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. o c +- c > o a • vr, ^ a* tlD W •S s u & 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. -t-> O a B m > cr-. a V V 2 rA 05 O Oh O r^ > ^11 n3 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. :zr2 \ ^ a J3 T^TS ^ aj CO ^ a ^ 2 .•':^ o ■^ .S :-E T-) ^ a. i (4-1 — X ^ o O •r OB M 'f . O) O • '.^ -- 'IS ♦^ 3i -^ a ^^ J -^ «" 't : *- ^ ~ ° -^ . O (-3 d -^ 5 — ;3 5^ t- C 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' 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 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" 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 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. 1ose 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 siiion 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 reaer, 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 thUtir«. 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» 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. .".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)std 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). 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|^eunleii 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 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 inarinciple 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 ju6, 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 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 :{) 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 '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 sn, 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 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 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^;fu,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 sears 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 .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 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 "d 1- 4, o, ■- 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 cnrnose^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 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 |-LLAIru])t'rty satly 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 acaring 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, 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, notwithstg 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. ., 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.,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 injureenlngs 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