
pality is liable in damages to a pei'son who is injured by a
defect in the street while riding a bicycle; but ordinarily, this
liability does not extend to injuries or damages sustained from
a sharp stone, a tack, a bit of gla.ss or coal happening to be in
the road.23-t A township is not lia])le for personal injuries sus-
tained by a person while traveling in a highway, unless the
township's negligence is the proximate cause of the in jury .2^'
In Michigan a person's right to recover from a municipality
for personal injuries sustained upon a street or highway is
governed by statute and the right extends only to such injuries
as are sustained by reason of any neglect to keep the ways in
repair and in a reasonably good and safe condition fit for travel ;
it does not include accidents occurring from extraneous acts
or neglect, such as snow, sleet and ice.^^o
1621 Streets defective, Narr. (111.)
For that whereas, the defendant, the city of ,
being a municipal corporation, before and on, to wit, the
day of 19. ., was possessed and had con-
control of a certain public street or highway known as
street in the city of aforesaid, at,
to wit, a point where said street is intersected
with a certain other public street in the city of
aforesaid, knowm as, to wit, * , street in said citv
of
And plaintiff avers that it then and there became and was
the duty of the said defendant to keep the said
232Lockport y. Licht. 221 111. 35, 2?. 5 Bell v. Wayne, 12.3 Mich. ."^SG,
39 (1906). 390 (1900); Briggs v. Pine River,
233Boenfler v. Harvey, 251 111. 150 Mich. 381. 387 (1907).
228,231(1911). 236 Miller v. Detroit, 156 Mich.
234Molwav V. Chicago. 239 111. 630,633,637(1909).
487, 489, 493 (1909).
PERSONAL INJURIES 1073
street at or near the intersection of the said
street in good and safe repair and condition, and to keep the
same free and clear of holes and obstructions by or on ac-
count of which persons passing along and upon said highway
might in any manner, while in the exercise of due care and
caution for their own safety, be injured; but the defendant,
not regarding its duty in that behalf, and while it was so pos-
sessed and had the care, custody and control of the said street
or highway, to wit, street, at or near the inter-
section with said street, on, to w^it, the day and
date last aforesaid, at said place aforesaid, wrongfully, neg-
ligently and carelessly suffered and allowed said street or
highway known as, to wit, street, to be and re-
main in bad and unsafe repair, and condition, in that the
said defendant wrongfully, negligently and carelessly, for a
long space of time immediately prior to the date aforesaid,
to wit, for the space of months prior thereto,
and on the date aforesaid, allowed and permitted a hole to
be and remain in the said street at the place aforesaid, of
great depth, of the depth of, to wit, inches, and
of great width, of the Midth, to wit, of feet, and of
great length, of, to wit, the length of feet, and so as
to be in the way of and obstructing the passage of, and to
endanger persons and vehicles passing along and upon the
said street or higliway and so as to endanger persons pass-
ing along, riding or driving upon the said street or highway
at the place aforesaid, of all of which dangerous and unsafe
condition of said street known as, to wit, street,
the defendant then and there on the dute aforesaid and for
a long time previous thereto, had notice, or in the exercise of
due care would have had notice.
And the plaintiff avers that on, to wit, the date aforesaid,
he was riding, driving and passing along and upon the said
street or highway known as street on a bicycle,
in a northerly direction at or near the intersection of the
said street with the certain other street known
as street, with all due care and caution on his
own part for his own safety, and by reason of the negligence
of the said defendant, the bicycle on which the plaintiff was
then and there riding then and there unavoidably ran and
was unavoidably propelled into the said hole, and as the
direct result of the negligence of the said defendant and then
and there by reason of the premises, the plaintiff, who was
then and there without any knowledge of the presence of the
said hole in said street, was then and there precipitated to
and upon the ground or pavement there with great force
and violence and was then and there, by reason of the prem-
ises, greatly bruised, injured, wounded and hurt : and by and
in consequence of said injuries so received, the said plaintiff
then and there became sick, sore, lame and disordered, and
1074 ANNOTATED FORMS OF PLEADING AND PRACTICE
SO remained for a long space of time, to wit, from thence
hitherto; and by reason of the premi.si's and as tlit* din-ct re-
sult of the negligence of the said defendant as aforesaid, the
plaintiff's left femur or hip and the bones thereof were then
and there broken and fractured and the plaintiff received
severe, serious and permanent injuries to his nerves and nerv-
ous system and was otherwise bruised and permanently
injured in his left side, hip and leg and has sufi'ered great pain
and was prevented from attending to and transacting his
ordinary business and affairs. IMaintiff furtlier avers at the
time when, etc., he was receiving large remuneration or earn-
ings for his time and services, to wit, the sum of $
per day, and that by reason of the premises he has become
unfit to further labor without great inconvenience and has
suft'ered great loss of wages and will hereafter be prevented
and deprived of such wages, and will suffer great loss and
damage. And plaintiff avers that by reason of tlie premises
he has been obliged to lay out and expend and become liable
for large sums of money for physicians*' and surgeons' serv-
ices and for the expenses of nurses and medicines in endeav-
oring to be cured of the injuries so sustained by him as
aforesaid, to wit, the sum of $ To the damage, etc.
(Add averment of notice to municipality as in Section 1G13)
(West Virginia)
For this, that whereas, before and at the committing of
the grievances, wrongs and injuries hereinafter mentioned,
there was a common and public highway or road running along
the bank of river on the lower or west side of
said river through a part of said city of and
within the corporate limits thereof, in the said county of
, intersecting street of said city,
over, on and upon which said common and public road the
citizens of this state and all others had the right to travel,
pass and repass without hindrance or obstruction ; and it
was then ancl there the duty of the said defendant to put and
keep that part of the said common and public road that w^as
within the corporate limits of the said city of in
good repair ; yet, the said defendant well knowing the premises
heretofore, to wit, on the day of , 19.., and for a
long time previous thereto, at the county and city aforesaid,
wrongfully and injuriously allowed and permitted that part
of the said common or public road situated in its corporate
limits to become and remain in bad condition, order and re-
pair in this, that the said defendant allowed the said road
to become sideling, and permitted a large rut to be worn in,
along and across said public road at or near a sugar-tree,
standing in or on the side of said road a short distance above
the place the railroad crosses said public road,
in the city and county aforesaid, and within the corporate
PERSONAL INJURIES ' 1075
limits aforesaid; and by means whereof afterwards, to wit,
on the day and year aforesaid, at the city and county afore-
said, the said plaintiff wife of the plaintiff
, then lawfully riding, going and passing in,
upon and along the said common and public road in and with
a buggy to which one horse was attached and hitched, and
on the sideling place aforesaid the said buggy slipped and
slid, and the wheels on one side thereof fell into the said
rut, whereby she, the said was then and there
violently thrown out of said buggy, and then and there was
greatly injured, bruised, wounded and crippled, and her life
put in great danger and peril, to wit, at the city and county
aforesaid. Wherefore, etc.-^'^
1622 Sudden backing of street car, Naxr. (Va.)
For this, to wit, that by decree of the court of
the entered on the .... day of in the
city of against and
and others, the said and were
appointed receivers of the said and were in-
structed to continue the operation of the said street railways:
that said receivers were operating said railways under said
decree on or about the day of ; that by the
order of the said court of the
entered in said cause on the .... day of , the said
plaintiff was granted permission to bring this action against
said corporations and its said receivers.
That heretofore, to wit, on the said day of
the said and , receivers, were operat-
ing said lines known as the and the
lines, which lines are extended from what is known as
in the county of eastwardly across
to what is known as in said county and thence
eastward!}' by what is known as on said lines,
and thence eastwardly to street in the city of
; that upon said lines of street railway said
receivers carried passengers for hire and reward to them in
that behalf expended ; all of which was done by said receivers
under and in pursuance of the aforesaid decree of
appointing them as such receivers.
And the said plaintiff avers that heretofore, to wit, on said
.... day of the said defendants had a certain station
on its said line near known as station ,
which station was the regular stop for passengers to get upon
and alight from the cars operated by said defendants; that
on the night of the day of she v/as stand-
ing at said station for the purpose of boarding
one of the cars of said defendant's and duly and properly
237 Sheff V. Huntin^on (City), 16
W. Va. 307, 309 (1880).
1076 ANNOTATED FORMS OP PLEADING AND PRACTICE
notified the motorman in charge of said car that she desired
to get upon the same, lor the purpose of being carried as a
passenger upon said ear; and thai thereupon it became and
was the duty of said defendants, their agents, servants and
emph)yees to stop said car for the purpose of allowing the
plaintift" to get upon the same.
Yet, the s'aid plaintiff avers that tlie said defendants did
not stop said car at said s-tation , but negligently
and carelessly ran said car by said station when said car
stopped for the purpose of allowing the plaintitf to get upon
the same; that thereupon slie walked in the direction of said
car for the purpose of boarding said car, when defendants,
their agents, servants and employees in charge of said car,
without any notice to the plaintitV and without any fault upon
the part of the plaintiff, negligently, carelessly, and recklessly
and suddenly ran said car back in the direction of the plain-
titf and with such force and violence that the plaintiff was
unable to get out of the way of said ear, and negligently, reck-
lessly and carelessly ran said car onto, upon and aj,'ainst the
j)lain1iff ; by reason whereof the plaintiff was knocked down,
bruised, mangled, and lacerated, and the plaintiff's back and
spinal column was seriously and permanently injured, and
the plaintiff' was made sick and sore; and the plaintiff had to
expend and did expend a large sum of money, to wit, the
sum of dollars in attempting to be cured of her
injuries; and the said plaintiff was otherwise seriously and
permanently injured and damnified to the damage of the said
plaintiff of dollars.
1623 Sudden starting of meat chopper, Narr. (Mich.)
For that whereas, heretofore, to wit, on the day
of , 19.., plaintiff' was and for some time prior
thereto had been in the em[)loyment of the defendant as a
butcher, and the defendant on the day and year aforesaid was
and for some time prior thereto had been owning and operat-
ing a certain packing house in the city of , in the
state and county aforesaid, at which said packing house the
plaintiff" was then and there employed as a butcher by the
defendant as aforesaid and in and about which employment
the defendant's employees were re(|uired to use certain
machinery, also owned and managed by the defendant, and
operated by steam power, among which machinery so owned
and operated by the defendant was a certain meat chopper,
which said meat chopper was operated by means of a belt run-
ning over loose and tight pulleys, and driven by steam power,
and governed by a hand lever situated at or near the hopper
of the said chopper. And while the said plaintiff was thus
employed by the defendant as aforesaid, it became and was
the duty of the plaintiff to use and operate this meat chopper
PERSONAL INJURIES
1077
at the request of and whenever called upon by the defendant.
Plaintiff avers that the said chopper consisted ot a hopper
and attached thereto and extended at a right angle at one side
was a cylinder, in which was inclosed a certain steel augur
revolving at a speed of from two hundred (200) to three hun-
dred (300) revolutions per minute, when running, which car-
ried and drove the meat thrown into the hopper against and
through certain plates attached to the front of the said cylinder
by means of metal caps, fastened down with a set of screws,
which said plates had holes drilled therein, through which the
said meat was pushed and driven by the said augur ot the
said machine against a rapidly revolving knife, attached to
the aforesaid augur on the further or outside face ot the atore-
said plates, and it was customary and necessary to use a plate
with certain sized holes for the first chopping, and then to
change this plate for a plate with smaller holes for the second
chopping, and then again for a plate with still smaller holes
for the third chopping, and that all of these plates had to be
changed by hand after the chopping was done and while the
machine was not in operation; that after the meat had been
driven through the said plate and any chopping operation was
completed the plates became and were so tightly wedged into
and against said cylinder that it was impossible to loosen and
remove the said plates from the front of the said cy inder
without pushing the same from the inside, and in order to
do so it became necessary for the operator to insert his hand
into the cylinder part of the chopper.
Plaintiff avers that on the said of , i^--,
while he was thus employed by the defendant and was then
and there working in the packing house of, and under the
direction and control of the defendant, the defendant came
and ordered and directed the plaintiff to run a quantity ot
beef and pork mixed, usually known as hamburger steak,
through the said chopping machine, which said hamburger
steak had to be run through the machine twice first with a
coarse plate and then with a finer plate, and after the said
hamburger steak had been run through the chopper wi h the
coarse plate it became and was the duty of the plaintiff to
change the plates in the said chopper so that the said ham-
burger steak might be run through again with the smaller
nlate and in order to thus change the said plates it became
and was the duty of the plaintiff to insert his hand in the
cvlinder part of the said chopper in which the said augur
was located, and the defendant, being well acquainted \yith
the method of operating the said chopper, stood by watch-
ing ordering and hurrying the plamtiff to get through with
the said chopping, and while the plaintiff was then running the
said hamburger steak through the machine with the coarse
nlate the defendant was then and there watching the chop-
ping and then and there took charge and control of the lever
1078 ANNOTATED FORMS OP PLEADING AND PRACTICE
by means of which the steam power opcratiiij^' and driving
the said meat chopper was turned on and oti'.
And thereupon, it became and at ail times and particularly
on the day and date and at the time aforesaid, it was the
duty of the said defendant when so taking charge and con-
trol of the lever by means of which the steam power operated
and drove the said meat chopper, and particularly when this
plaintift' was proceeding to change the plates and while in
the act of loosening the coarse plate and while the said plain-
tiff was inserting his right hand into the said cylinder, to so
operate, control and manage the said lever as aforesaid, and
to so operate and manage it without negligence and with
all due carefulness so that the power would not be turned
on and said machine would not do great harm and damage
to this plaintiff, and particularly while his hand was inserted
in the said machine as aforesaid.
And plaintiif avers that when the coarse chopping of the
said meat was done, defendant shut off the power, and there-
upon, plaintiff, in the course of his employment, proceeded to
change the plates and for the purpose of loosening the coarse
plate inserted his right hand into the cylinder of the said
chopper in which the augur part was located, and which said
augur part revolves at the rate of 200 to 300 revolutions per
minute when the power is on the machine, and while the plain-
tiff had thus inserted his hand in the said cylinder part of
the machine containing the said augur and was in the act of
removing the coarse plate, the defendant, without warning
to the plaintiff and before the plaintiff had an opportunity
to withdraw or extricate his right hand from the said cylin-
der, carelessly, recklessly, and with gross negligence and
without due regard to the safety of the plaintiff', turned the
stream power on to the said chopper, thus causing the augur
part of the machine to revolve rapidly in the cylinder, and the
plaintiff's right hand was caught in the said augur part of
the machine and badly mashed and so much injured that it
became necessary to amputate three fingers of his said right
hand, and they were so amputated in consequence thereof,
and he was by said injury caused great pain and suffering,
and greatly deforming the said right hand and permanently
disabling and injuring the plaintiff from earning his usual
wages, to wit, about dollars per week, for
months, and from earning full wages ever since that day, and
from w^hich injuries plaintiff has never fully recovered and
is permanently injured.
Plaintiff avers that the said injuries to him aforesaid were
directly caused by the defendant and by the reckless, care-
less and negligent manner in which the defendant operated the
said chopper, and plaintiff himself was free from negligence in
PERSONAL INJURIES 1079
respect to the cause of said injury, whereby an action has
acci-ued to plaintiff and against defendant, to plaintiff's dam-
age ($ ) dollars.
Wherefore, he brings suit, etc.
1624 Sudden starting of street car, alighting, action
A passenger who is about to leave a ear which has stopped
at a crossing has a right to assume that it aWII not start until
he has had a reasonable opportunity to alight from the car in
safety, and if the car starts up suddenly and he has been in-
jured, the sudden starting up of the car is actional negligence.^^s
1625 Sudden starting of street car, alighting, Narr. (D. C.)
For that heretofore, to wit, on the day of
the defendant was a common carrier of passengers for hire,
operating a line of street railway cars, propelled by under-
ground electric power, on certain streets in the city of
• • . . in the District of Columbia, and among others,
on a portion of street from about the intersection
of said street with avenue, eastwardly to the
reservation, park or square in said city, commonly known as
square, and passing around to the southward of
said reservation, park or square and continuing eastward
therefrom along said street ; and on, to wit, the
day of , , wife of the plaintiff
became a passenger on one of the defendant's said cars, and
paid the defendant the fair demanded of her, at the rate
charged by the defendant, and became thereby entitled to be
safely carried in said car to her destination and to alight there-
from safely.
And the plaintiff avers that while his said wife was pro-
ceeding in said car of the defendant in the vicinity of the said
reservation, park or square, the defendant then and there
stopped its said car for the purpose of allowing passengers to
alight therefrom at or about the intersection of said
street with street on the east side of said reser-
vation, park or square in said city and District.
And it then and there became and was the duty of the
defendant to permit the said wife of the plaintiff to alight from
its said car in safety ; and the plaintiff avers that the defendant
was wholly unmindful and neglectful of its duty in that regard
and its agents and servants in charge of the said car, in which
the said wife of the plaintiff was riding, conducted themselves
and operated said car so carelessly and negligently, that when
238 Moore v. Aurora, Elgin & Chi-
cago K. Co., 246 111. 56, 60 (1910).
1080 ANNOTATED FORMS OP PLEADING AND PRACTICE
said car reached a point at or about the iutersection of said
street with said street, and after it
had come to a full stop and vvhik- tlu' said wife of the plaintiff
was in the aet of alighting tluTcfrom, and before she had an
opportunity to reaeh the ground in safety, said ear was, i)y
and through the negligence and carelessness of the agents and
employees' of the defendant in charge thereof, suddenly started
forward, and by reason of such carelessness and negligence
of the agents and employees of the defendant, she, the said
wife of the plaintiff was thrown down and her elothing was
caught by some part of said car or its attachments and slie was
dragged by said ear while in rapid motion, for a long dis-
tance, to wit, along the said street for a large part
of the distance between street and
street, and her left knee was seriously and painfully bruised,
strained, wounded and lacerated, and she was permanently
lamed and injured and was otherwise greatly bruised, hurt
and wounded; and by reason of her said injuries she was
caused great pain, and suffering of body and mind from that
time to the present, and will continue for the balance of her
life to endure great suffering of body and mind ; and by reason
of said injuries her nervous system was and hath ever since
continued and will hereafter ever continue to be, shocked, hurt
and grievously impaired ; and she has been permanently and
seriously injured in her nervous system and in her bodily
strength and health and rendered unable to jjcrform manual
labor or undergo any physical exertion, thereby rendering
necessary to the plaintiff the care and medical skill of phy-
sicians and the personal attention of servants and nurses and
of the plaintiff himself, upon and to the said wife of the plain-
tiff", and depriving the plaintiff' of the services and the society of
his said wife, for a long space of time, to wit, from the said ....
day of hitherto, during which time the plaintifT has
suffered great anxiety of mind and has been hindered from
attending his lawful business and aft'airs.
And plaintiff avers that by reason of said injuries to his
said wife, he, the plaintiff, has been obliged to expend and
render himself liable for medical and other attention to her,
his said wife, to wit, the sum of dollars in
endeavoring to have her cured and healed of the injuries afore-
said.
And the plaintiff further avers that at the time aforesaid,
to wit, on the day of the said wife of the
plaintiff was and had been prior thereto in full possession of
her physical and nervous health and strength and able to
give, and she did give, her attention to the household and other
duties in and about the home of the plaintiff and incident to
her marital relations with him, but since the date aforesaid
and by reason of the injuries aforesaid she has been and still
PERSONAL INJURIES 1081
is unable to attend to the same, to tlie great damage of the
plaintiff.
And the plaintiff further avers that by reason of the in-
juries aforesaid to his said wife, she became and was and still
is sick and for the greater portion of the time confined to her
bed and room, whereby the plaintiff has been and still is
deprived of the society and companionship of his said wife,
and likewise by reason of said injuries, her health has become
so impaired that it has now become necessary to place her
in a sanitarium for treatment thereby and to a more complete
extent, further depriving the plaintiff of her society and com-
panionship and subjecting him to great expense ; and by reason
of the said injuries to his said wife, the plaintiff* will ever
hereafter continue, so long as she shall live, to be put to great
expense for medical and other attention and nursing for her,
his said wife ; all to his great damage.
(Illinois)
For that whereas, on, to wit, the day of , 19- •,
and prior thereto, the said defendant, , was a
corporation duly organized and existing under and by virtue
of the laws of the state of Illinois, and was engaged m the
business of transporting passengers in street cars for hire iq
the city of , in the county of afore,
said, and was possessed of divers cars which were propelled
by electricity and were commonly known as electric street
cars, and was also possessed of certain rails or tracks which
were laid upon and along a certain public highway in said city
of , to wit, upon street.
And the plaintiff avers that, on, to wit, said .... day of
19. ., and in the county aforesaid, the plaintiff be-
came a passenger for hire upon one of the defendant's said
electric cars, and then and there paid her fare as such pas-
sengers; that it then and there became and was the duty of
the said defendant to exercise the highest degree of care and
diligence in safely transporting the plaintiff as such passenger
in its said car and over its said tracks along and upon
said street in said city as aforesaid. , „ n ., ^
Yet the plaintiff avers, that the said defendant wholly tailed
in its' duty in that behalf, and by its servants then and
there upon, to wit, said street, and at or near to
the intersection of said street with V. • 1*^^?*'
operated, controlled or managed said car, upon which the
plaintiff was a passenger as aforesaid, so negligently and care-
lessly and with such a want of due care for the personal safety
of the plaintiff, that by reason of such negligence and want
of due care by the defendant, the plaintiff, while exercising
due care and diligence for her own safety, was thrown vio-
1082 ANNOTATED FORMS OF PLEADING AND PRACTICE
lently from said car to the ground, whereby plaintiff was
severely hurt in the particulars hereinafter mentioned.
2. As a second count herein the plaintiff avers that after
she became a passenger as aforesaid slit.' signified to the con-
ductor of said car her desire to alight from said car at the
intersection of said street with
street aforesaid, and said car was thereupon slowed down and
came to a standstill, and plaintiff was thereby invited to alight
therefrom ; and plaintiff' thereupon, with due care and dil-
igence, w^as proceeding to alight from said car; that it there-
upon became and was the duty of the defendant not to sud-
denly and without w-arning to the {)laintiff' s-tart up said car
while plaintiff" was proceeding to alight therefrom and before
plaintiff had been allowed a reasonable time to alight there-
from; yet, the defendant, not regarding its duty in that
behalf, did suddenly and without warning to the plaintiff"
start up said car while plaintiff" was proceeding to alight there-
from and before plaintiff" had been allowed a reasonable time
to alight therefrom, whereby and by reason of which negli-
gence of the defendant, plaintiff, while in the exercise of due
care and caution for her own safety, was thrown violently to
the ground, whereby plaintiff was severely hurt and injured.
And in particular did break and fracture the bone of her
left hip, and the -plaintiff also sustained other great and severe
injuries, and was otherwise greatly wounded, hurt and bruised,
and suff"ered a violent shock to ht-r nervous system, and became
otherwise sick, sore and disordered, and remained so for a
long time, to wit, from thence hitherto; and by reason of the
injuries aforesaid said plaintiff suff'ered great pain and
anguish, and was hindered and prevented from attending to
her ordinary business and affairs, and was deprived of various
profits and gains which she otherwise could and would have
had; and said injuries are of a permanent character; and
plaintiff" will therefore be hereafter hindered and delayed from
following her business and aff"airs as she otherwise could and
would do; and the plaintiff" was obliged to expend and did
expend divers sums of money, to wit. the sum of $ , in get-
ting cured of her said injuries. To the damage, etc.
h
For that whereas, the defendant, on, to wit, the day of
., 19. ., in said county, was possessed of and using and
operating a certain line of street railroad extending along
• •, avenue in the city of in said county,
with certain cars or trains of cars running thereon for the
convenience of passengers for reward, and the plaintiff, at
, in said county, on said day became a passenger
on a certain car or train of ears of the defendant being
operated on said street railroad line on said
PERSONAL INJURIES 1083
avenue in aforesaid, for a certain reward to the
defendant in that behalf paid by the plaiutiif; that the plain-
tiff was desirous of getting off of said car of the defendant of
which he was riding where said avenue crosses
street in said city, and signaled the conductor
of said car to stop said car or train of cars at said
street; that he had with him at that time his daughter
, a child of, to wit, years of age, and
that it was necessary for him to assist said child off of said
train ; that it then and there became and was the duty of the
defendant upon the arrival of the said car or train of cars at
aforesaid to give the plaintiff an opportunity
of safely alighting therefrom and of helping his said child
off of said car, and to stop a sufficient length of time, he being
a passenger as aforesaid, to allow him to alight with safety
from said car on which he was riding, and to take with
him his said daughter; yet, the defendant did not regard its
said duty or use due care in that behalf, but, on the con-
trary thereof, the said defendant by its servants caused the
said car or train of cars to be stopped at or near the cross-
ing of said avenue and street, for
the purpose of allowing passengers to alight from said car or
train of cars, and that while said car or train of cars was so
stopped, and while the said plaintiff was using all reasonable
care and caution to avoid the injury complained of, and while
the plaintiff' was attempting to alight with his said daughter
from the said ear, the said defendant, through its servant or
servants, negligently and carelessly caused the said car or
train of cars to be set in motion while the said plaintiff' with
his said daughter was so alighting therefrom, and thereby
the plaintiff was then and there thrown with great violence
from and off said car to and upon the ground, and upon cer-
tain rocks and stones, and upon a certain pavement covering
the ground ; by means whereof the said plaintiff was bruised,
hurt and wounded and otherwise greatly injured, and as a
result of such injury he became sick, sore, lame and dis-
ordered, and his health was seriously and permanently injured,
and he became unsound in limb and body, and was obliged
to, and did pay and incur, in endeavoring to be cured, large
sums of money for physicians and medicines, to wit, the sum of
dollars ; and the plaintiff avers that previous to
said injury, as aforesaid, plaintiff' was and for a long time
prior thereto had been a man in good health, and sound in
limb and body, and for many years prior thereto had been
in, to wit, the said county, engaged in the business of
and out of which said business he was able to and did make
large gains and profits, to wit, the sum of
($ ) dollars a year; and plaintiff avers that on ac-
count of said injuries he was rendered incapable of attend-
ing to and carrying en said business, whereby he lost great
1084 ANNOTATED FORMS OP PLEADING AND I'lUCTlCE
gains and profits, to wit, ($ ) dol-
lars; and he was otherwise seriously and permanently injured,
and was obliged to and did pay and incur other large sums
of money for nurses to take care of iiim while lie was sick, to
wit, the sum of ($....) dollars. To the damage, etc.
For that whereas, on, to wit, the .... day of ,
at, to wit, the city of , county of
and state of Illinois, the defendant was a corporation duly
organized under and by virtue of the laws of the state of
Illinois, and was then and there possessed of and operating a
line of street cars in the said city of , county and
state aforesaid, for reward; tliat on the day and year afore-
said said defendant by and through its servants in that behalf
was possessed of and was running a certain street car propelled
by electric power, south upon its tracks along a public highway
in said city, called ; that at, etc., aforesaid, she
then and there became a passenger upon said street ear of the
defendant to be ean-itd, and was thereupon accordingly then
carried in said street car from, to wit, the intersection of
and to the intersection of
and in aforesaid,
for certain reward to the defendant in that behalf; that she
notified the servants of the defendant that she desired to alight
from said street car at
And thereupon it became and was the duty of said defend-
ant, upon the arrival of said street car, at the south inter-
section of and , aforesaid, to give
the plaintiff the opportunity of safely alighting therefrom, and
then and there to stop the said street car a reasonable time
to enable the plaintiff so to alight therefrom safely as afore-
said; yet, the defendant did not regard its duty, or use due
care in that behalf, but on the contrary thereof, after the
said street car reached the south intersection of
and had sopped at said place, at the time aforesaid, and
w^hile the plaintiff with all due care, caution and diligence was
then and there in the act of alighting therefrom, the defend-
ant carelessly and negligently caused said street car to be
suddenly and violently started and moved, and thereby the
plaintiff was then and there thrown with great violence from
and off the said street car and upon the ground.
By means whereof then and there the plaintiff sustained a
fracture of the femur of the left leg which caused a perma-
nent injury to the plaintiff, and she thereby has permanently
lost the use of said leg ; and she was otherwise greatly bruised,
hurt and wounded and divers bones of her body were then
and there broken ; and she became and was sick, sore, lame and
disordered and so remained for a long space of time, to wit
PERSONAL INJURIES 1085
from thence hitherto ; during all of which time, she, the plain-
tiff, suffered great pain and agony, and was prevented and
hindered from attending to her affairs and business; and
thereby the plaintiff was obliged to and did then and there
lay out large sums of money, amounting to $ , in
and about endeavoring to be cured of said injuries so received
as aforesaid.
Wherefore, etc.
(Michigan)
For that whereas the defendant, before and at the time of
committing the grievance hereinafter mentioned, controlled,
managed and operated a certain street and interurban rail-
road extending from its station in the city of
to its station at in said county of ,
and beyond, together with cars running thereon for the pur-
pose of carrying and conveying persons and passengers in said
cars from its said station in the said city of to
its station at , and beyond for a certain toll, hire,
and reward to be paid to the said defendant therefor.
And thereupon, heretofore, to wit, on the .... day of ,
19. ., at said station in the said city of , and while the
said defendant so controlled, managed and operated the said
railroad and cars as aforesaid, the plaintiff entered one of the
said cars upon said railroad and became and was a passenger
therein to be carried and conveyed by the said defendant upon
the said railroad from its said station in the city of
to its said station at aforesaid safely and securely
for a certain toll, hire, and reward which she, the said plain-
tiff paid to the said defendant therefor, and the said defendant
then and there received the said plaintiff within the said car as
such passenger to be carried and conveyed as aforesaid and
received the said toll, hire and reward so paid therefor by the
said plaintiff as aforesaid.
And thereupon it then and there became and was the duty
of the said defendant to safely and securely carry and convey
the said plaintiff from its said station in the said city of
to its said station at aforesaid in
said car; and upon the arrival of said car at said station at
aforesaid to stop the said car there and give the
said plaintiff reasonable time and opportunity while exercising
due care and prudence on her part to safely and securely alight
therefrom to the ground; and to so control, manage and ope-
rate the said car by its servants and employees then and there
in charge and control of said car as not to impel and throw the
said plaintiff from the said car to the ground at its said station
at aforesaid.
Yet, the said defendant by its said servants and employees
who were then and there in charge and control of said car and
acting under its orders and direction carelessly, negligently
1086 ANNOTATED FORMS OF PLEADING AND PRACTICE
wilfully and intentionally disregarding the said duties of said
defendant in tlie premises then and there upon the arrival of
said car at the said station at did not stop said
car there and give the said plaintiff reasonable time and
opportunity while exercising due care and prudence on her part
to safely and securely alight therefrom to the ground; and
did not so control, manage and operate the said car as not to
impel and throw the said plaintiff from the said car to the
ground at its said station at aforesaid.
But the said defendant by its said servants and employees
so acting as aforesaid upon the arrival of said car at said
station at aforesaid and as the said car was
approaching near the said station slackened the speed of said
car as it approached the said station and tiien and there at
the said station, while the said plaintilf with all due care
and prudence on her part was standing within the said car
and near the rear doorway tiiereof through which it was
necessary for her to pass in order to reach the rear platform
of said car and the steps leading therefrom out of the said
car to the ground, and while the said plaintilf with all due care
and prudence on her part was standing there near the said
doorway ready to pass from within the said car upon and over
the said platform and steps of said car to aligiit from the said
car to the ground should the said car be stopped at the said
station to enable her to safely and securely alight therefrom
to the ground there, and while the said car was still as afore-
said moving slowly along there, carelessly, negligently, wilfully
and intentionally suddenly started and moved the said car
forward with great, unnecessary and unreasonable force and
swiftness, and with such force and swiftness as to impel and
throw her, the said plaintiff, violently and swiftly out through
the said rear doorway of the said car and off the said car
to and upon the ground there at the said station at
aforesaid with great force and violence and against the will
of her, the said plaintiff".
And the said plaintiff avers that she M-as thereby without
fault on her part carelessly, negligently, wilfully, intentionally
and suddenly by the said defendant impelled and thrown from
within the said car to and upon the ground at said station at
• • • : aforesaid with great force and violence and
against her will, while the said car Avas so moving there as
aforesaid.
By means whereof the said plaintiff, who was theretofore
sound and healthy and of good personal appearance, was
greatly hurt, bruised, sprained and otherwise injured in her
limbs and body. And the internal organs of the said plaintiff
were bruised, sprained, torn, misplaced, ruptured and lacer-
ated, and the said plaintiff was seriously, incurably and per-
rnanently injured internally. And the veins and surror,jiding
tissues in the left leg of her, the said plaintiff, was ruptured,
PERSONAL INJURIES 1087
distended, torn and lacerated, and the said veins were rendered
varicose and incurable, and she, the said plaintiff, was thereby
seriously and permanently injured in her said left leg and
to a great extent has lost the use of the same. And the eyes
of the said plaintiff were seriously and permanently injured
and the sight thereof greatly dimmed and to a great extent
destroyed, and the said plaintiff' will lose the use and sight of
her eyes and become wholly blind. And the whole nervous
system of her, the said plaintiff, was thereby, and on account
of said internal injuries, incurably and permanently injured.
And the said plaintiff became and from thence hitherto has
remained, and will permanently remain pale, worn, ill looking
and dejected in her personal appearance. And the said plain-
tiff was otherwise hurt, bruised, and injured and became and
from thence hitherto has remained and still remains sick, sore,
lame, nervous, and disordered and has suffered great pain and
is still suffering great pain in her mind and body. And during
all the time since she was so injured and said plaintiff has
been and still is by means of the said premises prevented and
hindered from transacting and attending to her necessary and
lawful affairs and business during all that time to be by her
transacted and performed, and has suffered and is still suffer-
ing great mental and physical distress and hath been and is
much injured and damnified. To the damage, etc.
(Virginia)
For this, to wit, that heretofore, to wit, on the day
of , 19. ., and at divers other times before and at the
time of the commission of the grievances hereinafter men-
tioned, the said and were the
receivers of the circuit court of the United States for the
district of Virginia, in the suit of
company v company, et als., and as such
were in the possession of and were the operators of a certain
street raihVay in, along and upon the streets of the city of
, and also of certain electric cars propelled by
electric currents as the motive power thereof, which the
said defendants ran and operated along, over and upon
the said street railway and the tracks thereof, and which
said cars the said defendants operated by its servants,
agents, and employees, called conductors and motormen,
and the said defendants became and were in the operation of
said cars a common carrier of passengers for hire and reward,
in and upon said electric street cars, so operated upon the
streets aforesaid.
And on the day and year aforesaid, the said plaintiff, at the
special instance and request of the said defendants, boarded
and got upon one of the said cars, which wps in the custody,
control and management of the servants, agents and employees
1088 ANNOTATED FORMS OF PLEADING AND PRACTICE
of the said defendants, to wit, a certain conductor and motor-
man, whose names are to plaintitf unknown, at a point in said
city on street, and desired to be carried and con-
veyed as a passenger thereon to a point on said
street near street, where she wished to alight,
and which is a place where said cars, and particularly the car
aforesaid, usually stopped to take on and let off passengers,
and said plaintiff paid the usual fare demanded of her by the
defendants' said servants, and became and was a passenger
as aforesaid.
And thereupon it became and was the duty of the said
defendants to use due and proper care, skill and diligence in
transporting and carrying safely the said plaintiff", and upon
being requested, notified or signaled so to do, to stop its said
car at said point and to allow the said plaintiff sufficient time
to safely land and alight from the said car.
Yet, the said defendants, not regarding their duty in that
behalf, did not use due and proper care, skill and diligence for
the safe carrying, landing and alighting aforesaid of the said
plaintiff, but wholly neglected the same and with gross negli-
gence and in utter disregard of its said duty to the said plain-
tiff, after the said plaintiff had recpiested the conductor to
stop said car at said point and the usual and customary signal
had been given to stop the said car at the point aforesaid, the
said defendants, by their said agents, caused the said car to
be slowed up for the purpose of stopping at said point, and
after having stopped the said ear, or so nearly stopped the
same, at said point as to permit the plaintiff to alight therefrom
with safety, the said defendants, by their said agents, negli-
gently, carelessly and recklessly started the said car off and
put the same suddenly in rapid motion, to the surprise of the
said plaintiff, without any warning or notice to her, and while
she was, as was well known to said agents in charge of said
car, in the act of getting ready to alight from the same, she,
the said plaintiff, having then and there risen from her seat
and then and there standing in said car waiting for the same
to come to a full stop, and believing, as she had a right to
believe, that the same was about to come to a full stop, she,
the said plaintiff, then and there exercising due care and
caution in so getting ready to alight from said car.
And the plaintiff avers that while she was so standing in
said car, by reason of said hasty, sudden, negligent and wrong-
ful starting of said car and putting the same in rapid motion
by the said defendants, by their said servants, agents and
employees, without giving said plaintiff time to safely alight
and land from said car, and without notice to her, she, without
fault on her part, and solely by reason of the said negligent
acts of the defendants, was thrown suddenly, precipitously and
violently from said car, so wrongfully and negligently put in
motion as aforesaid, into and upon the said street, and was
PERSONAL INJURIES 1089
greatly bruised, wounded, injured and hurt, and made sick
and sore in and upon her head, back, limbs, etc., and was other-
wise greatly wounded, injured and damaged (the said plain-
tiff being then and there three months gone in pregnancy, and
suffered in the eighth month of her pregnancy a premature
birth of a child, which said child was born with defective vital
organs and within two months after its birth died, all of
which was directly caused by and came about by reason of
said negligence), none of which would have happened but for
the aforesaid negligent acts of said defendants; by reason of
which premises the said plaintiff has suffered great pain and
has been ill, sick and sore, and on account of said sickness
and injuries has been forced to expend large sums of money in
and about endeavoring to be cured of said sickness and injuries,
caused as aforesaid. To the damage, etc.
1626 Sudden starting of street car, boarding, Narr. (111.)
For that whereas, on, to wit, the day of ,
19.., in the county aforesaid, the defendant was pos-
sessed of and using and operating a certain railroad extend-
ing through a part of the city of in said county,
and through the towns of and in
said county and other parts of said county, with certain cars
and trains of cars thereon, for the conveyance of passengers
for reward; and on, to wit, the day aforesaid, in the county
aforesaid, the defendant was a carrier of passengers for hire
in and by certain street cars which said defendant pro-
pelled along and upon its tracks on a certain street, to wit,
street so-called, to wit, in the county aforesaid.
That it was the duty of said defendant for hire to receive and
take on board its said cars persons as passengers; and on, to
wit, the day last aforesaid, a certain car of said defendant was
passing along said street, to wit, said street, so
called, for the carriage of passengers therein, and said plain-
tiff signaled to the servants of said defendant who had charge
of said car to receive said plaintiff as a passenger on said
car, and said servants of said defendant in response to said
signal checked the speed of said car to a point where it was
safe for said plaintiff to get upon said car and become a pas-
senger thereon ; and said servants of said defendant thereupon
invited said plaintiff to get upon said car while it was so in
motion; and thereupon said plaintiff then and there, without
fault or negligence on his part, attempted to get upon said
car and could have and would have safely got upon the same
if the speed of said car had not been increased, and it was the
duty of said defendant not to increase the speed of said car
until said plaintiff had got upon said car ; but said defendant,
not mindful of its duty in that regard, carelessly and negli-
1090 ANNOTATED FORMS OP PLEADING AND PRACTICE
gently and wilfully and purposely, while said plaintiff was^
without fault or negligence on his part so in the act of getting
upon said car, started said car forward suddenly and vio-
lently at a much higher rate of speed than the same was going
when the plaintiff started to get upon said car; and thereby
then and there, by the sudden moving of said car forward,
threw said plaintiff, without fault or negligence on the part
of the plaintiff', to and upon the ground tliere and dragged the
plaintiff a great distance, to wit, feet, and greatly
bruised, mangled and injured the plaintiff so that his life
v/as thereby then and there greatly des^)aired of; and thereby
then and there the right hand of plaintiff was crushed, broken
and cut off; and thereby then and there the right arm of
plaintiff was bruised, crushed, broken and wounded. By means
of which said several premises the plaintiff became, has ever
since been, and will permanently remain in the future, sick,
sore, lame, disordered and weak and unable to work and carry
on his business and affairs; and whereby his whole body was
seriously shocked, bruised and lamed and his clothing torn
and destroyed; and whereby also he was mentally frightened
and shocked; and the plaintiff has suffered great and excruciat-
ing pain, and will permanently in the future suffer such pain.
And thereby then and there, by means thereof, the plaintiff
became and was unable to work and carry on his special trade
of cabinet maker, and from thence hitherto has been unable
to carry on his said trade and will be permanently so pre-
vented in the future. And also by reason of the premises the
plaintiff has been and is otherwise greatly injured and dam-
aged, to wit, at the county aforesaid. To the damage, etc.
For that whereas the defendant, S, a corporation, heretofore,
on, to wit, the day of , 19. ., at, to wit, the
county and state aforesaid, was the owner of a certain street
railway in, and upon and along a certain street known as R
street, in the city of , county and state aforesaid,
and being so the owner of said street railway, on, to wit, the
day aforesaid, at, to wit, the place aforesaid, said defendant
last named suffered and allowed the defendant, D, a corpora-
tion, to maintain and operate certain cars for the conveyance
of passengers for reward to the said defendant, D, upon and
along said street railway as aforesaid.
And the plaintiff avers that, on, to wit, the day aforesaid, at,
to wit, the intersection of P avenue with said R street in said
city of , and upon which said defendant D main-
tained and operated said street railway, and its said cars
thereon as aforesaid, the plaintiff attempted to become a pas-
senger and to board one of the cars of the defendant, D, so
operated as aforesaid, which said car was then stationary at
PERSONiUj INJURIES 1091
the said intersection of P avenue and R street for the pur-
pose of receiving passengers; thereupon it became and was
the duty of the defendant, D, to afford the said plaintiff a rea-
sonable opportunity to board said car as aforesaid in safety;
but the plaintiff avers that the defendant did not regard its
duty in that behalf, and did carelessly and negligently cause
the said car which the said plaintiff, who was then and there
exercising all due care and caution for her own safety, was
then and there in the act of boarding, to be suddenly and vio-
lently started and moved, thereby causing the plaintiff to be
thrown with great force and violence upon and against the
side of said car and then and there injured.
By means of the committing of the said injury by the defend-
ant, D, to the said plaintiff as aforesaid, then and there the
spine and nervous system of the said plaintiff was bruised,
hurt, shocked and wounded and certain of her pelvic and
abdominal viscera were deranged and injured, all of which
shock, bruise, derangement and injury were then and there
permanent to the plaintiff; and the plaintiff was otherwise
greatly bruised, hurt, shocked and wounded; by means
whereof the plaintiff was obliged to and did then and there
lay out divers sums of money, amounting all to, to wit, the
sum of ($ ) dollars, in and about endeavor-
ing to be cured of said injury so received as aforesaid ; and also
by reason of the premises, the plaintiff then and there became
and was ^ck, lame and disordered and so remained for a long
time, to wit, from thence hitherto, during all of which time
the plaintiff' suffered great pain and agony and was and is
hindered and prevented from transacting and attending to her
business and affairs, and lost and was deprived of divers great
gains and profits which she might and otherwise would have
made and acquired. Wherefore, etc.
1627 Sudden stopping of street car, Narr. (Mich.)
For that whereas, the defendant, on or about the
day of , 19.., at the city of , in the
county of , and state of Michigan, was a street
railway corporation, owning and operating a certain system
of city and suburban electric railway, among which was
what is commonly known as the avenue line,
avenue line, crosstown line and many other
lines, having its principal office at number
avenue in the city of , in the county of
aforesaid, and having many other lines of rail-
way in the city of , and suburban lines, and
operating cars propelled by electric power on all of its said
lines and systems of electric railway, for the purpose of car-
rying and conveying passengers to and from place to place
in said city of , and also between the cities,
1092 ANNOTATED FORMS OP PLEADING AND PRACTICE
villages and hamlets on its said suburban lines, for certain
reward, all of which of its said cars were in the charge of
its servants and agents, and the said defendant was then and
there, at said city of , by said ave-
nue line and other lines a common carrier of passengers for
reward, the said avenue line commenced at the
city limits on avenue and extended southerly
on avenue, next easterly on ave-
nue, westerly on , then southerly on
street, and run and extended over many other lines of street
railway, among which were avenue, ,
, , , and
other streets and avenues.
And the plaintiff avers that on the day and date afore-
said at the city of aforesaid, and at the inter-
section of street and said avenue
in said city of , at the special instance and request
of the said defendant, she became and was a passenger on
one of the certain electric cars of the said defendant, on what
was commonly known as the avenue line afore-
said, and which said car was then and there being propelled
and operated by the servants of the said defendant in a
southerly direction on said avenue or street, to
be carried in a southerly direction toward the city hall ; and
the said plaintiff then and there for certain reward was
received as a passenger and entered upon said car to be trans-
ported in a southerly direction as aforesaid, for certain reward
then and there by her to the said defendant duly paid.
And the plaintiff avers that by reason of the promises it then
and there became the duty of the said defendant, by its
said servants in charge of said car, to use due care, diligence,
vigilance and skill in operating said car upon which plain-
tiff was a passenger, and to safely carry and convey the said
plaintiff from said avenue southerly to her des-
tination, and to safely deliver her at the end of her journey;
and the plaintiff further avers that said car had its aisle on the
right hand side of the car, and long seats extending to the
left across the car; that when she entered the car as a pas-
senger the seats were all filled and many passengers were
standing in the aisle of said car, and the plaintiff and her
companions were obliged to stand also; that the railway
tracks of the said defendant at said place and between said
avenue and avenue were very
much out of repair and very rough and uneven, and the car
rocked to and fro violently while she was obliged to stand up
therein, and she found great difficulty in remaining upon her
feet while said car was in motion ; and therefore, by reason
of the premises, she charges that it was the further duty of the
defendant, by its servants, to exercise additional care and
precaution in operating said car and in starting and stopping
PERSONAL INJURIES 1093
the same, and to desist and refrain from operating said car
with great speed, or starting and stopping the same very sud-
denly, and with great force and violence.
Yet, the said defendant, by its servants, did not regard said
duty or duties, or any or either of the same, and wholly dis-
regarded each and every of the same, and did not use due
care, vigilance, diligence, caution and skill in operating and
running said car upon which plaintiff was a passenger, but
carelessly, recklessly and negligently ran and operated said
car with great speed; and the servants of the said defendant
so in charge and management of said car, for and on behalf
of said defendant, while in the employ of said defendant, and
while acting within the scope of their employment, so care-
lessly, wantonly, recklessly and negligently managed and
operated said car upon which plaintiff was a passenger, and
so suddenly stopped, the same, at avenue, that
plaintiff was thrown off her equilibrium and off her feet
and struck her body in manner aforesaid, and was injured as
hereinafter more fully set forth.
And the plaintiff avers that by reason of the premises
and in consequence of the condition of the track, the condi-
tion of the car, the speed with which the car was operated,
and the violence and suddenness with which it was stopped,
by the servants of the said defendant, the plaintiff was thrown
against the car, seats and other obstructions and other pas-
sengers, and thereby and therefrom received a most severe
physical shock and a severe and violent nervous shock, that
the left side of her body just below the left breast struck
against the corner of the seat or back of the seat, fracturing
two or three ribs, bruised her breast, dislocated the thumb of
her right hand, injuring the same permanently, and also in-
flicting other injuries upon the breast and spine, and nervous
sj'stem from which plaintiff has since continually suffered
pains in the back, and in her head; and the plaintiff in conse-
quence of said injuries became, and still is and will in the
future be sick, sore, lame and disordered, and an invalid,
although she had prior to the time of the receipt of said
injuries, been a strong, healthy woman, and was able to do
all of her own work.
And the plaintiff further says that she was at the time in a
pregnant condition, and that said physical and nervous
shock brought upon her premature pain and premature birth
of a child, causing her to suffer much additional pain on
account of the matters last aforesaid, and in consequence
thereof, she became sick, sore and disordered and so con-
tinued to be and remain from thence hitherto, and is unable
to state when she will recover from the consequence and effects
thereof.
And the plaintiff avers that the injuries to her thumb, spine,
side, back and nervous system are of a permanent character,
1094 ANNOTATED FORMS OF PLEADING AND PRACTICE
that she has suffered much pain and distress, physical and
mental from said time to date, and still suffers and must in the
future suffer like pain and like disability, and that she has
been otherwise greatly damaged and injured. To her damage,
etc.
1628 Switch defective, Narr. (D. C.)
For that whereas, heretofore, to wit, at the time of the com-
mitting of the grievances hereinafter mentioned, each of said
defendants was engaged in business in the District of Colum-
bia as a common carrier, and as such common carriers said
defendants occupied and used certain railroad tracks on
street northwest, and avenue, in
the city of , District of Columbia, and operated
on and over said tracks certain steam locomotives and rail-
way cars for the carriage of passengers; and whereas, on,
to wit, the day of , the said
was a locomotive engineer in the employ of the defendant
, and as such engineer under such employment
was in and upon and was in charge of a locomotive belong-
ing to said , which said locomotive was propell-
ing a train of passenger cars from the railway station in
the city of , District of Columbia, known as
street station southwardly and on said
street northwest to avenue and
thence by means of a switch and its appurtenances forming
a part of said track turning into said avenue
southwardly toward the river.
It thereupon became and then and there was the duty of
the defendants, and each of them, to keep said tracks and
switch and their appurtenances in good and safe rei)air and
condition; but the defendants and each of them neglected
their duty in that behalf, in conse(|uence whereof and while
said was so engaged in his said emi)loyment the
locomotive of which he was then and there in charge as afore-
said was derailed and overturned at or near the intersection
of said street, northwest and the said
avenue, whereby said was then and there griev-
ously injured ; of which injuries said thereafter,
to wit, on the same day died.
And the plaintiff avers that said engine was so overturned
and said was so killed while he, the said
was exercising due care and diligence on his part,
and in consequence solely of the negligence of the defendants,
and each of them, in failing to maintain in good and safe
repair and condition said switch and its appurtenances in
this, that a certain guard-rail which formed a part of said
switch and its appurtenances had become so worn from long
continued use and was so insecurely fastened in place where it
PERSONAL INJURIES 1095
was located that it could not and did not perform its proper
Tifnotion while said locomotive was so passing over said
s^dtch and a so n this, that said track and switch and their
respective appurtenances were otherwise m an unsafe and
improper condition. , , ,, • -i whpn he
And the plaintiff avers that the said . ■:■■■;''— T^f^^^en
was so killed left him surviving a widow and children,
vears of age, all of whom are still liymg.
"And 'the plaintiff further avers that thereafter, to wit, on
Ana ine pid ^^ ...., the plaintiff was appointed
Tdmin^^tVaVor of the estate of said ^I'The t'url
the place of the domicile of said , and tLrSie
of .in the state of • ; and ttiat me
plaintiff immediately thereafter duly ^^^^^^^^ .^^^^^^^^feHs
istrator and entered upon the performance of his duties as
l'"^^^Trrn^fsa?l'^^^^^^!^-'^^
7lZ rpectnfar;^ury from' iiis -death to the amount of
over • .dollars, and under the statute m such cases
made' and provided an action has accrued to the plaintiff as
TdminSrator as aforesaid, against the defendants and each
of Them to recover from them, and each of them, the sum of
dollars. Wherefore, etc.
1629 Switching, statute, violation
A statutory provision requiring an engineer who approaches
with a train a crossing of two or more railroads to make a full
stop, has no application to switching-yards belonging to the
same railroad company.^^*
1630 Switching, negligent, Narr. (HI.)
Vnr that whereas the said defendant, "'"•':""* ^^ #
raMroal Company organized under the laws of the state of
Illinois and is a common carrier and on, to wit, tne ••••••••
Hv of ., 19.., and for a long time prior thereto,
r'' :Sr±ut Tthf slid rS!z ^^y!^
^rr^n fSra .este.. ^ir.t.n th^u.h^^the^^^^^^^
} m^^ nnd whereas also, the said railway company,
Mantont: da'y aforesaid and for a long t.me pnor
239 St Louis National Stock Yards
V.Godfrey, 198 111. 288,292(1902);
Par 75, c. 114, Kurd's Stat. 1909.
1096 ANNOTATED FORMS OF PLEADING AND PRACTICE
thereto owned and possessed and used and operated, main-
tained and controlled a certain switch track or switch tracks
connecting with and adjoining to the said main tracks of the
said railway company, the defendant, at a point about
south of the factory promises of the W, located in the city of
aforesaid, which said switch tracks ran in a
northerly direction from the said main tracks into and upon
said factory premises of the said W" wliich said switch track
or switch tracks were on the day aforesaid, and for a long
time prior thereto, used, operated, controlled and maintained
by the defendant railway company for the purpose of hauling,
transferring and conveying loaded and empty box cars and
freight cars owned by the defendant railway company into
and from the said factory premisi's of the said W by divers
locomotive engines, owned, operated and controlled by the
defendant railway company and untler the care and manage-
ment of then divers servants of the said railway company;
and whereas, also, the said defendant railway company was
authorized and licensed on the day aforesaid and for a long
time prior thereto by the said defendant W to place and
maintain the aforesaid switch tracks on its said factory jirem-
ises and to run, operate and haul its cars over, along and upon
said switch tracks upon said factory premises for the purpose
of switching coal cars in and to the cement works of the said
defendant AV and for the further purpose of hauling in its
said cars from the said cement plant of the said defendant AV
its manufactured cement products, and for other purposes.
And whereas, on the day aforesaid, and for a long time prior
thereto, the said switch tracks of the said defendant railway
company, so running into and upon the said factory premises
at and from a point about, to wit, feet north of the
said main tracks of the defendant railway company, consisted
of two tracks or double tracks which run practically north and
south and parallel to and in close i)roximity to each other, to
wit, about feet apart ; the more westerly of the said
switch tracks being laid and located close to and near, and on
the east side of, the certain cement warehouse then and there
being used by the said W for the purpose of storing and
loading cement and the said freight cars or box cars of the
defendant railway company when being filled and loaded with
the product of the said W, preparatory to shipping the same,
were backed or shoved in and upon the said more westerly
switch track, all of which facts were well known, or by the
exercise of due and reasonable care could have and would
have been known, to the said railway company, defendant.
And w^hereas the defendant W on the day and year afore-
said, and for a long time prior thereto, was the owner and
operator of a certain manufacturing plant fully equipped for
the manufacture of Portland cement, in the county and state
aforesaid, and in active operation, and employed in and about
PERSONAL INJURIES 1097
its said factory plant in the operation thereof more than
men; and in the line of their employment and in the perform-
ance of their duties in and about said factory and in and
about said factory premises, said men were compelled to, and
did, on the day aforesaid, and for a long time prior thereto,
work in and about the said cement warehouse, and the said
switch tracks of the defendant railway company, all located
as aforesaid, all of which was well known to the railway com-
pany, or by the exercise of due and reasonable care could and
would have been known to the said railway company. And
whereas, on said day and year, and for a long time prior
thereto, the plaintiff was in the employ of the defendant W
as a common laborer in and about its said plant, and by virtue
of said employment it became and was the duty of the plaintiff
to perform such manual labor as he might be directed or
instructed to do by the said defendant \V ; and whereas, the
said defendant AV, on the day aforesaid, had and used at its
said plant the said building known as, and commonly called,
a warehouse for the storage of cement ; and whereas said W
used in connection with its said plant and located on its said
factory premises the aforesaid railroad tracks or switch tracks
connecting with the main railroad tracks of the defendant
railway company, and leading away therefrom, into and upon
the said factory premises of the said defendant W to and
along the east side of the said cement warehouse and to other
parts of the said factory premises.
And whereas, the plaintiff, while in the line of his duties,
was instructed by one , the foreman of the said
defendant AV on the day aforesaid, and while it was dark
or dusk, together with certain other laborers of said cement
plant, to move, shove or push to one of the doors of the said
cement warehouse for the purpose of loading said car with
cement, an empty railroad car, which car was standing on one
of said switch tracks on the premises of said cement plant, a
short distance away from the said door of said cement ware-
house, which said fact the railway company well knew, or
by the exercise of due and proper care and caution could have
and would have known.
And whereas, the plaintiff did, pursuant to the orders of the
said , the foreman of said defendant \V in con-
junction with certain other laboring men of the defendant W
move, shove or push said railroad car which had been standing
as aforesaid on one of said switch tracks to one of the doors
of said warehouse while the machinery of the factory was
in motion and making a great noise ; and it was then and
there the duty of the plaintiff to hold said empty car at said
warehouse door until the other said employees who were
working with the plaintiff, as aforesaid, would have blocked
the wheels of said car to hold the car stationary while said
car would be filled with said cement product.
1098 ANNOTATED FORMS OF PLEADING AND PRACTICE
And the plaintiff avers that it then and there became and
was the duty of the said railway company to so use, operate
and control the said east switch truck, which was parallel
with and in close proximity to, the said west s^vitch track in
and about which the plaintiff was at work, as aforesaid, so
as to avoid injury to the plaintiff' and to haul, transport and
switch its said freight cars or box cars over, along and upon
the said east switch track with reasonable care and caution
so as to avoid injury to the plaintiff' and to that end then and
there have upon said cars, so being hauled, transported or
switched over said east switch track, a competent and careful
person to guide and regulate the speed thereof and to give
warning of the approach of the same ; yet, disregarding its duty
in that behalf, the said railway company on the day aforesaid,
then and there, at the place aforesaid, carelessly, negligently
and recklessly switched, backed, shoved or pushed a certain
coal car, heavily loaded with coal, which was then and there
the property of the defendant railway company, and under
the control and management of its then servants, who were
not fellow-servants of the plaintiff, in, along, upon and over
the said east switch track so located as aforesaid, at a high
and excessive rate of speed and at a time when it was dark
or dusk and the machinery of the said cement works was in
full operation and making a great and loud noise, with no
competent person or anyone upon the said coal car so heavily
loaded with coal, to guide the same or regulate the speed
thereof or to give warning of the approach of the same ; by
means whereof, and on account of the negligent, careless and
reckless conduct of the said railway company, the plaintiff,
who was then and there working in the line of his employ-
ment and while in the act of moving away from the said
freight car so being placed or "spotted" by him as aforesaid,
and while exercising due care and caution for his own safety,
was thereupon struck by said heavily loaded coal car of said
railway company and knocked and felled to and upon the
ground there ; and the plaintiff avers that at the time that he
was struck, as aforesaid, he did not know that the said moving
coal car was upon the said east s^vitch track nor could he
have discovered the said moving coal car by reasonable care
on his part in time to avoid being struck by the same; and
then and there plaintiff was, by reason thereof, severely
bruised, and lacerated and severely injured as hereinafter
alleged.
2. It thereupon also became and was the duty of "W, one
of the said defendants, to furnish the plaintiff a reasonably
safe place in which to do his work and to furnish lights, and
to properly light the place where said plaintiff was working;
and it ^yas then and there the duty of the said defendant W,
to require and take care that the said railway company, the
PERSONAL INJURIES 1099
other of said defendants, would exercise reasonable care in
moving its cars on said switch tracks, and to have competent
persons in charge of its cars while moving same on said
switch tracks, and to place a light when it was dark upon
the front end of its cars while moving over said switch
tracks, and to warn said plaintiff of the approach of said
cars while moving or switching the same ; and it was the duty
also of the defendant railway company to exercise reasonable
care in moving and switching its said cars on said switch
tracks and to have competent persons in charge of its cars
while moving and switching same on said switch tracks, and
to have lights on the front end of its cars while moving on
said switch tracks when it was dark, and to warn said plain-
tiff of the approach of its said cars; yet, wholly regardless
of their duties in that respect, the said defendants while the
said plaintiff was in the line of his duty after having assisted
in moving said car and holding said car as aforesaid, and
while about to move away from said car after holding same
for the purpose of blocking as aforesaid, at the time afore-
said, negligently and carelessly pushed, shoved and moved
a car heavily loaded with coal down, along and upon a certain
switch track running parallel with and close to the said switch
track upon which said plaintiff was working as aforesaid,
without any person in charge of said moving loaded car and
without a head-light on said moving loaded car, and without any
lights in the place where plaintiff was working, although it was
dark or dusk there, and without giving the plaintiff any warn-
ing of the approach of said loaded car, and while the plaintiff
was working in the line of his duty as aforesaid, pursuant to
orders given by the said foreman, under the control, guidance
and direction of the W, defendant, and while in the act
of moving away from said empty car which he had been
holding for the purpose of blocking, and while exercising due
care and caution for his own safety, said coal car heavily loaded
with coal, then and there struck the plaintiff upon his back
and right side and felled him to and upon the ground; and
the plaintiff avers that at the time he was struck as afore-
said, he did not know that there was any moving car on said
switch tracks, nor was he informed of any moving car by anyone
on behalf of either of the defendants, nor could he have dis-
covered the said moving car which struck him as aforesaid, by
exercising reasonable care at the time aforesaid, in time to
avoid being struck, as aforesaid.
And then and there the plaintiff was by reason thereof
seriously and permanently injured, and by reason thereof his
lungs, spinal column, kidneys and intestines were severely
injured, and he was bruised and lacerated, by reason whereof
he became and was affected with traumatic pleurisy, as a
direct result thereof, and thereby the plaintiff was compelled
to and did lay out divers large sums of money amounting to
1100 ANNOTATED FORMS OF PLEADING AND PRACTICE
dollars in and about endeavoring to he healed
of his said injuries, so received as aforesaid ; and also by meaDs
of the premises, plaintiff then and there became and was sick,
sore, lame and disordered and so remained for a long time,
to wit, from thence thitherto, during all of which time the
plaintiff suffered great pain and has been hindered from
transacting his busines's and affairs and has lost and been
deprived of divers large gains and profits which he might and
otherwise would have gained and ac(|uired; and the plaintiff
avers that his said injuries are permanent. To the damage, etc.
(Virginia)
For this, to wit, that heretofore, to wit, on the day of
, 19. ., and at the time of the grievances hereinafter
mentioned the said defendant was the owner and operator of
a certain steam railroad running through the state of Vir-
ginia, its line terminating at the , Virginia, in
which said city said defendant owned and operated a certain
railroad yard, made up of many tracks, over, alxnit and on
which yard it propelled its steam trains, cars, and engines for
the purposes of making u{) and disconnecting its trains, shift-
ing its cars, trains and engines, and loading and unloading
freight, and doing those things usual in railroad yards, the said
yard terminating on river where defendant
owned and operated its certain docks and piers; and the plain-
tiff avers that on said date, at the .speeial instance and request
of said defendant, the said plaintiff became and was the hired
servant of the said defendant, being in the employ of the
defendant and directed and recjuired by it to work in and
upon its railroad track and line and to replace and repair the
same for a certain wage in that behalf paid to plaintiff by
defendant, and especially was plaint ilY employed by defendant,
on said date, to repair a certain railroad switch of the defend-
ant's located in the aforesaid railroad yard, situated about
opposite the easterly end of street where it is cut
off by the said yard, the two tracks forming the said switch
extending therefrom to on river
and to , so that defendant by means of said switch
runs and shifts its trains, engines and cars to said
and to said ; and the plaintiff avers that on said
day and date aforesaid he was engaged in his said duty of
repairing the aforesaid switch, which was then out of order;
and that it thereupon became and was the duty of the defend-
ant to use due and proper care to furnish and provide plaintiff
with a safe place to work, and to exercise like care not to
injure said plaintiff; and especially was it defendant's duty
to exercise due and proper care in abstaining from running
its yard engines and trains against and upon plaintiff; and the
plaintiff avers that on said date a certain yard engine of the
PERSONAL INJURIES 1101
defendant, operated and controlled by defendant's employees,
approached said switch from the west and desiring to go over
said switch and on and over the track which extended there-
from to , as aforesaid, the said plaintiff so spiked
and temporarily fixed the said switch as to allow the said yard
engine to pass over the same and to go upon its said journey
as aforesaid; and the plaintiff avers that of the fact that the
said switch was out of order and that plaintiff was engaged
in repairing and mending the same and that the said yard
engine should not pass over the same until directed so to do by
the plaintiff those in charge of and operating the said yard
engine were well informed and knew, and they also knew that
the provision made by said plaintiff at said switch for the pur-
pose of permitting said engine to pass over the same was of a
temporary character, intended only to permit said engine to
pass down said track to said And the plaintiff
avers that the said yard engine passed over said track to said
, and there, after hitching to several railway cars,
started back, with the engine in front, over said track towards
the said switch, in order to shift the said cars and engine from
said track , to some other location in and upon
the said railroad yard; and the plaintiff avers that the said
defendant, not considering its duty in the premises, but ex-
pressly, negligently, wrongfully and wilfully failing and refus-
ing to perform the same, carelessly, wrongfully, wilfully and
negligently ran the said yard engine with the said cars thereto
attached, in charge of and operated by its employees, from
said over the said track extending therefrom, as
aforesaid, into and upon the said switch, and negligently,
wrongfully, wilfully and carelessly failing to keep any reason-
able and proper watch or look ahead, and without ringing the
engine bell, blowing its whistle, or giving the plaintiff the
slightest warning of its approach, though the said employees
of the defendant in charge of and operating said engine and
train well knew that the plaintiff was at work, as aforesaid,
at said switch and that it was not to be expected that the said
engine and cars would undertake to pass over said broken
switch until plaintiff had notified them so to do, wilfully, neg-
ligently, carelessly and wrongfully ran the said yard engine
upon and against the said plaintiff, who was working at said
switch, and while the said plaintiff was exercising due, lawful
and proper care, and thereby hurling the said plaintiff vio-
lently to and against the ground inflicted great injury upon
him, wounding and hurting him in his back, side and body, so
that the said plaintiff' underwent and suffered much pain of
mind and bod}', to wit, from thence hitherto, and was and is
permanently injured in his back and side, to the plaintiff's
damage in the sum of dollars ; and therefore he
sues.
1102 ANNOTATED FORMS OF PLEADING AND PRACTICE
1631 Swing, aerial, action
The owner of an amusement park who has an interest in the
admission fees to the attractions is liable for an injury caused
by his concessioner's failure to use reasonable care in the con-
struction, management and operation of devices that are of a
character to produce injury unless due care is observed in
their operation.^^o
1632 Swingf, aerial, Narr. (Va.)
For this, to wit, that heretofore, to wit, on the day of
, 19.., at the time of the committing the grievances
hereinafter complained of, the said defendants were engaged
in conducting a large pleasure resort in the county of
, Virginia, and in connection therewith operated
numerous pleasure devices and machines, and amongst others
a certain device and machine known as a spring swing; that
said swing was composed of a center shaft to which were
attached carriages or swings each carrying
passengers; that at the foot of tiie shaft there
were large exposed and uncovered cog wheels, and when
the electric current was turned on, that being the motive
power, by reason of the cog wheels, the carriages or swings
would circle out from the center shaft until they reached
a considerable height from the ground, and after swing-
ing thus for a certain time the power would be cut otf
and the carriages or swings would gradually slow down
and descend until they reached the starting point; that
the machine was operated at night, as well as in the day
time, and the light for it was furnished by small
trolleys running on wires attached to the shaft ; that if these
trolleys slipped, the apparatus, the passengers, the large ex-
posed cogs, and the operator would be left in darkness ; that
the device was patronized mainly by Avomen and children and
if the light trolleys slipped and it became dark the women and
children would become terrified, scream and some attempt to
jump out ; that in such case, the operator would have to hurry
to shut off the power and endeavor to get the trolleys in place,
and to do this he would be compelled to get in near the shaft,
lean forward over the large open and exposed cog wheels and,
with a hook on the end of a stick, pull the trolleys in place, and
during this time, he would have women and children swing-
ing around him in carriages or in swings in considerable peril
from their fright and excitement ; that when the trolleys were
new or in good condition, they acted fairly well; that said
240 Stickel V. Riverview Sharp-
Bhooters Park Co., 250 111. 452, 455
(1911).
PERSONAL INJURIES 1103
plaintiff was employed by the said defendant to operate said
machine or device, and when he was first employed
employees were assigned to operate said machine, one sold
tickets and kept the cash, one assisted passengers on and off
and saw that the cars were not crowded, looked out to see that
the children did not get near the machine and generally looked
after the safety of passengers, one took up the tickets, and
one operated the machine. But at the time of the injury of the
plaintiff, he had been assigned alone to attend to all of the
above duties, except for a lady who acted as cashier.
And thereupon it became necessary and was the duty of the
said defendant to take reasonable and ordinary care so that
the machinery and appliances were in a reasonably safe condi-
tion, and that the said trolleys should be kept in such condition
that they would not frequently slip off and leave the said
plaintiff and the passengers in darkness and danger, and to
furnish said plaintiff a reasonably safe place in which to work;
but the said plaintiff avers that the said defendant failed m
its duty in that behalf, in this, to wit, that on the day of
, 19 . . , between the hours of in the
noon the said plaintiff was operating said ma-
chine and device in a careful and prudent manner, but sev-
eral times that night, the trolleys, which had become much
worn, slipped and left the plaintiff and his passengers in dark-
ness, and at about the time named, and while the passengers
were swinging in the air, the said trolleys again slipped, and
in the darkness, there were several cries from alarmed pas-
sengers, and one woman started to jump out of one of the
carriages or swings, and the plaintiff shut off the power and
hastened with his stick to pull the trolleys in place to get hght,
so as to quiet the passengers and bring them to the ground in
safety. And the plaintiff avers that while he was leaning for-
ward in the darkness one of his feet slipped and the other was
thrown on and against the large open and exposed cogs, his
foot was caught in them and a part ground nearly off,
and as a consequence, the plaintiff suffered pain and was com-
pelled to go to a hospital and remain for about ;
that his injuries necessitated the cutting off of his leg
below the knee twice. And the plaintiff avers that he, several
times, reported the condition of the trolleys to his employer, the
said defendant, and requested that they be fixed and that he was
promised that they would be fixed, but though there was
ample time to have fixed them, they were not fixed up to the
time of the injury to the plaintiff ; by reason of which premises
said plaintiff has been damaged dollars.
1633 Tracks in close proximity, Narr. (HI.)
For that whereas, on, to wit, , 19.., the de-
fendant was a corporation and was possessed of and operated
1104 ANNOTATED FORMS OF PLEADING AND PRACTICE
a line of railroad from the city of , in the county
of , aforesaid, to and within the city of ,
in the county of , and state afore-
said with certain cars running thereon for the conveyance of
goods and passengers for reward.
That, on, to wit, the date aforesaid, plaintiff became a pas-
senger upon one of the cars of the defendant in the city of
., aforesaid, to be conveyed to the city of ,
aforesaid, and had in his possession a ticket entitling him to
a ride in defendant's said car from and within the city of
, aforesaid, to and within the city of ^
aforesaid; that the defendant operated its cars upon a double
track upon one of the public streets in the said city of
, which tracks were placed so close together as
to leave a space between the cars of defendant when passing
upon said tracks of, to wit, one inch ; all of which
conditions were well known to the defendant and of which
conditions the plaintiff was then and there without notice.
Plaintiff further avers that it then and there became and
was the duty of the defendant to notify the plaintiff and the
other passengers upon its said cars, of the close proximity of
said cars, while said cars were passing upon said tracks, as
aforesaid; but that the defendant carelessly and negligently
failed and neglected to notify or warn him of the proximity of
its said cars, while passing upon said tracks, as aforesaid,
and plaintiff was without any notice or knowledge that de-
fendant's said cars passed each other on said tracks in close
proximity.
Plaintiff further avers that while he was riding upon said
car as a passenger, aforesaid, and while seated at one of the
windows in said car and while in the exercise of ordinary care
for his own safety, another car of defendant passing upon said
other track of defendant and within, to wit, inch. .
of the body of the car upon which plaintiff' was riding as afore-
said, caught and struck the left hand of the plaintiff', by means
whereof the left hand and arm of plaintiff was thereby crushed,
bruised, and injured and drawn to and between the defendant's
said two cars; and plaintiff was thereby greatly and perma-
nently injured as hereinafter alleged.
2. Plaintiff further avers that it also became and was the
duty of the defendant to place bars or safeguards at the win-
dows of said cars, so that passengers in said cars, while in the
exercise of ordinary care for their own safety would not be
injured by being struck by the defendant's car or cars pass-
ing the said adjoining tracks; but that the defendant carelessly
and negligently failed to provide bars and guards at the win-
dows of its said cars as aforesaid ; and that, on. to wit, the date
aforesaid, said plaintiff was seated at one of the windows in
said car as a passenger as aforesaid, and while in the exercise
PERSONAL INJURIES 1105
of ordinary care for his own safety, another car of defendant
passing upon said adjoining track, by reason of the absence
of bars or guards as aforesaid, upon the car upon which plain-
tiff was riding as aforesaid, then and there struck the left
hand of the plaintiff, and he was thereby permanently injured
as hereinafter alleged.
3. Plaintiff further avers that while he was a passenger
upon defendant's said car as aforesaid, and while in the exer-
cise of ordinary care for his own safety, and while seated at
a window in defendant's said car, the defendant by its agents
and servants so negligently and improperly operated said cars
upon said double track aforesaid, that by and through the
negligence and improper conduct of the defendant, by its said
agents and servants in that behalf, a certain other car of
defendant Avas then and there being propelled and driven upon
the track adjoining the track upon which the car in which
plaintiff was a passenger as aforesaid, was being driven ; that
said car on said adjoining track struck with great fdrce and
violence, and without any warning or notice to the plaintiff by
the defendant or its agents or servants, the left hand of plain-
tiff, and his said hand was caught between the said two cars
of defendant, and his said hand and arm was pulled and forced
between said two cars, and he was thereby greatly and perma-
nently injured.
And plafintiff avers that his health and nervous system were
thereby shattered and impaired, and will continue to be so
permanently ; that on account of said injuries plaintiff became
sick, sore, lame, disordered and injured, and will continue to
be so permanently ; that plaintiff has suffered great bodily pain
and mental anguish and still is languishing and intensely suf-
fering in body and mind, and in the future will continue to
suffer bodily pain and mental anguish on account of said in-
juries ; that plaintiff was by occupation a painter, paper-
hanger, decorator and a contractor for painting, paper- hang-
ing and decorating, and was capable of earning as such
painter, paper-hanger, decorator and contractor for painting,
paper-hanging and decorating, large sums of money, to wit,
dollars, annually, and that by reason of said
injuries he has been unable to work at his said occupation, and
will be unable in the future on account of said injuries to work
at his said occupation or any occupation and earn money; that
he has paid out and become liable for large sums of money,
to wit, dollars for physician's fees, surgeon's
fees, medicine, care, nursing and attendance, in and about
endeavoring to be healed and cured of his said injuries, and
will be obliged in the future to pay out and become liable for
large sums of money in endeavoring to be healed and cured of
his said injuries, to the damage, etc.
1106 ANNOTATED FORMS OF PLEADING AND I'UACTICE
1634 Train service incompetent, Narr. (111.)
For that whereas, on, to wit, the day of , 19. .,
the defendant was in possession and control of a certain rail-
road running and extending from to ,
in the state aforesaid, and was then and there engaged as u
common carrier of passengers for hire between the points
aforesaid; that on the day and date aforesaid, at tlie special
instance and request of the defendant plaint itT beeanie and
was a passenger upon a certain passenger train of the defend-
ant running from said to said , which
train was under the control and management of the servants
and agents of the defendant.
And the plaintiff avers that it then and there became and
was the duty of the defendant to place its .s-aid passenger train
under the control and management of careful and trustworthy
agents and servants who would have a due reganl for the
safety of the passengers thereon and who would furnisii such
passengers with such trustworthy information as would enable
them to alight from said train at the proper places and reach
the passenger station of the defendant. Yet, the defendant,
wholly regardless of its .said duty in that behalf, placed said
train in the charge and under tiie management and con-
trol of divers negligent and untrustworthy agents and serv-
ants, to wit, one certain conductor and one certain brake-
man whose names are to tiie plaintilT unknown. And
the plaintiff further avers that when said train was ap-
proaching the said station of the said serv-
ants of the defendant called the name of said station in
the car in which plaintiff was riding to notify pas-
sengers that the said train was approaehing the station of
and as said train slowed up the plaintiff arose
from his seat and went out upon the platform of the car in
which plaintiff had been a passenger and finding the doors of
the vestibule open inquired of the said conductor and brake-
man the location of the passenger depot at which plaintiff was
to alight from said train; that the said conductor and brake-
man, well knowing that the said depot had not yet been
reached by said train, wilfully, wantonly, negligently and
falsely informed the plaintiff that the said depot was located
at a point directly opposite where the train of the defend-
ant then was and said to plaintiff "It is right over there;"
that it was in the night time and so dark that plaintiff
was unable to distinguish any object ; that the said false
information so given by said conductor and brakeman
aforesaid induced the plaintiff to believe that the train
on which he was riding had stopped at the defendant's pas-
senger station and in consequence thereof the plaintiff, while
in the exercise of due care for his own safety, attempted
to alight from said train ; but the plaintiff avers that the said
PERSONAL INJURIES 1107
passenger station of the defendant was not at the place indi-
cated by the said conductor and brakeman and the said train
had not stopped as plaintiff had been so led to erroneously sup-
pose, and in consequence whereof the plaintiff in attempting
to alight from said train fell and was dragged and pulled
under the defendant's said train and so mangled and bruised
by the defendant's said cars as to make amputation of the
plaintiff's arm necessary; by means whereof, the plaintiff
became and was sick, sore and disabled and so continued for a
long space of time, to wit, from thence hitherto ; and suffered
great pain; and was obliged to and did pay out and expend
divers large sums of money in and about being treated and
nursed during the time aforesaid; and was hindered and pre-
vented from attending to his ordinary business or calling of
a farmer in said county ; wherefore, etc.
1635 Trestle accident, Narr. (Miss.)
Plaintiffs, and , are sisters of the
whole blood, and are the only surviving heirs of ,
their mother and now deceased, the wife of ,
deceased.
On or about the day of , 19.., plaintiff's
mother , a woman of about years of
age, decrepit in body and weak and childish in mind, had
started out to fish in one of the creeks or bayous,
of , on or when, either going to or coming from
said fishing expedition, the said started across
cue of defendant's trestles about miles and about
of county, Mississippi, on defend-
ant 's line of track known as the division. This
trestle is about feet long, and on either side is a
deep and dangerous bayou. Plaintiff's' mother had walked
a distance of about feet over said trestle on her
way across the same when she was struck in the back by
defendant company's bound passenger train
that leaves about o'clock in the noon every
day, and was instantly killed.
Plaintiffs charge that the killing of their mother by defend-
ant company's said train as above set forth was due to wilful
misconduct of defendant's agents and servants in charge of
said train or to such gross negligence and utter disregard for
human life on the part of said train crew as to amount to
wilfulness.
Plaintiffs aver that from the direction from which defend-
ant's train was approaching said trestle, a person walking on
said trestle could be seen without any effort on the part of one
looking for a distance of at least mile. ., that de-
fendant's train was running at the rate of or
miles per hour, that it was a light train, equipped
1108 ANNOTATED FORMS OP PLEADING AND PRACTICE
with air-brakes and that it could be stopped at a short distance,
and that although defendant's agents and servants saw the
peril of this old woman in time to stop and avoid an injury,
she having walked for a distance of feet over
said trestle, for a greater part of the while in plain unob-
structed view of the defendant's said agents and servants in
charge of said train, who were looking, and that although said
track was level and this accident could easily hav»' been
avoided by the least eflfort to stop the said train, said defend-
ant company's agents and servants made no effort to stop
said train before striking this old woman in the back, and
that the only way she could have possibly avoided being
struck by said train, would have been to have jumped into a
ditch or boyou from the high trestle at the peril of her life.
Wherefore, on account of thf gross carelesslcss of defendant
company's agents and servants, and their utter disregard of
human life, as above set forth, plaintiffs have lost their mother
and have been greatly injured by the loss of her services, and
on account of the gross and wilful conduct of the defcmlant
company's agents and servants in causing the death of their
mother, bring this their suit in the sum of dol-
lars and all costs.
1636 Unguarded machinery, action
It is the absolute duty of an employer, without notice of a
factory inspector, to so locate, wherever i)ossil)l(\ all machinery
and appliances of the character mentioned in the Illinois statute,
or to so properly enclose, fence or otherwise protect them, as
not to endanger the safety of his employees.-^*
1637 Unguarded machinery, declaration, sufficiency
A declaration wiiich is based upon a violation of the statute
requiring the proper location and protection of dangerous
machinery is sufficient if it avers enough to show that the
machinery in question was dangerous to employees and was not
protected, although it fails to use the precise words of the
statute.2^2
1638 Unguarded machinery, Nan. (111.)
For that whereas, the defendant, on. to wit. the .... day of
, 19. ., was the owner, user and operator of a certain
factory, mill or workshop situated in the town of
in said county and state of Illinois j that in said factory, mill
241 Streeter v. "Western "Wheeled 2«: Streeter v. "Western "Wheeled
Scraper Co., 254 HI. 244, 247 (1912) ; Scraper Co., 254 111. 248
Sec. 1, Laws 1909, p. 202 (Hurd'a
Stat. 1911, p. 1128).
PERSONAL INJURIES 1109
or workshop, on, to wit, the day aforesaid, the said defendant
owned, used and operated certain power driven machinery,
including saws, plainers, jointers and other appliances for the
purpose, among others, of manufacturing; and especially did
said defendant use in its said factory, mill or workshop a
certain jointer for the purpose of jointing, cutting and manu-
facturing plow beams and other materials.
And the plaintiff avers that thereupon it became and was
the duty of the said defendant to use due and proper and ordi-
nary care and caution to furnish the plaintiff with reasonably
safe and suitable machinery with which to perform his work.
Yet, the defendant, not regarding its duty in that behalf,
as aforesaid, on, to wit, the day aforesaid, negligently, wrong-
fully and carelessly failed and neglected to use due and proper
care and caution to furnish the plaintiff with machinery with
which he could with reasonable safety perform his duties in
this, that the said defendant did negligently, wrongfully and
carelessly furnish the plaintiff a machine, to wit, a certain
jointer, which was not properly guarded by protective ap-
paratus for the safety of the plaintiff for the carrying out of
the terms of his employment, by reason of which said plaintiff
was injured as hereinafter set forth.
2. And that it then and there also became and was the duty
of the said defendant to use reasonable and ordinary care and
caution to provide for the plaintiff' a reasonably safe place in
which to work and not to subject him to any extraordinary risk
of hazard in the course of his duty and employment.
Yet, the defendant, not regarding its duty in that behalf, on,
to wit, the day aforesaid, did not use reasonable and proper
care and caution to provide for the plaintiff a reasonably safe
place in which to discharge his duties and work, and wholly
failed so to do and, on the contrary, did wrongfully and neg-
ligently subject the plaintiff to extraordinary risks and
hazards in the course of his duty and employment, in this,
to wit, that the said defendant on the day aforesaid caused,
suffered and permitted two certain power driven machines,
to wit, a jointer and a band saw to be and remain in such close
proximity that the operatives of said machines could not ope-
rate and work upon said machines with reasonable safety to
one another ; that the last aforesaid two machines were so
placed and arranged that the plaintiff could not, while per-
forming his duties, work with reasonable safety to himself.
And the plaintiff avers that the said defendant by the exer-
cise of reasonable care and caution might have known and did
know of the aforesaid unsafe condition with reference to the
location and proximity of said machine and that by failing
to have the said machines separated to a reasonably safe dis-
tance from one another it carelessly and negligently subjected
the plaintiff to extraordinary risks and hazards in his said
1110 ANNOTATED FORMS OF PLEADING AND I'lUCTICE
employment, of which facts and conditions the plaintiff did not
have knowledge or equal means of knowk-ilgc as the defend-
ant, and by means whereof plaintill was injured as hereinafter
set forth.
3. And it was then and there also the duty of the said de-
fendant to warn inexperit-need eiiiployL'i.'s and to pomt out and
explain to such inexperienced employees the dangers of such
employment in said factory ; that at the time and place afore-
said the defendant wrongfully and negligently neglected its
duty in that behalf, and then and there provided for the use
of its employees a certain power driven piece of machinery,
known as a jointer, used for planing and jointing of wood, and
the defendant then and there negligently ami wrongfully s-uf-
fered and permitted eertain knives, gears, cogs, pulleys, belts
and shafting, with whieh said jointer was operated, to be and
remain unenclosed and unfenced and otherwise unprotected,
so that persons and employees engaged in the work of operat-
ing said jointer were in great danger of being injured thereby
when said jointer was in operation ; that, while saiil jointer
was in operation, the knives thereof revolved at a great and
dangerous rate of speed, to wit, thousand times
per minute.
And the plaintiff avers that the said jointer, knives, cogs,
pulleys, beltmg and shafting were not reasonably .safe to be
used in said factory unenclosed, unfenced and unprotected, as
aforesaid; all of which was then and there well known to the
defendant, or by the exercise of ordinary care ought to have
been known to the defendant, and all of whieh was unknown
to the i)laintill', and the i)laintitT did not have equal means
of knowledge of such conditions as the defentlant.
And the i)laintitT avers that, at the time and place afore-
said, he was an inexperienced worker and did not know of the
dangers and hazards incident to the operation of said jointer,
concerning which inexperience on the part of the plaintiff,
the defendant well knew or by the exercise of ordinary care or
caution ought to have known ; in conscfiuence of which said
plaintiff was injured as hereinafter set forth.
4. And the plaintiff avers that it was also the statutory
duty of the said defendant, on the day aforesaid, to so locate
said jointer, belting and .shafting, wherever possible, as not to
be dangerous to employees of the said defendant, or that the
same should be properly enclosed, fenced or otherwise pro-
tected; but the said defendant, not regarding its statutory duty
in that behalf, on the day aforesaid, wrongfully and negli-
gently maintained, used and operated in its said factory cer-
tain power driven machinery, including a certain jointer, with
certain belting and shafting, wherewith the same was oper-
ated, whieh said power driven machinery, including said
PERSONAL INJURIES 1111
jointer, belting and shafting was dangerous to employees and
was not properly enclosed, fenced or otherwise protected ; that,
on the day aforesaid, it was possible and practical for the de-
fendant to operate its said factory with its said power-driven
machinery, including said jointer, belting and shafting, prop-
erly enclosed, fenced and otherwise protected, so that the same
would not be dangerous to employees, and that it was pos-
sible and practical to so locate the said power driven ma-
chinery, including said jointer, belting and shafting, so that
the same would not be dangerous to employees; that, on the
day aforesaid, the said defendant then and there wrongfully
and negligently suffered and permitted the aforesaid jointer,
belting and shafting, wherewith the same was operated to be
and remain unenclosed, unfenced and unprotected and dan-
gerous to employees, contrary to the form of the statute in
such case made and provided, so that persons and employees
engaged in and around the said jointer were in great danger
of becoming injured thereby when said jointer was in opera-
tion ; that when said jointer w^as in operation the knives, which
formed a part of said jointer, were unenclosed, unfenced and
otherwise unprotected, and were not reasonably safe to be
used in said factory; and that, on the day aforesaid, it was
possible and practical to enclose, fence and protect the said
knives in said jointer so that the same would be reasonably
safe to be used in said factory by employees of the said
defendant ; all of which was then and there unknown to the
plaintiff and was then and there w^ell known to the defendant,
or by the exercise of ordinary care and caution ought to have
been known by the said defendant.
And the plaintiff avers that, at the time and place aforesaid,
he was a laborer or helper in the employ of the said defend-
ant in its said factory, and was then and there engaged in as-
sisting the operator of said jointer in said factory in the plan-
ing and jointing of certain plow beams and, while said plaintiff
was engaged in said employment, and while in the exercise of
due care and caution for his own safety, the plaintiff's hand
then and there unnecessarily and unavoidably became caught
and thrown into and against the knives and other parts of the
said jointer, by reason of the said jointer and the knives
thereof being unenclosed, unfenced, unguarded and otherwise
unprotected, and by reason whereof the plaintiff's hand was
cut, bruised and lacerated and certain of the plaintiff's fingers,
to wit, fingers, were cut off and then and there
and thereby he became and was and is permanently disabled,
to the damage, etc.
(Michigan)
For that whereas, heretofore, on, to wit, , ,
and for a long time prior thereto, said defendant owned, con-
trolled and operated a certain factory situate in the city of
1112 ANNOTATED FORMS OP PLEADING AND PRACTICE
in said county and state, for the nianufactun- of
forest products, in which intestate then was employed as a
laborer in the story thereof.
That in the upper part of said story and about eleven feet
from the floor thereof, there was located an iron shaft about
feet in length attached to a frame hanger, said shaft
being parallel with and about inches above the
lower timber of said hanger, its ends attached to the sides of
the uprights thereof, and at and near the left of the center
of said shaft, and inside said uprights, there was located
a pulley, around which passed a leather belt about
inches in width connected with and operating an elevator
employed to convey products from said story to one
above, and on the left end of said sliaft and inside said
uprights, and about inches from saiil pulley,
there was located an iron collar about inches in
diameter, surrounding said shaft and attached thereto by a
set screw, the end of which protruded about one inch from
the surface of said collar.
That in the ordinary operation of said factory said shaft
revolved about one hundred times a minute ami said products
at times would clog and stop said elevator and the continued
revolutions of said shaft would force fnieh belt of said pulley
onto said shaft at the left; that no proj)er shifter or other
mechanical contrivance for the purpose of throwing such belt
on said pulley, and no proper safeguard was then provided for
such belting, and although possible, no loose pulley was em-
ployed on said shaft to receive such belt when so forced off,
and 110 guard was employed about said set screw.
That whenever such belt was so foreetl otT it was impossible
to rej)lace it unless the maeiiinery of said factory was in mo-
tion and the only method proviiled for so r«'[)lacing it was for
one of said laborers to place a ladiler against such lower timber
of said shaft, ascend such ladder, and with said machinery so
in motion, force said belt on such pulley with his right lutiid ;
that such act re(iuired severe physical exertion and in order
to counterbalance the force used and hold sueh ladder in place
it was necessary for sueh laborer to insert his- left hand be-
tween said shaft and lower timber near said collar and set
screw, and grasp such timber firndy and securely therewith;
that while so employed the attention of said laborer was
engrossed with maintaining his jiosition on such ladder and
the work of his right hand and said collar and set screw were
not within his observation, and the revolution of said shaft,
the accumulation of dirt, oil and grease on said collar, and
the duskiness of the upper part of said storv,
obscured the presence of said set screw, thus exposing such
laborer to the liability of injury by having his clothing caught
and he be involved in such shaft.
That the tendency of said belt to be so forced from said
PERSONAL INJURIES 1113
pulley, the method so provided for replacing it, and the pres-
ence of said set screw, were then unknown to the factory-
inspector having jurisdiction under an Act No. 113 of the
acts of this state for the year 1901, as amended, and his sev-
eral assistants and deputies, and their attention had not there-
tofore been directed thereto, in consequence of which no such
inspector before then was called upon under said Act to exer-
cise, or did exercise any discretion as to the employment of a
proper shifter or other mechanical contrivance for the pur-
pose of throwing such belt on such pulley, or of determining
the necessity of guarding such set screw, as otherwise might
have been so exercised and determined, and the existence of
said set screw was then unknown to plaintiff.
That prior to said .... day of , such inspector,
under authority contained in said Act, ordered defendant to
cover and properly guard all set screws in said factory, with-
out distinguishing such set screw from others employed therein.
That, on, to wit, said .... day of , . . . ., said elevator
becoming so clogged and said belt being so forced off said
pulley, intestate, under the terms of his employment was re-
quired to replace, and then did attempt to replace said belt
in the method above provided hereinbefore alleged.
Plaintiff avers that it then and there became and was the
duty of defendant to have covered and guarded said set screw
so that the clothing of intestate coming in contact with such
shaft and collar would not be caught by said set screw and
he be involved in said moving shaft ; but that defendant then
and there carelessly, negligently and wrongfully omitted its
duty in that behalf, in that it then and there carelessly, neg-
ligently and wrongfully failed to cover and guard such set
screw.
Plaintiff further alleges that defendant having theretofore
been ordered by such inspector, under authority contained in
said Act No. 113 of tiie acts of this state for the year 1901 as
amended, to cover and properly guard all set screws in said
factory, it then and there became and was the duty of defend-
ant under such Act to have covered and guarded said set screw
so that the clothing of intestate coming in contact with such
sJiaft and collar would not be caught by said set screw and he
be involved in such moving shaft ; but that defendant know-
ingly and wrongfully omitted its duty in that behalf, in that it
then and there knowingly and wrongfully failed to cover and
guard such set screw, after being so ordered by such inspector.
Plaintiff further alleges that having so omitted and failed
to cover and guard such set screw it then and there became
and was the duty of defendant to inform and warn intestate of
the existence and presence thereof so that he might avoid
liability of injury through having his clothing caught thereby
and he be involved in such moving shaft when so replacing
1114 ANNOTATED FORMS OF PLEADING AND PRACTICE
said belt; but that defendant tlu-n and there carelessly, neg-
ligently and wrongfully omitted its duty in that behalf, in
that it then and there carelessly, negligently and wrongfully
failed to inform or warn intestate of the existence or presence
of said set screw.
Plaintiff further alleges that under the provisions of section
8 of said Act No. 113 of the laws of this state for the year
1901, as amended, it then and there became and was the
duty of defendant to have provided the said belting with a
proper safeguard and said shaft with a loose pulley to receive
such belt when so forced off; but that defendant then and
there knowingly and wrongfully omitted its duty in that behalf
in that it knowingly and wrongfully failed to provide such
belting with any safeguard antl such shaft with a loose pulley
to receive said belt when so forced otT.
Plaintiff further alleges that defendant having knowledge
of the location of said shaft and of said hanger, pulley, belt
collar and set screw, and of the tendency of said products so
to clog said elevator, and of such revolutions of said shaft so
to force said belt off" said pidley onto such shaft, and that no
such proper safeguard for such belting and no such proper
shifter or other mechanical contrivance was so proviiled, and
that no loose ])ulley was so employed, aiui of the impossibility
of replacing such belt e.xcept with said nuiehinery in motion,
and of the method then provided for so rei)lacing it, and that
the attention of such laborer so employed was so engrossed,
and of said collar and set screw not then being covered or
within the observation of such laborer, and of such accumula-
tion of dirt, oil and grease, and such darkness, all tending
so to obscure the presence of such set screw and of the exposed
situation of the laborer .s-o employed in replacing .said belt,
and of his liability to injury when so doing, and having or
being charged with knowledge of the provisions of said sec-
tion 8 of Act 113 of the Public acts of this state for the y«'ar
1901, and of the duty of the said factory inspector, his sev-
eral assistants and (lejjuties, therein referred to, to exercise
their discretion as to whether such proper shifter or other
mechanical contrivance for the purpose of throwing such belt
on said pulley, should be furnished or supplied, and of deter-
mining the necessity of properly guarding such set screw,
and of the fact that no such inspector, a.ssistant or deputy
theretofore had been so advised or informed, it then and there
became and was the duty of defendant in the premises to
have so advised and informed such in.vpector, a.ssistant or
deputy, so that he. the said inspector, assistant or deputy,
might exercise his discretion as to the use of such shifter or
other mechanical contrivance and determine the necessity of
properly guarding said set screw.
Plaintiff avers that defendant then and there knowinglv and
wrongfully omitted its duty in that behalf, in that it knowingly
PERSONAL INJURIES 1115
and wrongfully failed to advise and inform such inspector,
assistant or deputy in the premises, in consequence of which no
such inspector, assistant or deputy theretofore exercised any
discretion in requiring defendant to furnish or supply, or cause
to be furnished or supplied, any proper shifter or other me-
chanical contrivance for the purpose of throwing such belt
onto said pulley, or of determining the necessity of properly
guarding such set screw, other than in the general direction
given as aforesaid, and having so knowingly and wrongfully
failed to advise and inform such inspector, assistant or deputy
then and there carelessly and negligently failed to furnish and
supply such proper shifter or other mechanical contrivance
and then and there carelessly and negligently failed to guard
such set screw ; in couseciuence whereof, as intestate was so
replacing such belt on such pulley, in the method so provided
and in the exercise of due care on his part, the clothing of his
left arm was caught in said set screw and he was suddenly
drawn over the top of said moving shaft and the bones of his
said left arm were crushed and broken about three inches
above the elbow, and the tlesh and muscles of the said arm
were stripped from the bones thereof and such lower part of
said arm was completely pulled and severed therefrom, and
the muscles and nerves of his shoulders strained and impaired
and the flesh of his face and nos'e was cut and his head and
the internal organs thereof injured, imj)aired, lacerated and
torn ; that in consequence of the serious injury so inflicted
upon his left arm it became necessary to amputate and cut off
a portion of it about four inches above the elbow, and his said
arm and shoulders and the musch^s and nerves thereof were
crippled and maimed and he became and was permanently
injured.
That at the time of such injuries intestate was of the age of
years and was strong and able-bodied, and afllicted
with no disease other than a suppurative inflammation of
the middle right ear, and was capable of earning, and was
earning the jjrevailing wages of a common laborer; and in
conse([Uence of such injuries and of the injuries so sustained
by him in his said shoulders, and the loss of his said arm, he
thereupon became lame and the flesh of his face and nose
became sore and disfigured, and the muscles and nerves of
his shoulders became powerless to perform their usual func-
tions, and his head and such ear were seriously injured and
rui)tured. and the said inflammation was aggravated and ex-
tended, and he became, continued and remained permanently
injured in his left arm and shoulders and sick and sore, and
the disease of said ear continued and was aggravated and
extended, and he so continued for a long period of time, to wit,
from thence hitherto, wholly unable to earn such prevailing
wages, or to perform or to attend to, care for or manage his
affairs or business, and his nervous system became weakened
1116 ANNOTATED FOKMS OF PLEADING AND PRACTICE
and incapable of resisting disease, and thcri'afbr and, i»n, to
wit, day of , ...., he died from the effeets of
such injuries and disease.
Tliut by reason of sueh injuries and the aggravation of said
disease intestate was compflUd to lay out and expend, and
did lay out and expend, large sums of money fur int*dieal
and surgical aid, medicine, care and nursing, and sutTcred great
bodily pain; that said condition was caused wholly from said
injuries and the results thereof; and that in consequence
thereof and of his final sickness, burial and death so result-
ing from such injuries, his estate was put to large expense,
to wit, the sum of dollars, and has lost the sev-
eral sums V hich otherwise intestate would have earned hail ho
lived until the termination of the expectancy of his life, to
plaintiff's damage as such administratrix in, to wit, the sum
of dollars.
That Intestate left surviving him , his widow,
and , his son, next of kin, and by reason of his
death his said estate antl plaintitT and said widow and son
each has suffered j)ecuniary injury, and has been and is de-
prived of means of support and contribution theretofore made
to them by intestate, and a right of action has survived and
accrued to plaintiff as such administratrix, and she has suf-
fered great damage in, to wit. the sum of
dollars ; and therefore she brings suit.
1639 Unseaworthy vessel, Narr, (Mich.)
For that whereas, heretofore, to wit, on the day of
, ly. ., the said defendant, the company,
was a corporation, and had a place of business at
street, in the city of , county and state aforesaid,
and having its principal business oflice at in said
city; that at the time aforesaid, and for a considerable time
prior thereto, the said defenilant used, handled and controlled,
in its said business, the tug , and was at the
time aforesaid, by its oflicers and agents, engaged in hauling
ice from county, Michigan, to its said place of
business at street, ,
county, Michigan, by nu\ins of said tug aiul certain ice barges
hauled by said tug; that tlefendaiit was the master or cap-
tain of said tug and in charge of said work, defendant
was the engineer of said tug, plaintiff was the
fireman, and as such had principal charge of the duty of
handling the tow line or ropes, and on the occasion aforesaid,
the said crew was taking two empty barges from
aforesaid, to aforesaid, with sai<l tug. expecting
to leave one of said barges at and to bring back
the other of said barges, with said tug to said place of busi-
ness on street, with a load of ice. Said nitrht was
PERSONAL INJURIES 1117
a very dark night, and said crew left at
P. M. of the , instead of P. M. as usual, and was due
at about o'clock A. M. of the in the
dark instead of daylight as usual.
And the plaintiff avers that being in control of said tug and
barges and conducting said business, the said defendant, the
company, owed the plaintiff, its fireman, the fol-
lowing duties:
1. To see that said tug and barges were seaworthy, prop-
erly manned with competent seamen, agents and officers, and
eijuipped with all appliances necessary for its use and for the
safety of the crew.
2. To employ and retain skillful and competent fellow-
servants, and a sufficient number of them to enable plaintiff
to do his part of said work with reasonable safety to himself.
3. To furnish reasonably safe appliances for the use of the
said plaintiff and his co-servants in charge of said work, includ-
ing proper lights and proper lighting material to enable the
plaintiff to see the situation of said tug in case anything went
wrung and he was obliged to work upon said deck in the dark-
ness of the night, and proper instruments and instrumentali-
ties to enable the master of the tug to locate the tug in case
it became stranded in the mud or upon shoals or sandbars, or
iji any other way disabled from proceeding, such as a com-
pass and other instrumentalitifs.
4. To supi)ly said tug and barges with all the implements
and instrumentalities necessary for said trip in view of the time
and circumstances under which said trip was to be made,
namely, with all appliances necessary for the making of said
trip and the safety of the crew.
5. And it was the duty of the remainder of the defendants
to exercise ordinary care, skill and diligence, in oi)erating said
tug and doing said work in sueh a manner as not to imperil
the safety of the plaintiff.
Yet, the .said defendant, the company, did not
regard said duties, or any or either of them, but wholly dis-
regarded each and every of the .same, and carelessly and neg-
ligently failed to furnish a safe and suitable tow line with
which to haul and draw said ice barges and furnished an
unsuitable and dangerous line for that purpose, and a line con-
taining kinks, loops and turns whenever the same was slaekened
or not stretched out or not pulling the barges; and carelessly
and negligently failed to see that said tug and barges were
seaworthy, properly manned with competent seamen, agents
and officers, and equipped with all appliances necessary for
their proper u.se and for the safety of the crew and the plain-
titr.
.\nd carelessly anil negligently failed to employ and retain
skillful and competent master and fellow-servants and a suffi-
1118 ANNOTATED FORMS OP PLEADING AND PRACTICE
cient number of them to enable plaintiff to do bis part of said
work with reasonable safety to himself.
And carelessly and negligently failed to furnish n-asonably
safe appliances for the use of plaintiff and iiis co-servants in
charge of said work; and carelessly and negligently failed to
supply said tug and said barges with proper lights and proper
lighting material to light the deck of said tug when any-
thing went wrong in the darkness, and plaintiff was obliged
to work upon said deck in such darkness ; and carelessly and
negligently failed to provide proper implements and instru-
mentalities to enable the master of said tug to locate the
same when it became stranded in mud banks or upon shoals
or sandbars, or in any other manner disabled from proceeding,
such as a compass.
And carelessly and negligently failed to ffui)])ly said tug and
barges and the persons in charge of the same with such imple-
ments and instrumentalities as were necessary for said trip
in view of the time and circumstances under which said trip
was to be made, namely, failed to provide such ai)pliances
that were necessary for the making of said trip and the safety
of said crew; and carelessly and negligently retained and
employed said captain and engineer who negligently left their
post of duty in the darkness of the night when they knew said
tug was in trouble and stranded and matters were going
wrong; and carelessly and negligently retained said
and men whom it knew were wholly incom-
petent to discharge the duties devolving ujxni tluin.
And the remainder of the said defendants carelessly and
negligently failed to use ordinary care, diligence and skill in
operating said tug and doing said work, anil did said work
so unskillfully and negligently that plaintiff's life and limb
were imperiled thereby.
And the plaintiff avers that he had been directed by his
superiors, i)oth the said captain and engineer, whose orders
it was his duty to obey and heed, to assist the said
in handling the lines and r<ii)es whenever it should be neces-
sary; and plaintiff avers that it is the duty of the fireman,
assistant fireman, and any tug man having any duty to per-
form in connection with the ropes or lines, if they see any
line slipping to proceed at once to securely fasten the same to
prevent its slipping, which duty he is taught and the dis-
charge of which is insisted upon from the time he first enters
upon his work.
And the plaintiff further avers that before said tug arrived
Rt , it became stuck in the mud-bank, that while
said tug was so situated in said mud-bank, after having fixed
his fires by direction of the engineer, he stepped upon the
deck of said tug and was on the rear of the same, when he
saw the line slipping away from said and at
once, in discharge of his duty as it had been taught him for
PERSONAL INJURIES 1119
more than a score of years, he went to the assistance of said
and attempted to secure said line or rope; that
at said time, by direction of said captain, one of said barges
was placed in front of said tug and one behind, and it was the
one that was behind whose line was slipping and which line
plaintiff was trying to secure.
And the plaintiff avers that at the time he went to the
assistance of said he had no knowledge that
either the engineer or master of said tug had left his post of
duty, and plaintiff in the darkness of the night, was upon the
deck of said tug and attempting to assist said to
secure said line, which held said rear ice barge, and which
barge was being pushed away from said tug by the force of
the waves made by the current of the wheel forming part of said
tug, and the plaintiff in the darkness aforesaid, for want of
suitable lights to light said dark, and want of a proper tow
line to hold said barge, was caught in the kinks and loops of
said rope and pulled twice around the post in the rear of the
cabin of said tug by said rope, and had his left leg crushed
and mangled to such an extent that it became necessary to
amputate the same between the hip and knee, nearer the hip
than knee.
And the plaintiff avers that said injury could not have taken
place had said and remained at
their post and had said been competent to prop-
erly fasten said rope or line; neither could it have happened,
had said tug been supplied with proper implements and in-
strumentalities, including proper tow lines and lights. And
the plaintiff avers that he was ignorant of the incompetency and
carelessness of the said assistant fireman, and the carelessness
and incompetency of the said master and engineer, and the said
defendant the company as chargeable with
notice thereof.
And the plaintiff avers that by reason of the premises and
by reason of being pulled about said post, while held by said
dangerous tow line, he became sick, sore, lame and disordered
for life; that he has permanently lost his said leg and has
suffered indescribable pain and distress, and will have to go
through life on one limb ; that he was at the time
years of age and had followed firing on tugs twenty odd years,
and has no trade he can follow in his present condition ; that
he has lost his time from thence hitherto, and been put to
great expense in trying to be cured of his injuries; that on
account of his expenses, and loss of earnings, present, past and
future, and on account of the permanent loss of said limb,
and the misery and suffering he has endured he claims dam-
ages at the hands of the said defendants in the sum of fifteen
thousand dollars.
2. And for that whereas, on the day and date aforesaid, and
under the circumstances aforesaid, and while in the employ
1120 ANNOTATED FORMS OF PLEADING AND TRACTICE
of the said defendant, the company as aforesaid,
the plaintiff was injured under the circumstances more fully
set forth in count one of this declaration, which said count
one is hereby incorporated into count two so far as the same
describes the circumstances surrounding the plaintitl's in-
jury and the causes leading up to the injury and from which
said injury resulted. And plaintitf hereby recjuests permis-
sion to incorporate said allegations in said count one into this
count; and further avers that he was injured while in the
employ of the defendant, the company, on the
.... day of , 19 . . , in or ,
near , county, Michigan, while
under the directions and orders of , who was
master of the tug ; that without fault or negli-
gence on his part, and wholly by reason of the negligence and
default of the said defendant, the company, who
owned and operated said tug, and the master thereof, plaintiff
sustained injuries resulting in the loss of his left leg, which
said injuries he received in the performance of his duty.
And the plaintiff avers that by reason of tiie premises and
by reason of the fact that said tug was to make a trip from
to in the darkness of the niglit, and
by reason of the fact that said tug might become stranded
in the darkness, it became and was the duty of the said defend-
ants to provide said tug with means of cure and with such
articles and things as would enable plaintiir and his asso-
ciates to provide temporary means of relief in case of injury
or misfortune, to wit, to provide said tug witli such moans
and instrumentalities and medicines and other things as would
enable plaintiff and his associates to provide temporary relief.
And the plaintiff' avers that being ill and injured as afore-
said, while in the performance of his duty, it was incumbent
upon the defendant, the company, and the defend-
ant, , master of said tug, to furnish means of
cure, and to use all reasonable exertions for that purpose. It
became their duty to provide medicine and medical treat-
ment, and to see to it that he was properly lodged, properly
nursed, and properly provided with food; and this obligation
was incumbent upon them so long as the same was neces-
sary to effect a cure ; and if such medical and surgical treat-
ment as his condition reciuired could not be given on board
the tug, the same being only a short distance from port where
such treatment could be given, it became and was the duty of
the said defendants to at once put him to port.
Yet, the said defendants, the company, and
, wholly failed to discharge each and every of the
said duties; and he avers that being mangled as aforesaid, he
requested and implored to be immediately put to shore and
be provided Avith a physician to attend him, which said
proper and reasonable request was declined, neglected and
PERSONAL INJURIES 1121
refused, and plaintiff was detained on said tug for a period
of five hours within a few miles from the city of
and a couple of hours' ride from the city of ,
without any nursing, care or aid whatever, during all of which
time he suffered great, excruciating and untellable pain and
distress, and suffered severely from loss of blood ; and during
all of which time he was provided with no temporary relief,
care, treatment or nursing whatever, and instead of abandon-
ing said ice barges and taking plaintiff to shore where he could
obtain relief, he was cruelly detained upon said tug until the
ice barges had been securely placed at the dock at
to be loaded with ice, after which time said captain and
engineer attempted to bring plaintiff to to be
delivered at the over the railway
branch of the without calling a physician to
attend him.
And the plaintiff avers that by reason of said cruelty and
neglect after the receipt of said injuries, and on account of
the want of proper means and safeguards to provide tem-
porary means in case of injury, he sustained and suffered many
hours of pain and distress which would have been wholly un-
necessary had said safeguards been provided, and had he not
been neglected after said injury was received, and had his
needs not been postponed and neglected until the ice barges
were placed at the dock at , on account of which
unnecessary suffering and cruel neglect plaintiff claims dam-
ages from the said master of said tug, and the
company, in addition to the damages claimed in the first count
of this declaration in the sum of dollars. And
Ihe plaintiff avers that he would have been brought to ,
in his suffering condition, and his injuries would probably have
proven fatal, except for the conductor in charge of the car,
who caused him to be taken from said car and placed in the
care of a physician when it arrived at the city of
And the plaintiff avers that by reason of the premises he
claims damages in the amount aforesaid, and therefore brings
suit, etc.
1640 Wrongful death, action, nature
A right to maintain an action against a party who causes
the death of another by wrongful act, neglect or default, is
statutory, for, at common law, no such action was maintain-
able. -^^ In Illinois, an action for death resulting from a wrong-
ful act is maintainable if the wrongful act was committed or
omitted in the state, although the death followed in another
2*3 Crane v. Chicago & Western
Indiana R. Co., 233 111. 259, 262
(1908).
1122 ANNOTATED FORMS OF PLEADING AND rKACTICE
state, because the wrongful act, and not the death constitutes
the cause of action.^**
1641 Wrongful death, action, distinctions
In Michigan, in case injuries result in death, the personal
representative has a single remedy, depending upon the death 'a
proximity to the injury. If the death is instantaneous, the action
must be brought under the Death act for the benefit of the next
of kin, and recovery can only be had for the pecuniary loss.
If the death is not instantaneous, the action must be based upon
the Survival act, brought for the same persons, and recovery
may be had for the full measure of damages. In either case,
however, it is permissible to join counts under both acts,-"
So, in Illinois, a clear distinction has been established between
a cause of action existing under the Death statute and an action
maintainable under the Survival statute. This distinction is
that the first act gives a new right of action to the administrator,
which at common law, terminated at death, while the second act
merely continues an existing action or right of action which
would have abated but for such statute.^^s A further distinc-
tion is that the damages under the Death act are exclusively
the property of the next of kin, the personal representative
acting solely as trustee for them in their recovery, whereas
the damages recoverable under the Survival act belong to the
estate.247 An action for personal injuries on behalf of the widow
and next of kin is maintainable against a wrongdoer or his
personal representatives under the Survival act of Illinois,
whether the person injured or the wrongdoer, or both die before
judgment, the only cause of action surviving being that in
favor of the widow and next of ldn.2<«
1642 Wrongful death, notice
No notice to a municipality is necessary to the institution of
an action for ^vrongful death, as such an action is not for per-
sonal injuries within the meaning of the statute which requires
2" Crane v. Chicago & Western 2*t Holton v. Dal.r, 106 Til. 137;
Indiana R. Co., supra. Chicago, Peoria & St. Louis R. Co.
2*5 Dolson V. Lake Shore & Mich- v. Woolridge, 174 111. 330, 334
igan Southern Ry. Co., 128 Mich, (1898).
444, 454 (1901). 24 8 Devine v. Healj, 241 111. 34
2<« Chicago & Eastern Illinois R. (1909).
Co. V. O'Connor, 119 111. 586, 594
(1887) ; Holton v. Daly, 106 111. 131,
140 (1882).
PERSONAL INJURIES 1123
notice of personal injuries to be ^ven to a municipality as a
condition precedent to the bringing of an action against it.^*^
BILL OF PAETICULARS
1643 Motion (lU.)
250 ]sJq^ comes the defendant, by , his attor-
ney, and moves the court for a rule on the plaintiff to file a bill
of particulars as to the directions in which said plaintiff and
said car were respectively going on the occasion in ques-
tion. Without the information above prayed for it will be
unsafe for the defendant to proceed to the trial of said cause.
1644 Bill of particulars (Md.)
This action is brought under the provisions of article 67,
Code of the Public General laws, sections 1, 2, 3 and 4, and
all additions and amendments thereto for the benefit of
, the father of , who was killed
while a passenger on the car of the defendant company, on
, 19. ., at or near station, in the state
of Maryland, by reason of said car colliding wuth another
car of the said defendant, through the negligence, want of care
and default of the defendant, its officers, servants and agents
in the premises, and without the negligence or want of care
on the part of directly thereto contributing.
The said deceased was a vigorous, active young man, under
the age of years, in sound bodily health, fol-
lowing the wholesale and retail business in
, for and on account of the equitable plaintiff
from which he derived a large revenue, and from which the
equitable plaintiff", his wife, and family received maintenance
and support ; that the death of was directly
caused by the negligence, default and want of care of the
defendant, its officers, servants and agents in the premises,
and without the negligence or want of care upon the part of
the deceased directly thereto contributing.
DEMUERER
1645 Form (Va.)
Now comes the defendant by its attorneys and demurs to
the plaintiff"s said declaration, because the same is insufficient
in law, and for ground of demurrer says:
1. That the said declaration does not state with sufficient
particularity and clearness the acts of negligence on the part
2<9 Prouty V. Chicago, 250 111. 222, 250 Precede this by plea of general
226, 230 (1911); Laws 1853, p. 97; issue.
Sec. 2, Cities and Villages act
(Kurd's Stat., 1909, c. 70).
1124 ANNOTATED FORMS OF PLEADING AND PRACTICE
of the defendant company to enable it to understand the nature
of the charge it is called upon to answer.
2. That the declaration does not state sufficient facts to
enable the court to say upon demurrer whether if the facts
stated are proved the plaintiff is entitled to recover in this
action.
3. That the declaration contains only a statement in gen-
eral terms of the cause of action, and general averments of
negligence on the part of the defendant which are not suffi-
cient.
4. (State any other ground that might be applicable)
And the said defendant prays judgment upon its said
demurrer.
SPECIAL DEFENSES, PLEAS, ETC.
ASSUMED RISK
1646 Origin of doctrine
The doctrine of assumed risk was first declared in this coun-
try in 1842, and is predicated upon the contraetual relation of
master and servant and not upon the maxim Volenti nan fit
injuria. (He who consents cannot in law receive an injury) 251
Therefore this defense cannot ho urged where the relation of
master and servant is forbidden by law.252
1647 Doctrine of assumed risk
An employee assumes all of the usual known dangers incident
to the employment, and takes upon himself the hazard of the
use of defective tools and machinery', which, after his employ-
ment, he knows to be defective, or might have known, had he
exercised due care, but voluntarily continues in the employment
without objection, and the danger is such that a person of
ordinary intelligence would know what would naturally follow
from the defect,-^^ unless the continuance in the work is under
a promise to repair at a fixed time or within a reasonable time
if no definite time is fixed, and the defect is not such as to so
endanger the person of the employee that a prudent man would
not continue to work under the same circumstances.254
251 Streeter v. Western Wheeled Montgomery Coal Co. v. Barringer
Scraper Co., 254 111. 254. 255; Dalm 218 111. 327, 331 (1905); Schillinger
V. Bryant Paper Co., 157 Mich. 550, Bros. Co. v. Smith, 2'^5 111. 74 77
554 (1909); O'Rourkev. Sproul, 241 (1907); Gunning System v. La-
lU. 576, 580 (1909); Shoninger Co. pointe, 212 111. 274, 279 (1904)-
V. Mann, 219 111. 246; Mueller v. Elgin, .Toliet & Eastern Ry Co v
Phelps, 252 111. 630, 634 (1912). Myers, 226 111. 358, 364, 366 (1907).'
252 Dalm V. Bryant Paper Co., 254 Gunning System v. Lapointe,
supra. supra; Morden Frog & Crossing
253 Illinois Central R. Co. v. Fitz- Works v. Fries, 228 111 246 250
Patrick, 227 111. 478, 483 (1907); (1907).
PERSONAL INJURIES 1125
1648 Scope of doctrine, law and fact
The foregoing rule applies to dangers which, are in contempla-
tion at the time of the hiring and to those which arise and become
known to the employee during service, -^^ and which are obvious
and apparent,-^*^ or which are so obvious that knowledge of their
existence can be fairly presumed. The presumption of knowl-
edge does not extend to dangers which are not obvious, which
arise solely out of extraordinary or exceptional circumstances,^^?
and with which the employee is suddenly confronted. In such
case, it ordinarily rests with the jury to say whether the employee
acted with sufficient promptness and with such care for his
personal safety in extricating himself as a reasonable man
should have acted under similar circumstances.^^s ^j^ employee
assumes a risk where the particular defects in the appliances or
the conditions connected with the particular services in which
he is engaged are equally known to him and the employer, and
he continues in the service without complaint and without any
promise from the employer to remedy such defects.^^a
1649 Presumptions
The employee has a right to presume that his employer will
exercise care and prudence to prevent the exposure of his em-
ployees to unreasonable risks or dangers.-*'^ So, the employer
has a right to assume that an employee of mature years is pos-
sessed of ordinary mental faculties, of the usual powers of obser-
vation, and of such knowledge as is acquired by common experi-
ence.-*^^
1650 Promise to repair, law and fact
Upon a promise to repair, the employee is relieved from the
assumption of risk of the employment for such a time as is rea-
sonably necessary to enable the employer to remedy the danger,
unless it is so obvious and imminent that no man of ordinary
255 Ross V. Chicago, Rock Island 239 Jenco v. Illinois Steel Co., 233
& Pacific R7. Co., 243 111. 440, 444 111. 301, 306 (1908).
(1910). 2C0 McCulloch v. Illinois Steel Co.,
250 Postal Telegraph-Cable Co. v. 243 111. 464, 469 (1910); Superior
Likes, 225 111. 249, 261 (1907). Coal & Mining Co. v. Kaiser, 229 111.
25T McCulloch V. Illinois Steel Co., 29, 33 (1907).
243 111. 464, 469 (1910); Hansell- 261 Illinois Central R. Co. v. Swift.
Elcock Foundry Co. v. Qark, 214 111. 213 111. 307, 315 (1904).
399, 406, 410 "(1905).
258 Asmossen v. Swift & Co., 243
lU. 93, 97 (1909).
1126 ANNOTATED FORMS OP PLEADING AND PRACTICE
prudence would engage in the work, or unless the defects in
tools or appliances are of a construction with which the servant
is as familiar as the employer ;262 and whether the danger is
of such character and whether the employee continued longer
than was reasonably necessary to enable the conditions to be
remedied are questions of fact.-*'^ An employee's complaint of a
defect and notice to the employer must be on account of an
apprehension of danger to the employee giving the notice or
making the complaint, and he must have an intention to quit
work unless the defect is remedied ; but it is not necessary that
he should, in terms, declare such an intention.**^*
1651 Unknown risks
An employee does not assume risks which are unknown to
him and are known to the employer, and which could not have
been known to the employee by the exercise of reasonable care,
and which could have been avoided by the employer by exercising
reasonable care on his part;2C5 nor does he assume unusual
dangers which are naturally incident to the employment but
of which the employee is not cognizant ;2«o nor dangers which
are not ordinarily incident to the service.^^^
1652 Obeying command
Nor does an employee assume a risk when he is directed to
encounter a danger by the order of the employer or of men
who stand in that relation, and he obeys, unless the danger is so
great that an ordinarily prudent person would not have en-
countered it.268 So, an employee may recover for an injury
which results from the carrj'ing out of a specific direction given
by a superior to do a work in a dangerous manner, unless the
danger is so imminent that a reasonably prudent man would
262 Scott V. Parlin & Orendorff .Co., Bon v. Desmond Chemical Co., 152
245 III. 460, 469 (1910); Cromer v. Mich. 84, 89 (1908).
Borders Coal Co., 246 111. 451, 456 268 Elgin, Joliet & Eastern Ry. Co.
(1910)- V. Myers, 226 111. 358, 364, 366
263 Scott V. Parlin & Orendorflf Co., (1907); Springfield Boiler & Mfg.
245 111. 469. Co. v. Parks, 222 111. 355, 359
264 Morden Frog & Crossing Works (1906) ; Henrietta Coal Co. v. Camp-
V. Fries, 228 111. 251. bell, 211 111. 216, 226 (1904); Ken-
265 Kenny v. Marquette Cement nedy v. Swift & Co., 234 HI. 606
Co., 243 111. 396, 402 (1910). 609 (1908) ; Cheneweth v. Burr 242
266 Henrietta Coal Co. v. Campbell, HI. 312, 318 (1909) ; Wells & French
211 111. 216, 226 (1904). Co. v. Kapaczynski, 218 111. 149, 152
267 Mobile & Ohio R. Co. t. Val- (1905).
lowe, 214 111. 124, 129 (1905) ; John-
PERSONAL INJURIES 1127
not incur it ; but an employee cannot recover where he is given
a general order to perform a task and he is to use his own dis-
cretion as to the manner in which the work shall be done, and
where there exists a safe and a dangerous way which are equally
open to him and he selects the unsafe method through heedless-
ness, or because it involves less exertion on his part.^^^
1653 Dangerous place
Employees whose duty is to make dangerous places safe assume
the additional hazard of their employments"'^
1654 Ordinary tools
An employee assumes a risk for an injury, even under a
promise to repair, from an instrument which is simple in char-
acter and which resuires no special skill or experience to enable
him, at a glance, to comprehend the possible dangers, if any,
that might result from its use.^^^
1655 Personal and statutory duties
Ordinarily, the neglect of an employer to perform his per-
sonal duties is not a peril that an employee assumes;-"- but he
does assume the risk if he continues in the service without com-
plaint or excuse and with knowledge, or with the means of knowl-
edge, of the particular neglect and the consequent danger.^^s
An employee does not assume a risk which arises from the
employer's negligent performance of a statutory duty imposed
upon him for the protection of his employees.-"* Thus the
defense of assumed risk is inapplicable to actions which are
based upon the Mining act.^''^ So, in Michigan, the owner and
operator of a mine cannot shield himself from liability for an
injury resulting from a violation of a duty imposed upon him
by statute, under the defense of assumption of risk or that of
negligence of a fellow-servant, because this statute is prohibi-
2«» Illinois Central R. Co. v. Swift, chine Co. v. Zakzewski, 220 111. 522,
213 111. 307, 316 (1904); Kath t. 530 (1906).
East St. Louis & Suburban Ky. Co., 2^* Campbell v. Chicago, Eock
232 111. 126, 134 (1908). Island & Pacific Ry. Co., 243 111.
270 Kellrville Coal Co. v. Bruzaa, 620, 625 (1910); Kleinfelt v. Som-
223 111. 595, 601 (1906). ers Coal Co., 156 Mich. 473, 478
2T1 Kistner v. American Steel (1909).
Poundries, 233 111. 35, 38 (1908). 275 Waschow v. Kelly Coal Co., 245
2T2 Chicago Union Traction Co. v. 111. 516, 521 (1910); Kellyville Coal
Sawusch, 218 111. 130. 134 (1905). Co. v. Strine, 217 111. 516, 527, 528
2T3 McCormick Harvesting Ma- (1905).
1128 ANNOTATED FORMS OP PLEADING AND PRACTICE
tive in its nature, making a violation of it actionable and is not
the mere enactment of the common law rule that only reason-
able care and diligence is required to excuse negligence.-^^ The
voluntary continuance in the service amounts to an assump-
tion of risk when the employee has notice of the employer's
failure to perform his personal duty, or when the unsafe condi-
tion is so apparent as to be obvious to a person of ordinary
intelligence.-'^
But an employee who continues in the service of an employer
with knowledge of the latter 's violation of a statute which was
passed for the employee's protection, does not assume the risk in-
cident to such a violation.-^® Any contract with an employee
having the effect of relieving the employer of liability for in-
juries resulting from risks incurred by the violation of duties im-
posed by law is against public policy and void.^'^
1656 Minors
The doctrine of assumed risk is inapplicable to employees who
from youth or want of natural faculties are unable to appreciate
a danger incident to the employment or which may result from
the continued use of defective machinery or tools.^so
1657 Pleading, general issue
Evidence of assumed risk may be given under the general issue
and the question may be raised by an instruction based upon
eruch evidence.^si
1658 Law and fact
The assumption of risk is a question of fact which is to be sub-
mitted under proper irstructionSj^**- where the evidence is con-
flicting, or where reasonable minds may legitimately draw dif-
ferent conclusions from the undisputed facts established by
them. 283
2T8 Layzell v. Somers Coal Co., zsi Elgin, Joliet & Eastern Ry. Co.
156 Mich. 268, 282 (1909). v. Myers, 226 111. 358, 367 (1907);
2T7 Bonato v. Peabody Coal Co., Layzell v. Somers Coal Co., 156 Mich.
248 111. 422, 425 (1911). 270.
278 Streeter v. Western Wheeled 282 Bonato v. Peabody Coal Co.,
Scraper Co., 254 111. 248. 248 111. 426.
279 Campbell v. Chicago, Rock 283 Sturm v. Consolidated Coal Co.,
Island & Pacific Ey. Co., supra. 248 111. 20, 27 (1910).
280Siegel, Cooper & Co. v. Trcka,
218 111. 559, 566 (1905).
PERSONAL INJURIES 1129
CONTRIBUTORY NEGLIGENCE
1659 Doctrine
A party who last has a clear opportunity to avoid the injury,
notwithstanding the negligence of his opponent, is considered
solely responsible for it,^^^ and it is a good defense to an action
for personal injuries that the plaintiff was guilty of contributory
negligenee.285 The injured party cannot be charged with con-
tributory negligence, although his own negligence exposed him to
the risk, if the proximate cause of his injury was the result of
the defendant's failure to use ordinary care to avoid the injury
after becoming aware of the danger sufficiently to put a pru-
dent man on the alert.^ss The defense of contributory negli-
gence, except where the negligence is wilful or reckless, has been
abolished in Mississippi.^s^
1660 Rules of employment
It is usually negligence for an employee to violate a known
rule of employment, unless the rule is rendered inoperative by
its habitual violations with the knowledge and the acquiescence
of the employer.288
1661 Minors, brother's negligence
It is no defense to an action by a minor for personal injuries
that his brother's negligence contributed to the injury.^s^
1662 Minors, parent's negligence
The doctrine of contributory negligence has no application to
an action for personal injuries brought by a child under the
employment age.^^o A child under seven years of age cannot
be charged with contributory negligence, nor can the parents'
negligence be imputed to a child of tender years who is injured
by the negligence of another.^^i
284 Kellrv-ille Coal Co. v. Strine, 2*8 Kenny v. Marquette Cement
217 111. 529. Mfg. Co., 243 lU. 396, 403 (1910).
285 Mobile & Ohio R. Co. v. Val- 28o Ferryman v. Chicago City Ey.
lowe, 214 111. 128. Co., 242 111. 269, 274 (1909).
286 Star Brewery Co. v. Hauek, 222 290 American Car & Foundry Co.
111. 348, 350 (1906); United Rys. & v. Armentraut, 214 111. 509, 513
Electric Co. v. Kolken, 114 Md. 160, (1905).
168 (1910); Strong v. Grand Trunk 291 Richardson v. Nelson, 221 111.
W. Ry. Co., 156 Mich. 66, 75 (1909). 254, 257 (1906) ; Illinois Central R.
287 Welsh V. Alabama & Vicksburg Co. v. Warriner, 229 HI, 91, 95
Ey. Co., 70 Miss. 20, 25 (1892). (1907).
1130 ANNOTATED FORMS OF PLEADING AND PRACTICE
1663 Mining act
The defense of contributory negligence is not available in an
action under the Mining act.2^2
1664 Railroad crossing, negligence
In Michigan, a railroad is regarded as a warning of danger,
requiring every person who ventures upon the track to make an
effort to ascertain whether a train is approaching, and if either
one of the senses of seeing or hearing is defective, the obligation
to use the other is stronger; the failure to make such an effort
is of itself negligence as a matter of law.2^3 Jn Illinois, a person
crossing a railway track, or approaching it with intent to cross
it, is required to exercise ordinary care and prudence to avoid
injury, and what will constitute ordinary care in any given
instance, depends upon the particular circumstances. The mere
failure to look and listen is not negligence per se, but are cir-
cumstances to be considered in determining the question of ordi-
nary care.2®*
1665 Pleading and practice
The defendant's contributory negligence is provable under
the general issue ;'-^^ and this defense may be raised by an instruc-
tion for a directed verdict.^^^
1666 Plea (Pla.)
And for a further plea the defendant says that the supposed
injury mentioned by the plaintiff in and by his declaration
was caused by the plaintiff's own negligence.
(Mississippi)
That the said plaintiff by his own negligence contributed
to the said injuries complained of, in this, tliat (Set forth spe-
cial circumstances) and in so doing incurred great and unnec-
essary hazard and received the said injuries complained of.
(Pray judgment)
292Hougland v. Avery Coal & Ey. Co. v. Wilson, 133 111. 55, 60
Mining Co., 246 111. 609, 616 (1910); (1890); Partlow v. Illinois Central
Waschow V. Kelly Coal Co., supra; R. Co., 150 111. 321, 327 (1894),
Kellyville Coal Co. v. Strine, 217 111. limiting Illinois Central R. Co. v.
516, 523, 527; Mertens v. Southern Godard, 72 111. 567 (1874) and
Coal & Mining Co., 235 111. 540, 546 similar cases.
(1908). 295 Winter v. United Rys. & Elec-
293Folkmire v. Michigan United trie Co., 115 Md. 69 (1911).
Bys. Co., 157 Mich. 159, 166 (1909). 298 Mueller v. Phelps, 252 111. 633.
394 Chicago, Milwaukee & St. Paul
PERSONAL INJURIES 1131
Replication (Miss.)
That , decedent, was not guilty at the time of
the injury, etc., of contributory negligence and gross care-
lessness set up in defendant 's special plea ; and as to this, the
plaintiff puts himself upon the country.
New Assignment (Miss.)
Now came the plaintiffs after leave of court, first had and
obtained and say that while still disclaiming any contribu-
tory negligence or gross carelessness on the part of ,
decedent, that they ought not to be barred by the contribu-
tory negligence set up in defendant company's special plea,
for plaintiff charges that the accident to plaintiff's decedent
was caused by the wilful, wanton and grossly negligent con-
duct of the defendant company's servants in charge of the
train that killed plaintiff's decedent who saw plaintiff's
decedent's peril after she had gone on the trestle, in ample
time to stop, but did not use reasonable care to save her after
discovering her peril ; and this plaintiffs are ready to verify, etc.
Rejoinder (Miss.)
That it is not true as alleged that the defendant was guilty
of the gross negligence amounting to wilfulness or wanton-
ness. (Conclude to the country)
1667 Law and fact
The question of contributory negligence is for the jury, when
reasonable men might reach different conclusions, or different
inferences could reasonably be drawn from the admitted or
established facts ; but the question is one of law, when the undis-
puted evidence clearly and conclusively shows that the accident
resulted from the negligence of the party who was injured and
could have been avoided by the use of reasonable precaution.^^T
FELLOW-SERVANT
1668 Doctrine
An employer is not liable for injuries sustained by an employee
resulting from the negligence of another employee, where, at
the time of the injury, both employees were directly co-operating
with each other in a particular business in the same line of
29T Mueller v. Phelps, 252 111. 634;
Sturm V. Consolidated Coal Co., 248
lU. 20.
1132 ANNOTATED F0EM3 OP PLEADING AND PRAGTICE
employment, or their duties were such as to bring them into
habitual association so tliat they could have exercised a mutual
intiuence upon each other promotive of proper caution, and the
employer was not guilty of negligence in employing the employee
who caused the injury.-''^ The requirement that a fellow-servant
must be in the employment of a common employer is inapplic-
able to a case where one employer temporarily loans to another
employer an employee for some special service, the employee
for the time becoming wholly subject to the direction and con-
trol of the second employer and with whose employees the em-
ployee thus loaned may bear a relation of a fellow-servant.-^*
Aside from this the defense of fellow-servant has no application
to persons who are not in the employ of the same employer. ^'^"^
An employee does not assume such negligence of a fellow-servant
as is not the proximate cause of the injury.^oi
The rule of fellow-servant has been abolished in Mississippi
as to employees of railroad companies and all other corporations
and individuals using engines, locomotives or cars propelled
b}' steam, electricity, gas, gasoline or lever power, and running
on tracks.^*^*
By Virginia constitution, the rule of fellow-servant has been
abolished as to all agents of a railroad company, whose duty it
is to transmit telegraphic or telephonic orders for the movement
of trains to their conductors, regardless of the instrumentalities
that are employed to accomplish that purpose.^^^
1669 Strangers
A stranger cannot invoke the defense of contributory negli-
gence of a fellow-servant against an injured party who is with-
out fault and who has no authority over such servant^^*
298 Illinois Steel Co, v. Ziemkowski, 3oo Chicago & Alton R. Co. v. Har-
220 111. 324, 329 (1906); Bennett v. rington, 192 111. 9, 29 (1901).
Chicago City Ry. Co., 243 111. 420, 30i Shickle-Harrison & Howard
428, 430 (1910); Lyons v. Ryerson Iron Co. v. Beck, 212 111. 268, 272
& Son, 242 111. 409, 413 (1909); (1904).
Aldrich v. Illinois Central R. Co., 241 302 Sec. 4056, Code 1906 a3 amend-
Ill. 402, 405 (1909); Crane Co. v. ed (Laws 1908, p. 204).
Hogan, 228 111. 338, 345 (1907); 303 Virginia & Southwestern Ry.
Indiana, Illinois & Iowa R. Co. v. Co. v. Clower, 102 Va. 867, 874
Otstot, 212 111. 429, 435 (1904); Lin- (1904); Sec. 162, Const. (Va.);
quist V. Hodges, 248 111. 491, 503 Sec. 1294k, Va. Code Ann. 1904.
(1911). 304 Xonn v. Chicago City By. Co.,
298 Pittsburg, Cincinnati, Chicago 232 111. 378 (1908).
& St. Louis Ry. Co. v. Bovard, 223
m. 176, 182 (1906).
PERSONAL INJURIES 1133
1670 Concurrent negligence
This defense is likewise imapplicable to, an injury whieh is
the result of the employer's negligence combining with that of
a fellow-servant and the injury would not have happened but
for the employer's negligence.^"^
1671 Vice-principal
An employer is not absolved from liability for the negligent
performance of his personal duties by delegating them to a serv-
ant of whatever grade, rank, or authority ; and as to these duties,
the rule of fellow-servant does not apply.^^® Among the non-
delegated personal duties of the employer are the duty to warn
the employee of latent defects and dangers which are, or ought
to be known, to the employer and of which the employee, with-
out his fault is ignorant, and the duty to exercise reasonable
diligence to furnish the employee a reasonably safe place in
which to perfonn his work.^^'^ An employee who is given by his
employer authority to control and direct the movements of men
under his charge in a particular branch of his employer's busi-
ness, stands in the place of the employer while in the exercise of
this authority, and is not a fellow-servant of such men, although
at other times the relation of fellow-servant may exist between
them.^'^s An employer is not liable for an injury received by
an employee through the negligence of the vice-principal who
was acting as a co-laborer with the injured employee and when
the injury is not the result of the exercise of the vice-principal's
authority; but an employer is liable where the injury results
from the negligence of the vice-principal as such in combination
with his negligence as a fellow-servant and the negligence of the
employer or vice-principal is such that the injury would not have
happened but for his negligence.^*^^ The negligence of a fore-
man is that of a fellow-servant, if at the time of the injury he was
not in the performance of his duties as foreman.^^^
305 Siegel. Cooper & Co. v. Trcka, soi Donk Bros. Coal & Coke Co. ▼.
218 111. 567; St. Louis National Tbil, supra.
Stock Yards v. Godfrey, 198 111. 288, sos Chicago Terminal Transfer R.
293 (1902); Schillinger Bros. Co. v. Co. v. Eeddick, 230 111. 105, 107
Smith, 225 111. 74, 79 (1907); Ken- (1907); East St. Louis Connecting
nedy v. Swift & Co., 234 111. 606, 610 Ry. Co. v. Meeker, 229 111. 98, 108
(1908). (1907).
306 Donk Bros. Coal & Coke Co. v. 309 Roebling Construction Co. v.
ThiL 228 111. 233, 235 (1907) ; Rog- Thompson, 229 111. 42 (1907).
ers V. Cle^'eland, Cincinnati, Chicago 3io Baier v. Selke, 211 IlL 512,
& St. Louis Ry Co^ 211 111. 126, 132 516 (1904).
(1904).
1134 ANNOTATED FORMS OF PLEADING AND PRACTICE
1672 Miners
The defense of fellow-servant is inapplicable to miners whose
employment is forbidden by law.^ii
1673 Law ajid fact
The existence or non-existence of the relation of fellow-servant
is a mixed question of law and fact depending upon the court
for a definition of the relation and upon the jurj^ for an applica-
tion of the facts to such definition, unless the facts are undis-
puted, or the evidence and all the legitimate inferences to be
drawn therefrom are such that all reasonable men would draw
but one conclusion, when the question becomes one of law.^is
MINE INJURIES
1674 Class legislation
Special legislative protection to miners is expressly authorized
by the constitution. ^^^
1675 Dangerous places
The conspicuous mark must be put in the working place of
the mine where the physical dangerous conditions exist, and a
report made thereof; and as thus limited, the statute imposing
these duties is valid. ^^*
1676 Wilful violation of statute
In an action under the Mining act it is no defense that the
negligence complained of was not the result of a wilful violation
of the statute.315
1677 Ordinary care, law and fact
In Illinois the only legal requirement with reference to a per-
son who is injured is that his conduct, at the time of the injury,
311 Syneszewski v. Schmidt, 153 3i3 Eogers v. St. Louis-Carterville
Mich. 438, 442 (1908); Dalm v. Coal Co., 254 111. 104, 110 (1912);
Bryant Paper Co., 157 Mich. 550, 554 Sec. 29, art. 4, Constitution 1870
(1909). (III.).
312 Linquist v. Hodges, 248 111. 3i4 Cook v. Big Muddy-Carterville
504; Aldrich v. Illinois Central R. Mining Co., 249 111. 41, 47, 48 (1911).
Co., 241 111. 402, 406 (1909); Lyons sis Eldorado Coal & Coke Co. v.
V. Ryerson & Son, 242 111. 409, 414 Swan, 227 111. 586, 592 (1907).
(1909) ; Bennett v. Chicago City Ry.
Co., 243 111. 420, 428, 423 (1910).
PERSONAL INJURIES 1135
should be consistent with what a man of ordinary prudence would
do under like circumstances ; and whether or not he has exercised
this care is always a question of fact to be determined by the
circumstances attending the event. There is no rule of law
which prescribes any particular act to be done or omitted by a
person who finds himself in a place of danger.^is
RELEASE AND SETTLEMENT
1678 Covenant not to sue and release, distinction
A covenant not to sue any one of two or more tort feasors is
no bar to an action against the other tort feasors.^^'^ But a
release to one of several joint tort feasors, is a release to all; ^^^
and an accord and satisfaction ^\^th one of them is a bar to an
action against the others.^^^
1679 Employer's liability, release, fraud
Liability for injuries resulting from an employer's negligence
cannot be released in advance of injury, as it is against public
policy to enter into such a release.32i> But the voluntary accept-
ance by an employee of all, not merely a portion, of the bene-
fits provided for in an agreement between himself and the
relief department of a corporation, with the full knowledge that
such contract pro\'ided that the acceptance of benefits under the
same should operate as a satisfaction of all claims against the
employer on account of injuries received is a bar to a subsequent
suit for such injury .^^i ^ release may be impeached for fraud
in an action at law where the fraud inheres in the execution of
the instrument, as by some trick or device a party is made to
sign an instrument which he did not intend to execute.^-^ In
an action for personal injuries, a release of claim for damages
may be shown to have been obtained by fraud and circumven-
tion without returning the consideration or annulling the instru-
316 stack V. East St. Louis & S. Island & Pacific Ey. Co., 243 HI. 620,
Ky. Co., 245 111. 308, 310 (1910). 625 (1910).
31T Chicago & Alton Ey. Co. v. 82i Eckman v. Chicago, Burlington
Averill, 224 111. 516, 522 (1906). & Quincy E. Co., 169 111. 312, 321
sisWallner v. Chicago Consoli- (1897); Pennsylvania Co. v. Chap-
dated Traction Co., 245 lU. 148, 151 man, 220 111. 428, 433 (1906) ; Spitze
(1910). V. Baltimore & Ohio E. Co., 75 Md.
319 Chicago V. Babcock, 143 111. 162, 168 (1892).
358, 366 (1892). 322 Chicago City Ey. Co. v. Uhter,
320 Campbell v. Chicago, Eock 212 111.174,176(1904).
1136 ANNOTATED FORMS OP PLEADING AND PRACTICE
ment by decree.^^a ji^ release of damages for personal injuries,
which has not been set aside in a court of chancery, is a bar to
an action at law for the same injuries, wliere the releasor was
mentally capable of knowing and understanding what he was
signing at the time he executed the release. Such a release
is not a bar to the action, where he was mentally incompetent
of knowing what he was doing, or where he was deceived or
tricked into signing the release.224
1680 Law and fact
The release of damages for personal injuries is a question
of fact when there is any evidence which tends to show lack of
mental capacity in the plaint itf to understand what he was
doing; the question of release is for the court when it clearly
appears that the releasor did understand what he was signing
and that it was a settlement of his daim.^ss
1681 Plea (lU.)
And that after the happening of the said supposed griev-
ances in the said declaration mentioned and before the com-
mencement of this suit, to wit, on the day of ,
19. ., at, to wit, the county of , and state of Illi-
nois, the plaintiff by his deed bearing date of that day, and
now to the court here shown, released to the defendant all
claims or demands which he, the said plaintiff, then had or
might thereafter have against the defendant on account of the
occurrence of the said supposed grievances, as by the said
deed, reference being had thereto, will more fully appear; and
this the defendant is ready, etc.
Release in hacc verba
And that subsequent to the happening of the said supposed
grievances above laid to its charge, and prior to the com-
mencement of this suit the defendant, on, to wit, the
day of , 19. ., at, to wit, the county of ,
aforesaid, for the consideration therein mentioned, to him
then paid by the defendant, signed, executed and delivered his
certain release of all of said supposed causes of action in said
declaration mentioned, in the words and figures following:
(Insert release in haec verba). And this, etc.
323 Spring Valley Coal Co. V. Buzis, 326 Turner v. Manufacturer's &
213 111. 341, 346 (1904). Consumer's Coal Co., 254 111. 194.
324 Turner v. Manufacturer 's &
Consumer's Coal Co., 254 111. 187,
193 (1912).
PERSONAL INJURIES
1137
1682 Replication (111.)
That when, etc., at the time of the execution and delivery
of the sard release alleged in said plea by the said plaintiff to
the said defendant, as alleged in said plea, that the said
plaintiff did not have sufficient mind and memory and mental
capacity to know and understand the nature, effect and pur-
port of the said paper, described in said plea as a deed and
release ; that the said plaintiff at said time did not have suffi-
cient mind and memory and mental capacity to know, under-
stand or appreciate the effect of said instrument, or of the ordi-
nary affairs and transactions of life; and that plaintiff was
then and there blind and unable to see and did not know the
nature, effect and purport of said instrument ; and being then
and there in said state of mind and mental condition was
fraudulently induced and persuaded to sign the said instru-
ment by the agents and representatives of the said defendant
corporation and those acting in concert with them, not know-
ing that said instrument was a release of the cause of action set
forth in his declaration; and that at said time the defendant
corporation and its said agents and representatives and those
acting in concert with them then and there knew that said
plaintiff did not have sufficient mental capacity to know,
understand and appreciate the nature and effect of the said
instrument, or of his acts, on account of the injuries sustained by
the said plaintiff and complained of by him in his said declara-
tion, and defendant did then and there fraudulently procure
and' obtain the release from the plaintiff for the fraudulent
and unlawful purpose of securing an unjust advantage of the
plaintiff; and this the defendant is ready, etc.
1683 Rejoinder
That at the time of the execution nna delivery of the said
release above mentioned the plaintiff did have sufficient mind
and memory and mental capacity to know and understand the
nature, effect and purport of the same and to appreciate the
effect of the said instrument and of the ordinary affairs and
transactions of life, and that the plaintiff did then know the
nature, effect and purport of the said instrument and was not,
while mentally incapacitated, fraudulently induced and per-
suaded to sign the said instrument by the agents and repre-
sentatives of this defendant, not knowing said instrument was
a release of the cause of action set out in the declaration;
and that this defendant did not then fraudulently procure and
obtain said release from the plaintiff for the fraudulent and
unlawful purpose of securing an unjust advantage of the
plaintiff. (Conclude to the county)
1138 ANNOTATED FORMS OP PLEADING AND PRACTICB
16S4 Bes ipsa loquitur
The rule that the accident or injury sustained by the plain-
tiff bespeaks the defendant's wrong {res ipsa loquitur) has no
application to a personal injurj* which is the result of a pure
accident to a peron to whom the defendant owes no absolute
duty except that of exercising due care to avoid injurj' gener-
3Uy 326 'pjj^ jr^le or maxim of res ipsa loquitur pertains to evi-
dence, and not to pleading ; ^-' and applies only where a machine,
appliance, or thing from which the injury results is shown to
be under the management of the defendant and the accident is
such as in the ordinarj- course of things does not happen if
those in control use proper care.*-* It is applicable to certain
railway accidents, but not to the relation of employer and
employee.^-®
1685 Sidewalk acddent
In an action against a municipality for personal injuries sus-
tained upon a sidewalk, the defense that the declaration does
not count upon the statute cannot be raised under the general
igg^e 330
1686 Statute of limitations, pleas (District of Columbia)
That the action for damages alleged and set forth in said
declaration was not brought within one year after the death
of the party injured, to wit. plaintiff "s intestate
as required by section 1302 of the Code of the District of
Columbia.
6
That said amended declaration sets forth a new cause of
action differing from that set forth and alleged in the original
declaration and which cause of action accrued, on. to wit, the
day of , when the plaintiff's intestate, said
died and no action was brought therefor, until
the day of , the date of the filing of said
amended declaration, which was more than one year after
said death, contrary to the statute in such case made and
provided.
326 Chicago & Eastern lUinois E, 104 (1899); c 4071, Acts 1S91
Co. V. KeillT, 212 lU. 506 (1904). (Fla.").
327 Chicago Union Traction Co. v. 3 3o Fuller v. Jackson (City), 82
Giese, 229 ni. 260, 263 (1907). Mich. 4S0. 4S2 (1S90); Clark v.
328 Illinois Central R. Co. v. Swift, North Muskegon, S8 Mich, 308, 310
213 m. 307, 316 (1904). (1S91).
»2» Green v. Sansom, 41 Fla. 94,
PERSOKAL INJURIES 1139
(Illinois)
That the said several supposed causes of action in said
additional counts mentioned did not, nor did any or either of
them, accrue to the plaintiff at any time within one year next
before the filing of the said additional counts, in manner and
form as the plaintiff has above thereof in said additional
counts and each of them complained against it, and because
the original declaration filed herein and each count thereof
wholly failed to and did not state a cause of action against
this defendant. And this the defendant is ready to verify ;
wherefore this defendant prays judgment if the plaintiff ought
to have his aforesaid action against this defendant.
1687 Statute or ordinance, violation
To bar a recovery on the ground of the violation of an ordi-
nance, it must appear that such violation was the proximate
and efficient cause of the injury .^^i
GENERAL ISSUE
1688 Notice of claim
The defense that no notice of claim for personal injuries was
served upon a municipality prior to the bringing of an action
against it, may be urged under the general issue.^^^ ^ munici-
pality does not waive its right to insist upon the gi\'ing to it of
notice of claim required by statute as a condition precedent to
the bringing of an action upon it, by attempting to arbitrate or
to adjust the claim before the bringing of the action.^ss But
such a defense, being in the nature of a personal privilege, like
a right to insist upon the statute of limitations, is waived if it is
not interposed before verdict and judgment.^^*
1689 Ownership and control
A plea of not guilty to a declaration for personal injuries
alleging the ownership of a railroad and its operation by the de-
fendant, admits the corporate existence of the defendant, the
operation of the particular line of railroad mentioned in the
declaration and the operation of the train causing the injury by
331 star Brewery Co. v. Hauck, 222 334 Canfield v. Jackson (City), 112
111. 352. Mich. 120 (1897); Clark v. Davisoii
33:: Clark v. Davison (VUlage), 118 (Village), 118 Mich. 423.
Mich. 420, 424 (1898).
333 Clark V. Davison (Village),
supra.
1140 ANNOTATED FORMS OF PLEADING AND PRACTICE
its employees;"'* but it does not put in issue the ownership and
operation of the particuhir car which caused the injury. ^^* A
plaintiff, however, is not re(|uircd, undt-r the general issue to
prove the defendant's ownership of the property or the iustru-
mentalities which caused the injury, such ownership being matter
of inducement.-'" In personal injury cas«'s the defendant must
plead specially that he is not the owner, or in poss«*«sion or
operation of the property or instrumentalities which caused the
injurj'."'*'*
1690 Release and settlement
In an action for jxTsotial injuries a settlement with nrid a
release from a former administrator of the claim sued upon is
admissible in evidence under the general issue.^^"
1691 Survivorship
A phiintitT is hound to prove under the general i.ssue the fact
of sur\-ivorship of a widow or next of kin and wlio tiiey are."'*'*
GROUNDS OF DEFENSE
1692 Form (Va.)
1. The defendant deni»^s all allegations of negligence in the
declaration and each count thereof.
2. The defendant denies that it was negligent in failing to
apply ^litable appliances and instrumentalities; and on the
contrary says that the same were in safe and proper condition.
8. The defendant denies that it failed to perff)rm any le^'al
duty as to inspecting or keeping in safe condition and repair
its ap{)liances and instrumentalities.
4. The plaintiff assumed the risk.
5. The plaintiff was guilty of negligence on his own behalf
which caused, or contributed, to his injury.
335 Chicago & Eastern Illinois R. 3.18 Brunhild v. Chicago Union
Co. V. Schmitz, 211 111. 446, 4.>9 Traction Co., 239 111. 621, 624
(1904); Pell V. Joliet, Plainfiold v. (1909).
Aurora R. Co.. 238 111. 510, 514 33t Chicago Union Traction Co. v.
(1909) ; Chicago Union Traction Co. Jerka, 227 111. 100.
V. Jerka, 227 111. 95, 99 (1907); 338 Chicago Union Traction Co. v,
Winn V. Cleveland, Cincinnati, Chi- Jerka, supra.
cago & St. Louis Rv. Co., 239 111. 339 hJalsewicz v. Chicago, Burling-
132, 142, 143 (1909); McNulta v. ton & Quincy R. Co., 240 111. 238,
Lockridge, 137 111. 270 (1891); 247(1909).
Pennsylvania Co. v. Chapman, 220 »*o Quincy Coal Co. v. Hood, 77
111. 431. 111. 68, 73 (1875).
PERSONAL INJURIES 1141
MISCELLANEOUS
1693 Assignment of right of action (Miss.)
In consideration of legal services rendered and to be
in consiaerai assign set over and convey unto
rendered, I, - asi>igu, s«-t inter-
. ., my attorneys, an undivided iniei
Pst in"and to mv right of action against the • . •••'/";
iniuries inflicted upon the property by burning, ^vhlch right
of'aclion is set forth in the above styled cause in this court.
Witness, etc.
^^PerTonally appeared before the undersigned officer,
i-ersonauy pp.^ ^^^ ^^^ ^^.^ ^^^^^^^. ,^^^^j state, the above
:,„„:ed '.*.'..., who acknowledged that he signed and
delTvered'the foregiing assignment on the day and date
thereof.
Witness, etc.
1694 Assignment and retainer (Miss.)
This is to mtUy that 1, . , ; l^ave this^daj-jm-
oloved of the firm of attorueys
pio^eu .... . . jj lawtul
and counsellors at law, of ..•.:. '"> ""'^ ncr-nnst the
attorneys to prosecute the cause of action axe agam.t th^
for injuries sustained by me on the ..••••;• ^'^
::,' ' 19. ., in the city of and state aforesaid, with the
full 'uower to' settle said claim, by compromise or otherwise,
whether 1 am present or not, and do all lawful acts that are
be done m the premises. And be it known that, in consid-
eration of the services performed and to be performed, I do
hereby sign, transfer, set over, and deliver to said •••••••• • • . '
per cent or of all my right, interest and title
I have in said claim.
Witness, etc.
'^'ms' dav personally appeared before me the undersigned
:tS.o'"-.:d.'en,:rt:e^'r.^ :n'd d'eterVd thefore.oii,g
rustrument; on ?he day and year therein ment.oned.
Given, etc.
1695 Attorneys' fees, motion (HI.)
And now comes plaintiff by , his attorneys, and
nio^es °he c'ourt to tax reasonable attorneys' fees as cost of
suit.
By
his attorneys.
1142 ANNOTATED FORMS OF PLEADING AND PRACTICE
1696 Attorneys' fees, judgment (111.)
This clay again como the partit'S to this suit by their attor-
neys respectively and the plaintitT asks for a final judgment
upon the verdict herein and for plaintitTs' attorneys' fees.
Therefore it is con.sidered by the court that the plaintiff do
have and recover of and from the defendant his said damages
of dollars in form as aforesaid Itv the jury a.ssessed
together with his costs and charges in his behalf expended;
and it is further considered by the court that the plaintitT re-
cover the sum of dollars as his attorneys' fees to be
taxed as costs.
attorney's lien
1697 Nature and scope
The Illinois statute creates u lien upon the cause of action in
favor of the attorney, recjuiring the defendant, after due notice
of the lien, in making settlement with the [)arty as to su<'h cause
of action, to take into account his liability to the attorney for
whatever amount of fees would accrue under his contract at the
time of the settlement; and if such lien is ignored, the defendant
will be retiuired to account to the attorney in an appropriate
proceeding for the amount of the lien.^*' The statute which
creates an attorney's lien is not class legislation, does not inter-
fere with the right of contract, and is valid. ^*- Under the stat-
ute, the lien of an attorney attaches from and after the service
of notice and protects the attorney against any settlement tliat
might thereafter be made, regardless of whetlier the .suit had
been commenced, wjus pending or had been finally determined by
the rendition of a judgment. ^^^
1698 Notice (Dl.)
To :
Having been employed as attorney at law by each of
, of county, Illinois, to prosecute
their joint and several claims against you for personal injuries
sustained by them, by one of your cars striking an auto-
mobile in which they were riding at street and
avenue, in county and state of
Illinois, at o'clock, on , 19.., this is to
notify you that I have and claim a lien for an attorney's fee
s<i Standidge v. Chicago Rys. Co., 3^3 Standidge v. Chicago Rys. Co.,
254 111. 524, 535 (1912) ; 1909 Laws, »upra.
p. 97.
342 Standidge v. Chicago Rys. Co.,
254 111. 533, 534.
PERSONAL INJURIES 1143
for services rendered and to be rendered in regard to each
of said claimants, the fee in each of said claim being for
of whatever money, if any, should be paid by rea-
son of, or in, their settlement.
Dated, etc.
Attorney for each of said claimants.
(Add proof of service)
1699 Petition, filing
The constitutional uniformity of procedure is not substan-
tially affected by the filing of a petition for an attorney's lien
in a cause from which the lien has arisen.^-**
1700 Petition (111.)
(Caption in personal injury case)
To the honorable judge of said court :
Your petitioner, , respectfully represents unto
your honor that he is attorney for the plaintiff in the above
entitled cause, and as such attorney brought, liled and prose-
cuted said cause for and on behalf of said plaintiff, under an
agreement made prior to the time of the bringing and filing
of said cause, between your petitioner and said plaintiff, that
your petitioner should bring, file and prosecute said cause
for the collection of damages for injuries to said plaintiff at
the time and place and in the manner described in the declara-
tion of the plaintiff filed heretofore herein, and that for so
doing your petitioner should receive of whatever
amount, if any, should be paid by the defendants in settle-
ment of the claim of said plaintiff' for damages as aforesaid,
namely, an amount equal to of the amount, if
any, to be received by the plaintiff in settlement of snich
claim; that about one year after the filing of said cause in said
court, the defendants, through their successor the ,
paid to the plaintiff, as your petitioner is informed and be-
lieves, dollars in settlement of said claim ; that
long prior to the time when said defendants, through their
said successor, paid to the plaintiff , said sum
in settlement of said claim as aforesaid, your petitioner
served upon said defendants notices in writing claiming an
attorney's lien for his services rendered and to be rendered
herein for of whatever money, if any, should
be paid to the plaintiff in settlement of said claim, namely,
an amount equal to of the amount to be received
by the plaintiff in settlement thereof, and stating in such
notices that your petitioner had an interest in said claim of
the plaintiff for the amount and to the extent of such lien,
34* Standidge v. Chicago EyB. Co.,
254 111. 533.
1144 ANNOTATED FORMS OF PLEADING AND PICVCTICE
under and as provided in "An Act creating attorney's lien
and for enforcement of same," wliieh Act at the time of the
filing of said cause was, ever since has been, and still is, in
force as law in the state of Illinois; that after the service of
said notices upon said defendants and before the time of the
payment by said defendants, through their said successor, of
said sura of money in settlement of his said claim for damages
as aforesaid, said defendants were duly discharged as receiv-
ers of the said by order of the court by which
they were appointed to act as such, and the said
thereupon became their successor, and ever since has con-
tinued to be, and is now, such successor.
Your petitioner further represents that said defendants and
their said successor, the have refused, and still
refuse to pay to your petitioner the amount due to him under
said lien, and he has not received from anyone any part of
the amount so due to him under said lien; and he therefore
prays this honorable court to adjudicate the rights of the
parties hereto and enforce your i)etitioner's said lien as pro-
vided in said "Act creating attorney's lien and for enforce-
ment of same."
Petitioner.
(Verification)
1701 Order
This cause coming on to be heard upon the intervening
petition of , and the answer of the defendants
and their successor the , to said petition hereto-
fore filed herein, and it appearing to the court that five days'
notice has been given by said intervening jjctitioner to said
defendants and their said successor of such hearing on said
petition, and the court having heard the evidence introduced
by said intervening petitioner and said defendants and their
said successor and being fully advised in the premises, doth
find that the allegations of said petition, and each thereof are
true, and that by reason thereof there is due from said defend-
ants and their said successor to said intervening petitioner the
sum of dollars.
Now, therefore, the court orders, adjudges and directs that
said defendants and their successor the , pay to
said , intervening petitioner, instanter, said sum
of dollars, and that upon their failure to do so,
the clerk of said court shall issue execution forthwith in favor
of said intervening petitioner and against said ,
Successor of said defendants, , receivers of the
therefor and for the collection thereof.
CHAPTER XXIV
COVENANT
IN GENERAL §§
§§ 1708 Insurance, fire, action
1702 Instruments, nature 1709 Promissory note, Narr.
1703 Trust deed
SPECIAL DEFENSES, PLEAS,
PARTIES ETC.
1704 Assignees 1710 Pleading
SPECIAL CAUSES AND ^^^^ Covenant performed, plea,
DECLARATIONS nature
1705 Covenant of title, action GENERAL ISSUE
1700 Covenant of title, declaration j^jg At common law
re<iuisites
1707 Covenant of selzen. declara VERDICT AND JUDGMENT
tion requisites 1713 Generally
IN GENERAL
1702 Instruments, nature
The action of covenant may be based upon a deed under seal
executed by a person, or in his behalf;^ or the action may be main-
tained upon an instrument which is not in fact sealed, but which
was intended to operate as a deed. At common law it was not
necessary to the maintenance of the action that there should
an actual seal to the instrument sued upon. 2 Thus, contracts
executed on the same day, by the same parties, concerning the
same subject matter, and made to depend upon each other, con-
stitute one agreement and will support an action of covenant
if one of them is under seal.^
It is permissible in INIichigan to declare in assumpsit where-
ever the action of covenant would be appropriate; but upon
making the election, the plaintiff's rights will be governed by
the form and not by the nature of his cause of action.*
1 Rockford, Rock Island & St. 3 Horner 's Adm 'r v. Ebersole, 83-
Louis R. Co. V. Beckemeier, 72 111. Va. 765, 767 (1887).
267 (1874); Haynes v. Lucas, 50 * Christy v. Farlin, 49 Mich. 319
111. 4.'?6, 438 (1869). (1882); (10,417), C. L. 1897
2 Jerome v. Rothschild, 66 Mich. (Mich,).
668 (1887).
1145
1146 ANNOTATED FORMS OF PLEADING AND IMUCTICB
1703 Trust deed
A trust deed which does not contain an express covenant or
promise to pay a debt, being a mere security, cannot be iiiado
the basis for an action of covenant.'^
PARTIES
1704 Assignees
On covenant running with the land, as a warranty of title,
axi assignee may sue lur a breach of the warranty in his own
name. But on covenants in presenli, as covenant of seizin and
power to sell, and assignee must sue in the name of the cov-
enantee.®
SPECIAL CAUSES AND DECLARATIONS
1705 Covenant of title, action
A covenant of warriuity of title is prospective and is broken
upon eviction or its e(iuivalent. The covenant of seizin or of
power to sell is a covenant in prescnti, and is broken as soon as
made if the grantor has no title at the time he enters into it."^
1706 Covenant of title, declaration requisites
A declaration wliicli is based upon a brcacii of warranty of
title must aver specifically the manner and the (juality of com-
plete eviction, or the acts which constitute its equivalent.® In
an action of covenant by an assij^rnee upon a general warranty
of title it is not necessary to aver in the declaration that the
plaintiff's gimrantor also warranted the title to the assignee,
nor that such guarantor has performed his covenants with the
defendant.^
1707 Covenant of seizin, declaration requisites
In an action for a breach of covenant of seizin a general
assignment of the breach is insufficient to sustain the action,
unless the title is specially put in issue by the defendant's plead-
ing. The declaration should specifically point out defects, if
any, in the title. ^'^
8 Wolf V. Violett's Adm'r, 78 Va. sBradv v. Spurck, 27 111. 482.
57, 60 (1883). » Brady v. Spurek, 27 111. 481.
6 Brady v. Spurck, 27 111. 478, 481 lo Ingalls v. Eaton, 25 Mich. 32
(1861). (1872).
T Brady v. Spurck, supra.
COVENANT 1147
1708 Insurance, fire, action
At common law the proper form of action upon a fire insur-
ance policy is covenant, if the policy is under seal and is in
existence. In Illinois, the action upon an insurance policy may
be assumpsit. ^^
1709 Promissory note, Narr. (Va.)
^2 For this, to wit, that heretofore, to wit, on the
day of , during the life time of said ,
at , the said defendant, by her certain writing
obligatory, sealed with her seal, and now to the court here
shown, the date whereof is the day and year aforesaid, acknowl-
edged herself to be held and firmly bound unto the said
, for value received, in the sum of
dollars, with interest at per cent from
until paid, to be paid to the said on demand
which she, the said , covenanted thereby to do.
Said bond is in the words and figures following (Insert note
or bond) and upon the back of said bond are the following
credits (Insert credits).
And the said plaintiff in fact saith that although the said
plaintiff, executor as aforesaid, since the death of the said
, and the said , during his life time,
have always', from the time of making said writing obligatory
until hitherto, well and truly performed and fulfilled and kept
all things therein contained on the pait of said
to be done and kept according to the tenor and effect, true
intent and meaning of the said writing obligatory, and of
which, the plaintiff", executor as aforesaid since
the death of the said , and the said
during his life time often, since the making of the said writing
obligatory, demanded of the said the payment
of the aforesaid sum of money and interest as aforesaid ; yet,
that the said defendant since the making of the said writing
obligatory hath not performed, fulfilled and kept the said cove-
nant and promise in the said writing obligatory contained on
her part to be fulfilled, and kept according to the tenor and
effect, true intent and meaning of the said writing obligatory,
especially in this, that the said defendant hath not paid to the
plaintiff, executor as aforesaid, since the death of the said
, nor to the said during his life time,
the said sum of dollars and interest and
per cent thereon from as aforesaid, nor any
part thereof except dollars, to wit, ,
said payments being applied first on account of interest afore-
11 Rockford Ins. Co. v. Nelson, 65 12 See Section 211, Note 60.
111. 415, 424 (1872); Sec. 33, Prac-
tice act 1907 (lU.).
1148 ANNOTATED FOKMS OF I'LEADINO AND PRACTICE
said, due on the days of the said payiiunts nsi)ectively, and
then on account of the principal of said sum of money cov-
enanted to be paid as aforesaid ; but the same to pay hath
hitherto wholly failed and refused, to the plaint i(T since the
death of said and to the said dur-
ing his life time, and still doth fail and n-fuse
contrary to the form and effect of the said writing obligatory
and of the said covenant of the said defendant so by her
made in that behalf as aforesaid.
By reason of all which said premises, the said plaintiff since
the death of said and the said dur-
ing his life time have not only been deprived of said snim of
money, with interest thereon, as aforesaid, and divers other
sums of money, amounting in the whole to a large sum, to wit,
the sum of dollars, but have also been obliged
to pay certain costs, expenses and charges, amounting to a
large sum of money, to wit, the sum of dollars,
in and about endeavoring to collect the said sum of money
and interest as aforesaid.
SPECIAL DEFENSES, PLEAS, ETC.
1710 Pleading
Each distinct breach of covenant is a separate cause of action
to which a defendant may plead specially. '^
1711 Covenant performed, plea, nature
A plea of covenant performed traverses all of the covenants
except the execution of the instrument and the i)erforman(;'e of
covenants by the plaintiff.^*
GENERAL ISSUE
1712 At common law
In covenant there is no general issue at common law. Neither
a plea of non est factum, nor docs a plea of covenants per-
formed amount to a plea of the general issue.^^ Under Michi-
gan practice the general issue to a declaration which merely
assigns a breach of covenant of seizin does not put in issue the
defendant's title. i«
VERDICT AND JUDGMENT
1713 Generally
The form of verdicts and judgments in this form of action
are similar to verdicts and judgments in actions of assumpsit.
18 Brady v. Spurck, 27 111. 482, is Reeves v, Forman, supra.
14 Reeves v. Forman, 26 111. 313, lo Ingalls v. Eaton, supra.
319 (1861).
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