THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW GIFT OF Essex County Bar Association THE NEW JERSEY PRACTICE ACT (1912) AND RULES ANNOTATED WITH NEW FORMS ADAPTED TO THIS PROCEDURE BY CHARLES H. HARTSHORNE 111 OF THE NEW JEKSKY BAR. NEWARK, N. J. SONEY & SAGE 1912 r Copyriarht, 1912, By CHARLES H. HARTSHORNE Ill PREFACE. It is not intended to offer here a general treatise upon prac- tice or pleading, but only such explanatory notes as may aid the practitioner in adapting the new methods to the old : for it should not be forgotten that the new system, radical as are the changes made by it, has still the common law procedure for its basis. Neither is it intended to offer a complete set of forms, but enough only to illustrate adequately the new meth- ods of pleading and the more simple and flexible forms of judgment that will be used in the new practice. Most of the forms of pleadings are taken from the Con- necticut Practice Book, but these are more or less modified ; a few are from Bullen & Leake's English Forms under the Common Law Procedure Acts, modified to conform to our new rules of pleading; and many are entirely new. The annotations to the Act and Rules cannot usefully be made very full till a considerable number of judicial interpre- tations of those regulations shall have been made. A few Eng- lish and Connecticut cases are referred to in the notes, but not many of the provisions of the v rules in those jurisdictions are identical in language with our own, and most of their judicial decisions interpreting them will be found to be inapplicable here. The English Judicature Acts and Rules, with copious annotations, may be found in The Annual Practice, by Snow, Burney & Stringer, or in The Yearly Supreme Court Practice, by Mackenzie & Chitty. Both are published yearly in London. The latter is in the state law library at Trenton. An excellent treatise on the new English procedure is Odgers' Pleading and Practice (London, 1903). The Connecticut Practice Act, without the rules, is in the volume of pamphlet laws of that state for 1879 at page 432. The rules may be found in 58 Conn. 561. The act and the rules, with some annotations, were first published together in Beer's Connecticut Practice. This is now out of print. The only other publication of them is The Connecticut Practice JV PREFACE. Book (1908), but in that book the sections of the act of 1879 are interspersed among other provisions relating to procedure. There is, however, a table in the book by which the sections of the Practice Act may be found under their old numbers. The references to the Connecticut Act, made in this volume, are to the original section numbers ; the references to the Connecticut rules are to the numbers in The Practice Book (1908). The New Jersey Practice Act (1912) and Rules were pre- pared by a committee of the State Bar Association appointed by its president, William M. Johnson, under a resolution of the Association adopted at its annual meeting in June, 1911 (Year Book (1911-12), p. 28). The committee consisted of Charles H. Hartshorne (chairman) ; Supreme Court justices, Francis J. Swayze and James J. Bergen ; vice- chancellors, Edwin R. Walker (since appointed chancellor) and James E. Howell ; ex-justices of the Supreme Court, Bennet Van Syckel, John Franklin Fort and Gilbert Collins; ex-judges of the Common Pleas, Alfred F. Skinner and Joseph H. Gaskill, and also Senator George S. Silzer and Messrs. William M. Clevenger and Frank H. Sommer. The drafts of the Practice Act, Rules, and other measures reported by the committee were made by a sub-committee consisting of the chairman and Messrs. Skinner and Clevenger, who were assisted at several of their meetings by ex-justice Van Syckel. The drafts prepared by the sub-committee were changed in minor details only by the full committee. The committee reported four bills to the Association at a special meeting held in January, 1912, namely 1. The Practice Act (1912) with Rules and Forms; 2. The Transfer of Causes Act; 3. An Act providing that law courts may determine equi- table questions incidentally involved in law cases, and that the Court of Chancery may determine legal questions inci- dentally involved in equity cases ; 4. A Married Women's Act. All these bills were approved by the Association, except the third, which was disapproved, partly because it was doubted whether the constitution permitted the legislature to confer the jurisdiction proposed by that bill, but more, I think, be- cause of the traditional prejudice of the lawyers of this state against enlarging the equity powers now exercised by our law courts. It is not to the credit of our bar that the satisfac- PREFACE. v tory experience of the English courts in administering law and equity by separate tribunals having a common jurisdiction, is either unknown to, or ignored by, a majority of its members. The Practice Act and Rules were adopted by the legislature with a few unimportant amendments suggested by the com- mittee. The only change made without the committee's ap- proval was the omission of a provision that a jury trial be deemed to be waived unless expressly demanded. The Transfer of Causes Act passed in the form reported by the committee, with one or two immaterial, verbal changes. Only one section of the Married Women's Act, as prepared by the committee, became law ; namely, that permitting a wife to sue or be sued in any case without joining her husband (Infra, p. 73). As reported by the committee, it contained two other sections, one providing that contracts between hus- band and wife should be enforceable in the law courts. This was struck out by the legislature. The other, providing that in an action at law, between husband and wife, any equitable defense might be pleaded. This was struck out by the Asso- ciation. C. H. H. November, 1912. LIST OF WORKS REFERRED TO IN THIS BOOK. Elements of Jurisprudence, Thomas E. Holland (New York, 1896). Courts and Procedure in England and New Jersey, Charles H. Hartsliorne (Newark, N. J., 1905). Code Remedies, John N. Pomeroy, Jr. (Boston, 1894). Code Pleadings, Philemon Bliss (St. Paul, 1894). Civil Procedure, Alexander Martin (Boston, 1899). Pleading and Practice under the Judicature Acts, W. B. Odgers (London, 1003). Stephen on Pleadings. Chitty on Pleadings. The Annual Practice (London, 1901). The Yearly Supreme Court Practice (London. 1912). The Connecticut Practice Act, with Rules and Forms, George E. Beers (Hartford, 1901). The Connecticut Practice Book (Hartford, 1908). Vll TABLE OF 1 CONTENTS. PART I. INTRODUCTION. PAGE History of the movement resulting in the Practice Act (1912). The principles of the Act and Rules. Im- portant changes made by them 1 PART II. THE PRACTICE ACT (1912), ANNO- TATED 13 PART III. SCHEDULE A, RULES UNDER THAT ACT, ANNOTATED 27 PART IV. NOTE ON PLEADING, I. Common Law Rules of Pleading which are still in force 56 II. How to Answer 62 III. Election of Actions 65 PART V. SEVERAL ACTS RESPECTING PRACTICE. Transfer of Causes Act (1912) 68 Amendment to Ejectment Act 69 Amendment to Practice Act (1903) 69 Amendment to Mechanics' Lien Act 71 Married Women's Act (1912) 73 viii TABLE OF CONTENTS. PAGE PART VI. FORMS, INCLUDING THE FORMS IN SCHEDULE B OF THE PRAC- TICE ACT. 1. List of Forms in Schedule B, with corresponding numbers of the same Forms in this book 74 2. List of titles of Forms in this book 76 3. Forms : Writs 85 Commencement and conclusion of complaints 87 Complaints founded on contracts . . 91-137 Complaints founded on torts 138-166 Answers Commencement & Con- clusion 167 Answers to complaints on contracts!69-189 Answers to complaints on torts. .189-194 Counter-claims and Set-off 196 Reply 198 Rejoinder 199 Postea 200 Rules for Judgments 200 Judgments 203 Other Forms . 213 NEW JERSEY PRACTICE ACT (1912) PART I. INTRODUCTION* The history of the movement The principles of the Act and Rules Important changes made by them. The great movement which, among a vast number of other changes in legal procedure, brought the Practice Act (1912) covers a century. The agitation in England for simplified procedure, begun with Jeremy Bentham's writ- ings in the early part of the Nineteenth century, brought the Rules of Hilary Term, 1834, the Common Law Procedure Acts of 1852 and 1854, the Judicature Act of 1873, and the English Rules of Court. Following that, came the Con- necticut Practice Act of 1879, which adopted, in large measure, the principles of the English rules. Our new Practice Act adopts many, but not all, of the principles and provisions of the Connecticut and English procedure. It also includes some provisions not in either of those. Through all of these measures runs a common purpose, namely, the purpose to free civil procedure from certain over-rigid common-law forms. Each of them lessens the number of forms; each relaxes some hard and fast rules; each enlarges the power of judicial control over procedure. The whole movement has been a progress away from the * This Introduction consists for the most part, of a paper (somewhat revised) read by the author before the New Jersey State Bar Association, at its annual meeting in June, 1912. Introduction PRINCIPLES. 2 complex, inflexible procedure of the common law, toward a simple and flexible procedure, having the common law sys- tem as its basis, and rules of court to prescribe its details. The New York (Field) code of civil procedure, enacted in 1848, which, in modified forms, has since spread into about one-half of the states of the Union, was also an out- growth of this movement; but its achievement in simplify- ing procedure has not been altogether satisfactory. The chief, but by no means the only, distinction between the sys- tem of the codes and the system adopted in our State lies in the feature of judicial control over procedure. The New Jersey system regulates details of procedure by Rules of Court and is flexible; the code system regulates them by statute, and is inflexible. One may find in the new Practice Act three principles, namely, judicial control over procedure, minimum clelay upon points of procedure, and settlement of the whole controversy in one suit so far as justly practicable. i. Judicial control over procedure is the most conspicu- ous feature in the system, as it is also in the English system from which it is derived. Most details of the new pro- cedure are regulated by rules which may be suspended by the court, in its discretion, at any time and in any particu- lar case. Not only so, but the Supreme court may, by rules, supersede any and all statutory and traditional regulations of procedure at law now existing, excepting only those of the new Practice Act and those guaranteed by constitutional provisions. A consequence is to convert, in large measure, the field of adjective law into a field of judicial, discretionary control. Upon what principle can we justify this substitution of discretion, even though it be judicial, for law, even though it be adjective law? It is certain that the process has been going on among English-speaking peoples for many years. The law courts now have a much wider latitude of discre- tionary control over their own procedure than they had a century ago. The most conspicuous instance, perhaps, is the power of amendment. The steps in the process are most easily traced in the history of English law reform since the 3 PRINCIPLES. Introduction first quarter of the Ninteenth century. During the agita- tion upon that subject the law courts doubted their power to change the traditional procedure, and hence the statutes of 1832 and 1833 ("An Act for Uniformity of Process in Personal Actions," 2 W. IV C. 39; and "An Act for the Further Amendment of the Law and the Better Advance- ment of Justice," 3 & 4 W. IV C. 42), under which the Hilary Rules were made in 1834. These were followed, twenty years later, by the Common Law Procedure Acts of 1852 and 1854 (15 & 16 Vic. C. 76; and 17 & 18 Vic. C. 125), from which our own Practice Act of 1855 was copied, so far as it went, though a number of their provisions awaited the coming of the Practice Act (1912) before the bar was ready to accept them. These English statutes very much enlarged the power of judicial, discretionary control over procedure. In particular, the power of amendment was put in the form in which it is now in section 126 of our old Practice Act, and the power to regulate procedure by rules was much enlarged. Finally, in the Judicature Acts of 1873 and subsequent years, the entire subject of pro- cedure, as distinguished from the organization of the sys- tem of courts and their jurisdiction, was left to the courts to be regulated by rules. This system of procedure has been since adopted in practically all of the English self-govern- ing colonies, and seems to give satisfaction to the English people after a trial of nearly forty years. Until about a century ago, no clear distinction appears to have been conceived between substantive and adjective law. Both were law, and one law, to Blackstone and his predeces- sors. But since Bentham's writings the distinction has re- ceived general acceptance, and all lawyers, I suppose, now agree to this statement by Prof. Holland : "We have a law of Persons : a Substantive law which sets forth and ex- plains the rights of those persons; and an Adjective law. which describes the procedure by which redress is to be ob- tained when those rights are violated." And again : "So far as it defines, thereby creating, it is Substantive law. So far as it provides a method of aiding and protecting, it is Adjective law, or Procedure." (Elements of Jiirispru- Introduction PRINCIPLES. 4 dence, pp. 78, 348). In short, adjective law is the law of procedure, and adjective rights are remedial rights. I suppose that the warrant for committing the law of procedure to the discretionary control of the courts is to be found in experience, and that experience seems to have been this, namely, that the methods by which substantive rights may be aided and protected in judicial procedure can be better worked out and applied by those trained and disin- terested experts whose business it is to aid and protect them now, rather than by the legislatures of the present day or by the lawyers and judges who performed that function several centuries ago. For adjective laws and adjective rights are, as their names imply, incidental only to substantive rights, and, saving a few fundamental principles of proce- dure of which I shall speak next, they are merely subordi- nate rules of convenience and of orderly procedure for safe- guarding those rights given by substantive law. What are the limits of this judicial discretion ? The limits are found, for us at least, in constitutional limitations. Be- sides certain specific, remedial rights given by the State con- stitution, such as that to the trial by jury, the "Due Process" clause of the Federal constitution has been so interpreted by the Supreme Court of the United States, as to furnish, I venture to suggest, a complete system of fundamental prin- ciples of procedure, to and including final judgment. I mention a few of the many decisions of that Court which place the following principles of procedure under the protection of that clause of the constitution : (1) The court must have jurisdiction of the subject matter. Scott v. McNeill, 154 U. S. 46. (2) The parties must have reasonable, legal notice with reasonable opportunity to be heard. Pennoyer v. Neff, 95 U. S. 714; Roller v. Holly, 176 U. S. 398; Windsor v. Mc- Veigh, 93 U. S. 274. (3) The judgment must be confined to the issues pre- sented by the parties. Reynolds v. Stockton, 140 U. S. 254. It seems to me that these three principles summarize the whole body of the law of procedure to, and including, judg- 5 PRINCIPLES. Introduction ment; for if, with due observance of my other and specific constitutional rights, my case has been heard by a court of competent jurisdiction, after due, legal notice and full op- portunity to be heard which includes all the methods to which I am entitled of obtaining and presenting the evidence and if the judgment, after that hearing, be pronounced upon the issues submitted to the court, it seems to me that I shall then have had all that the body of the law of procedure is designed to give. The remedial, or adjective rights to which these principles give rise, being constitutional rights, are not subject to dis- cretionary control. They are protected by the courts, includ- ing, in the last resort, the Supreme court of the nation. Under that protection may not the subordinate rules of pro- cedure be safely left to judicial discretion? There is no more danger of an abuse of that discretion than of the dis- cretion now exercised by the courts in striking out a defense as sham, or in refusing an amendment or a prerogative writ. Of course, the legislature should, and does, retain the power to resume control of procedure, if the courts fail to perform their duty in regulating it. A consequence of this judicial control is a very much greater degrees of flexibility. In Mr. Learning's delightful and graphic description of the English courts at work ("A Philadelphia Lawyer in the Courts of London"} he speaks with commendation of this feature of flexibility in English procedure. 2. The principle of minimum delay upon points of pro- cedure is sought to be applied by several regulations. De- murrers and dilatory pleas are abolished and a summary disposition on motion is substituted for these as well as for all other objections on points of pleading and practice. No appeals are allowed until after final judgment, except from a commissioner to a judge of the court of first instance; and reversals on appeal are forbidden "unless, after examination of the whole case, it shall appear that the error injuriously affected the substantial rights of a party." The design of these provisions is that every point of procedure be deter- mined summarily, on motion; that the case then proceed Introduction PRINCIPLES. 6 upon the merits to final judgment; and that if, upon the whole case, justice has been done, the judgment shall stand though the decision upon the point of procedure be wrong. It seems as if this limitation upon reversals, along with the abolition of exceptions and writs of error, goes far to- ward putting appeals upon a similar footing with applica- tions for new trials on rules to show cause, provided, of course, that the error is one of law. The appeal, like such an application, is addressed to the equitable powers of the -court. An error which might, by possibility, have influ- enced the -jury's verdict, must heretofore have caused a re- versal on writ of error, even when, in the same circumstances, the court would have refused a new trial on a rule to show cause, justice appearing to have been done by the verdict. The design of the new provision appears to be to give to the court the same power on appeal which it now exercises on rule to show cause for error upon a point of law. \Yhat are the "substantial rights," injury to which will suffice for reversal? The provision is taken in substance from a bill prepared by a committee of the American Bar Association to regulate procedure in the Federal Courts. The report of the committee and the bill are in the Report of the Association for the year 1910, at pages 614, 620 and 646. A discussion of the committee's report may be found in the Report of 1909 at pages 71, 81. It is of course impossible to foretell just what judicial in- terpretation will be placed upon the words "substantial rights," but I venture to suggest that a remedial right aris- ing from a subordinate regulation of procedure is not a "substantial right" within the meaning of the statute, un- less it is protected by the constitution, or is of such nature that its impairment has caused a real and substantial in- justice. For illustration : an order erroneously changing the venue in a local action infringes a remedial right only; and if the court had jurisdiction, and the trial was full and fair, and no actual disadvantage had resulted from that er- ror, I should suppose that no "substantial right" had been wronged, although such an error would be ground of re- versal at common law. 7 IMPORTANT CHANGES. Introduction 3. As for the settlement of the whole controversy in one suit so far as justly practicable: In the English pro- cedure, this principle is applied to cases involving both legal and equitable rights and remedies. Here the principle is confined to cases of which the law courts have cognizance. It is applied in the enlarged power to join parties and causes of action, and to the wide latitude allowed in making counter- claims. All of this, however, is subject to the court's con- trol. A number of changes are made in the old procedure. The most important are in the following subjects : (1) Forms of actions, (2) Parties, (3) Joinder of causes qf action, (4) Counter-claims, (5) Pleadings, (6) Appeals. (j) In place of the several forms of common law ac- tions previously existing, the new act substitutes a single form. The principle of the single form of action is a salient feature in all the reformed procedures. In England and in the code states it applies to both legal and equitable actions. With the new system of pleading the single form of ac- tion is a natural, perhaps a necessary, consequence. For all that distinguishes the form of action is the form (i. e. certain phrasing) , of the pleadings, the latitude of evidence allowed under each different form, and the form, or phras- ing, of the verdict and judgment. If the pleadings in all cases are to state, in simple narrative, the facts constitut- ing the cause of action and defense, and if the parties are to prove the facts so stated and only those, there will be necessarily but one form of action, for there will be no dis- tinctions of form on the record, and the evidence will be determined by the facts stated in the pleadings. (2) As to parties, the new Act and Rules make import- ant changes. The common law conception of the parties upon each side was that of a unit. No matter how numer- ous the plaintiffs, they were regarded as a unit. In actions on contract all or none must recover. The same concep- tion applied to defendants, but with many exceptions. And this notion influenced all the subsequent steps in the action including the judgment. But it was only in ordinary com- Introduction IMPORTANT CHANGES. 8 mon law actions that this conception arose. In all judi- cial proceedings developed from the civil law; in equity, in admiralty, and in ecclesiastical cases, it was never recog- nized. In those tribunals, the parties were those whose rights were to be defined and enforced or protected in the controversy, subject to subordinate rules for the just and orderly presentation of their respective sides of the case. The Field Code of Procedure, appears to have been the first attempt to substitute, in ordinary actions, the concep- tion of the civil law for that of the common law, in respect of parties. This feature was adopted in the English Rules under the Judicature Act of 1873, and in the Connecticut Practice Act in 1879. It is embodied in our new act and rules. It should be noted, however, that, for the most part, the new provisions as to parties are permissive, the word used is "may," which is declared in the act not to be man- datory. The most important changes in the subject of parties are those permitting plaintiffs to join, and defendants to be joined, in the alternative; permitting personal representa- tives of a deceased co-contractor to join as plaintiffs or be joined as defendants with surviving co-contractors; permit- ting parties to be added or dropped at any stage of the case, and prohibiting the defeat of the action because of misjoin- der or non-joinder of parties. Third parties may be brought in, by defendant, on a coun- ter-claim. I suppose an instance in which this last pro- vision would apply may be the case of a defendant who counter-claims upon the plaintiff's note endorsed by a third person. It is obvious that with this latitude in the range of par- ties, and this diversity in the character of the rights that may be brought before the court, much more flexibility in the form of judgment is necessary than was allowed at common law. Hence section 20 permits the court to "determine the ultimate rights of the parties on each side as between them- selves," and section 21 permits the judgment to be "entered in such form as may be required by the nature of the case." Under these sections, the judgment may be as flexible as a 9 m IMPORTANT CHANGES. Introduction decree in equity, and the plaintiff's rights, if they differ, may, in certain cases, be settled as between themselves, as may now be done in equity. An instance, perhaps, may be the case of disagreement between plaintiffs as to their respec- tive shares in the recovery ; or when they sue in the alterna- tive upon an instrument the construction of which makes doubtful which of them should bring the suit. But all these innovations in respect of parties are under judicial control. The court may limit them by rules, and may order separate trials in any particular case. (3) In discussing joinder of causes of action, it is neces- sary to keep in mind the distinction between that subject and joinder of parties. A good illustration is the case of Ricardo v. News Publishing Company, 73 N. J. L., 146, where husband and wife joined in one action for a libel upon her tenement house and another libel upon her, per- sonally. The two wrongs were stated in separate counts. It was held, under our statutes, that the first cause of ac- tion was vested in the wife alone, and the second in hus- band and wife jointly. For this misjoinder a demurrer was sustained to the whole declaration. It was also held that there was a misjoinder of parties upon the first count, as the wife should have sued alone, but this could be availed of only by a motion to strike out. The new Practice Act allows the joinder of any causes of action, with a few express exceptions. This provision was in the Common Law Procedure Act of 1852, and is in the Rules under the Judicature Act. The Connecticut Act did not adopt it, but, instead, borrowed the New York code pro- visions respecting joinder. Probably the greatest innovation in respect to this subject will be considered that contained in sections 4 and 6 per- mitting plaintiffs to sue. and defendants to be sued, on separ- ate causes of action, "if the causes of action have a common question of law or fact and arose out of the same transac- tion." The English Rules were amended to permit this course, but as to plaintiffs only, after the House of Lords had decided that it was not allowable under Jhe rules as at first framed. Smnrthzvaite vs. Hanney, App. Ca. (1894), Introduction IMPORTANT CHANGES. 10 494. The provision was not adopted in Connecticut, and has not been extended to defendants in either England or Connecticut; but there seems to be no good reason why it should not apply to defendants as well as plaintiffs. The court has discretionary power to order separate trials ( Rule 12), and to strike out causes of action which can not be con- veniently tried with others in the same case (Rule 14). Sub- ject to this judicial control, and when the controversies have arisen from the same transaction, the test which determines the joinder is the presence of a question of law or fact com- mon to both causes of action; that is, whether the law, or the evidence of the facts, will be the same, or so nearly the same, in the two cases as to admit of a just and convenient trial of them together. A similar question is presented to the court whenever a defendant, indicted jointly with others, applies for a severance. The cases of Board of Education v. Howard, 65 N. J. L. 74 and Nierenberg v. Wood, 59 N. J. L. 112, are illustrations of cases in w r hich these pro- visions of the new act might prevent much delay, and even a total failure of justice. Objection for nonjoinder or misjoinder of parties or of causes of action must be made by motion. For misjoinder of causes of action it must be made before answer filed, or it will be waived. (Rule 15). (4) Subject to rules, a counter-claim, under section 12, may set up any cause of action; but the court has discre- tionary power to order separate trials or to strike it out if it can not be conveniently tried with the other issues in the case. The English rule, in language similar to that in sec- tion 12, has been held to preserve set-off as a separate de- fense from counter-claim, and subject to some of the old limitations upon the use of the former defense. (5) Pleadings are placed entirely under judicial con- trol. They must "be according to rules of court," and the court may suspend or amend those rules at will. The new system by no means abolishes all the common law rules of pleading. Most of those which are designed for precision and brevity <^f statement, and which aid in bringing the 11 IMPORTANT CHANGES- Introduction pleadings to issue are, I take it, still in force in so far as they consist with the new rules, though probably they will be enforced with less rigor and, in the Supreme court, with less delay. The gain in the new system lies in this, that it abolishes a number of useless arbitrary rules, such as the rules, that every traversable fact must be alleged with time and place, that a pleading is demurrable which purports to answer the whole, but in fact answers but part, of the oppo- site pleading, and the like; and it provides a summary method of settling disputes upon pleadings. The principle of the new system of pleading is simple enough. It is that each party shall state the facts which constitute his cause of action or defense and shall prove nothing that he does not so state. Of course, only the is- suable facts need be stated. If the action be based upon the disputed authority of defendant's agent, only the issuable fact that the agent was duly authorized should be stated, not the probative facts from which plaintiff inferred the au- thority, though those are what he expects to prove. If these probative facts are such as the defendant is entitled to know in advance of trial, he may get them by a demand, or an order, for particulars. But probative facts should be stated when necessary "fairly to apprise the adverse party of the state of facts which it is intended to prove." (Rule 21). (6) Appeals are substituted for writs of error in civil cases, but only where a writ of error could previously have been used. The appeal removes the entire record with all incidental proceedings; so there can no longer be a refusal to review the case because an "outlying branch of the record" has not been brought up, nor because no exception was tak- en, or if taken was not signed, or if taken and signed did not cover the precise point of the objection. The appeal is "in the nature of a rehearing," a phrase borrowed from the English Rules, and well known in our practice. I take the meaning of this to require a re-examination of the whole record of the case, including the evidence, so far as may be necessary to determine the questions presented on the appeal. Taken along with the provision that a judgment shall be reversed onlv when "after examination of the whole case" Introduction IMPORTANT CHANGES. 12 injury to a substantial right appears, it seems to me that the design of the act is, as I have already stated, to give the court the same equitable control over the final judgment on appeal, that it now has over the verdict on an application for a new trial on the ground of error in law. The success of the new Practice Act and Rules must de- pend, in large measure, upon the way in which the courts interpret their provisions. The first section requires a liberal construction, "to the end that legal controversies may be speedily and finally determined according to the substantive rights of the parties." I emphasize the word "substantive," because so much litigation and delay has heretofore occurred over adjective rights, and often when they had nothing to do with the merits of the particular case or the maintenance of a reasonable procedure. The success of the English Judi- cature Act and Rules has been much aided by the enlight- ened, and liberal good sense with which the English judges have interpreted them. I have given some instances of this in my Courts and Procedure in England and Neiv Jersey (pp. 46, 155). I do not doubt that our judges will perform their task in this respect with an equal desire to give effect to the spirit of the act. One thing is clear, namely, that if there be any just, pub- lic discontent with failures of justice or unreasonable delays due to the system of procedure, in so far as remedy may be possible within the wide limits of the constitution and the new Practice Act, it w r ill not be the legislature that will be responsible. Whether or not we shall have an efficient sys- tem of civil procedure in the law courts, within those limits, will rest with the Justices of the Supreme court. To them is given the power; upon them rests the duty. I think we all believe that they will faithfully discharge it. 13 PART II. PRACTICE ACT (1912) 1. Short Title and Construe- 20. tion 21. 2. Definitions 22. 3. Single Form of Action 4. Parties 23. 5. Same Subject 24. 6. Same Subject 25. 7. Same Subject 8. Same Subject 26. 9. Non-Joinder, Mis-Joinder 27. 10. Saving Clause 11. Joinder of causes of Action 28. 12. Counter-Claim 13. Failure of Consideration 29. 14. Default in Pleading 15. Summary Judgment 30. 16. Same Subject 31. 17. Preliminary Reference 32. 18. Admissions 33. 19. Reserving Questions of Law : Submitting Case in Alter- 34. native A Supplement to an Act Entitled "An Act to Regu- late the Practice of Courts of Law (Revision of 1903)-" LAWS OF 1912, CHAPTER 231.* i. SHORT TITLE AND CONSTRUCTION. The short title of this act is "The Practice Act (1912)." It shall be liberally construed, to the end that legal con- troversies may be speedily and finally determined according to the substantive rights of the parties. The rule that stat- utes in derogation of the common law must be strictly con- strued shall not apply to this act. Judgment; Execution Form of Judgment Judgment without Plead- ings Amendments Same Subject Bills of Exceptions; Writs of Error; Appeals Same Subject Reversal or Xew Trial on. Merits Additional Evidence Upon Appeal Practice in the Court of Errors Costs Orders by a Judge Rules of Court Actions Pending When This Act Takes Effect Repealer * The Act was approved March 28th, 1912. 4th, 1912. It took effect July Sec. 2 PRACTICE ACT. 14 Shall Be Liberally Construed. Brett, M. R., remarked, re- specting the interpretation of the English Judicature Act (1873), that "The great object of the Court of Appeal has been to make litiga- tion as short, as cheap, and as safe to the suitors as practicable;" and after referring to the provisions of that Act requiring that the whole controversy (legal and equitable), be settled in one suit, and that multiplicity of legal proceedings be avoided, he added : "Every en- deavor has been made to carry out this principle, and all the judges have tried to bring litigation to an end as speedily as possible." McGowan vs. Middleton, 11 Q. B. (1883), 468. And see, Craft Refrigerating Co. vs. Quinnipiac, &c. Co., 63 Conn., 561, as to the liberal construction placed upon the Con- necticut Practice Act. According to the Substantive Rights, i. e., as distinguished from adjective rights. The reference must be to the elementary distinc- tion between rights arising out of substantive law and those aris- ing from adjective law or the law of procedure. Compare with "substantial rights" in Sect. 27. See Holland's Elements of Juris- prudence, p. 78, 348, for definition of substantive, and adjective, law. 2. DEFINITIONS. The following terms, for the purposes of this act, have the following meanings : The word "may" is not manda- tory; the term "Practice Act" refers to the act to which this is a supplement ; the "rules" herein mentioned are rules of court. 3. SINGLE FORM OF ACTION. There shall be but one form of civil action in the courts of common law, which shall be denominated an "Action at Law," but this shall not apply to proceedings upon Preroga- tive Writs; provided that, subject to rules, a writ of man- damus may be awarded in such an action. The process and pleadings in all actions shall be according to rules of court. But One Form of Civil Action. The principle of the single form of action is here established, but only in actions at law. In England, in her self-governing colonies and in Connecticut, as well as in the "code states," the principle applies to actions at law and in equity. For a summary of the history of this change, see my Courts and Procedure, p. 77.* *A11 of the English Rules referred to in this book except Rule 2, Order 32 (mentioned infra under sec. 18) are given in the Appendix to Courts and Procedure. 15 PRACTICE ACT. Sec. 4 A Writ of Mandamus May Be Awarded. This provision will be applied chiefly, perhaps only, in suits against municipal corpora- tions. Judgment against these corporations rnust be enforced by mandamus and not by execution. The complaint should contain a prayer for the writ. See cases cited in Note to Form 17. Process and Pleadings in All Actions Shall Be According to> Rules. This is believed to give the Supreme Court authority to! remodel the forms of pleading upon prerogative writs, if it shall choose to do so. (See note to Rule 17.) The forms of summons in all common law actions, including ejectment and actions on mechanics liens, are now, as stated in Forms i to 3. 4. PARTIES. Subject to rules, all persons claiming an interest in the subject of the action and in obtaining the judgment demand- ed, either jointly, severally or in the alternative, may join as plaintiffs, except as otherwise herein provided. And per- sons interested in separate causes of action may join if the causes of action have a common question of law or fact and arose out of the same transaction or series of transactions. See Rules 6-10. All Persons Claiming An Interest In. This section follows partly Sec. n, of the Connecticut Practice Act, and partly the English Order 16, Rule i. This rule given in full in Courts and Pro- cedure, p. 193. Subject of the Action. For a discussion of the meaning of this term, with judicial decisions, see Pomroy's Code Remedies. Sections 475, 487, et seq. ; Bliss on Code Pleading, Sec. 126 ; 37 Cyc. 343 Or in the Alternative. The meaning of this phrase is illus- trated in Form 89. If the Causes of Action Have a Common Question of Law or Fact. This is not in the Connecticut Practice Act or Rules. Itf is taken, in substance, from the English Order 16, Rule I, men- tioned above. A note upon the history of the provision is given in Courts and Procedure, at page 88 ; and see supra p. 9, as to the amendment of the English Rule. The following cases are illustrations of the application of the English Rule: The owners and tenants of two adjoining houses may join in one action for damages for a common nuisance or other injury to their respective properties, if caused by the same acts of the same persons. House Property Co. vs. Horse Nail Co., 29 Ch. Div. 190. Sec. 5 PRACTICE ACT. 16 If a committee or any other defined body of persons be libeled collectively, as a body, they may all join in one action. Booth vs. BriscL-e, 2 Q. B. D. 496. But if A defames B on one occasion, and C on another, B and C cannot joint in one action against A, even though the charges be "historically" connected; for each slander is a separate "trans- action." Sandes vs. Wildsmith (1893), I Q. B. 771. Persons separately induced to take debentures on the faith of untrue statements contained in the same prospectus may join as plaintiffs. Dnncqbier vs. Wood (1899), I Ch. Div. 393. When a plaintiff claims relief in his personal capacity, and other relief on behalf of himself and all other shareholders, he cannot join these causes of action unless they show, not only a common question of law or fact, but also that they arise out of the same transaction. Stroud vs. Luivson (1898), 2 Q. B. 44. When the damages were assessed in a lump sum, a new trial was refused, although the Court said that the damages of each plaintiff, upon his separate cause of action, ought to have been assessed severally; but inasmuch as the plaintiffs were willing to divide the damages, assessed by the verdict, among themselves, the Court allowed the verdict to stand. Booth vs. Briscoe, 2 Queen's Bench Div., p. 496. Transactions.' The word is explained in Rule 13, which is taken from Rule 150 of Connecticut. There had been much dis- cussion over its meaning in the code states. See Pomeroy's Code Pleadings, Sec. 476, et seq; 23 Cyc. 411. And see Craft Refrigerat- ing Co. vs. Quinnipiac Co., 63 Conn., 551, 561, where the word, as used in the Connecticut Act and Rules, is explained. Supra p. 9, as to the distinction between joinder of causes of action and joinder of parties. 5. SAME SUBJECT. If one who may join as plaintiff declines to do so, he may be made a defendant, the reason therefor being stated in the complaint. The Reason Therefor Being Stated. For the manner of stat- ing the reason, see Form 108. 6. SAME SUBJECT. Subject to rules, any person may be made a defendant, who, either jointly, severally or in the alternative, is alleged to have or claim an interest in the controversy, or in any part thereof, adverse to the plaintiff, or whom it is necessary to make a party for the complete determination or settlement of any question involved therein. 17 PRACTICE ACT. Sec. 8 The plaintiff may join separate causes of action against several defendants if the causes of action have a common question of law or fact and arose out of the same transac- tion or series of transactions. See also Rules 6, 7, 8, n. This section is taken partly from the Connecticut Practice Act, Sec. 12, and partly from the English Order 16, Rule 4, which is given at length in Courts and Procedure, P. 194- Or in the Alternative. Illustrated in Form 59. May Join Separate Causes of Action. This provision as to defendants is not in either the Connecticut or the English Rules. In England it was at first held, by construction, that the English Rule permitted what is expressly allowed here; but that decision was reversed. Sadler vs. Great Western R. R. Co. (1896) A. C. 450; and see the note in Courts and Procedure, 87; and supra p. 9. The provision here will probably allow the joining of separate causes of action in such cases as Board vs. Hozmrd, 65 N. J. L. 74, and Nierenberg vs. Wood, 59 N. J. L. 112. But the court may strike out causes of action, which cannot be conveniently tried together. Rule 14 (f). Rules 4 and 6 are optional to the plaintiff. He "may" proceed under them. "May" is not mandatory. Sec. 2. As to the manner of assessing unliquidated damages on sep- arate causes of action against several defendants whose separate acts have contributed to the same injury, see Weidman Silk Dyeing Co. vs. Newark, 84 Atl. 273. 7. SAME SUBJECT. An executor, administrator, or trustee, of an express trust (including one with whom a contract is made for the bene- fit of another) may sue or be sued without joining the per- son beneficially interested in the suit. 8. SAME SUBJECT. The court may determine the controversy as between the parties before it, where it can do so without prejudice to the rights of others ; but where a complete determination cannot be had without the presence of other parties, the court may direct them to be brought in. Where a person, not a party, has an interest or title which the judgment will affect, the court, on his application, shall direct him to be made a party. Sec. 9 PRACTICE ACT. 18 9. NON-JOINDER, MISJOINDER. No action shall be defeated by the non-joinder or mis- joinder of parties. New parties may be added and parties misjoined may be dropped, by order of the court, at any stage of the cause, as the ends of justice may require. 10. SAVING CLAUSE. No change in parties, made by order of court, shall impair any previous attachment of the estate or body of any person remaining a defendant in the action; nor impair bonds or recognizances of any person remaining a party, either as against himself or his sureties; nor impair receipts to an officer for property attached ; and, when parties are changed, the court may order new bonds if such new bonds are deemed necessary. Orders of court concerning change in parties may be upon terms at the discretion of the court. 11. JOINDER OF CAUSES OF ACTION. Subject to rules, the plaintiff may join any causes of ac- tion. See Rule 14. This provision is not in the Connecticut Act. It, and Rule 14 limiting it, are taken from English Order 18, Rules I to 9, given at length in Courts and Procedure, 197. The Common Law procedure Acts permitted the joinder of "causes of action of whatever kind" except replevin and ejectment; Courts and Procedure, 137. And see infra p. 65, as to election of actions. 12. COUNTER-CLAIM. Subject to rules, the defendant may counter-claim or set off any cause of action. He may, and when required by the court shall, issue summons against any third party necessary to be brought in; but, in the discretion of the court, separate trials may be ordered, or if the counter-claim cannot be con- veniently disposed of in the pending action, the court may strike it out. See Rules 46-49. May Counter-Claim or Set-Off Any Cause of Action. From the English Practice, Order 19. Rule 3 (Courts and Procedure, 199, 200), reads, "A defendant in an action may set-off, or set up by way of counter-claim, against the claims of the plaintiff, any right or claim whether such set-off or counter-claim sounds in dam- 19 PRACTICE ACT. Sec. 13 ages or not, and such set-off or counter-claim shall have the same effect as a cross-action, so as to enable the Court to pronounce a final judgment in the same action, both on the original and on the cross-claim" * * * Under that provision it is held that the right of set-off exists subject to some of the former limitations upon its use, while the counter-claim (for matters not the subject of a set-off) is not sub- ject to those limitations, i Ann. Pr. (1901), 287, et seq. ; Yearly Practice (1912), 222, 272. But the Enlish right of set-off differs from ours. It is not deemed a cross-action; it is a defense only; defendant can recover nothing upon it. Yearly Practice (1912) 277. Some of the cases illustrating the English Rule respecting counter-claim are these: It must claim against plaintiff in the same capacity as that in which he sues. If he sues in his own right, defendant cannot counter-claim against him as Trustee or Executor. Macdonald vs. Carington, 4 C. P. D. 28; Stumore vs. Campbell (1892), i Q. B. 314. (But see infra, Rule 14 (c). But upon a joint claim by two plaintiffs, a separate counter- claim against each of them was allowed. M. S. & L. Ry. Co. vs. Brooks, 2 Ex. D. 243. A joint claim against two may be set up as a counter-claim against a separate claim by one of them. Eyre vs. Moreing, W. N. (1884), 58. In a suit against a married woman in which her husband was "co-defendant for conformity," a joint claim by husband and wife was allowed. Hodson vs. Mochic, 8 C. D. 569. Against Any Third Party. The third party procedure is not likely to be used very often. The provision would, perhaps, apply in such a case as a counter-claim on a note made by plaintiff and a third party. Separate Trials May Be Ordered. For the general power to order separate trials, see Rule 12. May Strike It Out. For the general power to strike out causes of action, see Rule 14 (f). 13. FAILURE OF CONSIDERATION. In an action upon a contract, whether under seal or not, the defendant may set up in abatement of the debt or dam- ages claimed, a defect in, or partial failure of the considera- tion of the contract sued on. This is identical with the first clause in Section 105 of the Practice Act (1903), which Section is repealed; infra, Sec. 34. Sec. 14 PRACTICE ACT. 20 14. DEFAULT IN PLEADING. Judgment of non-suit or by default may be entered against plaintiff or defendant respectively for failure to plead ac- cording to the rules. 15. SUMMARY JUDGMENT. Subject to rules, any frivolous or sham defense to the whole or to any part of the complaint may be struck out; or, if it appear probable that the defense is frivolous or sham, defendant may be allowed to defend on terms. Defendant, after final judgment, may appeal from any order made against him Tinder this section. See Rules 57-60. 1 6. SAME SUBJECT. If the answer as filed, or after any part thereof shall be struck out, leaves a part of the plaintiff's claim uncontested, judgment interlocutory or final may be entered for such part as is not contested and the cause may proceed to trial as to the residue. See Sec. 20, note; and note to Form 232. 17. PRELIMINARY REFERENCE, The court may, under such conditions as it may fix, re- quire any or all motions preliminary to trial to be heard and determined by Supreme Court Commissioners designated by the court, and may fix their fees which shall be costs in the cause. See Rules 61-65. 1 8. ADMISSIONS. Any party may call upon any other party, by written no- tice, to admit (but only for the purposes of the cause) the existence, due execution, signing or mailing of any docu- ment; and to admit any other specific facts relevant to the issue mentioned in the notice. In case of refusal or neglect to make such admission within such time as may be fixed by rules or special order, the reasonable expense of proving the same (to be taxed by the court) shall be paid by the party so notified, whatever the result of the trial may be. 21 PRACTICE ACT. Sec. 20 unless the trial judge shall certify that the neglect or re- fusal was reasonable. But the court may allow any party to amend or withdraw such admission on terms. See Rule 63. In substance, this section is taken from the English Order 32, Rules 2, 4. Rule 4 (but not Rule 2) is in Courts and Procedure, p. 212, Rule 2 relates to the admission of documents only. Within Such Time As May Be Fixed. The Rules fix no time. Until the time is fixed by a general rule, a special order for the purpose should be taken and served, if th'e admission is required before trial. 19. RESERVING QUESTIONS OF LAW; SUBMITTING CASE IN ALTERNATIVE. The court may reserve any question of law and may sub- mit the case to the jury upon alternative propositions of law in respect to the right to relief or damages. In either of such cases judgment shall be entered, (and if appealed shall be dealt with) according to the right as it shall be finally determined. For a form of judgment illustrating this section, see Form 300. The section (and also section 27), are taken in substance from the report of the Committee of the American Bar Association to "Suggest Remedies and Formulate Proposed Laws," Am. Bar Ass'n Report (1910), pp. 614, 620, 645. A discussion of this provision of the report was had also in the previous year, Rep. (1909), pp. 64, 71. This section and Rule 70, under which the disputed facts may be found by means of questions submitted to the jury, it was thought, will afford means to avoid new trials in many cases in which the law applicable to the facts may be doubtful. 20. JUDGMENT; EXECUTION. Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants ; and the court may determine the ultimate rights of the parties on each side as between themselves, and grant to the defendant any affirmative relief to which he may be entitled ; and when a complaint or a cause of action is sus- tained in favor of, or against, only a part of the parties there- to, judgment (interlocutory or final) may be rendered in favor of or against such parties respectively at any stage of the proceedings. But an unsatisfied judgment against one, Sec. 21 PRACTICE ACT. 22 or some, of several joint contractors, shall not discharge the other joint contractors from liability on the contract. The court shall control the proceedings so that the plaintiff shall receive but one satisfaction. One writ of execution may issue upon one or more judgments entered in the same cause. From Connecticut Rules (under the Pr. Act) 124, 195. This section should be read with sections 4 and 6, and with Rules 6, 7 and 8. The common law notion that the parties on each side of the case were (with many exceptions), a unit, appears to be no longer applicable under these provisions. The common law con- ception of parties is described at length in Code Remedies, Sections 192, 193, 292; and see Courts and Procedure, page 83. A court of law, within the limits of its jurisdiction, may now deal with the parties before it with a power as flexible as that of a court of equity. Supra p. 8. May Determine the Ultimate Rights of Parties as Between) Themselves. For illustration, see Forms 299, 300, 302a. Of course, the question adjudged must be presented in the pleadings. Grant to the Defendant any Affirmative Relief. Compare with Practice Act (1903) Sections 34, 179. See Form 302. When a Complaint * * * is sustained in favor of or (decided) against only a part of the parties. There may be now two or more final judgments against different defendants on the same, or on different, claims ; or against the same defendant on different claims, or on different parts of one claim. (See Sec. 16). This was not allowed under the old practice. Coles vs. McKenna, So N. J. L. 48. See Forms 304, 305 for illustration. An appeal may be taken from a separate final judgment against one of several defendants before judgment is rendered against the other defendants. Bunnel vs. Berlin, &c., Co., 66 Conn. 24. 21. FORMS OF JUDGMENT. Judgment may be entered in such form as may be re- quired by the nature of the case and by the recovery or relief awarded. For illustration, see Forms of Judgment 300-302. 22. JUDGMENT WITHOUT PLEADING. Subject to rules, judgment final may be entered, without process or pleadings, upon a statement of the right in con- troversy and an agreed statement of facts, or a stipulation agreeing upon certain facts and submitting other issues in the case for trial. In either case, subject to rules, the par- 23 PRACTICE ACT. Sec. 25 ties may, at their option, agree upon the judge who shall hear and determine the case, and the judgment of the court may be entered upon his findings. See Forms 298, 311. This provision was in the Common Law Procedure Act of 1852. Courts and Procedure, p. 137. A somewhat similar provision is in Order 34, R. i. 23. AMENDMENTS. No civil suit or proceeding in any court of common law shall fail or be dismissed on the ground that the plaintiff or any party therein has mistaken the remedy or procedure, if the court in which the matter is pending shall have juris- diction to grant the proper remedy by any procedure; but in such case, the court shall, upon terms, order the writs, pleadings and other proceedings to be so amended, or new writs, pleadings or other proceedings to be respectively so issued, filed or taken, that the court may completely and finally hear and determine the w T hole matter in controversy between the parties and grant the proper remedy. This is in addition to the power of amendment given in Prac- tice Act (1903), Sec. 126. 24. SAME SUBJECT. In addition to the present powers of amendment, the court may, upon terms, permit, before or at the trial, the statement of a new or different cause of action in the com- plaint or counter-claim. A different cause of action could not be stated, by way of amendment, under the former practice. Doran vs. Tho>ii.sen, 79 N. J. L. 99- 25. BILLS OF EXCEPTIONS; WRITS OF ERROR; APPEALS. Bills of exceptions and \vrits of error in civil cases are / abolished. In lieu of a writ of error, an appeal may be tak- en in any case in which the appellant would, heretofore, * have been entitled to that writ. Subject to rules, such appeal shall be in the nature of a rehearing upon any question of law involved in any ruling, order, or judgment below. IfT&jL* Ci*~ See Rules 77-83. But objection should be made to rulings, and the grounds of the objection stated as heretofore. Sjfltc vs. 1 1 it miner, 73 X. J. L. Sec. 26 PRACTICE ACT. 24 714, 717; State vs. Warady, 77 N. J. L. 348. But a judgment based on facts found by the Court or jury, but not involved in the issues raised by the pleadings can not be sustained even though no objection was made to the evidence of those facts. Stein vs. Coleman, 73 Conn., 529. And see note to Sec. 27. Bills of exception were abolished by the Common Law Pro- cedure Act tof 1852. Courts and Procedure, pp. 137, 138. In the Nature of a Rehearing. From the English Order, 58, R. i. A Step in the Cause. From the Common Law Procedure Act of 1852; see Courts and Procedure, p. 138. 26. SAME SUBJECT. An appeal is a step in the cause, and is deemed to re- move to the appellate court the entire record of the cause and all orders, proceedings and documents made, taken or filed therein, whether or not they are actually included in the transcript of the record sent to that court. Deemed to Remove the Entire Record and All Proceedings. This section is designed to remove the difficulty arising from the old rule that a writ of error brought up only "the record," and that no error could be noticed by the court unless included in the record so brought up. See note to Rule 79. 27. REVERSAL OR NEW TRIAL ON MERITS. No judgment shall be reversed, or new trial granted on the ground of misdirection, or the improper admission or exclusion of evidence, or for error as to matter of pleading or procedure, unless, after examination of the whole case, it shall appear that the error injuriously affected the sub- stantial rights of a party. See Rules 72, 73, and note to Sec. 19. The English Court of Appeal has much wider powers on re- view than is given here. Order 48, Rule 4; in Courts and Procedure, P. 221. Substantial Rights. As to the meaning of this phrase, see supra p. 6, and compare with Sec. 136 of the Criminal Procedure Act which forbids reversal "for any error, except such as shall, or may, have prejudiced the defendant in maintaining his defense upon the merits." Comp. St. p. 1863 ; and see cases in the note to that section on that page. See also notes to Sec. 25 and Rule 79. 25 PRACTICE ACT. Sec. 32 28. ADDITIONAL EVIDENCE UPON APPEAL. Upon appeal, or on application for a new trial, the court in which the appeal or application shall be pending may, in its discretion, take additional evidence by affidavit or de- position, or by reference ; provided, that the error complained of is lack of proof of some matter capable of proof by rec- ord or other incontrovertible evidence, defective certifica- tion, or failure to lay the proper foundation for evidence which can, in fact, without involving some question for a jury, be shown to be competent. 29. PRACTICE IN THE COURT OF ERRORS. Subject to rules to be made by the Court of Errors and Appeals, the practice in that court upon appeals from the Supreme Court or Circuit Court shall be the same as the practice upon appeals in the Supreme Court. 30. COSTS. Subject to rules or special order, costs in all cases may be disallowed in the discretion of the court. Costs. See Rule n. 31. ORDERS BY A JUDGE. Subject to rules, any order or leave herein authorized to be made or given by the court, may be made or given by a judge of the court in which the action is pending. See Rule 2. 32. RULES OF COURT. In addition to the powers given in sections two hundred and fifty-three and two hundred and fifty-four of the Prac- tice Act, the Supreme Court shall prescribe rules for that court and for the Circuit Courts and Courts of Common Pleas to give effect to the provisions of this act and to other- wise simplify judicial procedure. Such rules shall super- sede (so far as they conflict with) statutory and common law regulations heretofore existing. Until such rules shall be made, the rules hereto annexed in Schedule "A" shall be deemed to be the rules of court, subject to suspension Sec. 33 PRACTICE ACT. 26 and amendment in any part thereof, by the court, as ex- perience shall show to be expedient. 33. ACTIONS PENDING WHEN Tins ACT TAKES EFFECT. Sections twenty-live, twenty-six, twenty-seven, twenty- eight, twenty-nine, and thirty-two, and the rules in Schedule A under Division I, "General Rules," and under Division XII, "Appeals" (and no other sections or rules), shall ap- ply to causes commenced before this act shall take effect ; provided, that the sections and rules above mentioned shall not apply to any writ of error or the proceedings thereon which shall have been issued or taken before this act shall take effect. (As amended by Chapter 400, Laws of ipi 94, 95, 9&, 97, 9%, IOI > 102, 104, 105, no, in, 114, 117, 119, 121, 122, 127, 128, 130, 131, 132, 134, 141, 154, 210, 211, 212, 213, 214 and 241. 27 PART III. SCHEDULE A. RULES OF COURT UNDER THE PRACTICE ACT (1912). SUBJECTS. Rules. I. GENERAL RULES 1-5 II. JOINDER OF PARTIES AND CAUSES OF ACTION. 6-15 III. PLEADINGS. 1 i ) PLEADINGS GENERALLY 16-34 (2) COMPLAINT 35~37 (3) ANSWER 38-45 (4) COUNTER-CLAIM 46-49 (5) REPLY 50 (6) ACTIONS TO RECOVER PERSONALTY. . . .51-53 (7) TIME FOR FILING PLEADINGS 54-56 IV. SUMMARY JUDGMENT 57~6o V. PRELIMINARY REFERENCE 61-65 VI. DISCOVERY OF DOCUMENTS 66 VII. DAMAGES : 67-68 VIII. TRIALS; JURY'S FINDINGS 69-71 IX. NEW TRIAL AS TO PART 7 2 ~73 X. FINDINGS OF FACT BY COURT 74~75 XI. JUDGMENT 76 XII. APPEALS 77-83 Rule i RULES. 28 I. GENERAL RULES. i. DEFINITIONS. The word "may" as used in these rules is not mandatory. 2.. ORDERS BY A JUDGE. Any order or leave herein authorized to be made or given by the court may be made or given by one justice or judge thereof. See Section 31 of the Act. 3. EXTENDING TIME. The time limited in these rules for the doing of any act may, for good cause, be extended (either before or after the expiration of the time) by order of the court or a justice or a judge thereof. Applications to extend time for pleading may be made under this rule. 4. FORMS. The forms appended in Schedule B, or like forms, shall be used so far as they are applicable. There are 36 Forms in Schedule B. The numbers ran from i to 37, but Form 27 was stricken out in the Legislature, and no change made in the following numbers. All Forms given in Schedule B are included in the Forms stated in this book, but not in the same order. Those which are taken from Schedule B, are so indicated. See the list of Forms in Schedule B, infra p. 74. 5. RULES MAY BE SUSPENDED. These rules shall be considered as general rules for the government of the court and the conducting of causes ; and as the design of them is to facilitate business and advance justice, they may be relaxed or dispensed with by the court in any case where it shall be manifest to the court that a strict adherence to them will work surprise or injustice. This is copied from Rule 41 of the Court of Errors and Appeals. 29 RULES. Rule 7 II. JOINDER OR PARTIES AND CAUSES OF ACTION. 6. PERSONAL REPRESENTATIVES. In suits on a joint contract, whether partnership or other- wise, the personal representatives of a deceased co-contrac- tor may join, as plaintiffs, and be joined, as defendants, with the survivors or survivor; provided, that, where the estate of the decedent is in settlement in this State, as an insolvent estate, his personal representatives cannot be joined as de- fendants. This, and the next Rule, should be read with Sections 4, 6, 20 and 21 of the Act. The two Rules (6 and 7) are taken from Rules 118 and 119 under the Connecticut Practice Act. Rule 6 goes much further than Section 3 of "The Act Concerning Obliga- tions," Comp. St. p. 27/6. 7. PERSONS SEVERALLY LIABLE. Persons severally and immediately liable on the same ob- ligation or instrument, including parties to bills of exchange and promissory notes ; also indorsers, guarantors, and sure- ties, whether on the same or by a separate instrument, may all, or any of them, be joined as defendants, and a joint judgment may be rendered against those so joined. But where the cause of action against one person is not complete until after judgment against another, such person cannot be joined as defendant. Nothing herein contained shall impair the provisions of sections thirty-four and thirty-five of the Practice Act of one thousand nine hundred and three. See note to Rule 6. Severally Liable on the Same Instrument. This takes the place of Section 29 of the Practice Act (1903) in relation to notes and bills of exchange, but the rule applies also to other instru- ments. By a Separate Instrument. In such case a separate action was necessary under the old practice, unless the action was upon a note or bill of exchange. A Joint Judgment May Be Rendered. The rule makes the lia- bility, in such cases, both joint and several, even though, on it face, it appears to be several only. It is the counterpart of Sec- tion 3 of the Obligations Act, which makes joint liabilities several in certain cases. Comp. St. 3776. Rule 8 RULES. yo 8. PARTIES IN ALTERNATIVE. Persons may be joined as defendants against whom the right to relief is alleged to exist in the alternative, although a right to relief against one may be inconsistent with a right to relief against the other. For illustration see Form 59. 9. ASSIGNEE. If a part interest in a contract obligation be assigned, the assignor (retaining the remaining interest) and assignee may Join as plaintiffs. Compare with Section 19 of the Practice Act (1903). That Section was held not to authorize the assignment of part of a' contract. Otis vs. Adams, 56 N. J. L. 38; Stemberg vs. Lcliigh Valley R. R. Co., 78 N. J. L., 277. This Rule appears to permit such an assignment, provided the assignor and assignee join as plaintiffs. A written contract (upon which there was a cause of action) was placed in the possession of a person to secure payment for his services : Held, that this was an assignment of a part interest, and that the original holder of the contract and the person holding it as security, could join as plaintiffs in an action upon it. Hamilton vs. Lamphear, 54 Conn. 237, 241. A person admitted on his own motion as a party, in such case, need not file a new complaint. If he does not, he adopts the complaint already filed supplemented and modified by the allega- tions of his petition to be made a party. Id. 10. ASSIGNMENT PENDING SUIT. If, pending the action, the plaintiff assign the cause of action, the assignee, on his written application, may either be joined as co-plaintiff or substituted as a sole plaintiff, as the 6ourt may order; provided, the same shall in no man- ner prejudice the defense of the action as it stood before such change of parties. 11. COSTS OF DEFENDANT. In all cases where there are several defendants, the court may make such order as it may deem just, to prevent any defendant from being embarrassed or put to expense by be- ing required to attend to any proceedings in the action in which he may have no interest ; and no costs shall be taxed 31 RULES. Rule 14 against any defendant with which he is not justly charge- able. See the Act, Section 30. 12. SEPARATE TRIALS. The court may, upon motion, order a separate trial be-. tween the plaintiff, or one or more of several plaintiffs, and the defendant, or one or more of several defendants, or be- tween co-defendants. For separate trials on counter-claims, see the Act, Section 12. 13. "TRANSACTIONS." The transactions referred to in sections four and six of the Practice Act (1912) include any transactions which grew out of the subject matter in regard to which the con- troversy has arisen; as, for instance, the failure of a bailee to use the goods bailed for the purpose agreed, and also an injury to them by his fault or neglect ; the breach of a cove- nant for quiet enjoyment, by the entry of the lessor, and also a trespass to goods committed in the course of the entry; or several torts committed simultaneously, as a bat- tery accompanied by slander. See note to Section 4 of the Act. 14. JOINDER OF CAUSES OF ACTION. (a) In actions for the recovery of lands, no cause of action shall be joined (without leave of court) except for mesne profits, or damages for breach of any contract under which the property, or any part thereof, was held, or for injury to the property. (b) Claims by a trustee in bankruptcy, as such, must not, except by leave of court, be joined with any claim by him in any other capacity. (c) Claims by or against any executor or administrator, as such, must not (without leave of court) be joined with claims by or against him personally, unless the latter claims arose with reference to the estate of his testator or intestate. (d) Claims by plaintiffs jointly, may be joined with claims by them, or any of them, separately, against the same defendant. Rule 15 RULES. 32 (e) Claims by or against husband and wife may be joined with claims by or against either of them separately. (f) The court may strike out causes of action which can not be conveniently tried with other causes of action joined in the same suit. This should be read with Sections 4, 6, n, 20 and 21 of the Act. Apparently any of the causes of action in (a), (b) and (c) respectively, may be joined by leave of Court. See Section 12 of the Act as to the causes of action, which may be set up in a counter-claim. (c) With Reference to the Estate. By implication, and under the general language of Section n, this rule appears to allow the joinder of claims against an Executor, as such, with claims against him individually, if the individual claims arose with reference to the estate. See Forms 40, 307. (f) For power to strike out counter-claims, see the Act Section 12. 15. OBJECTION FOR MJSJOINDER of causes of action is waived unless made on motion, before answer or reply re- spectively. This motion is one "addressed to the complaint" or to the an- swer, according as the objection- is to the one or the other. The rule does not, of course, preclude the Court from exercising, on its own motion, the power to strike out, as given in Rule 14 (f). See note to Rule 16. III. PLEADINGS. (i) PLEADINGS GENERALLY. 1 6. ORDER OF PLEADINGS. The order of pleadings shall be: 1. Complaint; 2. Motion addressed to the complaint; 3. Answer ; 4. Motion addressed to the answer; 5- Reply. Further pleadings may be had, if necessary, until issue is joined. Unless otherwise ordered by the court, pleadings must be filed, and motions made, in the order mentioned above. 33 RULES. Rule 17 Unless Otherwise Ordered. Apparently, an objection for mis- joinder, under Rule 15, may be made by leave of Court after an- swer has been filed. Further Pleadings May Be Had. Xo names are given to them. If they are ever used, it is probable that the old names of "re- joinder" and "surrejoinder" will be applied to them, as appropriate terms. 17. FORM OF PLEADINGS. All pleadings must contain a plain and concise statement of the facts on which the pleader relies (and no others), but not of the evidence by which they are to be proved. The statement must be divided into paragraphs numbered consecutively, each containing, as nearly as may be, a sepa- rate allegation. Dates, sums and numbers, must be in figures. If any pleadings be insufficient, the court may order a fuller or more particular statement; and if the pleadings do not sufficiently define the issues, the court may order other issues prepared ; and may settle the issues if the parties differ. The first pleading filed by any party shall state his place of residence. The Venue. In actions in the Supreme Court, the venue should be stated in the caption of the complaint, above the title (see Form 4). No form is given in Schedule B for a caption and title in a Circuit Court case. As the name of the court, in such case, suffi- ciently shows the venue, it seems unnecessary to state the venue specially, in actions in that court. All Pleadings. The rules respecting pleadings apply to all actions in the common law courts, including replevin, ejectment, and actions on mechanics liens. See the amendments to the Eject- ment Act, and to the Mechanics Lien Act, infra, p. 69, 71. But the rules respecting pleadings were not intended, by the draftsmen of the Act, to apply to proceedings upon prerogative writs. Pleadings upon those writs, it was thought, should be left for subsequent regulation, by rules, under Section 3 of the Act. Plain. That is precise, or certain. Concise. Rule 25 expressly forbids unnecessary repetition and prolixity. On Which the Pleader Relies. In the complaint, the facts on which he relies are those "constituting the cause of action." (Rule 35.) In answer, they are those constituting the defense. Rule 18 RULES. 34 No Others. Immaterial facts (surplusage) are impertinent, and are forbidden by Rule 25. But Not the Evidence. "It is an elementary rule in pleading that, when a state of facts is relied on, it is enough to allege it simply without setting out the subordinate facts which are the means of producing it, or the evidence sustaining the allegation" (Lord Denman, C. J., in ITU Hams vs. Wilcox, 8 A. & E. at page 331). That is, the pleader should state the issuable, but not the probative, facts. To illustrate; the question being whether A was a partner with B, in the year 1911; the pleader should state that, "The defendant A, throughout the year 1911, carried on business, in Trenton, in partnership with B," stating the firm name, if there was one. That states the issuable fact. Do not allege the facts from which you infer the partnership; such as sharing in profits and losses, or the like. Those are probative facts. But on the other hand, there are certain conclusions of law, which can be well pleaded only by stating the facts from which these con- clusions are drawn. A bare allegation that the defendant was indebted to the plaintiff, or that he had, by fraud, obtained pos- session of plaintiff's goods, without setting out the consideration of the debt or the facts constituting the fraud, would be badt pleading. The old practice allowed the defendant to plead fraud without stating the circumstances (Fivcy vs. Penna. R. R. Co., 66 N. J. L., 23); but this is probably not allowable under Rules 21 and 40. Under the English rules, details of the fraud must be speci- fied, whether the pleader be defendant (Wallingford vs. Mutual Society, 5 App. Cas. 697), or plaintiff (Laurence vs. Lord Norreys, 15 Id. 221) ; Odgers on PL & Pr., p. 219. In alleging the fact of agency, it is bad pleading to state the eviden- tial facts showing the agency. Plumb vs. Curtis, 66 Conn. 173. As Nearly As May Be a Separate Allegation. But several sub- ordinate allegations which combine to state a principal fact, may be included in one paragraph. Thus, in form 7, Sch. B, (Form 33 in this book), the third paragraph states the fact of presentment of a note for payment, and in doing so alleges (i) the present- ment, (2) the tinue, (3) the place, and (4) the non-payment. The Court May Order a More Particular Statement. This is in addition to the power to order a bill of particulars under Rule 18. The point should be raised by an objection to the pleading under Rule 27. 1 8. BILLS OF PARTICULARS may be ordered as hereto- fore. This rule was inserted lest the provision in Rule 17, authorizing the Court to order a more particular statement, should be held to exclude the use of bills of particulars. ^5 RULES. Rule 22 19. UNTRUE STATEMENTS. Allegations or denials, made without reasonable cause, and found untrue, shall subject the party pleading the same to the payment of such reasonable expenses, to be taxed by the court, as may have been necessarily incurred by the other party, by reason of such untrue pleading. This applies to all pleadings. 20. STATEMENTS NOT DENIED ARE ADMITTED. Every material allegation of fact in a pleading, which is not denied by the adverse party, is deemed to be admitted, unless the latter avers that he has no knowledge or informa- tion thereof sufficient to form a belief. 21. PLEADING ACCORDING TO LEGAL EFFECT. Acts and contracts may be stated according to their legal effect, but, in so doing, the pleading should be such as fairly to apprise the adverse party of the state of facts which it is intended to prove; thus, an act or promise of a principal (other than a corporation), if. in fact, proceeding from an agent known to the pleader, should be so stated; and the obligation of a husband to pay for necessaries furnished to his wife, wh6m he has driven from his house, should be stated according to the facts. According to Legal Effect. The most common use of this form of pleading is in alleging a promise by defendant when the contract is implied in law. See Form 24. Under a complaint for money paid to the use of defendant and money had and received to the use of plaintiff, no proof can be al- lowed that the money was paid to defendant by plaintiff under duress. McVane vs. Williams, 50 Conn. 548. Under an allegation that two persons made a warranty, evidence cannot be received that one made it as agent for the other. Clark vs. Wooster, 79 Conn. 131. 22. JOINDER OF ISSUE. The denial of any material allegation shall constitute an issue; no other joinder of issue is necessary. Any Material Allegation. It follows that there may be many issues under a single count in the complaint and a single defense in the answer. But no issue is joined upon the denial of an immaterial fact. Rule 23 RULES. 36 23. ANNEXING COPIES OF DOCUMENTS. In pleading any document, a copy thereof may be an- nexed to the pleading, and referred to therein, with like effect as if it were recited at length. Substituted for Section 119 of the Practice Act (1903). That section was repealed. 24. INCONSISTENT COUNTS in the complaint or counter- claim, and INCONSISTENT DEFENSES in the answer, are not objectionable. 25. OBJECTIONABLE PLEADINGS. Unnecessary repetition, prolixity, scandal, impertinence, obscurity and uncertainty, and any other violation of the rules of pleading, are respectively objectionable; also any pleading which is irregular, defective or so framed as to embarrass or delay a fair trial. Objection for violation of this rule should be made under Rule 27. See Note on Pleadings ; infra p. 56. See also notes to Rules 32 and 33. 26. DEMURRERS ARE ABOLISHED. Any pleadings may be struck out on motion on the ground that it discloses no cause of action, defense or counter-claim, respectively. The order made upon such motion is appealable after final judg- ment. In Heu of a motion to strike out, the same objection, and any point of law (other than a question of pleading or practice) may be raised in the answering pleadings, and may be disposed of at, or after, the trial ; but the court, on motion of either party, may determine the question so raised before trial, and if the decision be decisive of the whole case the court may give judgment for the successful party or make such order as may be just. See Rule 34. Discloses No Cause of Action. If a cause of action or a de- fense be stated, no matter how defective in point of obscurity, prolixity, or other defect, the pleading cannot be struck out under this Rule. In such case it should be objected to under Rule 27. In Lieu of a Motion to Strike Out. This introduces a feature of Chancery pleadings. See form 186. 37 RULES. Rule 29 A demand for relief not sustained by the statements in the complaint may be objected to in the answering pleading or on motion. Rule 34. Other Than a Question of Pleading or Practice. These must be raised under Rule 27, except as provided in Rule 34. At or After the Trial. If the objection be raised in the an- swering pleading it must await trial before it can be heard, unless the judge, on motion, will set it down specially for hearing before trial. If the objection be raised by motion, the motion must be made, under Rule 27, before the answering pleading is filed, or it will be waived. (But see note to Rule 63). May Determine Question Before Trial. Under this Rule and Rule 2, the validity of the complaint or answer may be determined in Supreme Court actions by a single judge, on motion, with little delay. 27. OBJECTIONS TO PLEADINGS other than those pro- vided for in Rule 26, above, shall be made by motion. The action of the court thereon is appealable after final judg- ment. Such an objection may be made before a commissioner under Rules 63, 64. By Motion. Two days notice of all motions must be given, "Unless otherwise specially directed." Practice Act (1903), Sec. 190. It must be in writing, and served on the attorney, if the party appears by attorney, unless otherwise specially provided. Id. Sec. 193. Appealable After Final Judgment. The appeal will be of little use, unless the order affect injuriously the "Substantial rights" of the appellant; Sec. 27 of the Act. 28. OBJECTIONS TO PLEADINGS. Every motion addressed to a pleading must present every cause of objection then existing. 29. MOTIONS. Every notice of any motion to a pleading shall specify the grounds thereof. The Practice Act (1903), Sec. 191, contains a similar provision and directs that "Matters not specified in the notice shall not be considered upon the hearing." Rule 30 RULES. 38 30. MATTERS ARISING AFTER SUIT BEGUN. Supplemental pleadings, showing matters arising since the original pleadings or suit begun, may be filed by either party, by leave of court, and upon terms. This applies to both complaint and answer. 31. OVER. When an express agreement or any document is referred to in a pleading, and is not annexed to the pleading or re- cited verbatim therein, a copy of the document or of the agreement (if it be in writing) must be served on the ad- verse party within five days after service of written de- mand for the same. 32. EVASIVE DENIALS. A denial must not be evasive, but must fairly meet the substance of the allegation denied. Thus, if payment of a certain sum be alleged when, in fact, less was paid, the pleader must not deny payment generally, but must state how much was paid; and where any fact is alleged with divers circumstances, some of which are untruly stated, the denial must not be of the fact as alleged, but so much as is true and material must be admitted and the rest only denied. Where Any Fact is Alleged with Divers Circumstances. TQ illustrate: A paragraph in the complaint alleges that "plaintiff served defendant, as janitor, from January I, 1912, to July i, 1912, in defendant's office building, 800 Broad Street, Newark." A gen- eral denial of the paragraph would be insufficient if plaintiff had, in fact* served defendant as janitor. A denial in the language of the complaint would also' be bad. The answer should admit such of the facts in the allegation as are true, and deny the others. But it has been said than an allegation that defendant "called upon several of plaintiff's tenants at 43, 45, and 47 Bayham Street and spoke and published to them" a slander of plaintiff's title, is sufficiently answered by the statement that "the defendant never spoke or published the said words;" because "that answers the point of substance, and the rest is denied by implication. To plead that the defendant did not call on several of the plaintiff's tenants, &c., would seem to admit that he called on one or two of them; and to deny that he spoke the words to any of the plaintiff's tenants, would be consistent with having spoken them to some one not a tenant of plaintiff, which might be equally actionable." Odgers on PL & Pr. 156. See note to Rule 33. 39 RULES. Rule 34 33. CERTAINTY. Express admissions and denials must be direct, precise, specific, and not argumentative, hypothetical, or in the alter- native; accordingly when a pleader wishes expressly to admit or deny a portion only of a paragraph he must recite that portion ; except, that where a recited portion of a para- graph has been either admitted or denied, the remainder of the paragraph may not be denied or admitted without recital. Admissions or denials of allegations identified only by a summary or generalization thereof, or by describing the facts alleged as "consistent" or "inconsistent" with other facts re- cited or referred to, are improper. Express Admissions and Denials. This rule deals with answers generally, both those to the complaint and those to the counter-claim. Direct, Precise, Specific. An allegation that defendant broke and entered the close of plaintiff is not properly answered by a denial "that defendant broke or entered the close of plaintiff." Such a form is ambiguous. It may mean a denial of either the entry or the ownership. If both are intended to be denied the form should be thus: 1. Defendant never broke or entered said close. 2. He denies that said close belongs to plaintiff. And so, if the complaint allege that defendant "wrongfully dis- missed plaintiff from his service," a denial that defendant "wrong- fully dismissed" would be ambiguous. It may mean either a denial of the dismissal, or that the dismissal was justifiable. Not Argumentative. That is, the denial must not be collected by inference from the facts stated in the answer; Steph. PL 384. Hypothetical or in the Alternative. To illustrate; in an action against a jailer for an escape, it was held that defendant could not plead that if there had been an escape there had also been a re- turn. Such a plea is hypothetical or in the alternative; Steph. PI. 387. The remainder of the paragraph may not be denied or admitted without recital. The word "not" has crept into the sentence by mistake. It was not in the original draft of the rule. Admissions or Denials Identified by a Summary. But it is proper to plead thus: "Defendant denies the statements of para- graph one, except as hereinafter admitted." See Form 190 (18 in Schedule B). 34. A demand for relief in the complaint, or counter- claim, which the allegations thereof do not sustain, may be objected to, on motion, or in the answering pleading, Rule 35 RULES. 40 although the allegations may entitle the plaintiff, or coun- ter-claimant, respectively, to some other relief. See note to Rule 26. (2) THE COMPLAINT. 35. THE COMPLAINT. The first pleading by the plaintiff shall be the complaint. It must contain a statement of the facts constituting the cause of action, in accordance with these rules, and a de- mand for relief. Constituting the Cause of Action. For a very clear explanation of the phrase, "Cause of action," see Porncroy's Code Remedies, Sec. 452, 454, 518-520. See also, / Cyc. 641; 6 Id. 705. But in Connecticut it is held, under rules similar to these, that separate counts and separate defenses should not be used unless the causes of action or defenses are actually separate and distinct, and not merely different statements of the same cause of action or de- fense. Cases in illustration of this interpretation are cited under Rule 36; and see Form 81, taken from Connecticut Forms. The complaint may state any number of transactions growing out of the same subject matter t. e. acts having some connection with each other by which the legal relations of plaintiff and defendant were al- tered. Lewisohn vs. Stoddard, 78 Conn. 500. The common counts should never be used. 36. COUNTS AND PARAGRAPHS. When separate and distinct causes of action (as distin- guished from separate claims for relief founded on the same cause of action or transaction) are joined, the statement of the second shall be prefixed with the words "SECOND COLT NT" and so on for the others ; and the several paragraphs of each shall be numbered separately. Separate and Distinct Causes of Action. Under this language in the Connecticut Rules, it was held that a single count was good notwithstanding it set out a cause of action for breach of contract by defendant, in refusing to accept and pay for certain machines ordered from the plaintiff, and also set out a cause of action for conversion, by defendant, of the same machines, in its refusal to allow plaintiff to remove them. Craft Refrigerating Co. vs. Quinni- piac Co., 63 Conn. 551, 561. One count alleged a cause of action in tort, viz. : that defendant by fradulent representations induced plaintiff to part with his horse, 41 RULES. Rule 37 and also a cause of action on contract, viz.: that defendant failed to deliver, as he had agreed, a certain mare in exchange for the horse which he had received from plaintiff. Held (i) that the dealings with reference to the exchange of horses was the transaction out of which the cause of action grew; (2) that the whole transaction could be stated in one count; (3) that plaintiff was entitled to submit to the court the question whether the evidence entitled him to recover upon the contract or upon the fraud. Knapp vs. Walker, 73 Conn. 459. These two decisions seem to apply to cases in which the plaintiff can not be sure, whether the proofs at the trial will disclose a case of contract or of tort. They are not cases to which the doctrine of election of actions will apply. See that subject discussed at p. 65. It is not necessary to state the same cause of action in different counts in order to meet possible variances in the evidence, but "there may possibly be cases where a plaintiff should be at liberty to do so." "In all cases of material variance an amendment is permitted at any stage of the trial." Bassett vs. Shares, 63 Conn. 39 ; Baxter vs. Camp, 71 Conn. 251. In an action against a railroad company, plaintiff was held entitled to allege in one count that she was "hurled to the ground in jumping from the car," and also that she was "hurled to the ground when just ready to jump." "She was entitled to allege what was substan- tially the same facts in different forms to meet the possible conditions of testimony." But double statements are improper when plainly un- necessary, or when one of them is known to the pleader to be false. Brockett vs. Fair Haven, &c. R. R. Co., 73 Conn. 432. When property is sold on time and several notes given at the same time for instalments of the price, after all fall due the creditor may, in one count of his complaint allege the total debt and that it is evidenced by the several notes. Morse vs. Frost, 54 Conn. 84 37. ALTERNATIVE RELIEF. Plaintiff may claim alternative relief based upon an alter- native construction or ascertainment of his cause of action. Alternative Relief. For illustration, see Form 81. (3) THE ANSWER. 38. DILATORY PLEAS. . Pleas to the jurisdiction and pleis in abatement are abolished. In lieu thereof objection shall be made on mo- tion. The evidence necessary to determine the question may be taken by affidavit, or as the court may direct. The action of the court upon such motion may be reviewed on appeal after final judgment. Rule 39 RULES. 42 This objection must be made before a judge, not before a Commissioner. Rule 63. Or as the Court may Direct. Doubtless, in a proper case, the Court would order an issue prepared and direct it to be tried by a jury. At common law, the Court had a similar discretion in cer- tain cases; for instance, when the issue was upon the fact of in- fancy, the Court could try the issue or submit it to a jury. 3 Blackst. 332. 39. SEVERAL DEFENSES. Where several defenses are pleaded, each must refer to the cause of action which it is intended to answer, and must be separately stated and designated as a separate defense; thus: FIRST DEFENSE, SECOND DEFENSE, etc. Where the complaint is for more than one cause of action, set forth in several counts, each separate matter of defense, should be preceded by a designation of the cause' of action which it is intended to meet, in this manner : FIRST DEFENSE TO FIRST COUNT, SECOND DEFENSE TO FIRST COUNT, FIRST DEFENSE TO SECOND COUNT, and so on. Any statement of a matter of defense, raised in part upon facts pleaded in any preced- ing statement in the same answer, may refer to those facts as thus recited, without otherwise repeating them. The answer need not be verified. The commencement of the answer must state the title of the cause and the residences of the answering defendants. Rule 17 and Form 183. In actions in the Supreme Court, state the venue above the title. See form 14 in Schedule B (Form 184 in this book). The Rule Prohibits Duplicity in Pleading in the Answer. Each defense must be a single defense. But Form 189 (17 in Sch. B), states the general denial in one paragraph and a release in another, without the captions "First defense, Second defense." Apparently, therefore, the general denial may be used in the same statement with another defense, separated only by a paragraph. Allegations which merely go to the denial or explanation of statements of the complaint, need not be stated as a separate de- fense. Only facts constituting an affirmative defense (e. g., tender, payment, contributory negligence, and the like) of which defend- ant assumes the burden of proof, should be stated as a separate defense. In an action on a life insurance policy, the general allegation in the complaint of performance of conditions precedent should not be denied in toto unless defendant intends in good faith to deny the performance of every one of the conditions precedent. The defense 43 RULES. Rule 40 that several of the representations made by the insured were false is a single defense; it is bad pleading to state them as separate defenses. Hennessy vs. Metropolitan Life Ins. Co., 74 Conn. 702. Separate and distinct causes of action, should be set out in separate counts, and matters of defense appropriate to one of them only should be separately stated. But in ordinary cases brought on a single cause of action, or when founded on a transaction which may give rise to several causes of action not clearly distinguishable from each other, all matter of fact involved in the defense should be com- bined in a single answer, divided only by paragraphs. Botsford vs. Wallace, 72 Conn. 200; Simonds vs. East Windsor Elect. R. R. Co., 73 Conn. 513. 40. GENERAL AND SPECIAL DENIAL. The answer must specially deny such allegations of fact in the complaint as defendant intends to controvert, unless he intends in good faith to controvert all the allegations ; in that case he may deny them generally. It must specially state any defense which is consistent with the truth of the material allegations of the complaint, and any defense which, if not stated, would be likely to cause surprise, or would raise issues not arising out of the complaint. For instance, the statute of frauds, or of limitations, release, payment, performance, fraud or facts showing illegality, or contribu- tory negligence. As Defendant Intends to Controvert. Unreasonable denials subject the pleader to the risk of costs. Rule 19. Intends to Controvert All. Under the general denial defendant is limited to contradicting or rebutting plaintiff's evidence. The general denial should be seldom used with special denials of particular facts, or particular parts of the complaint. It will be an unsafe defense to rely upon solely when defendant expects to contest only a single point in plaintiff's case, such as the delivery of goods after an un- disputed contract of sale, or an implied request to perform ser- vices when the service was rendered under a mistake (say, painting the wrong fence); for an answer "must specially state any defense * * * which, if not stated, would be likely to cause surprise" Rule 40. And Rule 21 requires acts which are stated according to their legal effect to be so pleaded "as fairly to apprise the adverse party of the state of facts which it is intended to prove." It is improper to plead the general denial when the real defense is matter in avoidance. Hatch vs. Thompson, 67 Conn. 76; Church vs. Pearne, 75 Conn. 350. And see Hennessy vs. Metropolitan &c. Ins. Co., cited under Rule 39. Rule 41 RULES. 44 41. TENDER; PAYMENT INTO COURT. Any party upon whom a claim for debt or damages (liquidated or unliquidated) is made, may tender to the claimant a sum of money in payment thereof, which tender may be pleaded, and in all respects shall be as effectual as a tender in case of a claim for debt has heretofore been. Debt or Damages (Liquidated or Unliquidated.) A tender un- der this rule may be made in an action for a tort. As Effectual. That is, it saves costs if the verdict do not ex- ceed the amount of the tender; and, in a proper case, it stops the accrual of interest. j 42. PAYMENT INTO COURT by defendant, upon plain- tiff's claim, shall be an admission of the cause of action in respect to which it is made; but not so, if the answer denies the cause of action. The payment shall be pleaded or (if made after answer filed) notice thereof shall be given to the plaintiff. Payment into Court. A plea (or defense) of tender must al- way be accompanied by payment into Court. Notice Shall Be Given. Apparently, the tender may be made and the notice given, at any time before trial. 43. SAME SUBJECT. If plaintiff accept such payment before judgment, it shall be in satisfaction of the cause of action in respect to which the payment was made, except as to costs. If plaintiff do not so accept, the money shall be paid to the defendant if he recover judgment; but if plaintiff recover, it shall be applied upon his judgment to the extent thereof, and the surplus, if any, shall be paid to the defendant. 44. SAME SUBJECT. Plaintiff, in reply to a counter-claim, may pay money into court in satisfaction thereof, subject to the like condi- tions as to costs and otherwise as upon such payment by a defendant. 45. SAME SUBJECT. Neither tender nor payment into court shall be made known to the jury. 45 RULES. Rule 51 Shall Not Be Made Known to the Jury. This Rule appears to qualify the provision in Rule 69 that defendant's case must be opened to the extent, at least, of the statements in his answer. (4) COUNTER-CLAIM. 46. A COUNTER-CLAIM may be stated in the answer, being introduced substantially thus : "By way of counter- claim against" ( stating the parties against whom the coun- ter-claim is made, and designating as "third parties" those not made parties in the complaint). See Section 12 of the Act. May Be Stated in the Answer. It may, at defendants' option, be stated in a separate pleading. See Form 266 (14 in Schedule B). 47. CROSS ACTION. A counter-claim is deemed to be a cross action, and the rules respecting the form and manner of pleading the com- plaint, apply to the counter-claim. 48. AMOUNT OF RECOVERY. If the amount found due on the counter-claim to the de- fendant exceeds the amount found due to the plaintiff, the defendant shall have judgment for the excess. 49. Where a co-defendant is made a party to a counter- claim, a copy thereof shall be delivered to him or his at- torney within five days after the same is filed. (5) REPLY. 50. REPLY. A reply may contain two or more distinct avoidances of the same defense or counter-claim, but they must be separ- ately stated and numbered, and the rules respecting the form and manner of pleading in the answer apply to the reply. (6) ACTIONS TO RECOVER PERSONALTY. 51. In actions to recover personalty, title (in plaintiff or defendant) which rests on a special property must be plead- ed by stating the facts constituting the special property. For illustration, see Form 180. Rule 52 RULES. 46 The action of detinue was in use, in this State, in the former practice. A complaint, such as is given in Form 178, may be used with an ordinary writ of summons, in lieu of the action of detinue, when the plaintiff does not desire to replevy the goods; or, the same form of complaint may be used with a writ of replevin, with direc- tions to the Sheriff not to take the goods, under Section 33 of the Replevin Act. Comp. St. p. 4376. 52. When the taking was wrongful a general statement of unlawful taking is sufficient, but when the action is for a wrongful detainer only, a demand and refusal of posses- sion, before beginning the action (or serving the writ) must be alleged. See Forms 178, 179, for illustration. 53. All defense, including those in the nature of avowry, cognizance, and disclaimer, shall be made by answer. If the defense be title in defendant or in a third person, the an- swer must state it according to the fact. If defendant claims a return of the goods or damages, he must make the claim by counter-claim. For "defense," read "defenses." For illustration, see Form 263. (7) TIME FOR FILING PLEADINGS. 54. The complaint shall be annexed to the summons or capias ad respondendum and returned therewith ; and a copy thereof shall be served with the summons or capias. 55. The answer or counter-claim shall be filed within twenty (20) days after service of the summons and com- plaint. If further pleadings be necessary, they shall be filed within twenty (20) days, each after the other. The answer need not be sworn to. .56. AFFIDAVIT OF MERITS. In actions on contract plaintiff may enter judgment unless the defendant or his agent or attorney shall, within ten days after personal service of complaint, file an affidavit of merits, stating that the affiant believes that the defendant has a just and legal defense to the action on the merits of the case; provided, a notice be endorsed on the complaint and on the 47 RULES. Rule 58 copy served that if defendant intends to make a defense he must file an affidavit of merits within ten days of such serv- ice and an answer within twenty days therefrom ; and that in default thereof judgment will be entered against him. Law- ful service upon a corporation shall be deemed personal serv- ice for the purpose of this rule. On Contract. No affidavit of merits can be required in an ac- tion upon a tort. Within Ten Days. The time may be extended by order of a judge, either before or after, it expires. Rule 3. Personal Service. The affidavit is not required unless the service is personal, except in the case of a corporation defendant. A Notice Be Endorsed. The affidavit is not required unless the notice is endorsed on the original complaint and on the copy served. Service Upon a Corporation. The effect of this Rule is to re- quire an affidavit of merits from a corporation defendant, lawfully served with process and a complaint endorsed as provided in this rule, in every case except a case of tort. IV. SUMMARY JUDGMENT. 57. When an answer is filed in an action brought to re- cover a debt or liquidated demand arising (a) Upon contract express or implied, sealed or not sealed ; or, (b) Upon a judgment for a stated sum; or, (c) Upon a statute; the answer may be struck out and judgment final may be entered upon motion and affidavit as hereinafter provided, unless the defendant by affidavit or other proofs shall show such facts as may be deemed, by the judge hearing the mo- tion, sufficient to entitle him to defend. 5jj^ the Act, Section 15. For illustration of this, and the next Rules, see Forms 296, 297, 284, 285, 286. 58. The motion to strike out shall be made upon affida- vit of the plaintiff or that of any other person cognizant of the facts, verifying the cause of action, and stating the amount claimed and his belief that there is no defense to the action. Rule 59 RULES. 48 59. If it appear that such defense applies only to p:irt of plaintiff's claim, or that any part is admitted, the plaintiff may have final judgement forthwith for so much of his claim as the defense does rot apply to or as is admitted, sub- ject to such terms as may be deemed just. Final Judgment Forthwith. See note to Section 20 of the Act, and note to Form 232. 60. Leave to defend may be given unconditionally, or upon such terms as to giving security, or time or mode of trial, or otherwise, as may be deemed just. V. PRELIMINARY REFERENCES. 61. The Supreme Court may designate for each county one of the Supreme Court Commissioners (and if necessary, more than one), removable at pleasure, who shall have the authority herein given. 62. Within ten days after a cause shall be at issue, either party may take out a summons, substantially in the form in Schedule "B," and serve the same upon the opposite part} or his attorney at least four days before the return day. The summons need not be served upon a party who is in de- fault. The court may, on its own motion, at any time, order the preliminary reference herein provided for. For illustrations of this and the next Rules, see Forms 309, 310. At Issue. This means, of course, at issue on all the pleadings. If a general denial be made to one count of the complaint and new matter stated to the other count, the case would not be at issue until issue is joined by a reply. 63. Upon the return of the summons or at an adjourn- ment of the matter, the commissioner, after hearing the parties or their attorneys (but not their evidence), shall, on the application of any party, make such order as the court might make and as may be just in respect to the following matters, subject to an appeal within five days to a judge of the court in which the action is pending : 49 RULES. Rule 63 Objections to pleadings (other than those provided for in Rules 26 and 38), amendments thereof, and leave for additional pleadings; Settlement of issues ; Bills of particulars; Admissions ; Interrogatories ; Discovery of, and inspection of books, papers or other documents ; Examination of parties before trial; Any other interlocutory matter preliminary to, and in preparation for, trial, but not including postponement of trial. The order of the commissioner shall be deemed the order of the court until reversed. All motions in respect of any of the foregoing matters, whether made before or after issuing the commissioner's summons, may be heard and determined by the commissioner subject to appeal as aforesaid. The commissioner's order shall be as nearly as practic- able in the form stated in Schedule "B." Illustrations of the Rule may be found in Forms 309, 310. Any matter mentioned in this Rule may be the subject of a special mo- tion before the Commissioners' summons is issued. But Not Their Evidence. That is, he is not entitled to in- quire into the evidence farther than the performance of the duties imposed upon him in this rule requires. Objections to Pleadings. Rule 16 requires a motion addressed to a pleading to be made before the answering pleading is filed. But the preliminary reference can be held only after issue is joined. The two provisions may be harmonized by holding that the Com- missioner may hear such objections to the pleadings as he may give leave to make, under the authority conferred upon the Court in the last paragraph of Rule 16, as contained in the words, "unless otherwise ordered by the Court." Rule 63 authorizes the com- missioner to make such order in respect to the matters mentioned in it as the court may make. Settlement of Issues. See Rule 17. Admissions. No admission can be compelled. The design is that the Commissioner, in order to expedite the trial, should en- deavor to ascertain and set down those relevant facts which are undisputed but which are not admitted in the pleadings. Rule 64 RULES. 50 Examination of Parties. If this be ordered, it must be in ac- cordance with Sections 144-146 of the Practice Act (1903). Discovery. See note to Rule 66. Before or After the Issuing of Commissioners' Summons. He may hear objections to pleadings, on two days notice, before the answering pleading is filed. See Rule 64. 64. Prior or subsequent applications or motions in the cause before trial may be made to the commissioners on two days' notice. See notes under Rules 27, 29 and 63. 65. If plaintiff fail to take out and proceed upon the summons as herein directed, when so ordered, he may be- come non-prossed. If defendant fail to appear he shall not appeal from the order except by leave of the commissioner or the court. VI. DISCOVERY OF DOCUMENTS. 66. Any party may, without affidavit, apply for an or- der directing any other party to make discovery on oath of the books, papers or other documents, which are, or have been, in his possession or under his control relating to any matter in question in the cause. The granting of the order shall be discretionary, as to the whole or any part of the discovery a'pplied for. This application may be made to a Commissioner under Rules 63, 64. To Make Discovery. If the order provided for in this Rule be granted, it will direct no more than that the opposite party submit, under oath, a list of documents relevant to the issues. After ex- amining the list, if the applicant desires inspection of the documents themselves, or any of them, he must apply under Sections 142 and 143 of the Practice Act (1903). See paragraph 6 of Form 310, for illustration. VII. DAMAGES. 67. Where damages are to be determined in respect of any continuing cause of action, they shall be determined to the time of the assessment or trial. Continuing Cause of Action. Such, for instance, as a nuisance or an obstruction to a way. 51 RULES. Rule 70 68. ASSESSMENT OF DAMAGES; WRIT OF INQUIRY. The party entering judgment by default, in lieu of tak- ing out a writ of inquiry, may, at his option, give fifteen days' notice that the damages will be assessed by a jury drawn from the general panel ; and upon serving and filing the notice the damages shall be assessed by such jury dur- ing its attendance at the circuit, under the directions of a justice or judge. And all writs of inquiry shall, on appli- cation of either party, be executed under the directions of a justice or judge, or a Supreme Court commissioner to be designated by a judge or justice. At His Option. The damages may still be assessed by a Sher- iff's jury, if the party entitled so elect; but in such case, either party is entitled, if he choose to apply, to have a judge or a Supreme Court Commissioner conduct the trial. VIII. TRIALS; JURY'S FINDINGS. 69. OPENING CASE. At trials, immediately after the plaintiff's opening, and before any evidence taken, defendant's counsel shall open his case to the jury to the extent, at least, of the statement of his answer. See note to Rule 45. 70. The court may request the jury to return answers to written questions embracing the disputed facts in issue and the amount of damages. The questions and answers shall be entered upon the minutes and the court may enter a general verdict. In case of a rule to show cause for a new trial, or an appeal, a statement of the case, including! the questions and answers, shall be prepared and filed and shall have the effect of a special verdict. In considering 1 the case upon review, the court may draw inference of fact. For "inference," read "inferences." If the practice allowed by this Rule be generally and intelli- gently followed, it should, with the help of the provisions of Rules 72 and 73 and Section 27 of the Act, diminish the number of new trials. It is the customary practice in England. See Courts and Procedure, p. 170. Rule 71 RULES. 52 May Enter a General Verdict. In accordance with the answers to the questions. Not only the verdict but also the entry of the questions and answers in the minutes are brought, upon appeal, before the appellate court under Section 26 of the Act. A Statement of the Case. For illustration, see Form 314. The Court May Draw Inferences of Fact. Under the former practice, this power was sometimes given by stipulation in the statement of a special case. 71. The statement of the case shall be prepared by the moving party and served on the adverse party. Objections thereto (if any) must be made within five days from ser- vice, and in that event the statement of the case shall be settled by the trial judge. See Rule Si. IX. NEW TRIAL AS TO PART. 72. In case a new trial is granted it shall only be a new trial of the question or questions with respect to which the verdict or decision is found to be wrong, if separable. This Rule is taken from the report of a committee of the Ameri- can Bar Association. See Report Am. Bar Ass'n. (1910), p. 645. A similar provision is in Section 27 of the Connecticut Practice Act. 73. NEW TRIAL AS TO DAMAGES ONLY. When a new trial is ordered because the damages are excessive or inadequate, and for no other reason, the ver- dict shall be set aside only in respect of damages, and shall good in all other respects. X. FINDINGS OF FACT BY COURT. 74. In trials without a jury, a finding of the facts in is- sue, signed by the trial judge, shall be filed and entered on the record. In actions in the Supreme Court the findings shall be included in the postea. Upon request of any party, the rulings of the court upon any point of law involved in the decision or judgment shall be stated in the findings. For illustration, see Form 312. 53 RULES. Rule 78 75. A general finding in favor of the plaintiff or de- fendant, respectively is deemed to be a finding in his favor of all the material allegations put in issue. Where only part of the material allegations put in issue are found for the prevailing party, the finding must indn cate the particular facts that are found. XL JUDGMENT. 76. In actions in the Supreme Court, the postea may be filed immediately after relicta given or verdict obtained and judgment shall be entered forthwith. But the trial judge of the court, or any justice thereof, may stay execu- tion pending an application for a new trial. Trial Judge of the Court. Read "or" instead of "of." XII. APPEALS. 77. TIME OF NOTICE. Appeals shall be taken by notice, which shall be served on the adverse party and filed within the time limited for bringing writs of error, and at least thirty days before the appeal is argued. * The notice shall be entitled in the court from which, and shall state the court to which, the appeal is taken, and shall be filed with the clerk of the former Court, who shall forth- with transmit to the appellate Court a transcript of every- thing required to be removed under section 26, of the Prac- tice Act (1912) together with a certified copy of the notice of appeal. The paragraph of this Rule beginning with the asterisk was added by an amendment to the Rules made by the Supreme Court in September, 1912. See the Act, Sections 25, 26. See Form 313. 78. No SEVERANCE. No severance of parties is necessary, but any party en- titled, but refusing to join in the appeal, shall be served with notice of v appeal. Rule 79 RULES. 54 79. GROUNDS OF APPEAL. The notice of appeal shall state the part of the judg- ment appealed from, if less than the whole, and (in lieu of an assignment of errors) may state the grounds of appeal. No petition of appeal shall be used. The grounds of appeal (if not stated in said notice) shall be served and filed with- in thirty days after filing notice of appeal. It is probable that the court will not reverse for an error not objected to when made and stated as a ground of appeal. State vs. Lyon, 70 N. J. L. 735, 739. State vs. Hummer, 73 N. J. L. 714; State vs. Herron, 77 N. J. L. 523. See note to Sects. 25, 27. 80. CROSS-APPEAL. Any respondent may appeal from the judgment by giving notice of cross-appeal, which shall be governed by the rules applying to notice of appeals, except that it shall be served on the adverse party and filed not more than fifteen days after service of the notice of appeal. 81. STATEMENT OF THE CASE. The rules Of court respecting the preparation and ser- vice of the statement of the case upon writs of error shall apply to appeals. The statement of the case shall include the notice of appeal, the record of the case, and so much of the evidence taken and documents filed in the cause as shall be necessary to present the questions raised upon the appeal. See Rule 71, and sec. 26 of the Act. The Rules of Court. This refers to Rule 26 of the Supreme Court, and Rules 19 and 193 of the Court of Errors. The Statement of the Case Shall Include. For illustration, see Form 314. 82. SECURITY ON APPEAL. The service and filing of a notice of appeal shall stay execution on the judgment appealed from, but only upon giving security in the manner and for the purposes pre- scribed in the "Act respecting writs of error," Revision, approved March twenty-seventh, one thousand eight hun- dred and seventy-four, and the acts amendatory thereof and supplementary thereto. 55 RULES. Rule 83 83. Granting to a party a rule to show cause why a new trial shall not be granted, shall be a bar against him to tak- ing or prosecuting an appeal, except on points expressly reserved in said rule. A rule to show cause why a new trial should not be granted may, in the discretion of the court, be special, and then the question shall be heard and de- cided on the grounds upon which the rule was allowed. This is substituted for Section 214 of the Practice Act (1903) which is repealed. See cases cited under that Section in Mott's Practice Act. 56 PART IV. NOTE ON PLEADING. I. Common Law Rules of Pleading, which are Still in Force. The main objects of the new rules of pleading are to sift the disputed, issuable facts relevant to the issue from those which are admitted, and to apprize each party of those is- suable facts, which his opponent expects to prove ; or, stated in brief, to prevent surprise by compelling a disclosure of all disputed, issuable facts, which the parties intend to prove.* The main object of the common law system of pleading was to produce a single issue upon which the case could be finally disposed of. This is no longer an object under the new rules. They do, indeed, require that a single cause of action be stated in each count, and a single defense in each statement of defense. But the issues upon each count, or in each statement of defense, may be as numerous as the material facts which are stated in it. For the denial of any material fact makes an issue. (Rule 22). Great care was necessary also in common law pleading to observe a number of rules designed to secure precision (cer- tainty) of statement, and these were often highly technical. An examination of the new rules, as illustrated in the forms attached to them, will show that the common law rules designed to secure certainty are much modified. Thus, Rule 17 requires that "All pleadings must contain a plain state- ment of the facts." Turning to the forms (Nos. 4 to 20 in Schedule B) for illustration, we find that the degree of plain- ness or certainty that is required is only that of reasonable precision in the statement of facts enough to enable the * For the meaning of the terms "issuable" and "probative," see note to Rule 17. 57 COMMON LAW RULES. Note on Pleading court to see clearly what facts constitute the cause of action and the defense. Many material allegations are made in those forms without stating- time or place, whereas such an omission at common law would have been an objectionable defect. A like departure occurs from the common law rule that quality, quantity and value must be stated, in actions relating to property. The forms stated in Schedule B, in many cases, omit all reference to these attributes, though they are stated whenever they are material to the controversy, or contribute to clearness of statement. But many of the common law rules are still in force and an attempt is made here to state those which are set out in Stephen's Pleadings and which are not superseded by the new rules. The references are made, for the most part to that book, but the same rules are succintly stated, in con- venient form for the student and practitioner, in Martin's "Common Law Procedure," Sections 304-353. It is prob- able that these rules will be enforced with less rigor than in the former practice. 1. A traverse (denial) must not be too large and must not be taken upon an immaterial point. Stephen's PI. 241, 246. That is, denial should not be made of immaterial state- ments. Such a denial does not make an issue (Rule 22). Immaterial facts need not be noticed in the answering plead- ing, for only material facts are admitted if not*answerecl. Rule 20. And the traverse must not be too narrow ; as when it fails to answer .fully the whole substance of the statement. But this common law rule is superseded by Rule 32, which ex- pressly prohibits, that sort of pleading. 2. The common law rule that pleadings must not be double, (Steph. PI. 251) as modified and used in our former practice, is superseded or reaffirmed by Rules 36 and 39 re- quiring each cause of action and each defense to be separately stated. The rule against duplicity was not violated by distinct answers (in one plea) applicable to such parts of the declara- Note on Pleading COMMON LAW RULES. 58 tion as relate to different matters of claim in one count. Steph. PI. 256. Nor by distinct answers (in one plea) to different parts of the declaration relating to different matters of claim; though it would be violated if the several answers purported to be to the declaration as a whole, or if any one of them was a complete answer to the whole declaration. Id. A plea was double if it traversed and also confessed and avoided. Steph. PI. 258. But according to form 17 in Schedule B, the general denial with matter by way of con- fession and avoidance may be included in one "Defense." Immaterial matter could not make a pleading double, be- cause no issue could be taken on it. Steph. PI. 259. Nor matter pleaded by way of introduction or explana- tion (inducement). Id. 262. Nor distinct matters which together constitute one con- nected proposition or entire point. Id. Thus, to an action for assault and imprisonment the plea could state any num- ber of circumstances showing probable cause, though any one of them might suffice to justify the arrest. Id. Although it was duplicity to make one denial of two or morf distinct and material averments in the opponent's plead- ing, it was not duplicity to deny several averments which together formed a single point or proposition. Id. 263. 3. Pleadings must specify the names of parties. Id. 301. This rule has not been relaxed, except in the circumstances stated in Section 27 of the Practice Act (1903). A viola- tion of the rule was ground for plea in abatement and is now objectionable under Rule 38. 4. Pleadings must show title. Steph. PI. 304. That is, when property or damage to property is in question, the pleader must show by what right he claims the property or damages. And if he seeks to charge defendant with liability in respect to property, he must also show the defendant's right or title to it. This rule, however, was, one of those designed to compel certainty; and, like the rule requiring averments of time, place, quantity, etc., it will probably be enforced in the new system of pleading only in so far as 59 COMMON LAW RULES. Note on Pleading may be necessary to a reasonable degree of precision in the statements of the pleadings. When plaintiff is in possession and the right of possession has been violated, it is sufficient, as against a wrong-doer, to allege the fact of possession, thus : "The plaintiff was law- fully possessed of" the goods or lands ; or some equal equiv- alent phrase. Title to an easement should be alleged by alleging posses- sion of the property to which the easement is attached. If the pleader be out of possession but is either the owner or has the right of immediate possession, he may state his title by the allegation that, "He is the owner of the goods," or, "He is seized in fee of the land" or by any equivalent phrase. (See Forms 178, 168). But if the pleadings show that the fee has been in another, the pleader, in alleging title, must show how it was derived from the other ; namely, whether by lease, conveyance, or the like. But if the pleader has only a particular estate, for life or for years, or if his estate in fee is in reversion or remain- der, he must state his title according to the facts. In such cases, the pleader should set out : 1 i ) The quantity of the estate or period of enjoyment : as, for so many years, or for life, or in fee subject to a particular estate. (2) The number and names of the owners. (3) The commencement, or creation, and the devolu- tion of the estate : as, by will, by deed, or by lease, stating dates and names. (See Forms i68a, i68b). But no title need be stated when -the opposite party is estopped from denying it. Thus, in an action by a land- lord against his tenant, the plaintiff need not state his title. But if the action be by the executor, or heir, or assignee of the landlord, the lessor's title must be stated in order to show that it was such as would legally pass to the plaintiff. Pleading authority or title in another. Steph. PI. 329. This should be done in like manner as in stating title in the pleader; and the pleader's authority must also be stated. In justifying under a writ or any other authority, the pleader must state it and show that he has substantially pur- Note on Pleading COMMON LAW RULES. GO sued it. Under judicial process it is not necessary to state the cause of action. A writ of execution may be pleaded by the officer executing it without stating the judgment; but the judgment and the writ must both be stated as authoriy by a pary to the suit or a stranger (Steph. PI. 331). In justifying under a judgment and process of a foreign court, its jurisdiction should be stated and also that the cause of action was within it. Steph. PI. 332. But the jurisdiction of the Supreme Court of a sister state is ju- dicially noticed. See note to Form 228. 5. It is not necessary to state facts of which the court takes judicial notice. Steplh. PI. 346. 6. Or matter which should come from the other side. An exception to this rule is when the matter is essential to the prima facie case of the pleader, or when the matter pleaded is by way of estoppel. Id. 353. 7. Or circumstances necessarily implied. If the pleader states that he is heir to A, the death of A need not be stated. Id. 8. Or facts which the law will presume. Id. 354. 9. No greater particularity is required than the nature of the thing will conveniently permit. Id. 367. 10. Less particularity is required when the facts lie more in the knowledge of the opposite party. Id. 370. 11. Acts valid at common law, but regulated by statute as to the mode of performance may be pleaded as before the statute. Steph. PI. 373. The plaintiff need not state that the contract he sues on is in writing, though, under the general issue (or denial) he must prove that fact at the trial, Adams vs. Grady, 77 N. J. L. 301. The opposing party may (and if he has not pleaded the general denial, must) state that it was not in writing. But if the defense is founded on a contract which the statute of frauds requires to be in writing, it is said that it must be so stated in the plea. Steph. PI. 376. 12. Of two different meanings, that shall be adopted which is least favorable to the pleader. 61 COMMON I.A\\ RULES. Note on Pleading 13. Pleadings must not be argumentative, nor by way of recital. That is, they must state facts in a positive form and not leave them to be inferred from statements of other facts. Argumentative admissions and denials are prohibited by Rule 33, but the common law rule prohibits that form of pleading in averments as well as in admissions and denials. Steph. PI. 384, 388. 14. There must be no departure in pleading. That is, the pleader must not shift his ground from that which he took in his previous pleading. Steph. PI. 410. 15. If a statute on contract contain a general clause and afterivards a separate and distinct clause in the nature of an exception, the pleader may state the general clause without- noticing the other. But if the exception be incorporated in the general clause, the pleader must state both clauses and show that his opponent is not within the exception. I Chit. PL 223. And when the exception is made part of the general clause by a reference, it must be noticed and negatived. Martin on Com. Law Proc., Sec. 353. And so if the law raises an exception to a general right. it need not be stated in pleading, i Chit. PI. 224. The defense of the statute of limitations could not be raised by demurrer. Otherwise, the plaintiff would be de- prived of the opportunity to show that his case was within one of the exceptions mentioned in the statute. 3 Chit. PI. 939 note (f) ; 25 Cyc. 1396. Special damages. The circumstances showing special damages must be stated. For illustration, see Forms in in- dex under "Special Damages. 5 ' Reference may be conveniently made here to the two rules of pleading stated in the Practice Act (1903), namely, that conditions precedent must be alleged generally by the pleader (Section 118) ; and that, in actions upon bonds, the plain- tiff must state the condition and assign the breaches of which he complains (Section 107). Note on Pleading HOW TO ANSWER. 62 II. How to Answer. Conciseness is expressly required by Rule 17 in all plead- ings. Get rid of the habit of using two or three words when one is enough. Say "paid" instead of "paid and satisfied"; "executed his bond" instead of "signed, sealed and delivered his bond" ; "situate" instead of "situate, lying and being." Make a preliminary draft of your pleading and then go over it striking out all the words that add nothing to the meaning. You will probably be surprised at the number of them. It is probable that little difficulty will be experienced in drawing complaints. Practitioners have been accustomed to state "the facts constituting the cause of action" in drawing special counts of declarations. Those facts must be stated in the complaint plainly and concisely, properly divided into paragraphs (Rule 17), must contain no untrue allegations made without reasonable cause (Rule 19), and, when stated according to their legal effect, they must be so stated as fairly to apprize the defendant of the facts intended to be proved (Rule 21), and must otherwise conform to the rules of pleading. ( See infra, the points to be observed in answer- ing, p. 65.) The preparation of the answer, while requiring more care because of the danger of making unintended admissions, should not be more difficult. The following suggestions may be of aid to the pleader. The title. The rules and forms are silent as to whether the names of all the parties should be stated in the title of the answer. But as this is not expressly required and is not of apparent use, the fair inference seems to be that it is not necessary. A statement of the venue in the answer is required in ac- tions in the Supreme Court (See Schedule B, Form 14). The answer must (1) Object that the complaint discloses no cause or ac- tion ; or, (2) Either with or without such an objection, deny the whole or an essential part of the statements in the complaint, that is, traverse it; or, 63 HOW TO ANSWER. Note on Pleading (3) Admit those statements and state other facts which constitute a defense ; that is, plead by way of confession and avoidance. (1) Objection that the complaint discloses no cause of action. The answer may contain this and nothing else, though nothing can be gained and much may be lost by such, pleading. In such case, all the material allegations of the complaint will be admitted and the fate of the case will be staked upon the decision on this objection. For it is prob- able that the court, in such case, would seldom permit de- fendant, after an adverse decision, to amend his answer by setting up a defense on the facts. An object of the rules is to prevent such delay. If the answer contain denials, or a defense upon the facts, the objection that the complaint discloses no cause of ac- tion should be stated as a separate defense, and this is true of any objection in point of law (See form 186). (2) Traverse. If the defense consists in denial, the ob- jection for failure to state a cause of action may also be used (Rule 26), being stated as a separate defense (Rule 39)- In traversing, every allegation which you wish to compel plaintiff to prove must be denied, or the answer must state that defendant has no knowledge or information thereof sufficient to form a belief, else it will be deemed to be ad- mitted (Rule 20). The general denial may be used, either as a separate de- fense or included in the same defense (but in a separate para- graph), along with special matter, stated in other para- graphs, in confession and avoidance (see Schedule B, Form 17). But the general denial should not be used when the real defense is upon some other point. See note under Rule 40. Of course, a denial (or a denial of knowledge, etc.) of any one allegation of the complaint which is essential to the plaintiff's case will suffice as a defense, if plaintiff fail to prove the allegation so denied. But the general denial alone will seldom be a safe answer. It will be better to accompany it with statements showing Note on Pleading HOW TO ANSWER. 64 the real point of the intended defense; for a main purpose of the rules is to prevent surprise. If there is no intent to surprise the plaintiff there can be no good reason for omit- ting a statement showing the precise point of defense; if there is such an intent, the court ought not to permit it to become effective. (See Note to Rule 40). For illustra- tion see .Form 232. Allegations made by way of contradiction or explanation of statements in the complaint need not be stated as a sep- arate defense under Rule 39. It is only new matter, by way of confession and avoidance, which must be so stated. Il- lustrations may be found in Form How much to admit and how much to deny is a matter to be determined by the pleader's judgment, aided by his experience. To deny statements which he knows can be proved is amateurish and crude. It also raises a suspicion that all the denials may be false. Moreover, such pleading involves the pleader in the risk of being charged with the cost of proving the statements unreasonably denied. (Rule 19). But do not admit a material statement unless you know it to be true. (3) Confession and avoidance. Defenses of this kind must be separately stated in accordance with Rule 39. They may be inconsistent (Rule 24). They do not relieve plain- tiff from proof of statements which are denied in other de- fenses of the answer. Shallcross vs. West Jersey, etc., 75 N. J. L. 395 ; Livesey vs. Besson, 82 At. 509. In drafting an answer involving the statement of com- plicated facts, a convenient method may be to consider the complaint as if it were a bill in equity; then make a pre- liminary draft of the answer as if it were an answer to such a bill, taking care to make no inadvertent admission, either by words or by silence. When this is finished, condense and separate the several denials, allegations and defenses, in a second draft, in accordance with these requirements of the rules : See that the answer (i) Is "Plain and concise." 65 ELECTION OF ACTIONS. Note on Pleading (2) States only the facts (issuable facts) on which you rely. (3) Does not state evidence (probative facts). (4) Is properly divided into paragraphs and separate defenses. Rules 17, 25, 39. (5) Contains no untrue allegations or denials made without reasonable cause. Rule 19. (6) Does not admit, by words or silence, any statement of the complaint which may not be true. Rule 20. (7) Denies or admits the substance of the statements in the complaint and is direct, precise and otherwise con- formable to Rules 32 and 33. (8) In pleading according to legal effect, fairly apprizes the plaintiff of the facts intended to be proved (Rule 21), and states specially any defense which, if not stated, would be likely to cause surprise or raise issues not arising out of the complaint. Rule 40. III. Election of Actions. The doctrine of election between actions ex delicto and ex contractu is probably not abolished by the new system of pleading; for although there is only one form of action, it must, of necessity, be founded upon either the violation of a contract or upon the violation of a duty not arising out of contract, i. e., upon a tort. (But see Connecticut cases cited under Rule 36.) Reasons for making such an election may arise in the following cases: If defendant was an infant when the cause of action arose, he may in certain circumstances be liable upon the ground of tort though he could successfully plead his infancy to an action upon the contract : If defendant has wrongfully sold plaintiff's property for more than its value, plaintiff may recover the full proceeds of sale in an action on contract for money had and received, though he could recover the value only if he sued upon the tort : If the suit be on contract, no execution can issue against the body, except for fraud ; but such an execution may issue Note on Pleading ELECTION OF ACTIONS. 66 as, of course, in an action for a tort. Kintzel vs. Olsen, 73 Atl. 962: If the defendant be insolvent, plaintiff may prefer to replevy the goods rather than sue for their value or for the proceeds of sale, as upon contract. The right of election arises most frequently in the fol- lowing classes of actions : 1. The wrongful taking or conversion of personal prop- erty, including theft or embezzlement of money : 2. The wrongful appropriation of income from lands. 3. Sale of goods on credit, procured by fraud : 4. Frauds and deceits generally, by which personal prop- erty is obtained : 5. Cases in which there is a contract, express or implied, and also a general duty imposed by law independent of the contract. This duty is imposed upon carriers, innkeepers, men engaged in professions and skilled mechanics. Pom- eroy on Code Remedies, Sections no, 569, et seq; Bliss on Code Pleadings, Sec. n, et seq. And see cases in N. J. Digest, title, "Election of Actions." When the plaintiff makes an election in any case in which he is entitled to such an option, the complaint should be so drawn as to show whether he relies upon the contract or upon the tort. Thus, in cases of wrongful taking or con- version, when the plaintiff elects to sue upon the contract implied in law, the complaint may be for money had and received, if the property has been sold by the defendant; and the plaintiff, in such case, will be entitled to recover the actual proceeds of sale. (See Form 23). But if the prop- erty be still in possession of defendant, the action under the old practice could have been for goods sold by plaintiff to defendant (Hirsch vs. Leatherbee Lumber Co., 69 N. J. L. 509), and that is still the practice in some states in which the code is used. Bliss, Code Pleadings, Sec. 155. But the obejction to such a form of complaint is that it states, not the facts, but the fiction, on which the pleader relies (Rule 17). 67 ELECTION OF ACTIONS. Note on Pleading The better method would be for the pleader to state the facts truthfully and then "directly state his choice" (Code Pleading, sec. 155), by a statement such as this: "Upon the above stated facts, plaintiff elects to charge defendant with liability upon contract" (or, "upon tort"). In some states it is said that where the statements in the complaint will entitle the party to elect between two reme- dies, the "prayer" (or demand for relief) may determine the character of the action. Ibid. Carry vs. Gaynor, 21 Ohio St. 277; Gillett vs. Treganza, 13 Wis. 472. Although the forms in this book are not drawn to illus- trate the subject of election of actions, yet some of them may aid the pleader in indicating such an election. Thus, Form 86 against a carrier for loss of goods is upon con-* tract. Form 88 might be considered to go either on con- tract or upon tort, that is, it does not clearly indicate an election. Forms 123 and 126, against a bailee for misuse of a horse, are founded on the tort, for a violation of the bailee's duty. It is safer, however, in using such forms to add a paragraph expressly indicating plaintiff's choice. In Connecticut it was held that plaintiff could not be re- quired to elect between contract and tort when one count stated a cause of action for failure to accept and pay for certain machines, which defendant had ordered, and also stated, in the same count, a cause of action in tort for re- fusing to allow plaintiff to remove them. Craft Refriger- ating Co. vs. Quinnipiac Co., 63 Conn. 561. In such case, perhaps, the plaintiff should claim in the al- ternative, as in Form 81. See Rule 37. 68 PART V. SEVERAL ACTS RESPECTING PRACTICE. TRANSFER OF CAUSES ACT. An Act to provide for the transfer of causes by and between the Court of Chancery and the Supreme Court, or Cir- cuit Courts, or Courts of Common Pleas. BE IT ENACTED by the Senate and General Assembly of the State of New Jersey: 1. No civil cause or matter, hereafter pending in any court mentioned in the above title, which has not juris- diction of the subject matter, shall be dismissed for that cause only, but the cause or matter shall be transferred with the record thereof and all papers filed in the cause, for hear- ing and determination to the proper court, which shall there- upon proceed therein, as if the cause or matter had been originally commenced in that court. The record shall, when necessary, include a transcript of all entries and proceedings in the cause. 2. Such transfer may be made at any stage of the pro- ceedings and upon, or without, application, and subject to rules, or the special orders, of court. 3. Rules for such transfers from the Court of Chancery shall be made by that court; rules for such transfers from the other courts shall be made by the Supreme Court. 4. This act may be referred to as "The Transfer of Causes Act (1912)." Approved March 28, 1912. Chapt. 238. 69 ACTS RESPECTING PRACTICE. AMENDMENT TO EJECTMENT ACT. An Act to amend, and to repeal, certain parts of an act en- titled "An act concerning the action of ejectment" (Re- vision March twenty-seventh, one thousand eight hun- dred and seventy- four). BE IT ENACTED by the Senate and General Assembly of the State of New Jersey: 1. Section six of the act to which this is an amendment be, and the same is, hereby amended to read as follows : 6. The summons shall be tested on the day it is issued, and shall be in like form as other writs of summons, and shall be served in the same manner as the writ of summons in any other action; and if such service can not be made,', then the summons shall be served in such manner as the court, or a judge thereof* shall direct. 2. Sections five, ten and twelve of the act of which this is an amendment, be and the same are hereby repealed. Approved March 28, 1912. Chapt. 263. AMENDMENT TO THE PRACTICE ACT (1903). An Act to amend an act entitled "An act to regulate the practice of courts of law (Revision of 1903)," approved April fourteenth, one thousand nine hundred and three. BE IT ENACTED by the Senate and General Assembly of the State of New Jersey: 1. The following sections of an act entitled "An act to regulate the practice of courts of law (Revision of 1903)," approved April fourteenth, one thousand nine hundred and three, be and the same are amended as follows : 2. Section fifty is amended to read as follows: 50. The sheriff or officer to whom any process is di- rected or delivered for service shall return the same at the time and place therein mentioned, or, if no time or place be mentioned, he shall forthwith serve and return the same. In default of so doing, he may be amerced by the court in any sum not exceeding the plaintiff's debt or demand, to ACTS RESPECTING PRACTICE. 70 and for the use of the plaintiff. The return of the officer serving any process may, in the same action, be shown to be untrue by either of the parties. 3. Section fifty-two is amended to read as follows : 52. The first process in personal actions in cases where the plaintiff is not entitled to bail shall be a summons, a copy whereof shall be served on the defendant in person, or left at his usual place of abode. Said service shall be made forthwith after the process is delivered to the sheriff or other officer for service. If the defendant be a corpora- tion, the summons shall be served as provided in the act entitled "An act concerning corporations (Revision of 1896)," except that the service shall be made in such case forthwith after delivery of the summons to the sheriff. If the defendant be the board of chosen freeholders of any county or municipal corporation,* or a township, the sum- mons shall be -served on the clerk or presiding officer of said board, or on the clerk of the municipality or township, or on the mayor or presiding officer of the governing body forthwith after it is delivered to the sheriff or other officer for service. And when the sheriff or other officer shall re- turn the same "served," the party shall be considered as in court, and be proceeded against accordingly; provided, if the defendant be the board of chosen freeholders of a coun- ty or a municipal corporation or a township, the sheriff or other officer shall in his return state on whom the summons was served. 4. Section one hundred and seventy-one is amended to read as follows : 171. The record of judgments shall be signed by a judge (or the clerk) of the court as of the day on which such judgments were entered, and judgments signed by a judge in office, though not in office at the time of entering such judgments, shall be as good and effectual in law, as if such judgments had been signed by a judge who was in office at the time of rendering and recording the same. Approved March 28, 1912. Chapt. 264. 71 AMENDMENT TO THE MECHANIC'S LIEN ACT. An Act to further amend an act entitled "An act to secure to mechanics and others payment for their labor and ma- terials in erecting and building" (Revision of 1898). BE IT ENACTED by the Senate and General Assembly of the State of New Jersey: t i. Section twenty-three of the act of which this act is an amendment, as the said section was amended by chapter 135 of the laws of 1910, be and the same is hereby further amended to read as follows : 23. When a claim is filed agreeably to the provisions of this act upon any lien created thereby, the same may be enforced by a suit in the Circuit Court of the county where such building is situated, or in any district court of the county (provided the claim does not exceed five hun- dred dollars in amount) where such building is situated, and when the suit is brought in a district court the practice shall be as nearly as possible the same as now provided, or may hereafter be provided, by law, in district courts in ac- tions on contract ; which suits shall be commenced by sum- mons against the builder and the owner of the land and building, and every person holding a mortgage of record against the property affected by said claim, whose mortgage would be cut off by sale under said claim, in the following or like form : The State of New Jersey To (state the names of the de- fendants). You, A. B. builder, and C. D., owner (or if the owner contracted the debt, A. B., builder and owner), and E. F., mortgagee (if there be a mortgage or mortgages), are summoned to answer the annexed complaint of G. H. (the claimant) in an action at law, in the Circuit Court (or District Court of the city of or, of the district of . . . . , as the case may be) in and for the county of , in which said G. H. claims a building lien on certain buildings and lands of said C. D. described in said complaint, and upon which said E. F. holds a mortgage of record. And take notice, that unless you file your answer to said complaint with the clerk of said court at , within twenty days Amendment MECHANIC'S LIEN ACT. 72 after service upon you of this writ and the annexed com- plaint, the plaintiff may proceed in the suit and judgment may be entered against you. And the said summons, with the complaint annexed, shall be directed and tested, and may be served and returned in the same manner as other writs of summons in the court from which issued; and said summons and complaint may be served upon the defendants, or either of them, in any county of this State, by the sheriff thereof if brought in the Circuit Court, or by a constable or sergeant-at-arms if the suit is brought in any district court of any county, and for this purpose the same, or a duplicate thereof, .may be is- sued to such sheriff, or constable, or sergeant-at-arms, as the case may be; and if any defendant can not be found in this State, the summons and complaint may be served upon him by affixing, a copy thereof upon said buildings, and also by serving a copy of said defendant personally or by leaving a copy of the same at his residence, which shall be deemed actual service, or in case said defendant resides out of this State, by affixing a copy on said building and send- ing a copy by mail, directed to him at the post-office address nearest his residence; or in case his residence is not known to the plaintiff, then by affixing a copy to said building and by inserting a notice thereof (to be prescribed by order of the court) for four weeks, once in each week, in some news- paper of this State published or circulating in the county where such building is situated, either of which shall be legal service; and when an affidavit shall be made and filed of the facts authorizing and constituting any such service not made by a sheriff or officer, the suit may pro- ceed against the parties so served as if such summons had been returned by the sheriff or other officer. Approved March 28, 1912. Chapt. 265. 73 MARRIED WOMEN'S ACT (1912). An Act respecting actions by or against married women. BE IT ENACTED by the Senate and General Assembly of the State of New Jersey: t i. A married woman may sue, or be sued, without join- ing her husband, in any case whatsoever in which he would be an unnecessary party if he were not her husband. Approved March 28, 1912. Chapt. 232. 74 PART VI, , FORMS i. List of Forms in Schedule B, with Correspond- ing Numbers of the Forms in this Book. Number in Sched. This B. Book. Writ of summons I i Writ of replevin 2 3 Commencement of complaint 3 4 Complaint on book account 4 18 another form of the same 5 19 on a note or other written instrument for payment of money 6 32 another form for the same against maker and endorser 7 33 for money lent 8 20 to recover salary 9 97 for rent 10 98 by purchaser of a business against a seller, for damages.... n 99 plaintiffs in alternative : action against common carrier for loss of goods 12 86 defendants in alternative : action on a con- tract of sale 13 59 Commencement of answer, and of counter-claim.... 14 183,266 Answer and counter-claim 15 187 general denial 16 188 general denial with new matter 17 189 several defenses 18 190 Reply general denial 19 271 partial denial 20 272 duress 21 273 Postea 22 280 Judgment for plaintiff 23 288 for defendant 24 289 of non-suit 25 291 for plaintiff on one count, and for de- fendant on another, and for a set-off, after trial by the court 26 290 (NOTE: There is no Form No.. 27 in Schedule B.) Judgment record 28 287 Affidavit for summary judgment 29 285 Order for summary judgment 30 284 75 LIST OF FORMS IN SCHEDULE B. Number in Sched. This B. Book. Order for leave to defend on terms 31 286 Preliminary reference commissioner's summons 32 309 commissioner's order 33 310 Judgment without pleadings 34 311 Findings of the court 35 312 Statement of the case on appeal 36 315 Appeal 37 3*3 76 2. A List of the Titles of all Forms in this Book, with Their Numbers. Number of Form 1 Writ of summons. 2 on mechanic's liens. 3 of replevin. 4 Commencement and conclusion of complaints. 5 Title of complaint on mechanic's lien. 6 Conclusion of complaint. 7 by executor or administrator. 8 against an executor for separate claims against him, as such, and against him personally, when the personal claim arose with reference to the estate (Rule 14 (c) ). 9 by husband and wife for injuries to wife where husband claims damages in his own right. 10 by plaintiffs having separate claims; or when joint claims are joined with separate claims. 11 against several defendants on separate claims. 12 Title and conclusion of complaint by an infant. 13 by an informer, in an action qui tarn. 14 Averment of grant of letters testamentary or of administration. 15 Averment of incorporation. 16 Averment of conditions precedent. 17 Prayer for writ of mandamus. Complaints. 18 On a book account. 19 Another form of the same. 20 For money lent. 21 For money paid at the request of another. 22 For money paid by mistake. 23 For money received for plaintiff's use. 24 For money paid to defendant's use. 25 For services, quantum meruit. 26 for commissions of broker. 27 in compiling and editing a book. 28 by an architect. 29 for tuition. 30 for carpenter work. 31 advertising. 32 on a note or other written instrument for the payment of money. 33 Another form for the same, against maker and endorser. 34 By maker of accommodation note against p-erson accommodated. 77 TITLES OF ALL FORMS. Number of Form 35 Averment of excuse for non-presentment of note. 36 Averment of waiver of notice of non-payment of note. 37 The same, where demand and notice were both waived. 38 On a note ; by a surviving payee and the administrator of a deceased payee. 39 On a joint note, against one of the makers and against the executor of the other. 40 Against an executor upon separate notes ; one made by tes- tator, and the other by the executor, for the benefit of the estate. 41 On a bill of exchange ; drawer against acceptor. 42 payee against acceptor. 43 first endorsee against acceptor. 44 subsequent endorsee against acceptor. 45 directed by drawer to himself and ac- cepted by him. 46 payee against drawer for non-acceptance. 47 first endorsee against first endorser. 48 endorsee against drawer, acceptor and endorser. 49 On a bank check : payee against drawer. 50 endorsee against drawer and endorser. 51 against a bank on a certified check. 52 On a bond conditioned to pay money. 53 other than for the payment of money. 54 another form, not annexing a copy of the bond. 55 for the fidelity of a clerk. 56 arbitration bond. 57 For deficiency upon sale of land, on foreclosure of mortgage. 58 On a foreign judgment. 59 Defendants in alternative : action on a contract of sale of stock. 60 Sale : for the price of goods delivered to a third party at de- fendant's request. 61 for not delivering goods sold. 62 by vendee of chattels on failure of title. 63 on warranty of a horse : special damages. 64 for goods made to order, by sample, and not accepted. 65 On covenant of warranty in a conveyance. 66 of seizin. 67 against encumbrances. 68 for quiet enjoyment; against landlord: special damages. 69 against tenant for not keeping premises in repair. 70 Against executor of lessee for rent due before his death. 71 landlord for breach of covenant to keep premises in repair : special damages. 72 On contract to convey land. TITLES OF ALL FORMS. 78 Number of Form 73 On contract to purchase land. 74 For use and occupation. 75 For services of an attorney on an implied contract to pay. 76 Against an attorney for not collecting a note. 77 for neglecting to file an answer. 78 negligence in examining title. 79 for money collected. 80 Against an agent for selling contrary to orders. 81 Against del credere agent on his 'liability as such, and, in the alternative, for neglect. 82 Against sureties for payment of rent. 83 Against principal and sureties on contract for services. 84 On an agreement to answer for the price of goods sold to a third person. 85 By surety (on a lease) against his principal. 86 Plaintiffs in alternative : action against common carrier for loss of goods. 87 Against a carrier for not delivering in a reasonable time. 88 for loss of baggage. 89 for losing goods. 90 Against an inn keeper for loss of goods. 91 On a warehouse receipt : by endorsee thereof. 92 On a fire insurance policy. 93 On a life insurance policy: by executor. 04 Against a builder for defective work. 95 for not completing his work: special dam- age for loss of rent. 96 By a builder, on a written contract modified by parol with claim for extra work. 97 For salary. 98 For rent. 99 By purchaser of a business against a seller for breach of covenant not to compete. 100 Against a note broker for proceeds of note discounted. 101 Against an auctioneer for not accounting. 102 On an award. 103 Quantum ineruit for the hire of a piano, with damages for converting it. 104 On special contract for hire of furniture, with damages for injury to it. 105 For breach of promise of marriage. 106 For demurrage, and damages in the nature of demurrage. 107 On a guarantee of a precedent debt. 108 On a promise made to a third person to pay money to plaintiff; making the former a defendant. 109 By an advertising agent for services and disbursements, no By employee for wrongful dismissal from service. 79 TITLES OF ALL FORMS. Number of Form in For board and lodging. 112 For contribution. 113 Against a husband for necessaries supplied to his wife with- out his request. 114 Mechanic's lien: against owner: no contract being filed, or when the work or materials are not covered by the contract : prices agreed on. 115 the same, when there was no express promise, or when the prices were not agreed on. 116 when a mortgagee is made a party defendant. 117 against builder (contractor) and owner: con- tract not filed. 118 by contractor against owner. 119 against owner, on a stop-notice. 120 on stop-notice, where owner has paid con- tractor in advance of the terms of the con- tract. 121 Cross-complaint between co-defendants on an agreement to in- demnify. 122 against bailee for misuse of property lent. 123 Negligence : against bailee without reward. 124 against bailee for injury to goods hired. 125 against bailee carrying goods for hire. 126 for driving a horse immoderately. 127 against a railroad company for personal injuries, special damages. 128 against a physician for unskillful treatment: special damages. 129 against a suregon for an unskillful operation : special damages. 130 against a watch-maker. 131 accident caused by obstructing street. 132 defendant's servant allowed a weight to fall on plaintiff. 133 against warehousemen for loss of goods. 134 against warehouseman for injury to goods. 135 against a wharfinger. 136 death caused by electric wire. 137 accident at railroad crossing. 138 trolley accident. 139 collision of wagons. 140 leaving open a cellar area adjoining street. 141 against telegraph company for not transmitting message. See Forms 77, 78, 81, 87, 88, 236. 142 For assault. 143 For assault and battery, special damages. 144 Trespass: against a railroad company for unlawful ejection from train. TITLES OF ALL FORMS. 80 Number of Form 145 against sheriff and execution creditor for illegal seizure. 146 to goods. 147 to goods : exemplary damages. 148 to goods and person : exemplary damages. 149 for taking and riding plaintiff's horse. 150 on lands. 151 on land, with cattle. 152 on lands and to goods. 153 Malicious prosecution, special damages. 154 For libel. 155 with special damages. 156 Slander. 157 with special damages. 158 another form for the same. 159 Criminal conversation. 160 Seduction. 161 Conversion of goods. 162 another form for the same. 163 by an executor. 164 Fraud : for conspiring to cheat. 165 Deceit : fraudulently concealing the insolvency of a third person. 166 fraud in sale of horses. 167 fraud in the sale of a business. 168 Ejectment: mesne profits: injury to the property. i68a devisee of land against heir. i68b grantee against grantor who refuses to surrender possession. 169 Against a sheriff for an escape. 170 Nuisance : maintaining a slaughter house. 171 fouling a stream. 172 Waste : injury to reversion. 173 For diverting water from a mill. 174 Easement : obstruction of a private way. 175 obstruction of public way. 176 Mischievous animals : knowingly keeping a fierce dog. 177 Wrongful distress. 178 Replevin : against pawn broker for return of pledge ; alterna- tively, for damages for its conversion. 179 plaintiff claiming a general property in the goods. 180 plaintiff claiming a special property in the goods. 181 for unlawful detention, when the taking was lawful. Motion to Strike Out. 182 Notice of motion to strike out under rule 26. 81 TITLES OF ALL FORMS. Answers. Number of Form 183 Commencement of answer. 184 separate answer by one of several defendants who is sued by the wrong name. 185 answer by infant defendant. 186 Objections in point of law (under rule 26). 187 Answer with counter-claim. 188 General denial. 189 with new matter. 190 Several defenses. 191 Unauthorized acceptance in name of corporation, and want of consideration. 192 Acceptance was for plaintiff's accommodation. 193 The note was for goods sold by fraud. 194 was for accommodation and was mis-applied. 195 was given to compound a crime. 196 was for illegal sale of liquor. 197 'Non-presentment of note at place of payment. 198 Accord and satisfaction. 199 Defendant endorsed as agent, where the complaint stated the contract untruly in this respect. 200 Alteration of instrument. 201 Invalidity of an award. 202 Bailment : denial of plaintiff's title. 203 To a complaint for breach of promise; that plaintiff was un- chaste. 204 Payment by note. 205 To an action against carrier for injury to goods: that the damage was by plaintiff's fault. 206 Compromise. 207 Ultra vires, by a corporation. 208 note taken by a corporation outside its powers. 209 Married women's act. 210 Denial that credit has expired. 211 Discharge in bankruptcy. 212 Duress by imprisonment. 213 Duress by threats. 214 The delivery was in escrow. 215 Partial failure of consideration. 216 The debt was incurred by gambling. 217 Infancy. 218 Insanity. 219 To an action on an insurance policy: that plaintiff gave a fradulent account of loss. 220 transfer of the interest of the insured. TITLES OF ALL FORMS. 82 Number of Form 221 To an action on an insurance policy : extra hazardous risk. 222 life insurance : misrepresentation. 223 failure to give account of loss within limited time. 224 Invalidity of a foreign judgment. 225 Invalidity of domestic judgment against a non-resident. 226 To an action on judgment: reversal of the judgment. 227 Former judgment for plaintiff. 228 for defendant. 229 Lien for storage. 230 Statute of limitations. 231 Novation, by substitution of a new creditor. 232 Denial of part of indebtedness, of part of delivery, and of part of price. 233 Denying the promise as to part and pleading payment as to residue. 234 Payment of all the goods were worth. 235 Defendant gave his note for acceptance which is not due. 236 Part payment; part failure of consideration; counter-claim for negligence and trespass. 237 That plaintiff agreed to accept a note of a third person in part, payment. 238 Denial of plaintiff's general allegation of performance. 239 Recision of contract. 240 Plaintiff's breach of contract as to place of delivery. 241 as to quality or kind. 242 By a surety, alleging an extension of time. 243 alleging a change in the terms of the contract. 244 Tender. 245 Denial of part and tender of residue. 246 Tender, when cause of action is denied. 247 False warranty : note was given for price of sheep : they were diseased : counter-claim. 248 Mechanic's Lien : denial of lien by owner or mortgagee. 249 claim of prior lien by mortgagee. 250 Defense of son assault demesne. 251 To an action for assault; defense of molliter manus imposuit. 252 To an action for assault and battery : self defense : counter- claim. 253 Probable cause to an action for malicious prosecution. 254 By a railroad company, to an action by a passenger. 255 Inconsistent defenses : action of trespass on land. 256 By sheriff; to a complaint for an illegal seizure. 257 Privileged communication, in an action for slander. 258 License, in an action for trespass to personal property. 259 Ejectment: license. 260 set-off of the value of permanent improvements. 83 TITLES OF ALL FORMS. Number of Form 261 Replevin : denial of detention, and disclaimer. 262 general denial without disclaimer : counter-claim for return of goods and damages. 263 answer in the nature of an avowry : counter-claim for return of goods and damages. 264 Affidavit of merits. 265 notice thereof to be endorsed on complaint. Counter-Claim and Set-Off. 266 Commencement of counter-claim. 267 Counter-claim against carrier for negligence. 268 Set-off : plaintiff is indebted to defendant. 269 plaintiff received money for use of defendant. 270 Answer to counter-claim : general denial with new matter. Replies. 271 Reply : general denial. 272 partial denial. 273 duress, avoiding a release. 274 and answer to counter-claim : son assault demesne. 275 Defendant's reply to above answer to counter-claim. 276 Reply : revocation of license. 277 to answer of married women's act : contract made in another state : foreign statute. 2/8 Rejoinder to reply: duress. 279 Supplemental pleadings. Postea and Judgments. 280 Postea. Rules for Judgments. 281 Rule for judgment, interlocutory or final, by default, against defendant. 282 for judgment for plaintiff on verdict. 283 for judgment against defendant for failure to comply with conditions of leave to defend. 284 Order for summary judgment. 285 Affidavit for summary judgment. 286 Order for leave to defend on terms. Judgments. 287 Judgment record. 288 Judgment for plaintiff on verdict. jSu for defendant on verdict. TITLES OF ALL FORMS. 84 Number of Form 290 for plaintiff on one count ; for defendant on another, and for a set-off; after trial by the court. 291 of non-suit : plaintiff not appearing at trial. 292 of non-suit for failure of proof. 293 of non-pros for failure to file reply, or non-suit for failure to notice for trial. 294 by default against defendant for failure to plead. 295 against defendant who failed to appear at trial. 296 Summary judgment after answer struck out. 297 Judgment against defendant on his failure to comply with con- ditions of leave to defend. 298 without pleadings. 299 for one of two plaintiffs claiming in the alternative against defendant. 300 The same, when the trial court reserved a question of law and submitted the case to the jury upon alternative propositions of law. 301 Judgment against one of two defendants sued in the alternative. 302 (against surety and principal), allowing surety the benefit of the judgment. 3O2a On a cross-complaint between co-defendants on an agreement to indemnify. 303 for defendant on motion to strike out for failure to state a cause of action. 304 for plaintiff against one of two defend- ants after a separate trial. 305 for one of two defendants after sep- arate trials against each, and a previous judgment against the other. 306 against an executor of a deceased co-con- tractor, and against the surviving co- contractor. 307 against an executor, as such, and against him personally. 308 for a writ of mandamus. Other Forms. 309 Preliminary reference commissioner's summons. 310 commissioner's order. 311 Statement of the case, for judgment without pleadings. 312 Findings of the court. 313 Notice of appeal. 314 Grounds of appeal. 315 Statement of the case on appeal. 85 FORMS UNDER THE PRACTICE ACT (1912) NOTE: The following forms include all those in "Schedule B," annexed to the Rules, some of which are here slightly modified. 1. Writ of Summons. (FROM SCHEDULE B.) The State of Nezv Jersey to John Doe. You are summoned to answer the annexed com- (L. s.) plaint of Richard Roe in an action at law in the Supreme Court. And take notice that unless you file your answer to said complaint with the Clerk of the Su- preme Court, at Trenton, within twenty days after service upon you of this writ and the annexed complaint, the plaintiff may proceed in the suit and judgment may be entered against you. Witness, William S. Gummere, Chief Justice of the Supreme Court, at Trenton, this day of nineteen hundred and WM. RIKER, JR., Attorney. Clerk. NOTE: All writs issuing out of the Circuit Court or Court of Common Picas should be attested in the name of a Judge of the Court from which the zvrit issues. X Form 2 WRITS. 86 2. Writ of Summons on Mechanics' Lien. The State of New Jersey To (state the names of (L. s.) the defendants). You, A. B., builder and C. D., owner (or if the owner contracted the debt, A. B., builder and owner), and E. F., mortgagee (/'/ there be a mortgage or mortgages), are summoned to answer the an- nexed complaint of G. H. (the claimant) in an action at law. in the Circuit Court (or, District Court of the city of or, of the district of , as the case may be) in and for the county of , in which said G. H. claims a building lien on certain buildings and lands of said C. D. described in said complaint, and upon which said E. F. holds a mortgage of record. And take notice, that unless you file your answer to said complaint with the clerk of the said court at within twenty days after service upon you of this writ and the annexed complaint, the plaintiff may proceed in the suit and judgment may be entered against you. Witness, etc. The Summons in ejectment must now be in the same form as No. i aboz'c. Laws of 1912, Chapt. 263. 3. Writ of Replevin. (FROM SCHEDULE B.) THE STATE OF NEW JERSEY, to the Sheriff (L. s.) (or one of the coroners) of the County of GREETING: We command you that if John Doe shall make you secure, you cause to be taken and delivered to him, one bay horse (describe sufficiently all the goods in question) which Richard Roe took and unjustly detains as is said; and that you summon the said Richard Roe to answer the an- nexed complaint of John Doe in an action at law in the Supreme Court. And that you notify him that 'unless he files his answer to said complaint with the Clerk of the Supreme Court, at Trenton, within twenty days after service upon him of this writ and the annexed complaint, the plaintiff may proceed in the suit and judgment may be entered against him. (Attestation clause as in No. i.) 87 COMPLAINTS. Form 5 Commencement and Conclusion of Complaint. (FROM SCHEDULE B. MODIFIED.) Supreme Court of New Jersey. > Hudson County. John Doe and James Fen Plaintiffs, vs. Complaint. Richard Roe, and George Jones, Execu- tor of the Will of Thomas Brown, and the Dale Company, a corporation, Defendants. (State in the title the names of all the parties and the charac- ter in ivhich they appear.) Plaintiffs (state names and residences) say that (to be filled up in accordance with the following forms) : The plaintiffs demand (as in the following forms) : (Signed) Attorney for Plaintiff. 9 NOTE: The venue is stated in the caption only. It isould appear to be unnecessary to state it at all in actions in the Circuit Courts, on Common Pleas, because the name of those courts, in the caption, sufficiently indicates the venue. 5. Title of Complaint on Mechanic's Lien. Hudson County Circuit Court. John Doe, Plaintiff, On Mechanic's Richard Roe, Owner, Tj en Thomas Brown, Builder, ~ Complaint. James Fen, Mortgagee, Defendants. Form 6 COMPLAINTS. 88 6. Conclusion of Complaint. When the damages arc a sum certain, hnoicn to the pleader, with interest: Plaintiff demands, as damages, $ with interest from When the damages are unliquidated or arc unknown to the pleader: Plaintiff demands $ damages. When damages arc claimed on several counts: Plaintiff demands: 1. On the first count $500 damages, 2. On the second count $1,000 damages, etc. 7. Conclusion of Complaint by Executor or Administrator. And the plaintiff, as executor (or, as administrator) as aforesaid demands, etc. 8. Conclusion of a Complaint Against an Executor, for Separate Claims Against Him, as such, and Againsti Him Personally, When the Personal Claim Arose With Reference to the Estate. (Rule 14 (c). Plaintiff demands as damages upon the first count $ with interest from against the defendant as such executor (or, administrator) ; and upon the second count, $ with interest from , against the defendant personally. 9. Conclusion of Complaint by Husband and Wife for In- juries to Wife Where Husband Claims Damages in His Own Right. The plaintiff, Mary Doe, claims $ damages on the first count; and the plaintiff, John Doe, claims $ on the second count. 10. Conclusion of Complaint by Plaintiffs Having Separate Claims; or When Joint Claims are Joined With Sep- parate Claims. (The conclusion is similar to that contained in the preced- ing form.} 89 COMPLAINTS. Form 14 11. Conclusion of Complaint Against Several Defendants on Separate Claims. Plaintiff demands of the defendant John Doe, upon the first count $ damages ; and demands of the de- fendant Richard Roe, upon the second count $ damages. 12. Title and Conclusion, of Complaint by an Infant. Court. John Doe, by A. B., his next friend, \ Plaintiff, f > Complaint. vs. Richard Roe, ) (Conclude thus) : The plaintiff demands, etc. AGAINST AN INFANT : The title and conclusions are in the ordinary form without mentioning his infancy. 13. Title and Conclusion by an Informer in an Action Qui Tarn. . .Court. John Doe, who sues as well for as for himself, Plaintiff, vs. Richard Roe, Defendant. Complaint. (Conclude thus) : The plaintiff demands, as well for , as for himself, etc. 14. Averment of Grant of Letters Testamentary or of Ad- ministration. The said John Doe died on or about May loth, 1912, leav- ing a will (or, intestate). On May 25th, 1912, said will was admitted to probate by the Surrogate of county and letters teste- mentary issued thereon by said Surrogate to plaintiff (or, defendant), and were accepted by him. Form 15 COMPLAINTS. 90 OR On May 25th, 1912, letters of administration were granted upon the estate of said John Doe, by the Surrogate of County to plaintiff (or, defendant) and were accepted by him. 15. Averment of Incorporation. In actions by or against corporations, the fact of incorpora- tion should be alleged thus: At the times herein stated plaintiff (or, defendant) was and still is a corporation (of the state of ). NOTE: The state in which the company is incorporated should be averred when that fact is material; when not ma- terial it need not be stated except in the statement of the plain- tiff's or defendant's residence in the commencement. 16. Averment of Conditions precedent. (See Pr. Act. (1903) Sec. 118.) The plaintiff (or, defendant) has performed all the terms and conditions of the said contract upon his part. 17. Prayer for Writ of Mandamus. (See Pr. Act. Sec. 3.) NOTE : To be used in actions against municipal corpora- tions for the recovery of a judgment for money. Plaintiff demands $ damages and prays that a writ of mandamus may issue against defendant to compel the payment of such judgment as plaintiff may recover. NOTE. As the Supreme Court has exclusive power to issue this writ, the above form should be tised only in suits com- menced in that Court. Writs of execution cannot be used against municipal cor- porations. The proper method of enforcing judgments against them is by mandamus: Lyon vs. Elizabeth, 43 A*. /. L. 158. The -writ may be directed "Either to the corporation, or to the select body within the corporation whose province and duty it is to perform the particular act, or to put the necessary machin- ery in motion to secure its performance." Freeholders vs. Penna. R. R. Co., 41 N. J. L. 250. See Form 308, and note. 91 COMPLAINTS. Form 20 Complaints. 18. On a Book Account. (FROM SCHEDULE B.) i. He sues for the price of goods sold and delivered to the defendant upon a book account, of which a copy is attach- ed hereto, and the whole of which is due and unpaid. Plaintiff demands, as damages, the amount due thereon, being $500 with interest from 19. Another Form of the Same. (FROM SCHEDULE B.) 1. He being a merchant doing business in Trenton, did, between July i, 1911, and October i, 1911, sell and deliver to the defendant sundry goods, under an agreemeent between the parties, that plaintiff should charge defendant a reasonable price for the goods so sold. 2. The amount due on the account on October i, 1911, charged in conformity with said agreement, was, and still is, $500. 3. Defendant has not paid the same. Plaintiff demands, as damages, $500 with interest from 20. For Money Lent. (FROM SCHEDULE B.) First Count: 1. Plaintiff on January i, 1912, lent to defendant $200 to be repaid 30 days thereafter. 2. Defendant has not paid the same though the 30 days have elapsed. Second Count: 1. Plaintiff on January 10, 1912, lent to defendant $100 to be repaid on demand. 2. On January 20, 1912, plaintiff demanded of the de- fendant payment thereof. 3. Defendant has not paid said sum. Plaintiff claims as damages on the two counts $300 with interest from . . Form 21 COMPLAINTS. 92 21. For Money Paid at the Request of Another. 1. On May ist, 1912, at Newark, plaintiff paid $ 1,000 to the use of defendant and at his request (to be repaid on de- mand), in paying to one John Doe one year's rent of the house then occupied by defendant (or, otherwise show what the debt was for). 2. Plaintiff, on July ist, 1912, demanded payment of the same from defendant. 3. Defendant has not paid the same. Plaintiff demands as damages, $1,000 with interest from May i, 1912. 22. For Money Paid by Mistake. 1. On May loth, 1912, at Trenton, plaintiff, intending to pay the defendant $500, paid him $1,000 by mistake. 2. On June i, 1912, plaintiff demanded of the defendant the sum so overpaid. 3. Defendant has not paid the same. Plaintiff demands as damages, $500 with interest from June ist, 1912. 23. Money Received for Plaintiff's Use. 1. On January i, 1912, at Trenton, defendant received $1,000 from James Brown to be paid to the plaintiff on de- mand (or, received $ ,. for the sale of two horses owned by plaintiff, to be paid on demand). 2. On January 10, 1912, plaintiff demanded such sum of defendant, who refused to pay it and it remains unpaid. Plaintiff demands as damages, $1,000 with interest from January 10, 1912. 24. Money Paid to Defendant's Use. 1. On June 2, 1912, at Trenton, at the request of defend- ant, plaintiff paid to one James Brown $500. 2. In consideration thereof, defendant undertook to pay said sum to plaintiff on demand. 3. On July ist, 1912, plaintiff demanded payment of said sum from defendant. 93 COMPLAINTS. Form 30 4. Defendant has not paid the same. Plaintiff demands as damages, $500 with interest from July i, 1912. 25. For Services Quantum Meruit. 1. From May ist, 1911 to Jan. ist, 1912 plaintiff rendered services to defendant, at his request, as his household ser- vant (or otherwise as in the folloiving forms*). 2. For said services, defendant undertook to pay plaintiff what the same were reasonably worth. 3. The same were reasonably worth dollars, which sum was due for the same on the day last mentioned. 4. Defendant has not paid the same. Plaintiff demands as damages dollars with interest from 26. For Commissions of Broker. *As broker, in the purchase (or, sale), for the defendant of certain negotiable securities described in the schedule hereto annexed. (The subject of the sale may be described in the body of the complaint, if preferred.) 27. For Services in Compiling and Editing a Book. *In compiling and editing a certain book entitled "The ," and in preparing the same for the press, and revising and correcting the proofs of the same. 28. By an Architect. *As architect, in forming and drawing plans and specifica- tions and making estimates for, and superintending the erec- tion of a dwelling house in Newark, known as Number 100 street. 29. For Tuition. *In instructing the defendant's children, Mary and John, at the plaintiff's school in Newark. 30. For Carpentry Work. * In putting in shelves, repairing the roof and piazza and doing sundry other jobs of carpentry work upon plaintiff's house number 10 street in Trenton. *See first paragraph of Form 25. Form 31 COMPLAINTS. 9-4 31. For Advertising. 1. Plaintiffs, at the times herein stated, were the proprietors and publishers of a daily newspaper known as the Evening Telegram published in 2. Between June ist and July ist, 1912, plaintiffs, at de- fendant's request, published in said newspaper certain adver- tisements for the defendant. (Continue as in paragraps 2, 3 and 4, in Form 25.) 32. On a Note or Other Written Instrument for the Pay- ment of Money. (FROM SCHEDULE B.) 1. He sues for the amount of a promissory note for $1,000 made by the defendant, Richard Roe, to plaintiff; a copy of which is hereto annexed. 2. Plaintiff still owns said note. It has not been paid. Plaintiff demands as damages, $1,000 with .interest from 33. Another Form for the Same Against Maker and En- dorser. (FROM SCHEDULE B.) 1. On August i, 1911, the defendant, Richard Roe, made and delivered his note of that date for $1,000 payable to Thomas Brown, or order, 3 months from date at the Bank of Trenton. 2. The payee afterwards endorsed said note to the plain- tiff. 3. On the day the same fell due it was presented for pay- ment at the place where it was payable, but was not paid (or state facts excusing presentment}. ^^-4. Notice thereof was duly given to said Brown. 5. Said note is now the property of plaintiff and is unpaid. Plaintiff demands as damages, $1,000 with interest from!. . or, COMPLAINTS. Form 38 34. By Maker of Accommodation Note Against Person Accommodated. 1. On May i, 1912, at Trenton, plaintiff made and deliv- ered to defendant, his promissory note for $1,000, a copy of which is annexed hereto. 2. It was an accommodation note, given to defendant with- out consideration and at his request, and upon his promise that he would pay it at maturity. 3. Defendant, before its maturity, negotiated it for value. 4. He failed to pay it at maturity and plaintiff was thereby compelled to pay, and did pay, it on September 4, 1912. 5. Defendant has not repaid the same. Plaintiff demands as damages. $1,000 with interest from September 4, 1912. 35. Averment of Excuse for Non-presentment of Note. At maturity of said note, due search and inquiry were made for (the maker) at (the place of payment) in order that the same might be duly presented to him for payment, but he could not be found and the same was not paid ; of all which due no- tice was given to defendant. 36. Averment of Waiver of Notice of Non-Payment. Plaintiff did not give defendant notice of non-payment. Af- terwards, the defendant, with full knowledge thereof, prom- ised to pay said note. 37. The Same Where Demand and Notice Were Both Waived. Afterwards and before this action, defendant endorsed said note to plaintiff, and in and by said endorsement expressly waived demand of payment and notice of non-payment. 38. By a Surviving Payee and the Administrator of a Deceased Payee, on a Note. (NOTE: The name of the individual payee and the name of the administrator of the deceased payee, giving the latter' s title, should be stated in the title of the cause.} i. On January i, 1912, defendant made and delivered to plaintiff. John Stiles, and to one. Richard Roe, now deceased, Form 39 COMPLAINTS. 96 his note of said date for $1,000, payable to them or order, six months from date. 2. On February I, 1912, said Richard Roe died intestate. 3. On February loth, 1912, plaintiff, Richard Fen, was duly appointed administrator of the estate of Richard Roe by the Surrogate of Bergen County and qualified as such. 4. Said note is now the property of the plaintiffs and has not been paid. Plaintiffs demand as damages, $1,000 with interest from 39. On a Joint Note, Against One of the Makers and Against the Executor of the Other. (NOTE: The name of the individual maker and the name of the executor of the deceased maker, giving the later 's title, should be stated in the title of the cause.} 1. On January i, 1912, defendant, John Doe, and one Rich- ard Fen, now deceased, made and delivered to plaintiff their note of that date for $1,000 payable to him, or order, six months from date. 2. On February i, 1912, said Richard Fen died, leaving a Will in which he appointed defendant, James Roe, his execu- tor. 3. On February 15, 1912, said Will was admitted to pro- bate by the Surrogate of Bergen County and letters testamen- tary were issued to said Roe, who accepted the same. 4. Said note is now the property of the plaintiff and has not been paid. Plaintiff demands as damages, $1,000 with interest from 40. Against an Executor Upon Separate Notes ; One Made by Testator and the other by the Executor Personally for the Benefit of the Estate. First Count: 1. Plaintiff sues for the amount of a promissory note for $1,000 made by defendant, Richard Roe (signed by him as executor of the estate of Thomas Brown) to plaintiff, a copy of which is hereto annexed. 2. Plaintiff still owes said note. It has not been paid. 97 COMPLAINTS. Form 42 3. The consideration of said note was $1,000 money lent by plaintiff to said Roe, to be used, and which was used, by him for the payment of the debts of said estate and otherwise for the benefit of the said estate (or state other facts showing that the debt sued on was incurred for the benefit of the es- tate}. 4. The statements of paragraphs 2 and 3 of the second count are made part of this count. 5. The will of said Brown authorized said executor to borrow money for the use of said estate. Second Count: 1. Plaintiff also sues for the amount of a promissory note for $500 made by said Thomas Brown, deceased, in his life time to plaintiff, a copy of which is hereto annexed. 2. Said Thomas Brown died on or about April i, 1912, leaving a will. 3. On April 2Oth, 1912, said will was admitted to probate by the Surrogate of Mercer County and letters testamentary were issued thereon by aid Surrogate to defendant and accept- ed by him. Plaintiff demands as damages, on the first count, $1,000 with interest from ; and upon the second count $500, with interest from 41. On a Bill of Exchange; Drawer Against Acceptor. 1. On January loth, 1912, at Trenton, by his bill of ex- change, plaintiff required defendant to pay him or order, $i,- ooo sixty days after date thereof. 2. Defendant accepted said bill (if the bill is payable at a certain lime after "sight," the date of acceptance should be stated}. 3. Plaintiff still owns said bill and the defendant has not paid the same. Plaintiff demands as damages, $1,000 with interest from 42. On a Bill of Exchange, Payee Against Acceptor. i. On March ist, 1912, at Newark, defendant accepted a bill of exchange made by one William Brown, dated Febru- ary 2Oth, 1912, requiring defendant to pay to plaintiff or order $1,000, sixty days after sight thereof. Form 43 COMPLAINTS. 98 2. Plaintiff still owns said bill and the defendant has not paid the same. Plaintiff demands as damages, $1,000 with interest from 43. First Endorsee Against Acceptor. 1. On April ist, 1912, at Camden, defendant accepted a bill of exchange made by one William Brown on March 25th, 1912, requiring defendant to pay to the order of John Robin- son, $1,000, thirty days after sight thereof. 2. Said Robinson endorsed the same to plaintiff before ma- turity. 3. Plaintiff duly presented said bill for payment but pay- ment was refused and plaintiff still owns the said bill. Plaintiff demands as damages, $1,000 with interest from 44. Subsequent Endorsee Against Acceptor. 1. (Same as in the preceding form to the end of para- graph i). 2. By the endorsement of said Robinson and others said bill was transferred to plaintiff before maturity. 3. Plaintiff duly presented it for payment. 4. Plaintiff still owns said bill and it has not been paid. Plaintiff demands (as in preceding forms}. 45. On a Bill Directed by Drawer to Himself, and Accept- ed by Him. 1. On October loth, 1911, at Camden, defendant, (or, de- fendants, under their firm name of John Doe & Co.) made to their own order, and accepted and delivered to plaintiff, for value, his (or, their) bill of exchange, a copy of which is an- nexed hereto. 2. Said bill is still the property of the plaintiff and has not been paid. Plaintiff demands (as in preceding forms). 99 COMPLAINTS. Form 48 46. Payee Against Drawer for Non-Acceptance. 1. On Alay ist, 1912, at Atlantic City, defendant, by his bill of exchange required one William Brown to pay to plain- tiff or order $1,200 (thirty days after sight). 2. On May 5th, 1912, the same was presented to said Brown for acceptance, but was not accepted. 3. Due notice of said presentment and failure to accept was given to defendant. 4. Plaintiff still owns said bill and it has not been paid. Plaintiff demands (as in preceding forms). 47. First Endorsee Against First Endorser. 1. Defendant, at Trenton, endorsed to plaintiff, a bill of exchange, a copy of which is hereto annexed (or made by one \Yilliam Brown, at the City of New York, State of New York, on May I5th, 1912, requiring one John Robinson to pay to the order of defendant $1,200 one month after said date). 2. Said bill was accepted by said Robinson on May 2Oth, 1912. 3. On June I5th, 1912, the same was presented to said Robinson for payment but was not paid. 4. Due notice of said presentment and failure to pay was given to defendant. 5. Plaintiff still owns said bill and it has not been paid. Plaintiff demands (as in preceding form). 48. Endorsee Against Drawer, Acceptor and Endorser. 1. On June ist, 1912, the defendant, John Jones, by his bill of exchange, required the defendant William Brown to pay to the order of the defendant, John Robinson, $1,000 thirty days after sight thereof. 2. On June 6th, 1912, said Brown accepted the same. 3. Afterwards and before maturity said Robinson endorsed the same to plaintiff. 4. On July 6th, 1912, the same was presented to said Brown for payment, but was not paid. 5. Due notice of said presentment and non-payment was given to the other defendants. Form 49 COMPLAINTS. 100 6. The said bill has not been paid. Plaintiff demands as damages, $1,000 with interest from July 6th, 1912. 49. On Bank Check; Payee Against Drawer. 1. On June ist, 1912, defendant (or, the defendants, un- der their firm name of John Doe & Co.) made and delivered to plaintiff his (their) check in writing, dated on that day and directed the same to the First National Bank of Jersey City, and thereby required said Bank to pay to plaintiff or order $1,000. 2. The same was duly presented by plaintiff to said Bank for payment but was not paid ; of all which due notice was given to defendant. 3. Said check is still the property of plaintiff and has not been paid. Plaintiff demands as damages, $1,000 with interest from 50. Endorsee Against Drawer and Endorser. 1. On June I, 1912, defendant, John Doe, made his check in writing, dated on that day, and directed the same to the First National Bank of 'Newark and thereby required said Bank to pay to defendant, James Fen or order, $2,000 and deliver it to said Fen. 2. Afterwards said Fen endorsed the same to plaintiff (or, endorsed the same and delivered it so endorsed ; and thereafter it came lawfully into the possession of the plaintiff) for value. 3. Said check was duly presented by the plaintiff for pay- ment but was not paid; of all which due notice was given to defendants. 4. Said check still remains the property of the plaintiff and has not been paid. Plaintiff demands as damages, $2,000 with interest from 101 COMPLAINTS. Form 52 51. Against a Bank on a Certified Check. 1. Defendant is a corporation duly organized and incorpor- ated as a National Banking Association under the laws of the United States. 2. On July ist, 1912, one John Doe made his check (or, certain persons, under their firm name of John Doe & Co., made their check) dated on that day and directed it to defend- ant and thereby required defendant to pay to plaintiff or order $1,000 and delivered the same to plaintiff (if payable to a third party, state the facts as in the preceding form}. 3. On July ist, 1912, the defendant certified thereon in writing, that the said check was good. 4. On July 5th, 1912, said check was duly presented to the defendant for payment but was not paid. 5. Said check is still the property of plaintiff. Plaintiff demands as damages, $1,000 with interest from July 5, 1912. NOTE: For the difference in legal consequences, whether the check be certified at the request of the drawer or the holder, see Times Sq. Auto Co. vs. Rutherford Nat. Bank, 77 N. J. L. 649. If it be done at the drawer's request, the bank may after- wards refuse payment if the drawer for good cause, direct it to do so; Contra, if certified at request of the holder. 52. On Bond Conditioned to Pay Money. 1. Defendant, by his bond, dated May ist, 1911, bound him- self under seal, to plaintiff to pay plaintiff $5,000, on condi- tion, nevertheless, that said obligation should be void if defend- ant pay to plaintiff $2,500 on May ist, 1912, with interest from the date of the bond. 2. Nothing has been paid on said bond. 3. Plaintiff demands, as damages, $2,500 with interest from May ist, 1912, and judgment, according to the statute, for $5,000. NOTE : The judgment on a bond conditioned to pay money must be entered for the penal sum stated in the bond. Coinp. Stat. 3778, Sec. 5. Form 53 COMPLAINTS. 102 53. On Bonds Other Than for the Payment of Money. 1. On April ist, 1912, defendant made his bond under his seal to plaintiff, a copy of which is annexed hereto. 2. (State a breach; see following forms.) 3. (State any other breach.) (Conclude as in form 52.) 54. Another Form, Not Annexing a Copy of the Bond. i On April ist, 1912, the defendant by his bond under his seal, bound himself to the plaintiff to pay to the plaintiff $1,000. 2. Said obligation was upon the express condition that if (state the substance or words of the condition'), said obliga- tion was to be void. 3. (State breach as in other cases.) Plaintiff demands (as in Form 52). 55. On a Bond for the Fidelity of a Clerk. 1. On June ist, 1911, plaintiffs, being then about to em- ploy one John Doe as clerk, defendants bound themselves, under seal, to the plaintiffs (state the condition of the bond verbatim or in substance; for instance), that if John Doe, at any time or times during his employment by the plaintiffs, should not lawfully perform his duties as such clerk, or should fail to account to the plaintiffs for all moneys or other prop- erty received by him for the use of plaintiffs, the defendants would pay to plaintiffs whatever loss they might sustain by reason thereof, not exceeding $10,000. 2. Between January i, 1912 and July ist, 1912, said Doe as such clerk, received money and other property, amounting to the value of $3,000 to the use of the plaintiffs, for which he has not accounted to them and which he converted to his own use, whereby the plaintiffs have sustained a loss of $3,000. 3. Said loss has not been repaid to plaintiffs. (Conclude as in form 52.) 103 COMPLAINTS. Form 57 56. On an Arbitration Bond. 1. On March loth, 1912, defendant by his bond under his seal, became bound to the plaintiff in the sum of $5,000, con- ditioned to abide the award of John Stiles upon certain differ- ences between plaintiff and defendant. A copy of said bond is hereto annexed. 2. On April ist, 1912 (or, thereafter and within the time limited for making the award), by agreement of plaintiff and defendant, the time for making the award was extended to May ist, 1912. 3. Said arbitrator, having undertaken the arbitration on April 2Oth, 1912, duly made and published his award in writ- ing upon the matter submitted, and thereby awarded that the defendant should (indicate briefly the provision which defend- ant has disregarded} ; a copy of said award is annexed hereto. 4. (State the performance by plaintiff of anything re- quired by hhn to be done by the aiuard, or allege tliat plain- tiff has fully performed the terms of said aivard upon his part.) 5. Defendant was duly notified of said award and plaintiff demanded of him performance thereof. 6. Defendant has not (state the breach, specifying the par- ticular act or omission). (Conclude as in form 52.) 57. For Deficiency upon Sale of Land After Foreclosure of Mortgage. (See Comp. St. p. 3421.) 1. On May ist, 1907, defendant executed his bond of that date to A. B. in the penal sum of $10,000 conditioned to pay $5,000 with interest at 5%. 2. To secure said bond, defendant executed a mortgage of the same date to A. B. upon certain lands whereof defend- ant was seized in fee simple in Trenton, Mercer County, known as lot 10 in Block 25, on a map entitled " " (or otherzi'ise briefly describe the property). 3. On June ist, 1910, said A. B. assigned said bond and mortgage to plaintiff. 4. On April loth, 1912, a final decree for the sale of said land and the foreclosure of said mortgage was made in the Court of Chancery in a suit brought for that purpose by this Form 58 COMPLAINTS. 104 plaintiff against this defendant and others : and the said de- cree adjudged that there was then due upon said bond and mortgage, the sum of $5,600 and directed that a writ of fieri facias be issued to the Sheriff of Mercer County for the sale of said mortgaged premises to make that sum with interest at the rate of 6 per cent, per annum from April ist, 1912 and complainant's costs in that suit which were there- upon taxed at the sum of $100. 5. On July ist, 1912, and within six months of the com- mencement of this action, the said Sheriff, by virtue of said writ of execution, duly sold said premises, according to law, at public vendue, to this plaintiff, he being then the highest bid- der at said sale, for the sum of $4,000. 6. The Sheriff's lawful fees and disbursements upon said execution amounted to $120 which were thereupon paid by plaintiff to said Sheriff all of which appears upon the said writ of execution which was duly returned into Court. 7. After crediting upon the said decree and execution, the amount of the proceeds of said sale, there remains due to this plaintiff from said defendant upon the same, a deficiency of the amount of $1,900. 8. Defendant has not paid said sum of $1,900, or any part thereof. Plaintiff demands $1,900 with interest from July ist, 1912. 58. On a Foreign Judgment. 1. On July loth, 1912, at Boston, in the State of Massa- chusetts, the Supreme Judicial Court of that State, in an action therein pending by this plaintiff against this defendant, by its final judgment duly adjudged that the defendant should pay to the plaintiff the sum of $1.000. 2. Defendant has not paid said sum or any part thereof. 3. Plaintiff demands $1,000 with interest from July loth, 1912. NOTE: Judicial notice is taken of the jurisdiction of the Supreme Courts of Sister States. If the Court was one of inferior jurisdiction, add in another paragraph: Said Court had jurisdiction to hear and deter- mine said cause of action. Sec note to Form 228. 105 COMPLAINTS. Form 60 59. Defendants in Alternative; Action on a Contract of Sale. (FROM SCHEDULE B.) Supreme Court of New Jersey. Hudson County. A. B., Plaintiff, f r Complaint. C. D., and in the alternative, E. F., Defendants. Plaintiff (state residence) says that: 1. On January 2, 1912, defendant, C. D., represented to plaintiff that he (C. D.) was the agent of defendant, E. F., authorized to sell the securities hereinafter mentioned of said E. F. 2. On the same day, by written agreement, plaintiff, rely- ing on the said representations, agreed to buy, and said C. D. agreed to sell, for account of said E. F., 100 shares of the capital stock of the company, for the price of $10,000; delivery to be made and the price paid on the then next day. A copy of said agreement is annexed. 3. Neither of said defendants delivered said stock at the time agreed, nor at all, and both of them still refuse to deliver it. 4. Said C. D. still insists that he was duly authorized by said E. F. to make said contract; but said E. F. denies that he had so authorized C. D., and he repudiates the contract. Plaintiff does not know whether or not said C. D. was so authorized. Plaintiff demands against the defendant, E. F., or, in the alternative, against the defendant, C. D., $3,000 damages. NOTE: See a form of judgment on this complaint. Form 301. 60. Sales: For the Price of Goods Delivered to a Third Party at Defendant's Request. 1. On June 1st, 1912, plaintiff sold to defendant, and at his request, delivered to one James Brown, 100 barrels of flour. 2. At said sale defendant promised to pay plaintiff, im- mediately upon the delivery, $800 as the price of the same. Form 61 COMPLAINTS. 106 3. Defendant has not paid said sum or any part thereof. Plaintiff demands as damages $800. with interest from June ist, 1912. 61. Sales: For Not Delivering Goods sold. 1. On April ist, 1912, defendant, at Trenton, sold the plaintiff 100 barrels of flour of the brand , for $6 a barrel and on a credit of 30 days. 2. A term of the contract of sale was that the defendant should deliver said flour on the day after the sale, at the rail- road station, of the Pennsylvania Railroad in Trenton, to be transported to the plaintiff at Princeton. 3. Defendant did not deliver said flour as agreed, and has ever since refused to deliver the same to plaintiff although requested so to do. 4. Plaintiff demands $ damages. 62. Sales : By Vendee of Chattels on Failure of Title. 1. On July ist, 1912, defendant sold and delivered to plain- tiff, for $500 paid to him by plaintiff, a certain piano as the property of defendant. 2. Said piano was not then the property of defendant but belonged to one John Styles. 3. Thereafter said Styles sued the plaintiff to recover possession of the same and notwithstanding plaintiff made diligent defense. Styles recovered judgment for a return of said piano under which judgment the piano was taken from the plaintiff's possession by said Styles. 4. After the commencement of said action, plaintiff gave defendant due and timely notice of the same and required him to defend it, but defendant neglected to defend the same. 5. Plaintiff demands $600 damages. 63. Sales : On Warranty of a Horse ; Special Damages. 1. On April ist, 1912, defendant; offering to sell to plaintiff a certain horse, warranted the same to be sound, kind, and true, and gentle and quiet in harness. 2. Plaintiff, relying upon said warranty, purchased said horse from defendant and paid defendant $500 therefor. 3. At the time of said warranty and sale, said horse was unsound, unkind, and untrue; and restive and ungovernable in 107 COMPLAINTS. Form 65 harness; and had an infectious disease, to wit: the g'anders, and was worthless. Of all which defendant then had notice. 4. Thereafter, said horse infected with the said disease three other horses of plaintiff of the value of $1,000; where- by one of said horses died and the others were rendered worth- less, and plaintiff was put to great expense in attempting to cure the same. Plaintiff demands $2,000 damages. 64. Sales : For Goods Made to Order by Sample, and Not Accepted. 1. On July 1st, 1912, defendant agreed with plaintiff that plaintiff should make for defendant 100 chairs, similar to a sample chair then in plaintiff's store, and promised to pay for the same, upon delivery $400. 2. Plaintiff made said chairs according to said agreement and on August loth, 1912, tendered delivery of the same to defendant and has ever since been ready and willing to deliver the same. 3. Defendant refused and still refuses to accept said chairs or to pay for the same. Plaintiff demands, as damages, $400, with interest from August loth, 1912. NOTE: See Sales Act, Comp. St. p. 4651, Sec. 19, Rule 2 ; p. 4663, Sec. 66. 65. On Covenant of Warranty in a Conveyance. 1. On May ist, 1911, defendant under his hand and seal, made and delivered to plaintiff, a deed of certain land in Middletovvn, County of Monmouth, bounded north by land of John Smith, south and east by land of James Stiles and west by the Road and containing about 100 acres. 2. In said deed, defendant covenanted to warrant and de- fend said property to plaintiff against all claims and demands whatsoever. 3. The defendant was not, but one William Brown was, at the time of making said deed, the lawful owner of said land in - fee simple. 4. On April ist, 1912, said Brown evicted plaintiff from said farm and still withholds possession thereof from him. Plaintiff demands $10,000 damages. Form 66 COMPLAINTS. 108 66. On Covenant of Seizin. 1. On May ist, 1911, defendant under his hand and seal, made and delivered to plaintiff, a deed of a certain farrri (describe) and in said deed covenanted with the plaintiff that he, the defendant, was well seized of said farm, as of a good, indefeasible estate in fee simple. 2. Defendant was not then well seized of said farm, but one William Brown was then well seized thereof in fee simple. 3. Plaintiff paid defendant $5,000 for said farm on receiv- ing said deed. Plaintiff demands $5,000 damages. 67. On Covenant Against Incumbrances. 1. On May ist, 1912, defendant under his hand and seal, made and delivered a deed to plaintiff, conveying in fee simple a lot of land in Trenton, N. J. (briefly describe the land suffi- ciently to identify). 2. Said deed contained a covenant on the part of defend- ant that there was no encumbrance upon said property, a copy of which covenant is hereto annexed. 3. At the time of the delivery of said deed, the premises were subject to the right of dower of one Jane Stiles, widow of John Stiles, a former owner of said land. 4. At the time of the delivery of said deed, said premises were also subject to the lien of a judgment for $500, recovered on April i, 1910, in the Supreme Court of New Jersey by one John Doe against the said John Stiles, the former owner of said premises. 5. By reason of the premises, plaintiff was obliged to pay and did pay on July ist, 1912, the sum of $2,000 in extinguish- ing the said right of dower and the lien of the said judgment. Plaintiff demands as damages, $2,000 with interest from July i, 1912. 68. On Covenant for Quiet Enjoyment ; Against Landlord, Special Damages. i. On May ist, 1911, defendant, by lease under seal, let to plaintiff the house, No State Sjreet, in Trenton, for two years ; and therein covenanted that plaintiff should quietly en- joy possession thereof for said term. 109 COMPLAINTS. Form 70 2. Thereupon defendant took possession of said premises and carried on the business of a tailor therein. 3. On October ist, 1911, one William Brown, who was the lawful owner of said house, lawfully evicted plaintiff therefrom and still withholds possession thereof from him. 4. Plaintiff was thereby prevented from continuing his business as a tailor at said place, was compelled to expend $500 in moving his business and goods, and because of such remov- al lost the custom of and of who had theretofore been his customers. Plaintiff demands $1,000 damages. 69. On Covenant Against Tenant For Not Keeping Prem- ises in Repair. 1. On June ist, 1911, plaintiff and defendant, executed a lease by which plaintiff leased to defendant for five years from that date, his dwelling house with stable and sheds attached, in Orange. 2. Defendant covenanted in said lease that he would, dur- ing the term, at his own cost, keep said premises in good repair, and at the expiration of the term, leave the premises in as good condition as he received the same, reasonable wear and tear excepted (or, defendant covenanted in said lease to keep said premises in good repair, a copy of which covenant is here- to annexed). 3. Defendant occupied said premises during the term and during his occupancy some of the shingles of the roof of said house became rotten and broken, so as to admit rain-water, and the defendant has never repaired the same. 4. By reason thereof, the plastering upon the walls of said house has been injured and in many places has fallen down. Plaintiff demands $500 damages. 70. Against Executor of Lessee for Rent Due Before His Death. 1. On June ist, 1911, plaintiff and John Stiles, late of Camden, deceased, executed a lease of which a copy is here- to annexed, whereby plaintiff let the premises therein described to said Stiles. 2. By virtue of said lease, said Stiles entered upon and was possessed of the demised premises. Form 71 COMPLAINTS. 110 3. On October 3d, 1911, during the said term, said Stiles died leaving a will appointing the defendant his executor. 4. Said will was admitted to probate by the Surrogate of Camden County and letters testamentary thereon were issued to defendant. 5. The rent, amounting to $250, under said lease for the quarter ending on (name a day before the lessee's death) became on said day due to the plaintiff from said Stiles. 6. Said rent has not been paid. Plaintiff demands as damages, $250 with interest from 71. Against Landlord for Breach of Covenant to Keep Premises in Repair: Special Damage. 1. On May ist, 1912, plaintiff and defendant executed a lease, by which defendant leased to plaintiff, the premises known as No. 10 Main Street in for one year from that date. 2. Said lease contained a covenant on the part of defend- ant to keep the premises in repair. A copy of said covenant is annexed hereto. 3. The plaintiff entered into possession of said premises under said lease and used the same as a store and warehouse for storing and selling articles of dry goods. 4. Defendant has failed to perform said covenant, and has allowed the wall and roof to become and remain leaky, where- by water has entered into said premises and utterly ruined a portion of plaintiff's said goods and seriously injured others. Plaintiff demands $500 damages. 72. On Contract to Convey. i. On April ist, 1912, plaintiff and defendant signed an agreement for the sale of lands on street, Jersey City, a copy of which is hereto annexed. (Or i. On April ist, 1912, defendant agreed in writing that he would on May 15, 1912, execute to plaintiff a warranty deed conveying the lot numbered 40 on Block numbered on the official map of Jersey City, free from incumbrances ; and plaintiff in said writing agreed to pay $10,- ooo for the same, viz. : $500, on executing the contract and ill COMPLAINTS. Form 73 the balance in cash on the delivery of- the deed. Plaintiff paid $500. on executing the contract in accordance with its terms.) 2. On May 15, 1912, plaintiff demanded a deed of convey- ance from defendant in accordance with the terms of the con- tract, and then tendered to him the balance of the above men- tioned price (or, was ready and willing, and offered, to de- fendant to pay the balance of said contract price and duly to perform all the terms of said contract upon his part, upon the like performance by defendant.) 3. Defendant refused then to deliver any deed of convey- ance for said property and still refuses so to do. (Or, 3. There is a mortgage upon said property made by John Doe to Thomas Stiles for $5,000, dated June ist, 1910, and recorded June 5, 1910 in Book of Mortgages for Hudson County, page , which is still unsatisfied of rec- ord, Or any other defect of title.} Plaintiff demands dollars damages. 73. On Contract to Purchase. 1. On May ist, 1912, defendant signed a written contract for sale of land in Newark, a copy of which is hereto annexed. 2. On July ist, 1912, plaintiff, being then the owner in fee simple of said property, and the same then being free from all incumbrance, tendered to the plaintiff a sufficient deed of conveyance of the same, made in accordance with the terms of said contract (or, was ready and willing, and offered to convey the same to defendant by a sufficient deed of conveyance in accordance with the terms of the contract) on payment, by the defendant, of the price in the manner stated in the con- tract. 3. Defendant then refused to pay the price and. still re- fuses to do so. The plaintiff demands $1,000 damages. NOTE: // the contract contained special conditions to be performed by plaintiff tfic complaint should allege their per- formance generally. See Form 16. Form 74 COMPLAINTS. 112 74. For Use and Occupation. 1. Defendant occupied the house and lot No. 100 State Street in by permission of plaintiff from May ist, 1912 to July ist, 1912, under an agreement to pay plaintiff monthly a reasonable sum for the use thereof. 2. The use of said premises for said period was reasonably worth $200. 3. The defendant has not paid the same. Plaintiff demands as damages $200 with interest from 75. For Services of an Attorney on an Implied Contract to Pay. 1. Plaintiff, being an attorney at law of this State, ren- dered services as such for defendant, at defendant's request, be- tween January i, ,1911 and January i, 1912, under an agree- ment between them, that the plaintiff should charge reasonable fees for said services, and his disbursements and expenses in- cidental thereto; and that defendant would pay plaintiff the amount due on plaintiff's account of said fees, disbursements and expenses. 2. Plaintiff kept an account of the same and the amount charged thereon in conformity with said agreement was $i,- ooo on February i, 1912 and on that day plaintiff rendered said account to defendant. 3. Defendant has not paid the same or any part thereof. Plaintiff demands as damages $1,000 with interest from February i, 1912. 76. Against an Attorney for Not Collecting a Note. 1. On January 20, 1911, defendant was and has ever since been a practicing attorney-at-law. 2. On that day plaintiff delivered to defendant, as such at- torney, a promissory note of one Richard Roe for $700, dated July i, 1910, payable on demand, with instructions to sue upon the same immediately. 3. Defendant failed to exercise reasonable care and dili- gence in collecting said note and neglected to bring suit upon it for one year after the same was delivered to him. 113 COMPLAINTS. Form 78 4. When said note was delivered to defendant and thence until October i, 1911, said Richard Roe had ample property from which a judgment and execution upon said note could have been collected in full, but in November, 1911, said Roe became, and has ever since been, insolvent, whereby said note has never been paid. Plaintiff demands as damages, $700 with interest from. . 77. Against an Attorney for Neglecting to File an Answer. 1. In April, 1911, defendant was a practicing attorney-at- law of this State. In that month, plaintiff retained him as such attorney and paid him $100 retainer (or, employed him as such attorney for reward) to defend, on behalf of plaintiff, an action which had been brought against plaintiff by James Stiles and which was then pending in the Supreme Court of New Jersey, for the recovery of a large sum of money. 2. Plaintiff had a just defense to said action. 3. Such proceedings were had in said action that it be- came the duty of defendant, as the attorney of this plaintiff, to file therein on or before May i, 1911, a plea showing such defense. 4. Defendant wholly neglected to file said plea and by reason of his neglect, judgment by default was entered in said cause against this plaintiff, and thereby plaintiff was compelled to pay the costs of having said judgment vacated and was put to other costs and charges in employing another attorney to defend said action. Plaintiff demands $500 damages. 78. Against an Attorney for Negligence in Examining Title. 1. At the times hereinafter mentioned-, defendant was a practicing attorney-at-law of this State. 2. In June, 1911, plaintiff was negotiating with one John Doe for the purchase from him, for $5,000, of a tract of land in the City of Plainfield, New Jersey, known as (briefly de- scribe the property sufficiently to identify it). Said Doe as- sumed to have power to convey a good title to said property in fee, free of all encumbrances. Form 79 COMPLAINTS. 114 3. In the last mentioned month, plaintiff employed defend- ant as such attorney, to examine the title of said Doe to said property, for reward, and to report and advise plaintiff whether or not it was good and free from encumbrance ; which employ- ment defendant accepted. 4. Defendant negligently and unskillfully conducted said examination of title, and overlooked a mortgage of the amount of $2,000 then on record, made by said Doe to one John Stiles, covering the said premises; which mortgage was then un- satisfied; and defendant then negligently advised plaintiff that said Doe had a good title to said property free from all en- cumbrance of record; and thereby induced plaintiff to con- summate said purchase and to pay said Doe $5,000 upon re- ceiving from him a deed of conveyance of said premises. 5. Plaintiff, relying upon said advice of defendant, on Au- gust ist, 1911, accepted from said Doe, a deed of conveyance for said premises and paid him $5,000 for the same, when in fact said property was subject to the said mortgage. 6. Plaintiff, in order to free said premises from the lien of said mortgage, was compelled to pay the holder thereof $2,- ooo of principal and $50 interest on December ist, 1911. 7. Said John Doe became insolvent in or about the month of October, 1911, and before plaintiff had notice that said property was subject to said mortgage. Plaintiff demands as damages, $2,050 with interest from De- cember ist, 1911. 79. Against an Agent for Money Collected. 1. On May ist, 1912, the plaintiffs authorized the defend- ant to collect and receive (state character of the collections, such as, notes, policy fees, freight) and other moneys for them, to be paid to them when collected, deducting his reasonable charges in the premises. 2. The defendant, as such agent, received and collected the several sums of money specified in Schedule A hereto annexed, at the times therein stated, which sums amounted on July ist, 1912, to $1,000. 3. After the defendant's credits are deducted he owes the plaintiffs $950. 4. On August i. 1912, the plaintiffs demanded said balance of money of the defendant. 115 COMPLAINTS. Perm 81 5. He has not paid the same. The plaintiffs demand as damages, $950 with interest from 80. Against an Agent for Selling Contrary to Orders. 1. During the months of March and April, 1912, the plain- tiff employed the defendant, for reward, as his agent, for the sale of coal in Trenton. 2. The defendant's duty, by the terms of said employment, was to sell the coal consigned to him by the plaintiff for cash, or upon a note endorsed by a third party as security. 3. Between March loth and April I5th, 1912, plaintiff consigned to defendant, in various lots, 500 tons of coal, and defendant received the same as such agent. 4. On April I2th, 1912, defendant, in breach of said con- tract of employment, sold 100 tons of said coal to John Doe upon a credit of nine months without taking an endorsed note or any other security whatever for the same. 5. Said Doe became insolvent within one month after said sale and did not pay for said 100 tons of coal when payment became due. Plaintiff has never received anything in payment for the same. Plaintiff demands as damages, $ with interest from 81. Against Del Credere Agent on His Liability as Such, and, in the Alternative, for Neglect. 1. On February 1st, 1911, plaintiffs commenced, and down to January 28th, 1912, continued, to consign to defendant, as their agent, large quantities of their flour for sale, and de- fendant sold the same. 2. On February 3rd, 1912, defendant sold 50 barrels of flour, part of the goods so consigned to him, to Richard Roe for $450 on three months credit, and delivered the same to him. 3. Richard Roe was at that time insolvent; and defendant might, by ordinary care and diligence, have ascertained that fact. 4. Richard Roe did not pay for said flour at the expiration of said three months, and was then and ever since has been in- solvent. The plaintiffs have never received any part of said sum of $450. Form 82 COMPLAINTS. 11G 5. No express agreement was ever made with respect to the terms of defendant's agency. The defendant has always charged the plaintiffs a commission at the rate of commission ordinarily charged by del credere agents in said trade. And defendant, in fact, always accounted to the plaintiffs for the price, whether he received the same from the purchaser or not. 6. Plaintiffs insist that the defendant is liable to them as a factor to sell upon a del credere commission, but if not so liable, that he is liable as as ordinary agent. Plaintiffs demand as damages, $450 with interest from XOTE: This form is from tJie Connecticut Practice Book (1908). See Rule 37 and notes to Rules 36, 39. 82. Against Sureties for Payment of Rent. 1. On March ist, 1911, John Doe, by agreement in writing with plaintiff, hired of him the building No. 100 Street, Newark, at the yearly rent of $1,000 payable quarterly on the first days of (state times of payment). 2. Defendant, in consideration of the said letting, and as security for the punctual payment of said rent, then and there signed and delivered to plaintiff, a written agreement a copy of which is hereto annexed. 3. Said Doe made default, after due demand, in the pay- ment of $250 which was due for said rent on June ist, 1911, and again made default, after due demand, in the payment of $250 which was due for said rent on September ist, 1911. 4. Before this action, on November ist, 1911, plaintiff gave to defendant due notice of said demand and non-payment, and demanded payment of defendant of said sums. 5. Defendant has not paid said sums or any part thereof. Plaintiff claims as damages $500 with interest from . . 117 COMPLAINTS. Form 84 83. Against Principal and Sureties, on Contract for Ser- vices. 1. Heretofore, certain articles' of agreement were signed and sealed by plaintiff and defendant, John Doe, dated June i, 1911 of which a copy is hereto annexed, marked A. 2. On the same day, simultaneously with the execution of said agreement, and in consideration thereof, defendants John Styles, Richard Roe, and James Fen signed and sealed a guar- antee, written at the foot of said agreement, of which a copy is hereto annexed, marked B. 3. On April ist, 1912, plaintiff had performed all the conditions of said contracts on his part and was entitled to receive from said Doe upon said articles of agreement, for work done by plaintiff, the sum of $2,000. 4. On the last named day said Doe refused to pay that sum and has never paid the same or any part thereof, although he was then requested to pay the same. 5. On the last mentioned day, the other defendants had due notice of said demand and refusal. 6. The defendants have wholly failed to perform said con- tracts and have neglected and refused to pay said sum of $2,- ooo, or any part thereof. Plaintiff demands as damages, $2,000 with interest from 84. On an Agreement to Answer for the Price of Goods Sold to a Third Person. 1. On Alay ist, 1911, defendant promised to be answerable to plaintiff for the payment by one John Styles of the price of any goods then or thereafter to be sold on a credit of three months, by plaintiff to said Styles (state any limitations upon the guarantee according to the facts}. 2. The consideration for said promise was, that plaintiff, at the request of defendant, would then and thereafter sell to said John Styles, on a credit of three months, such goods as said Styles should desire to buy of plaintiff. 3. On May loth, 1911, on the faith of said guarantee, plain- tiff sold and delivered to said Styles (describe the goods brief- ly or refer to a list annexed}, for the price of $500, upon a credit of three months from that day. and immediately gave due notice thereof to defendant. Form 85 COMPLAINTS. 118 4. Payment of the same, was demanded from said Styles after said three months had elapsed, but the same was not paid. Of all which defendant had due notice. 5. On Sept. ist, 1911, payment of the said sum was de- manded by plaintiff of defendant. 6. No part thereof has been paid except $75 which defend- ant paid to plaintiff on Sept. 6, 1911. Plaintiff demands, as damages, $425 with interest from 85. By Surety (on a Lease) Against His Principal. 1. On May ist, 1911, defendant and one John Styles exe- cuted a lease of which a copy is annexed marked A. 2. At the request of defendant, plaintiff made and delivered to defendant, his guarantee thereof, in writing, of which a copy is annexed, marked B. 3. Defendant delivered said lease and guaranty to said Styles and thereby obtained possession of said premises. 4. Defendant failed to pay $1,000 rent under said lease which became due Nov. ist, 1911. 5. Plaintiff by his guarantee was compelled to pay, and did pay, on January loth, 1912 to said Styles $1,025, being said sum of rent with interest thereon. 6. Defendant has not repaid the same to plaintiff although requested so to do. Plaintiff demands, as damages, $1,025 with interest from . . 119 COMPLAINTS. Form 86 86. Plaintiffs in Alternative; Action Against Common Carrier for Loss of Goods. (FROM SCHEDULE B.) Supreme Court of New Jersey. Hudson County. A. B. and, in the alternative, C. D., Plaintiffs, vs. Complaint. Erie Railroad Company, Defendant. Plaintiffs (state names and residences) say that: 1. The plaintiff, A. B., being a manufacturer of silk, doing business in Paterson, on January i, 1912, contracted in writing to sell ten bales of silk of the value of $1,000 to the plaintiff, C. D., who was a merchant doing business in Buffalo. A copy of the contract is hereto annexed. 2. By the terms of said contract, A. B. agreed to ship said goods from Paterson, via Erie Railroad, to C. D., at Buffalo. 3. The terms of the contract were such as to make it un- certain whether the title to the goods so sold passed to the buyer on delivery of the goods to said railroad company for transportation at Paterson, or on delivery of said goods to the buyer at Buffalo. 4. On January 5th, 1912, A. B. delivered said goods to the defendant (being then a common carrier) at Paterson. Said company received the same and agreed, in consideration of freight charges to be paid on delivery of the goods, to trans- port and deliver them to C. D. at Buffalo. 5. On January 6th, 1912, said goods were destroyed by fire at while in possession of the defendant under said agreement of transportation. 6. Plaintiff claims that either A. B. or, in the alternative, C. D., is entitled to damages from the defendant for loss of said goods. Plaintiffs, in the alternative, demand $1,000 damages. Plaintiffs pray that the court may determine which one of them is entitled, under the contract between themselves to re- cover from the defendant. NOTE: See forms of judgment on this complaint; Forms 299, 300. Form 87 COMPLAINTS. 120 87. Against a Carrier for Not Delivering in a Reasonable Time. 1. On August ist, 1912, defendant being then and now a corporation, was also a common carrier of goods between New Brunswick in this State and the City of New York in the State of New York. 2. On that date, plaintiff delivered to defendant, as such common carrier, at New Brunswick, one carload of ripe peaches of the value of $500 to be immediately carried to plaintiff at the City of New York aforesaid, for reward, and defendant received said peaches for that purpose. 3. Defendant, in violation of its duty, neglected to deliver said peaches to plaintiff for six days after defendant received the same ; and by reason of said negligence of defendant, said peaches decayed, became spoiled, and were wholly lost to plain- tiff. Plaintiff demands $500 damages. 88. Against the Same: for Loss of Baggage. 1. At the times herein stated defendant was and it still is a corporation. 2. *On May ist, 1912, defendant was also a common carrier of passengers and baggage by rail between Trenton and New York City in the State of New York. 3. On said day, plaintiff at Trenton, became a passenger for reward on a train of cars of defendant then going from Trenton to New York aforesaid, and as such passenger deliv- ered to defendant three trunks containing goods and clothes of the value of $200, in each of said trunks, being his reason- able baggage, to be conveyed on said train as his baggage ; and defendant then accepted said trunks for said purpose. 4. Defendant so carelessly and negligently carried said trunks and their contents that the same, through the careless- ness and negligence of defendant, were wholly lost to plain- tiff. Plaintiff demands $600 damages. 121 COMPLAINTS. Form 91 89. Against a Common Carrier for Losing Goods. 1. On May ist, 1912, defendant was a common carrier of goods for hire from Newark to Jersey City. 2. On that day, plaintiff delivered to him as such carrier, goods of plaintiff, to wit (specify goods or refer to than as at- tached in a schedule] of the value of $500 to be carried, for reward, from Newark to- Jersey City and there to be delivered by defendant to plaintiff. 3. Defendant neglected his duty and did not safely carry said goods from Newark to Jersey City, nor there deliver the same to the plaintiff ; but by default of defendant in the prem- ises, said goods were wholly lost to plaintiff. Plaintiff demands $500 damages. 90. Against an Inn-Keeper, for Loss of Goods. 1. At the time hereinmentioned defendant was an inn-keep- er and kept an inn, known as the "Dale House" at 2. On June 3, 1912, the plaintiff, being a traveler, was re- ceived by the defendant in his said inn, as such, for reward, and then brought into said inn as part of his baggage and committed to the charge of the defendant, as such inn-keeper, a trunk containing his necessary wearing apparel ' and other articles reasonable for a traveler to carry, being the property of plaintiff. 3. Said trunk continued in charge of defendant in said inn, and plaintiff abode there as a traveler until the loss hereinafter mentioned. 4. Defendant, in violation of his duty, did not keep said trunk and its contents safely, and on June loth, 1912, the same was, through his neglect and default, taken away by some per- son to the plaintiff unknown, and has never been returned. Plaintiff demands $500 damages. 91. On a Warehouse Receipt; by Indorsee Thereof. 1. Defendant, on January loth, 1912, was a warehouse man and kept a warehouse in Jersey City. 2. On that day he received from John Fen of Jersey City 100 barrels of flour of the brand of and of the value of $800, and gave him a negotiable warehouse receipt therefor, in which it was stated that said goods would be deliv- Form 92 COMPLAINTS. 122 ered to him or his order (or, a copy of which is hereto an- nexed). 3. Said Fen afterwards indorsed said receipt in blank to Richard Roe of said City. 4. On July ist, 1912, said Roe delivered it to plaintiff. 5. On the last named day, plaintiff, at Jersey City, pre- sented said receipt to defendant and demanded of defendant the delivery of said goods. 6. Said presentation and demand were accompanied with an offer to satisfy the defendant's lien on said goods and to surrender said receipt to defendant, and plaintiff was then and there ready and willing to sign, if requested, an acknowledge- ment of such delivery when the same should be made. 7. Defendant then and there refused, to deliver said goods to plaintiff and plaintiff has never received the same. Plaintiff demands $1,000 damages. 92. On a Fire Insurance Policy. 1. Plaintiff was the owner of a dwelling house known as No State Street, in Trenton, at the time of its insur- ance, and of the fire herein stated. 2. On July ist, 1911, defendant was, and still is, a corpora- tion duly incorporated, with power to insure risks by fire. 3. On that day, in consideration of $ to it paid, defendant executed -to plaintiff, a policy of insur- ance on said house, a copy of which is hereto annexed. 4. On March ist, 1912, said house was totally destroyed (or, greatly damaged), by fire. 5. Plaintiff's loss thereby was $3,000. 6. On April i, 1912, plaintiff furnished defendant with proof of his loss and interest in said property, and otherwise duly performed all the conditions of said policy on his part. 7. Defendant has not paid said loss. Plaintiff demands $3,500 damages. 93. On a Life Insurance Policy ; by Executor. 1. (State incorporation and business of defendant as in preceding form.) 2. On October i, 1905, in consideration of the payment to defendant by one John Stiles, deceased, late of Trenton, 123 COMPLAINTS. Form 94 of a premium of $100 and of like sum to be paid to it, by him, annually during his life, defendant made its policy of insur- ance in writing, a copy of which is annexed hereto, and there- by insuring the life of said Stiles in the sum of $5,000. 3. On June ist, 1912, said Stiles died. (Shoiv tliat his death zvas not the result of any cause e-.vcepted in said policy.) 4. Said Stiles left a will by which plaintiff was appointed executor and on June I5th, 1912, said will was admitted to probate by the Surrogate of Mercer County and letters testa- mentary thereon were issued to plaintiff. 5. Said Stiles duly performed all the conditions of said contract of insurance on his part and, till his death, annually paid said premium. 6. Plaintiff made due proof of the death of said Stiles to the defendant in accordance with the requirements of said policy on June 2Oth, 1912, and otherwise performed all condi- tions of said policy on his part. 7. The amount of said insurance has not been paid. Plaintiff, as executor, demands as damages, $5,000 with interest from 94. Against a Builder for Defective Work. 1. On November i, 1911, plaintiff and defendant executed an agreement, whereby defendant agreed to construct for plain- tiff in a workmanlike manner and of first class material, a building on street in Newark, for the sum of $20,000. A copy of said agreement is hereto annexed. 2. Plaintiff has duly performed all of the conditions of the agreement on his part. 3. Defendant constructed said building in so unskillful and unworkmanlike a manner and of such inferior material that, shortly after its completion, the foundation settled, the walls cracked, the roof and walls became leaky, a considerable portion of the plastering fell and the house otherwise was, and is, nearly useless, because of the inferior material and the un- workmanlike and unskillful manner used in its construction by the defendant. Plaintiff demands $5,000 damages. Form 95 COMPLAINTS. l:.'4 95. Against a Builder for Not Completing His Work; Special Damage for Loss of Rent. 1. On February 1st, 1912, plaintiff and defendant execu- ted a written contract, a copy of which is hereto annexed. (It is optional to state the substance of the contract, thus:} Whereby defendant agreed to erect a three-story brick dwell- ing house in Trenton and to have the same completed and ready for occupancy on August ist, 1912; for which plaintiff agreed to pay $8,000 in installments as the work progressed, viz., $2,000 when the foundation should be laid ; $3,000 when the walls should be built and the roof put on; $2,000 when the house was entirely completed and the balance sixty days after the house was completed. 2. Plaintiff duly performed all the conditions of said con- tract upon his part. 3. Defendant entered upon the performance of the work under said contract and laid the foundation of said house and finished the building of the walls, but has not put on the roof and has not completed said building. He has entirely abandoned work upon the building and refuses to complete the same. The time for the completion of said building ex- pired before this action was begun. 4. On March i, 1912, plaintiff made an agreement with John Stiles, whereby he agreed to let and said John Stiles agreed to hire, said building for one year from September I, 1912, at the yearly rent of $800, of which defendant had due notice. 5. By reason of defendant's failure to complete the con- tract upon his part, plaintiff has been unable to complete said house, so as to give John Stiles occupancy thereof, and has been thereby deprived of the profits of said lease and has been otherwise greatly injured. Plaintiff demands $5,000 damages. 96. By Builder, on a Written Contract Modified by Parol, with Claim for Extra Work. First Count. i. On June i, 1911, plaintiff and defendant executed a written contract, whereby plaintiff agreed to construct a building for the plaintiff in the City of Newark of the kind and upon the terms mentioned in said contract. 125 COMPLAINTS. Form 96 2.. Thereafter and before March 1st, 1912, plaintiff duly performed all the conditions of the contract on his part, ex- cept that, at the request of. defendant, he covered the roof of the building in the contract mentioned .with slate instead of -shingles, for which defendant promised to pay a reasonable sum in addition to the price named in said contract ; and also except that, at the like request, he omitted to put blinds upon the rear windows of the building upon an agreement with defendant that a reasonable deduction should be made from the price named in said contract for said omission ; and also ex- cept that, by consent of defendant, the time for completing said work was extended for one month after the day named in said contract, to wit, February i, 1912, within which ex- tended time the whole of said work was completed by plain- tiff. 3. A reasonable payment to be made in addition to the price named in said contract for covering said roof with slate instead of shingles is $250. 4. A reasonable deduction to be made from the price named in said contract for the omission to put blinds upon said building as above stated is $50. 5. On April ist, 1912, plaintiff duly demanded of defend- ant the payment of $1,200, being the balance due on said contract after making the aforesaid allowance and deduction. 6. No part of said sum so demanded has been paid. Second Count. 1. Between January ist and March ist, 1912, plaintiff, at the request of defendant, rendered further services, and fur- nished further material to the defendant in building certain fences and out-buildings and in work upon the grounds around the aforesaid house, particulars of which are annexed hereto in Schedule A ; for which defendant promised to pay so much as said services and materials should be reasonably worth. 2. The same are reasonably worth $500, which sum became due for the same on April ist, 1912. 3. Neither said sum nor any part thereof has been paid. Plaintiff demands as damages on the first count, $1,200; on the second count, $500; with interest on both sums from April i, 1912. Form 97 COMPLAINTS. 126 97. For Salary. (FROM SCHEDULE B.) 1. On July i, 1910, defendant hired plaintiff as a salesman at a salary of $1,000 per year, payable quarterly. 2. From that day until July i, 1911, plaintiff served defend- ant as such salesman. 3. Defendant has paid on account of said salary only $500, leaving due a balance of $500. Plaintiff claims as damages $500 with interest from 98. For Rent. (FROM SCHEDULE B.) First Count. 1. On January i, 1911, plaintiff and defendant executed a lease (under seal) of the premises No. 20 street, Trenton, of which a copy is annexed hereto. 2. A half year's rent of $200 due July i, 1911, is unpaid. Plaintiff demands, etc. 99. By Purchaser of a Business Against a Seller for Breach of Covenant Not to Compete. (FROM SCHEDULE B.) 1. On July i, 1910, defendant was a physician practic- ing in the town of , and plaintiff was also a physician. 2. On that day, in consideration that plaintiff would pur- chase of defendant the good-will of his practice for $1,000, he agreed with plaintiff that he would not practice medi- cine or in any manner do business as a physician in said town for a period of ten years after that date. 3. Plaintiff on that day purchased from defendant the good-will of his practice for the price and on the terms afore- said. 4. Plaintiff, on or about that time, opened, and has since maintained an office in said town, as a practicing physician. 5. Defendant, in violation of said agreement, on January i, 1912, opened an office in said town, and commenced,, and still continues, to practice medicine, and do business as a physi- cian in said town. 127 COMPLAINTS. Form 101 6. Plaintiff's professional income has been lessened thereby. Plaintiff demands $5,000 damages. 100. Against a Note Broker for Proceeds of Note Dis- counted. 1. On May ist, 1912, plaintiff employed defendant to sell, or procure to be discounted, a note of plaintiff (describe note) a copy of which is hereto annexed. 2. Thereafter and before June ist, 1912, defendant pro- cured said note to be discounted by one John Doe and received $900 as proceeds thereof. 3. Defendant's just charges and commissions amount to $45 and no more. 4. Plaintiff, on June 5th, 1912, duly demanded payment of the balance, being $855. 5. Defendant has never paid the same. Plaintiff demands as damages, $855 with interest from. . . . 101. Against an Auctioneer for Not Accounting. 1. On March ist, 1912, defendant was, and at all times since has been, carrying on the business of an auctioneer. 2. On that day, plaintiff delivered to defendant as such auctioneer, twenty oil paintings, being the property of plain- tiff, to be sold by defendant at public auction for plaintiff and defendant received the same for that purpose. 3. On April ist, 1912, defendant sold said paintings at public auction for plaintiff for divers sums of money, amount- ing in the whole to $1,000 or thereabouts. 4. Defendant afterwards, and before this action was be- gun received payment for the paintings so sold. 5. Sufficient time has elapsed in which defendant could have accounted for the proceeds of said sale; yet defendant, in violation of his duty, has neglected and refused and still neglects and refuses to render to plaintiff an account of said sale and of the proceeds thereof and to pay such proceeds to plaintiff. Plaintiff demands $1,200 damages. NOTE: When the precise amount of principal due is not known, the damages should be alleged at a round sum sufficient to cover it. Form 102 COMPLAINTS. 128 102. On an Award. 1. On January 10, 1912, plaintiff and defendant, having then a controversy between them concerning a demand of plaintiff for the price of a carload of lumber which defendant refused to pay, agreed to submit the controversy to the award of A. B. and C. D. as arbitrators (or, entered into an agree- ment, a copy of which is hereto annexed, marked Schedule A, whereby they agreed to submit the controversy to the award of A. B. and C. D. as arbitrators). 2. On February ist, 1912, said arbitrators, pursuant to said submission, awarded that the defendant should pay plain- tiff $800, and duly published said award. 3. Defendant has not paid the same or any part thereof. 4. Plajntiff demands as damages, $800 with interest from 103. Quantum Meruit for Hire of a Piano, with Damages for Converting It. First Count. 1. On November i, 1911, defendant hired of plaintiff for six months then next ensuing, one piano, being the property of plaintiff, to be returned to plaintiff, at the expiration of said time, in good condition, reasonable wear excepted ; for the use of which he promised to pay plaintiff a reasonable sum. 2. A reasonable sum for the hire of the same for said period was $50, which sum, on May ist, 1912, became due from defendant to plaintiff for said hire. 3. No part of said sum has been paid (except the sum of $10). Second Court. 1. The statements in paragraph i of the first count are made part of this count. 2. The value of the piano so hired by defendant was $500. 3. Defendant not regarding his said undertaking to return the piano to plaintiff, has not returned the same although he was on May loth, 1912, requested by plaintiff to do so. Plaintiff demands as damages, $50 with interest from May i. 1912, on the first count; $500 on the second count. 129 COMPLAINTS. Form io< 104. On Special Contract for Hire of Furniture, with Damages for Injury to It. First Count. 1. On May ist, 1911, in Trenton, defendant hired from plaintiff certain household furniture, plate, and books, being the property of plaintiff, to wit (describe the articles or refer to a schedule annexed in which they are described) for one year then next ensuing, to be returned by him to plaintiff at the expiration of said time, in good condition reasonable wear and tear thereof excepted. 2. Defendant promised to pay plaintiff for the use thereof $600 (in equal quarterly payments in advance on the first days of May, August, November and February). 3. Xo part of said sum has been paid (except the sum of $150). Second Count. 1. All the statements in the first count are made part of this count. 2. The value of the property so hired by defendant was $5,000. 3. Defendant took so little care thereof, that through his negligence, carelessness and ill use, the same became broken, defaced and damaged to the amount of $500 beyond the rea- sonable wear thereof, and in that condition it was returned to the plaintiff. Plaintiff demands as damages: On the first count $450 with interest from On the second count $500. 105. For Breach of Promise of Marriage. 1. On June i, 1911, in consideration that plaintiff, who was then unmarried, promised, at the request of the defendant, to marry him \\ithin a reasonable time, the defendant promised to marry the plaintiff within a reasonable time. 2. The plaintiff, confiding in said promise, has always since remained, and is now, ready and willing to marry defendant. 3. The defendant refuses to marry the plaintiff, although a reasonable time elapsed before this action was begun, and although she on July ist, 1912 requested him to do so. Plaintiff demands $5,000 damages. Form 106 COMPLAINTS. 130 106. For Demurrage, and Damages in the Nature of De- murrage. First Count. 1. On May ist, 1912, plaintiff and defendant signed a char- ter-party for the hire of the schooner "Starlight," a copy of which is hereto annexed. 2. Plaintiff duly performed all the terms and conditions thereof on his part. 3. Defendant kept the schooner on demurrage nine days over and above the periods agreed upon for loading and dis- charging in said charter-party. 4. Said demurrage has not been paid. Second Court. 1. All the statements of the first two paragraphs of the first count are made part of this count. 2. Defendant also detained the schooner four days beyond the periods agreed upon in said charter-party, for loading, dis- charging, and demurrage, whereby the plaintiff, during all that time, was deprived of the use of the ship and incurred $100 expense in keeping the same and maintaining the crew, 3. A reasonable compensation for such detention and ex- pense is $40 a day. Plaintiff demands as damages, on the first count $ , and on the second count $ 107. On a Guaranty of a Precedent Debt. 1. On April i, 1912, one John Stiles was indebted to plain- tiff in the sum of $1,000 which was then due and payable. 2. In consideration of forbearance for sixty days of suit by plaintiff, against said Stiles, to recover said debt, defend- ant signed and delivered to plaintiff a note or memorandum of which the following is a copy (copy the guaranty). 3. Plaintiff performed all the terms and conditions of said contract on his part and $1,000 is now due to him thereon from the defendant and is unpaid. Plaintiff demands as damages, $1,000 with interest from . . 131 COMPLAINTS. Form 109 108. Upon a Promise Made to a Third Person, to Pay Money to Plaintiff ; Making the Former a Defendant. 1. On May i, 1911, one John Stiles, was and ever since has been, indebted to plaintiff in the sum of $2,000. 2. On that day, said Stiles being holder of a bill of ex- change for the sum of $1,000 (describe it or refer to copy at- tached} endorsed and delivered it to defendant, Jacob Doe ; in consideration of which, said Doe then and there promised said Stiles that he would endeavor to collect the same, and that when collected, he would apply the proceeds in payment of said indebtedness of John Stiles to plaintiff; of all which said Stiles on said day, gave notice to plaintiff. 3. Afterwards^ on October ist, 1911, said Doe collected said bill. 4. Said Doe has not applied any part of the proceeds of said bill in payment of said indebtedness, but still retains the same. 5. Said Stiles was asked by plaintiffs before this action, to join as a co-plaintiff herein, but declined to do so, for which reason he is made a defendant. Plaintiff demands, of Jacob Doe as damages, $1,000 with in- terest from October i, 1911. 109. By Advertising Agent for Services and Disburse- ments. 1. Between June ist and July ist, 1912, plaintiff, at de- fendant's request, caused advertisements of defendant's busi- ness to be inserted in the following named newspapers and periodical : (state names of papers, or annex and refer to a list}. 2. Plaintiff, for such insertions, for the use of the defend- ant and at his request, paid out (and incurred liability to pay) the sum of $1,000. 3. Plaintiff's services in the said matter were reasonably worth $200, which sum, with the amount of said disbursements, became due on July ist, 1912. 4. The same has not been paid (except the sum of $ ). Plaintiff demands as damages $ , etc. Form no COMPLAINTS. 32 110. By Employee, for Wrongful Dismissal from Service, i. On July i, 1911. defendant employed plaintiff as superin- tendent of defendant's factory, at Paterson, for the period of one year from that day, at the salary of $2,400, payable monthly ; and plaintiff accepted said employment and continued therein from that time until the dismissal herein stated. 2.. Defendant, on March i, 1912, before the expiration of said year and while plaintiff was so continuing said service, wrongfully dismissed him from the same. 3. Plaintiff was at all times ready and willing to continue in said service until the expiration of said year, and at all times until said dismissal, faithfully performed his duties as such superintendent, and performed all the -terms and condi- tions of the contract of employment on his part. 4. Because of said wrongful dismissal plaintiff has been de- prived of his salary which he would have received from being retained in said service, and he remained for a long time unemployed. 5. No part of plaintiff's salary to which he was entitled from March ist, to July ist, 1912 under the terms of said employment, has been paid. Plaintiff demands, as damages, $800 with interest 'on the unpaid instalments of salary, from the time when each fell due. 111. For Board and Lodging. 1. From January ist to July ist, 1912, without any special agreement, defendant with his family at his request, occupied certain rooms in the house of the plaintiff. No. 100 State street, in the City of , as a boarder, and was furnished by plaintiff, at defendant's request, with food, attendance and other necessaries. 2. The same were reasonably worth $600. 3. The defendant has not paid for the same nor for any part thereof. Plaintiff demands as damages $600 with interest from 133 COMPLAINTS. Form 114 112. For Contribution. 1. On May 1st, 1912, plaintiff and defendant, made and delivered to John Doe, their promissory note for $2,000, of which a copy is annexed hereto. 2. At the maturity of said note, plaintiff was compelled to pay and did pay the whole amount due thereon. 3. Defendant has paid nothing upon said note. His con- tributive share thereof is $1,000. 4. On September ist, 1912, plaintiff demanded of defend- ant said sum, or contributive share of $1,000, which defend- ant refused to pay and no part thereof has been paid to plain- tiff. Plaintiff demands as damages $1,000 with interest from. . . . 113. Against a Husband for Necessaries Supplied to His Wife, Without His Request. 1. On May ist, 1912, sundry goods, described in the list hereto annexed, were necessary for the use of Sarah Doe, then being the wife of defendant. 2. Defendant neglected to supply her with -said goods or any of them. 3. On that day, at her request, plaintiff supplied her with said goods on account of her husband, but for her use and consumption. 4. Said goods were reasonably worth $200. 5. Plaintiff has demanded payment of the same of de- fendant, who refused and still refuses to pay for the same. Plaintiff demands as damages, $200 with interest from .... 114. On Mechanic's Lien : Against Owner: No Contract Being Filed, or When the Work or Materials are Not Covered by the Contract : Prices Agreed On. 1. At the times hereinafter stated, defendant was the owner of a plot of land upon which he was then constructing a cer- tain building, which land is described as follows (describe the land). 2. On March ist, 1912 (or, between March ist and May loth, 1912), plaintiff sold and delivered to defendant the materials (or, performed labor as a carpenter), as stated in Schedule A hereto annexed, and defendant then in considera- Form 115 COMPLAINTS. 134 tion thereof expressly agreed to pay plaintiff the prices for said goods respectively (or, to pay plaintiff for said labor at the rate) stated in said schedule, amounting in the whole to the sum of $1,000. 3. Said materials were furnished to, and used by, defend- ant in (or, said labor was performed in) the construction of said building. 4. Defendant has not paid the said sum or any part there- of (except $ ) and the whole (or, the balance) of said sum is still due and unpaid. 5. Said debt is a lien upon said building and land by virtue of the provisions of the act entitled "An Act to secure to mechanics and others payment for their labor and materials in erecting any building." Plaintiff demands, as damages, $1,000 with interest from NOTE: The amendment made by Chap. 265, Lazvs of 1912, to the Mechanics' Lien Act, directing the complaint to be an- nexed to the summons, makes impossible the recitals in the complaint, that the defendants zvere summoned, and how they were served, as Jmd been required by Sec. 24 of the Act. The latter provisions are repealed by necessary implication. 115. The Same, When There was No Express Promise, or When the Prices Were Not Agreed Upon. 1. (Follow paragraph i of Form 114.) 2. On March ist, 1912, (or, between March ist and May loth, 1912), plaintiff, at request of defendant, sold and de- livered to defendant the materials (or, performed labor as a carpenter, as) stated in Schedule A hereto annexed; and de- fendant then, in consideration thereof undertook to pay plain- tiff what the same were reasonably worth. 3. The same were reasonably worth $1,000. (Continue as in Form 114, Sec. 3, et seq.) 135 COMPLAINTS. Form 118 116. Mechanic's Lien; When a Mortgagee is Made a Party Defendant. James Fen is made a party defendant, because he holds a mortgage of record upon said land, dated June ist, 1910, re- corded in Book of Mortgages for Hudson County on page to secure the sum of $2,000, which mortgage will be cut off by a sale under plaintiff's said claim. 117. On Mechanic's Lien: Against the Builder (Contrac- tor) and the Owner : Contract Not Filed. 1. At the times herein stated, defendant John Doe was the owner of a plot of land upon which he was then about to construct a certain building: which land is described as follows (insert description). 2. On May ist, 1912, defendant Richard Roe (hereinafter called "the contractor") contracted in writing with said Doe to construct (or, to do all the mason work in the construction of) a building then to be erected on said land. 3. Said written contract was not filed in accordance with the provisions of the Act hereinafter mentioned. 4. On May 2Oth, 1912 (or between May 2Oth and June loth, 1912) plaintiff sold and delivered to said contractor the materials (or, performed labor as a carpenter, as) stated in Schedule A hereto annexed, and said contractor then (etc., continue as in Form 114 or 115). 118. On Mechanic's Lien: By Contractor Against Owner. 1. (Same as paragraph one, Form 117.) 2. On March 1st, 1912, plaintiff and defendant executed an agreement for the construction (or, if for alterations or re- pairs, state according to the facts) of a building on said land, a copy of which is hereto annexed. 3. On May ist, 1912, plaintiff finished the construction of said building, and by the terms of said contract, a payment -of $2,000 then became due from defendant to plaintiff. 4. Defendant has not paid the same or any part thereof. 5. Plaintiff has performed all the terms and conditions of said contract on his part. 6. (Alleged lien as in Form 114, paragraph 5.) Plaintiff demands, as damages $2,000 with interest from Form 1 19 COMPLAINTS. 136 119. Mechanic's Lien Act: Against Owner, on a Stop- Notice. 1. At the times hereinafter stated, defendant was the owner of a plot of land upon which he was then constructing a certain building, situate on street in the City of ( describe the property by street number or otherzvise}. 2. On March ist, 1912, the defendant and Richard Roe, hereinafter called "the contractor," executed a contract for the construction (or, alterations or repairs) of a building on said land, a copy of which is hereto annexed, marked A. 3. On March 5th, 1912, said contract, together with the specifications therein referred to, were duly filed in the office of the Clerk of County. 4. Afterwards, on March loth, 1912 (etc., as in Form 114 or 115, alleging that the labor was performed for, or the ma- terials sold to, the contractor). 5. (Follow Form 114, paragraph 3.) 6. (Follow' Form 114, paragraph 4.) 7. On April 2Oth, 1912, plaintiff demanded said sum of $ of said contractor and said contractor then re- fused and ever since has refused to pay or settle the same. 8. On May ist, 1912, plaintiff gave defendant notice, in writing (a copy of which is hereto annexed marked B) of said demand and refusal and of the amount aforesaid due to plaintiff. 9. Defendant was > at the last stated day, and ever since has been, satisfied of the correctness of said demand of plain- tiff. 10. On May loth, 1912, there fell due from the defendant to the contractor, according to terms of said contract, the sum of $ (or, a sum of money more than sufficient to satisfy plaintiff's said demand.) 11. On the last mentioned day, said contractor had duly performed ^all the terms and conditions of said contract upon his part. 12. Defendant has not paid said sum so due to, and de- manded by, plaintiff. Plaintiff demands, as damages, $ with interest from . . 137 COMPLAINTS. Form 121 120. Mechanic's Lien: Against Owner on Stop Notice, Where Owner Has Paid Contractor in Advance of the Terms of the Contract. (Follow Form 119 to paragraph 9 inclusive.} 10. Afterwards, on or about May loth* 1912, said con- tractor finishing putting the roof on said building, and by the terms of said contract, a payment of $2,000 thereupon became due from said defendant to said contractor. 11. On the last mentioned day, said contractor had duly performed all the terms and conditions of said contract upon his part. 12. On or about April 25th, before said payment became due as aforesaid, and in advance of the terms of said con- tract (or, for the purpose of avoiding the provisions of the Act entitled "An Act to secure to mechanics and others pay- ment for their labor and materials in erecting any buildings") defendant paid to said contractor $ on account of payments thereafter to fall due on said contract. 13. The amount still due to said contractor, after said last mentioned payment was made, is only $ and is not sufficient to satisfy plaintiff's notice and demand afore- said (or, said advance payment was the full amount of the sum which afterwards fell due as above stated ;) and because of that payment there is now nothing due from defendant to said contractor from which plaintiff's said notice and demand can be satisfied. Plaintiff demands, as damages, $ with interest from 121. Cross Complaint Between Co-Defendants on an Agreement to Indemnify. (See Form 145.) (Insert caption and title of original cause.) The defendant, John Doe, residing at brings this cross-complaint against his co-defendant, James Smith, and says: i. Defendant, James Smith, on directed this defendant to levy the execution mentioned in the original complaint on the flour therein mentioned, and agreed to indemnify him for so doing; and said levy was made on the faith of said agreement. Form 122 COMPLAINTS. K;S 2.. This defendant, at the time of said levy, believed said flour to belong to John Styles, and to be subject to such levy. This defendant demands that, in case judgment be rendered against him on said original complaint, a further judgment may be rendered in his favor against James Smith that said Smith is liable to, and shall reimburse this defendant for, any sums which this defendant may be compelled to pay on any execution issued on such prior judgment in favor of such original plaintiff. See Forms 302, 3023. 122. Against Bailee Without Reward, for Misuse of Prop- erty Lent. 1. On March ist, 1912, at Trenton, plaintiff loaned defend- ant, for his accommodation, a horse of the plaintiff to ride from Trenton to Princeton and return; and the defendant re- ceived it for that purpose. 2. Defendant on that day and the day following, in viola- tion of his duty, rode said horse to New Brunswick and return. 3. By reason thereof, said horse, while so in the custody of defendant, became lame and thereby greatly deteriorated in value. Plaintiff demands $500 damages. 123. Negligence Against Bailee Without Reward. 1. On December 8th, 1911, at Newark, plaintiff deposited with defendant three oil paintings of the value of $1,000 to be kept by defendant for plaintiff without reward, and to be re-delivered to plaintiff upon request; and defendant then re- ceived said goods for said purpose. 2. Defendant in violation of his duty, negligently placed and kept said paintings in a wet, damp cellar, and by his neg- lect said paintings were ruined and made worthless. Plaintiff demands $1,000 damages. 124. Negligence: Against Bailee for Injury to Goods Hired. i. On October ist, 1911, at Trenton, the plaintiff let to defendant, for six months then next ensuing, and then delivered to him, certain household furniture of plaintiff ; and defendant hired and received the same. 139 COMPLAINTS. Form 127 2. During said period, defendant, in violation of his duty, did not take due and reasonable care of said furniture, and by his neglect and want of reasonable care several valuable ar- ticles of said furniture were broken and destroyed, to wit (specify articles or refer to a schedule annexed}, and several other articles of said furniture were greatly injured and dam- aged, to wit (specify them as above). Plaintiff demands $500 damages. 125. Negligence: Against Bailee Carrying Goods for Hire. 1. On March ist, 1912, at Newark, plaintiff delivered to defendant 20 cases of wine of the value of $500 of plaintiff, to be carried by defendant from Newark to Jersey City for hire ; and defendant received said goods for that purpose. 2. Defendant, in violation of his duty, did not use ordinary care in carrying said goods, and by reason of his neglect the same were broken and destroyed. Plaintiff demands $500 damages. 126. Negligence : For Driving a Horse Immoderately. 1. On April i, 1912, at New Brunswick, defendant hired a horse of plaintiff. 2. Defendant drove said horse so immoderately, and so neglected the care of him, that on that day, after returning the same to plaintiff, the horse died. Plaintiff demands $ damages. 127. Negligence : Against a Railroad Company for Per- sonal Injuries; Special Damages. 1. Defendant on May ist, 1912, was and still is, a corpo- ration and was also a common carrier of passengers by rail- road between Trenton and Newark. 2. On said day, at Trenton, plaintiff bought of defendant a railroad ticket which entitled him to transportion from Tren- ton to Newark and then and there entered, and became a pas- senger in one of the trains of cars of defendant on said rail- road. 3. While he was so a passenger, near the defendant's sta- tion at Rahway, a collision, caused by the negligence of de- fendant's servants, occurred between the train in which de- Form 128 COMPLAINTS. 140 fendant was traveling and another train of defendant, where- by plaintiff (state specific injuries, for instance:) was bruised, his head was severely cut, his leg was broken, and he was otherwise seriously injured. 4. At the time of said injury, plaintiff was a salesman, em- ployed and receiving a salary of $100 per month for his ser- vices. By reason of the said injury, he was unable to perform his duties as such salesman for the space of two months and during that time wholly lost his said salary. He was obliged to pay $100 for medical and surgical attendance and for medi- cines. Plaintiff demands $5,000 damages. 128. Negligence: Against a Physician for Unskillful Treatment; Special Damages. 1. At the time herein stated, defendant was a physician practicing in Newark. 2. In May, 1912, plaintiff, being then sick of a fever, em- ployed defendant as a physician to attend him and cure him, and for that purpose, defendant, for reward, undertook, as a physician, to perform that service for plaintiff. 3. Defendant did not use due and proper care or skill in endeavoring to cure plaintiff of said fever in this ; that de- fendant, at an early stage of plaintiff's malady, bled plaintiff to a profuse and immoderate extent, taking from him twenty ounces of blood, the same being an excessive and injurious quantity and which the defendant, if he had used proper care and skill would not have taken ; and also, in this ; that the de- fendant, for fourteen days next following said bleeding, un- skillfully and negligently prescribed and caused to be given the plaintiff, five grains of mercury every six hours during that time ; the same being excessive and injurious doses, which the defendant, if he had used due and proper care and skill, would not have administered to plaintiff. 4. By reason of the premises, the plaintiff was injured in his health and constitution, suffered great pain, was weakened in body, and was obliged to, and did, expend the sum of $500 in endeavoring to be cured of said sickness which was pro- longed and increased by said unskillful and improper conduct of defendant. Plaintiff demands $2,000 damages. 141 COMPLAINTS. Form 131 129. Negligence: Against a Surgeon for an Unskillful Operation: Special Damages. 1. Plaintiff, in May, 1912, at Trenton, employed, the de- fendant, being a surgeon, as such, to set and heal the leg of the plaintiff which was broken ; and for that purpose, the defendant for reward, undertook, as a surgeon, to perform that service for plaintiff. 2. Defendant so negligently and unskill fully conducted him- self, in setting and attempting to heal the plaintiff's leg, as to bring on an inflammation and make it necessary to have, and plaintiff did have, the leg amputated. 3. By reason of defendant's said negligence, plaintiff was made sick and kept from attending to any business for six months and was put to great expense and has been, and still is, disabled from attending to any business. Plaintiff demands $2,500 damages. 130. Negligence: Against a Watchmaker. 1. Plaintiff, on May ist, 1912, at Trenton, delivered to defendant, who was then a watchmaker, a watch of the plain- tiff of the value of $500, to be repaired, for reward. 2. Defendant, in repairing said watch, did it so carelessly and negligently that he broke the main spring, and otherwise injured it, so that the plaintiff has thereby ever since wholly lost the use of said watch. Plaintiff demands $ damages. 131. Negligence: Accident Caused by Obstructing Street. 1. On May loth, 1912, defendant placed a large quantity of building materials in a public street known as Main Street in the city of near the intersection of State Street, and left the same there for several days. 2. Said materials were so negligently placed as to obstruct the highway in an improper and dangerous manner ; and, dur- ing the night time, were negligently left without placing any light or signal near them to indicate danger. 3. In consequence of said negligence and improper con- duct of defendant, in the night time of said day, the carriage of plaintiff, with plaintiff therein, then passing through said street, was accidently and without fault or negligence on the Form 132 COMPLAINTS. 142 part of plaintiff driven against said obstructions, and was there- by overturned and plaintiff was thrown out. 4. The right hind wheel of said carriage was broken, the axle bent and the carriage otherwise greatly damaged, and plaintiff was severely bruised in consequence of said accident. Plaintiff demands $1,000 damages. 132. Negligence: Defendant's Servant Allowed a Weight to Fall on Plaintiff. 1. At the times herein stated, plaintiff was a cook in the service of John Doe at No. 10 King Street in City of , and defendant was an ice merchant. 2. On June 2, 1912, said defendant, by his servant, deliv- ered ice at the house of said John Doe, and while so doing, and by reason of his negligence, allowed a block of ice weighing 100 pounds to fall on plaintiff. 3. Plaintiff was thereby severely bruised and her shoulder was broken, and she became, in consequence of said injuries, personally disabled and disfigured. 4. By reason of said injuries, plaintiff has been prevented, for a long time, from attending to her business and thereby lost her earnings for a long time and has incurred $100 ex- pense for nursing and medical attendance. Plaintiff demands $2,000 damages. 133. Negligence : Against Warehousemen for Loss of Goods. 1. On May ist, 1912, defendants kept a warehouse at Ho- boken, and plaintiff then delivered to them at said warehouse certain merchandise, to wit: (briefly describe the goods, or re- fer to a list annexed), of the value of $800 being the property of plaintiff to be stored in said warehouse, for reward, until called for by plaintiff; and the defendants, as warehousemen then received said goods for that purpose. 2. Defendants, in violation of their duty, did not take due care of said merchandise ; and through their neglect the same became wholly lost to plaintiff. Plaintiff demands $1,000 damages. 143 COMPLAINTS. Form 136 134. Negligence: Against Warehouseman for Injury to Goods. 1. (Same as i in Form 133.) 2. When said goods were delivered as aforesaid, plaintiff caused defendant to be informed that it was necessary for their preservation that they should be kept dry. 3. Defendant, in violation of his duty, negligently allowed said goods to become wet, whereby they became greatly in- jured and depreciated in value. Plaintiff demands $500 damages. 135. Negligence: Against a Wharfinger. 1. On May ist, 1912, defendant was a wharfinger and car- ried on his business upon his wharf called Munson's Wharf on the Delaware River at 2. On that day, plaintiff delivered to defendant, as such wharfinger, upon said wharf, ten boxes of woolen cloth be- longing to said plaintiff of the value of $1,000, to be by de- fendant safely kept upon said wharf, and thence shipped on board a certain vessel to be carried thence to Philadelphia ; and defendant received said goods for that purpose. 3. Defendant, in violation of his duty, neglected to give said goods reasonable care, and by reason of his negligence said goods became wet and were thereby injured and deteriorated in value. Plaintiff demands $500 damages. 136. Negligence : Death Caused by Electric Wire. 1. Defendant is a corporation. At the times hereinafter stated, defendant owned and operated an electric lighting sys- tem in the City of , consisting of insulated wires suspended from poles placed upon the public streets; through which wires, electricity for lighting purposes was transmitted from a generating plant. 2. On June ist, 1912, defendant negligently permitted one of its said wires to lie upon and across the sidewalk of Main Street, which is a public street in said City, for about three hours, without safe or proper insulation and without any guard or watchman to protect persons walking upon said sidewalk from contact with said wire; and negligently transmitted a current of electricity through the same during all that time. Form 137 COMPLAINTS. 144 3. Because of the negligence above stated, on that day, John Doe, who was then lawfully walking upon said sidewalk, came in contact with the said wire, and was shocked by a dis- charge of electricity from said wire through his body: where- by he became insensible, and afterwards, to wit, on June 2nd, 1912, and within 24 calendar months of the commencement of this action, died from the effect of said shock. 4. On July ist, 1912, the Surrogate of Coun- ty granted letters of administration upon the Estate of said John Doe to plaintiff, who accepted the same. 5. Said decedent left surviving him, the plaintiff who is his widow, and two infant children, who are his only next of kin : all of whom were dependent upon the decedent for their sup- port, and who have, by his death, suffered great pecuniary in- jury. Plaintiff demands $10,000 damages. 137. Negligence: Accident at a Railroad Crossing. 1. Defendant is a corporation. At the time within stated, defendant operated a steam railroad upon tracks laid through the City of 2. The said railroad, within said City, crossed a public street called High Street, and at that crossing defendant had erected, on both side of the railroad tracks, gates which were guarded and operated by servants of defendants. It was the duty of defendant, by its servants, for the protection of all persons crossing said railroad on said street, to close said gates at the approach of trains and to keep them closed while trains were passing on said railroad. 3. On June loth, 1912, defendant, by its servants, negli- gently permitted said gates to remain open while a train of cars, then being operated by defendant's servants, was passing along said railroad over said crossing ; and negligently failed to give signal of the approach of said train by ringing a bell or blowing a whistle, or by giving sufficient warning of said approach in any other manner. 4. Because of said negligent omissions, said train collided with a pair of horses and a wagon belonging to plaintiff and then being lawfully driven by plaintiff's servant over said cross- ing and across said railroad. Whereby the said horses were killed and the said wagon was destroyed, and plaintiff, who 145 COMPLAINTS. Form 140 was riding therein, was thrown out and his leg was broken, and he was otherwise greatly injured. 5. (State special damages.) Plaintiff demands $5,000 damages. 138. Negligence: Trolley Accident. 1. Defendant is a corporation. At the time herein men- tioned, defendant operated a trolley railroad in the Town of by running cars, propelled by electricity, over rails laid upon the public streets in said town. 2. On May 5th, 1912, defendant, by its servants, negli- gently operated and ran one of its cars at an excessive rate of speed in and along Main Street near Bank Street in said Town, in such manner as to lose proper control thereof. 3. Because of said negligence, said car struck and ran over plaintiff who was then lawfully crossing said street and rail- road track; whereby (state special injuries, such as:) his arm was broken, and other severe injuries were inflicted upon him. 4. (State special damages.') Plaintiff demands $ damages. 139. Negligence: Collision of Wagons. 1. On March loth, 1912, plaintiff was driving a wagon be- longing to him, along the highway near Freehold. 2. On that day, the defendant, while driving in another wagon along the same highway, negligently drove against the wagon of plaintiff and thereby broke and injured the same. 3. By mea"ns of said collision, plaintiff was thrown out of his wagon and much bruised and lamed in his right hip and side, and badly cut upon his face and was thereby prevented from transacting his ordinary business and was obliged to spend $100 for medicines and medical aid in being cured of his injuries. Plaintiff demands $1,000 damages. 140. Negligence : Leaving Open a Cellar Area Adjoining Street. i. At the time herein stated, defendant was possessed of a cellar at No. 10 Street, in Newark, immediately adjoining a public street, and connected therewith through a Form 141 COMPLAINTS. 146 deep area opening within the sidewalk in said street ; which area was usually protected by a door opening upon said side- walk. 2. On June ist, 1912, defendant negligently permitted the said door to remain open, without any protection to prevent persons passing upon said sidewalk from falling into said area. 3. On that day, because of said negligence, plaintiff, while lawfully walking along said sidewalk, fell into said cellar; whereby his arm was broken, his shoulder dislocated and he was otherwise seriously injured. 4. (State special damage, if any.) Plaintiff demands $ damages. 141. Negligence: Against Telegraph Company for Not Transmitting Message. 1. Defendant is a corporation. At the time herein stated defendant carried on the business of transmitting telegraphic messages for the public, for reward, by telegraph wires or lines, between Trenton and New York City in the State of New York, and other places. 2. On July i, 1912, at Trenton, plaintiff delivered to de- fendant (and defendant accepted) a message to be transmitted by defendant for plaintiff, for reward, from Trenton to New York City, addressed to John Doe, 10 Broadway, New York City. 3. Defendant did not transmit the said message and de- liver the same to the person to whom it was so addressed within a reasonable time, to wit: not within ten hours from the time said message was so delivered to defendant. 4. Because of defendant's failure to promptly transmit and deliver said message, plaintiff was prevented from receiv- ing a sum of money (to wit $500) which would have been sent to him if said message had been promptly transmitted and delivered and was put to delay and inconvenience in 'await- ing an answer to said message, and was prevented from trans- acting his business, and lost the money (to wit, fifty cents) which he paid defendant for transmitting said message. Plaintiff demands $ damages. For other cases of negligence, see Forms 77, 78, 81, 87, 88, 236. 147 COMPLAINTS. Form 144 142. For Assault. On May loth, 1912, defendant, while standing near plaintiff, on Broad street, in Newark, assaulted plaintiff, by raising a heavy stick and threatening to strike him. Plaintiff demands $100 damages. 143. For Assault and Battery: Special Damages. 1. On January i, 1912, defendant assaulted plaintiff and struck him with a cane. 2. Plaintiff was then a school teacher, receiving a salary of $300 a quarter year. 3. Said battery injured plaintiff severely and disabled him from attending to his business as school teacher for {wo months thereafter; whereby he lost part of said salary. He was also compelled to pay $100 for medicine and medical care and attendance. Plaintiff demands $1,000 damages. 144. Trespass: Against a Railroad Company for Unlaw- ful Ejection from Train. 1. Plaintiff, at the time of the injuries complained of, was a ship-joiner, earning his living at that trade. 2. Defendant was then and is still a corporation, and was then a common carrier of passengers by railroad from Metu- chen to Jersey City. 3. On April ist, 1912, plaintiff bought a ticket of defend- ant which entitled him to a safe passage on said railroad from Metuchen to Jersey City. 4. On that day, while defendant was carrying plaintiff in one of its trains from Metuchen to Jersey City, in pursu- ance of the contract mentioned in the preceding paragraph, the servants of the defendant unlawfully seized the plaintiff, and unlawfully attempted to violently and forcibly put him off the train upon which he was riding and in making said attempt. tore the clothes of the plaintiff, injured his knee and otherwise bruised and hurt him. 5. By reason of said injuries, plaintiff was ill for six weeks and was compelled to expend a large sum, namely, $200, for medical attendance and care, and medicines, suffered great pain, was prevented from pursuing his trade as ship-joiner and was made a cripple for life. Plaintiff demands $10,000 damages. Form 144 COMPLAINTS. 148 145. Trespass: Against Sheriff and Execution Creditor for Illegal Seizure. 1. Plaintiff is trustee in insolvency of the estate of John Styles, appointed by the Court of Common Pleas of the County of Hudson under the Insolvent Debtor's Act upon the peti- tion of Richard Roe, by order of said Court made March loth, 1912. 2. On that day, said Styles, in obedience to said order of Court, made an assignment to plaintiff of all of his property in accordance with the terms of the said statute. 3. Defendant John Doe is, and for more than one year last past has been Sheriff of Hudson County. 4*. The fifty barrels of flour hereinfter mentioned belonged to said John Styles and were a part of his estate at the time of the plaintiff's said 'appointment. 5. On April loth, 1912, the defendant John Doe as such Sheriff, under color of a writ of execution issued on a judg- ment rendered in favor of the defendant James Smith in an action by him against said John Styles, wrongfully levied upon and seized said 50 barrels of flour then being- of the value of $400, and afterwards caused the same to be sold at auction and appropriated the proceeds thereof. 6. In making said seizure and sale, the defendant John Doe acted under the special direction of the defendant James Smith, who had notice that the said property belonged to plaintiff. Plaintiff demands $400 damages. 146. Trespass to Goods. 1. On May loth, 1912, plaintiff was lawfully possessed of ten Jersey cows, of the value of $800. 2. On that day, in Newark, the defendant forcibly took said cows from plaintiff and carried them away. Plaintiff demands $1,000 damages. 147. Trespass to Goods: Exemplary Damages. 1. (Same as i in Form 146.) 2. On that day, in Newark, the defendant wilfully, and without color of right, and against the will of defendant, forci- bly took said cows from him and carried them away. Plaintiff demands $2,000 damages. 149 COMPLAINTS. Form 151 148. Trespass to Goods and Person ; Exemplary Damages. 1. (Same as i in Form 139.) 2. On said day, defendant while driving in another wagon along the same highway, forcibly, wilfully, and wantonly drove against the wagon of plaintiff and thereby broke and injured it. 3. (Same as 3 in Form No. 139.) Plaintiff demands $2,000 damages. 149. Trespass : For Taking and Riding Plaintiff's Horse. 1. On March ist, 1912, defendant unlawfully took a horse belonging to plaintiff from plaintiff's possession and rode the horse for a long distance at full speed. 2. Said horse thereby became broken-winded. Plaintiff demands $600 damages. 150. Trespass on Lands. 1. On July ist, 1912, plaintiff was lawfully possessed of certain lands in the township of , Mercer County, bounded north by lands of John Doe, east and south by the road, and west by land of Richard Roe. 2. On that same day, defendant unlawfully entered on said land and cut down six cords of hickory wood thereon of the value of $40. Plaintiff demands $100 damages. 151. Trespass on Land with Cattle. 1. On June loth, 1912, plaintiff was the owner and occu- pier of a piece of land in the Town of Red Bank, bounded north by the road, east by land of A. B., south and west by land of C. S. 2. On that day the cattle of the defendant, by his negli- gence, entered on said land and trod down the corn and con- sumed the herbage there growing. Plaintiff demands $200 damages. Form 152 t COMPLAINTS. 150 152. Trespass Upon Lands and to Goods. First Count. 1. Plaintiff, before and at the time herein stated, was a boarding-house keeper in possession of, and carrying on busi- ness in, the house known as No. 10 Chestnut street in 2. On January ist, 1912, defendant, with other men act- ing under his orders, broke into said house and forcibly thrust plaintiff therefrom. 3. Defendant then took possession of said house and has kept plaintiff out of possession thereof from thence to the present time. 4. The business of plaintiff, as boarding-house keeper, was thereby destroyed. Second Count. 1. Paragraph I of the first count is made a part of this count. 2. On January ist, 1912, defendant entered said house and unlawfully and forcibly seized goods and furniture there- in, belonging to plaintiff, of the value of $500 and appropri- ated them to his own use. Plaintiff demands on the first count $1,000 damages; on the second count $500 damages. 153. Malicious Prosecution; Special Damages. 1. On May ist, 1912, at Jersey City, in the County of Hud- son, defendant made a complaint of larceny in due form to John Doe, a Justice of the Peace in and for said County, thereby charging plaintiff with stealing a gold watch of the defendant ; and said Justice, at the request of defendant, issued a warrant in due form, upon said complaint, for the arrest of plaintiff. 2. On May 2d, 1912, plaintiff was arrested upon said warrant and brought before the said John Doe as Justice of the Peace at Jersey City, and in consequence of the false testi- mony of the defendant, then and there given in support of said charge, defendant was bound -over to the then next term of the Court of Quarter Sessions of Hudson County, to await the action of the Grand Jury upon said charge. 3. The Grand Jury found no indictment against defendant upon said charge and plaintiff and his bail were duly dis- charged from their recognizance. 151 ' COMPLAINTS. Form 155 4. Said charge was in fact false. 5. Defendant made said charge from motives of malice. 6. There was no reasonable or probable cause for said prosecution. 7. Plaintiff is, and for ten years last past has been, a retail dealer in groceries and said prosecution has injured plaintiff in his business and caused many persons to cease from trading with him. It has injured his reputation and cost him $100 in conducting, upon his side, the examination of said charge before said Justice. Plaintiff demands $2,000 damages. 154. For Libel. 1. On June loth, 1912, at Newark, defendant published, in a letter addressed to John Doe, the following words con- cerning plaintiff; "Richard Roe is a man to avoid. He is in- the habit of obtaining goods and credit on false representa- tions." 2. Said publication was false and malicious. Plaintiff demands $3,000 damages. 155. For Libel; Special Damages. 1. Plaintiff is, and for more than ten years last past, has been a merchant engaged in the wholesale dry goods business in 2. On May loth, 1912, in said town, defendant published in a newspaper called The Gazette, the following words con- cerning plaintiff : "John Smith of this city has modestly retired to foreign lands. It is said that creditors, to the amount of $10,000 are anxiously seeking his address." 3. Defendant meant thereby that the plaintiff had ab- sconded to avoid his creditors and with . intent to defraud them. 4. Said publication was false and malicious. 5. Said publication was' read by several of plaintiff's cus- tomers, and led them to decline to enter into certain business engagements with the plaintiff, which they otherwise would have entered into, whereby plaintiff suffered great pecuniary loss. Plaintiff demands $5,000 damages. Form 156 COMPLAINTS. 152 156. Slander. 1. On February loth, 1912, in Newark, defendant spoke in the presence and hearing of John Doe, the following words concerning the plaintiff: "He is a thief." 2. Said words were false and malicious. Plaintiff demands $1,000 damages. 157. Slander with Special Damages. 1. On May loth, 1912, in Jersey City, defendant said to one John Smith, concerning the plaintiff : "He is a young man of remarkably easy conscience." 2. Plaintiff was then seeking employment as a clerk to said Smith, and defendant meant by his said words that the de- fendant was not trustworthy as a clerk. 3. Said words were false and malicious. 4. Because of said words, said Smith refused to employ plaintiff as a clerk. Plaintiff demands $500 damages. 158. Another Form for the Same. 1. Plaintiff is, and for more than ten years last past has been, a merchant engaged in the retail dry goods business in Newark. 2. Defendant, on July ist, 1912, in Newark, in the hearing of divers persons, said concerning the plaintiff as such mer- chant : "John Doe is a great villian and scoundrel, a bankrupt, not worth a cent. He is not able to pay his debts." 3. Said words were false and malicious. 4. Plaintiff, because of said words, has suffered in his reputation and has lost the good will and trade of many persons with whom he otherwise would have had profitable business. 5. Because of said words plaintiff has lost the trade of and who were his customers uutil said words were spoken and who ceased to be his customers because thereof. Plaintiff demands $5,000 damages. 153 COMPLAINTS. Form 162 159. Criminal Conversation. 1. Jane Roe is and for more than five years last past has been, the wife of plaintiff. 2. Defendant, on March ist, 1912, and on divers other days since that day, seduced and carnally knew said Jane Roe. 3. In consequence of said seduction, the plaintiff has lost the affection of his wife and has been deprived of her society and assistance, which he otherwise would have had, and has suffered great distress of mind. Plaintiff demands $ damages. 160. Seduction. 1. Before and at the times herein stated, Jane Doe was the plaintiff's daughter, and lived with him and rendered him services as his servant. 2. In or about the month of January, 1912, defendant se- duced, and committed fornication with, said Jane Doe, whereby she became pregnant and on November 10, 1912, gave birth to a child. 3. Because of said seduction, said Jane was sick both before and after her confinement, and the plaintiff lost her services for a long time, and also incurred expense to the amount of $300 for nursing, medicines, and medical attention. Plaintiff demands $5,000 damages. 161. Conversion of Goods. 1. On October i, 1911, defendant had lawfully in his possession 100 barrels of flour, of the value of $6 a barrel, belonging to plaintiff. 2. On that day, defendant sold said flour, without authority from the plaintiff, and thereby converted the same to his own use. Plaintiff demands $600 damages. 162. Another Form for the Same. 1. On May ist, 1912, one John Doe, being the owner of two bay horses of the value of $700, delivered them to the de- fendant (and he received them) in order that he might break in the same. 2. On May 25th, 1912, John Doe sold said horses (they still being in the possession of defendant for the purpose aforesaid) Form 163 COMPLAINTS. 154 to the plaintiff and gave him an order on the defendant for delivery of the same. 3. On June 1st, 1912, plaintiff presented said order to de- fendant and demanded said horses, but he refused and still re- fuses to deliver them. Plaintiff demands $700 damages. 163. For Conversion by an Executor. 1. On January I, 1912, John Doe, in his lifetime, delivered certain household furniture particularly described in the Sched- ule hereto annexed, being then his property, to the defendant, to be stored and returned to the said Doe upon demand. 2. Afterwards, said John Doe died, leaving a Will which was admitted to probate by the Surrogate of Hudson County and upon which letters testamentary were issued to plaintiff, as executor thereof, and were accepted by him. 3. Afterwards, on June i, 1912, plaintiff, as executor as aforesaid, demanded said goods of defendant, but defendant refused to deliver the same. 4. Plaintiff, as such executor, demands $1,000 damages. 164. Fraud: For Conspiring to Cheat. 1. At the time of the grievances herein mentioned, plaintiff was a merchant doing business in New York City, State of New York, and defendants all resided in Newark, New Jersey. 2. In March, 1912, at Newark, the defendants conspired and agreed together to cheat and defraud such merchants and traders in New York City as they might be able to deceive by false and deceitful arts and practices, as hereinafter stated. 3. In pursuance of their said agreement, the defendants, David and George went to New York City and said David, informed divers merchants there, and among others, John Doe and Richard Roe, doing business un- der the firm name of Doe & Roe, that he, said David, wished and intended to purchase large quantities of goods ; that he was a man of large property and safely to be trusted and that he shortly expected Judge B. of New Jersey, meaning defendant Nicholas B., to be there with a large sum of money for him, the said David. 4. Said David made said declarations for the purpose of inducing said Doe & Roe, and other merchants there, to believe 155 COMPLAINTS. Form 164 him to be a man of property, fit to be trusted, to sell goods upon credit, and to recommend him to others, as a man fit to be trusted. 5. Said George was a merchant then well known to mer- chants in New York City to be a man of considerable property, and he accompanied said David to New York City and assist- ed him in purchasing goods as hereinafter mentioned for the purpose of giving greater credit to the statements of said David, and with like intent. 6. Shortly after the arrival of said David and George in New York City, the defendants, Nicholas B. and Henry G, in pursuance of the defendants' said agreement, went to New York City and carried there and delivered to said David $2,000. 7. Said money was so delivered for the purpose of making it appear that said David was a man of property fit to be trusted and to enable him to buy of such merchants as might be in- duced to sell large quantities of goods and to pay cash in part and to obtain credit for the residue. 8. After the arrival of said Xicholas and Henry at New York City, all the defendants, in pursuance of their said agree- ment, represented to Doe & Roe, and to many other mer- chants at New York City, that said David was a man of prop- erty, of good character, and safe to be trusted. 9. Said representations were made by the defendants for the purpose alleged in paragraph four, and were made to Doe and Roe particularly to induce them to recommend said David to such merchants in New York City as might be induced to sell, on the terms aforesaid, such goods as he might desire to purchase. 10. Said Doe and Roe believed the representations so made by defendants and, influenced thereby, and at the request of defendants, recommended said David to plaintiff and repre- sented him to be a man of property, of good character and fit to be trusted. 11. Plaintiff confided in said recommendations and believed said representations of Doe and Roe and, influenced thereby, and at the request of said David, on April ist, 1912, in New York City, sold and delivered to him, goods to the amount, in value, of more than $2,000; and said David, of the money so advanced by said Nicholas and Henry, made a part payment thereon of $500: and for the residue thereof, plaintiff gave Form 165 COMPLAINTS. 156 said David ninety days' credit. To secure the payment of the residue, said David then gave his note to Doe and Roe, dated April ist, 1912 for $1,500 payable in ninety days, to the order of Doe and Roe, and the said payees, at the request of David, then and there endorsed and delivered said note to plaintiff. 12. In fact, at the time of said representations, said David was without property and was, and is still insolvent. 13. Said defendants and each of them, at the time of mak- ing the several representations aforesaid, that said David was a man of property and fit to be trusted and of good character, knew that the said representations were false. 14. Said Doe and Roe were ignorant of the conspiracy of the defendants and of their intent to defraud and were de- ceived by them. 15. The goods aforesaid were obtained by the defendants, for, and applied to, the common benefit and use of all the de- fendants. 16. Before the maturity of said note, mentioned in para- graph n, the said Doe and Roe became and have ever since remained, insolvent. 17. Said note is due and unpaid. Plaintiff demands $2,000 damages. 165. Deceit: Fraudulently Concealing the Insolvency of a Third Person. 1. Plaintiff, at the times herein mentioned, was a whole- sale grocery merchant, doing business in Newark. 2. On May ist, 1912, at plaintiff's place of business, de- fendant introduced to plaintiff, as a customer, John Doe, who wished to procure goods on credit ; and then and there defend- ant represented to plaintiff that he had no doubt said Doe would pay for any goods he might buy, and said Doe then said, in the presence of, and uncontradicted by, defendant, that he, said Doe, was worth $5,000. 3. Plaintiff believed the representations of said defendant to be true and that said Doe was worth $5,000, and was then and thereby induced to sell, and did then sell to said Doe, a stock of general groceries to the amount of $1,000 upon a credit of thirty days. 4. In fact, said Doe, at the time of said representations, was insolvent, as the defendant then knew, and defendant did 157 COMPLAINTS. Form 167 not believe that Doe would pay for said goods; and with in- tent to defraud plaintiff, defendant refrained from informing plaintiff that said Doe's assertion of his insolvency was false. 5. Defendant made said false representations with intent to induce plaintiff, thereby, to sell said goods on credit, as aforesaid, and to defraud him. 6. Said Doe, immediately after the purchase *of said goods, transferred them to defendant, who received them in part pay- ment of a debt owing to him from said Doe at the time of said purchase, knowing when he received them that they were the .goods bought of plaintiff as aforesaid, and that said Doe had not paid for them. / . Said credit given to Doe has expired and he has not paid for said goods. He is still insolvent. Plaintiff demands $1,100 damages. 166. Deceit: Fraud in Sale of Horses. 1. On August i, 1912, plaintiff bargained with defend- ant for the purchase of a horse belonging to defendant ; and defendant, to induce plaintiff to buy said horse and to pay, $500 for the same, falsely declared to plaintiff that said horse was sound in wind and limb and free from any defect what- ever. 2. Plaintiff, believing said statements to be true and be- ing induced thereby, bought said horse and paid $500 to the defendant for the same. 3. Said horse was then, in fact, unsound and then, and for a long time before, had an incurable disease called the glanders, as defendant then well knew. 4. Said horse is unfit for use and of no value and the plain- tiff has expended $50 in feeding and taking care of him and endeavoring to cure him of said disease. Plaintiff demands $600 damages. 167. Deceit : Fraud in the Sale of a Business. 1. On May i, 1912, defendant kept a circulating library and carried on the trade of bookseller and stationer in a certain building in Trenton, and was possessed of a lease of said building for the term of five years from January i, 1912. 2. On the first mentioned day he offered to sell to plain- tiff for $5,000, his interest in said unexpired lease and said Form 1 68 COMPLAINTS. ij.s library and the stock, fixtures, and good will of said trade ; and then falsely represented to plaintiff that the profits of said cir- culating library, as theretofore conduced by defendant, had been at the rate of $500 a year ..and that the number of sub- scribers to said library was from 300 to 400, and that said building and trade, as heretofore conducted by defendant, pro- duced profits #t the rate of $1,000 a year. 3. Plaintiff believed said representations of defendant to be true and was induced thereby to purchase, and did pur- chase, of defendant, said lease, library, stock, fixtures and good will, and paid him $5,000 for the same. 4. In fact, the profits of said library had not been over $100 a year. The number of subscribers to said library was less than loo, and said building and trade as conducted by defendant had not produced profits at the rate of $500 a year. 5. Defendant made said false representations to plaintiff, knowing them to be false and with intent to induce plaintiff to make said purchase and to defraud him. 6. Said lease, library stock, fixtures and good will were not worth $2,000 at the time of their purchase by plaintiff; and plaintiff has sustained great trouble and expense, viz., $500 in carrying on said trade and endeavoring to dispose of the same. Plaintiff demands $4,000 damages. 168. Ejectment: Mesne Profits: Injury to the Property. First Count. 1. On August ist, 1911, plaintiff owned and possessed a lot of land in Trenton (describe the land particularly). 2. Defendant, on that day, wrongfully entered upon said land and dispossessed plaintiff and still keeps him out of pos- session, depriving him of the rents and profits. 3. Said rents and profits amount to the sum of $1,000 a year. 4. Plaintiff's right to the possession of said land accrued on August i, 1911. Second Court. i. All the statements of the first count are made part of this count. 159 COMPLAINTS. Form i68b 2. While defendant was in possession of said lands as aforesaid, he took down and destroyed a barn of the value of $500, belonging to plaintiff and standing thereon. Plaintiff demands: 1. On the first count, judgment for possession of said prem- ises and $1,500 damages. 2. On the second count, $700 damages. 168a. Ejectment: Devisee Against Heir. 1. On August ist, 1911, one John Doe died seized in fee simple of a tract of land in (describe the land particularly). 2. Said Doe left a last will dated May loth, 1911, which was duly admitted to probate by the Surrogate of Hudson County, on August 2oth, 1911. 3. By said will said Doe devised the said land to plaintiff in fee simple. 4. James Doe, the son of said testator, wrongfully took pos- session of said land at the time of the death of the said John Doe and has ever since continued in possession of the same and has wrongfully kept plaintiff out of possession thereof (depriving him of the rent and profits). (// mcsnc profits arc demanded follow paragraph 3 of Form 168.) (Conclude as in Form 168.) 5. Plaintiff's right to the possession of said land accrued on August ist, 1911. 168b. Ejectment: Grantee Against Grantor Who Re- fuses to Surrender Possession. 1. On August ist, 1911, the defendant, being seized in fee of land herein described, executed and delivered to plaintiff a deed of conveyance of the same in fee simple. 2. Said land is described as follows (copy the description from the deed). 3. Immediately after the delivery of said deed to plaintiff, defendant being then in possession of said land, refused to deliver possession thereof to plaintiff and has ever since refused to deliver possession and has kept and still keeps plaintiff out of possession thereof (depriving him of the rents and profits thereof). Form 169 COMPLAINTS. 160 (// mesne profits are demanded, follow Paragraph 3 of Form 168.) 4. Plaintiff's right to the possession of said land accrued on August ist, 1911. (Conclude as in Form 168.) 169. Against a Sheriff for an Escape. 1. At the time of the escape hereafter mentioned, defend- ant was Sheriff of the County of 2. On the first day of March, 1912, plaintiff recovered, against one William Brown, judgment for $1,800 in the Circuit Court of said County. 3. Said action was brought for a debt contracted by means of fraudulent and false statements of the defendant, on which the defendant had been held to bail upon a writ of capias ad respondendum (or otherwise show that the action was one in which an arrest was proper). 4. On March loth, 1912, a writ af capias ad satisfaciendum was duly issued upon said judgment against the estate and body of said Brown and directed and delivered to the said Sheriff, the defendant in this action. 5. Afterwards, on March I5th, 1912, for want of goods or estate of said William Brown sufficient to satisfy said execu- tion, defendant, as Sheriff, took the body of said Brown and committed him to jail in said County of which defendant was keeper. 0. On May loth, 1912, defendant suffered said Brown to escape from his custody and from the jail and to go at large without consent of plaintiff. 7. Said debt and costs were then and still are wholly un- satisfied. Plaintiff demands as damages, $1,800 with interest from March i, 1912. 170. Nuisance: Maintaining a Slaughter House. 1. Plaintiff is, and at the times hereinafter stated was, the owner, and in possession, of the house and Lot No. 100 State Street in the City of 2. In the months of March and April, 1912, the defendant erected upon the adjoining lot No. 102 State Street, a slaughter- 101 COMPLAINTS. Form 172 house, and still maintains the same; and from said day until the present time has continuously caused cattle to be brought and killed there and has caused blood and offal to be thrown into the street near the house of plaintiff. 3. Plaintiff's house is now, and ever since the beginning of said business has been, thereby rendered uninhabitable by rea- son of the offensive sounds and smells, so caused by defend-, ant. Plaintiff demands $1,000 damages. 171. Nuisance, by Fouling a Stream. 1. On May ist, 1911, plaintiff owned, and ever since to the present time, has owned a farm in the township of County of through which flows and has ever flowed a stream known as Dale Brook. 2. At that time defendant owned and ever since then until the present time, has owned a mill on said brook at a point above plaintiff's farm ; and at that time he began to use the same as a paper mill. 3. In the use of said mill, ever since said day defendant has employed and still employs, for cleaning rags, sundry nox- ious chemical substances and fluids, and after they were so employed has allowed and still allows the same to be thrown into or mixed with the water of said brook, whereby said water has been greatly fouled. 4. Before such use of said mill, plaintiff had always wat- ered his cattle at said brook, and had also carried the water therefrom to his house by pipes, and used it there for his domes- tic, purposes. 5. Since said use of said mill and the fouling of said water, the water of the brook, where it enters, and throughout its course through the plaintiff's farm has become and is so foul and unwholesome that he has been, and is, unable to use it either for his cattle or for his domestic purposes. Plaintiff demands $1,000 damages. 172. Waste: Injury to Reversion. i. On April ist, 1912, plaintiff was, and ever since has been, the owner in fee of a tract of land in the township of .'.County of , bounded North by the Daletown road, east and south by land of A. B., and west by the land of C. D. Form 173 COMPLAINTS. 162 2. Plaintiff, by a lease, of which a copy is hereto annexed, let said land to defendant for six years from that date, and defendant entered upon said land at the commencement of said term and has ever since occupied the same under said lease. 3. On November ist, 1912, and on other days thereafter, and before this action, the defendant, without authority, cut down loo trees upon said premises of the value of $200, and dug up 100 cubic yards of soil of the value of $50, and carried said trees and soil away. 4. Plaintiff was thereby injured in his reversionary estate in the premises. Plaintiff demands $250 damages. 173. For Diverting Water from a Mill. 1. Before and at the times herein stated, plaintiff was, and ever since has been, possessed of, certain iron and tin works, with the appurtenances, at , in the County of near a certain water course, and therein carried on the busi- ness of manufacturing tin plates. 2. Said water course, before and at said times had flowed and had been used of right to flow, in great abundance to said works of the plaintiff, for supplying the same with water neces- sary for the working thereof. 3. On May loth, 1912, and on divers other days, between that time and the beginning of this action, the defendant wrongfully diverted large quantities of water of said water course out of the same and away from the works of the plain- tiff. 4. By reason of said wrongful acts, the water of said water course sufficient for supplying said works during that time, could not, and did not, flow as the same would otherwise have done; and the plaintiff, for want of sufficient water, during that time, could not use said works nor carry on his said busi- ness therein as he would otherwise have done. 5. By reason of said wrongful acts, plaintiff during all that time was deprived, in large part, of the use of said works and of the profit which he otherwise might and would have made, by carrying on his trade therein. Plaintiff demands $5,000 damages. 163 COMPLAINTS. Form 175 174. Easement: Obstruction of a Private Way. 1. On May ist, 1912, plaintiff was, and ever since has been, lawfully possessed of a certain tract of land in the town- ship of County of Union, bounded (describe land sufficiently to identify it), which land adjoined land of de- fendant on the west, and had a right of way from his said land over the land of defendant to the public road, called the "Rah- way Road," to pass and repass on foot and with horses and vehicles, freely at all times. 2. On that day, defendant built a fence across said way and at all times thereafter maintained, and still does maintain said fence ; whereby the plaintiff from that day hitherto has been prevented from using the said way. Plaintiff demands $1,000 damages. 175. Easement: Obstruction of a Public Way. 1. At the time of the grievances herein stated, plaintiff was, and ever since has been, the owner in fee of a tract of land in the township of County of bounded (describe land sufficiently to identify it), which land adjoins land of defendant on the west. 2. For many years last past the public had, and still has a right of way over the land of defendant adjoining said land of plaintiff and leading over the defendant's land to the high- way known as Main street, to pass and repass freely at all times on foot and with horses and vehicles. 3. On March ist, 1912, defendant erected a stone wall across said public way at its entrance upon said Main street, and has ever since maintained the same. 4. Before said day, and thence hitherto, the plaintiff car- ried on the business of market-gardener, on his said lands, and could pass and repass from his place of business to said Main street only by using said public way ; and a large part of his customers could reach his place of business only by passing over said public way. 5. During all said time since March i, 1912, plaintiff has been prevented by said acts of defendant from enjoying said public way and has also, thereby, been greatly injured in his said business. Plaintiff demands $700 damages. Form 176 COMPLAINTS. 164 176. Mischievous Animals : Knowingly Keeping a Fierce Dog. 1. At and for a long time before the time herein stated, defendant wrongfully kept upon his premises No. 10 Bank Street, in the Town of a dog of a fierce and mis- chievous nature, well knowing that said dog was of such nature, and accustdmed to bite human beings. 2. On June 10, 1912, in said town, the said dog, while de- fendant so kept him, attacked and bit plaintiff ; whereby plain- tiff was wounded and so remained for a long time. 3. (State special damages, if any.) Plaintiff demands $ damages. 177. Wrongful Distress. 1. At the time herein stated, plaintiff was tenant to de- fendant of a house and lot No. 10 Fulton Street in the City of at a rent of $20 a month, payable on the first of each month by plaintiff to defendant. 2. On June 10, 1912, during said term, defendant wrong- fully distrained on said premises, sundry goods of the value of $ , of the plaintiff, as a distress for pretended ar- rears of said rent alleged to be due on June i, 1912, and wrongfully sold said goods as such distress. 3. At the time of making said distress and of said sale no rent was due or in arrear for the said premises. Plaintiff demands $ damages. 178. Replevin: Against Pawn Broker for Return of Pledge; Alternatively, for Damages for Its Conver- sion. 1. In October, 1911, in Newark, in consideration of money lent to plaintiff by defendant, plaintiff delivered to defendant, by way of pledge for said loan, a gold watch, being the prop- erty of plaintiff, to be re-delivered to plaintiff on his re-paying the said loan with interest. 2. On December roth, 1911, plaintiff repaid the defendant the amount of said loan with interest. 3. Defendant refused to deliver said watch to plaintiff upon making said payment and still refuses so to do, although plaintiff, at Newark, demanded possession thereof before the writ was served in this action. 165 COMPLAINTS. Form 180 Plaintiff demands possession of said watch, or, if it can not be returned, then $500 damages. NOTE : The foregoing form of complaint for the possession of chattels may be used ///; an ordinary writ of summons (not a zvrit of replevin} in lieu of the old action of detinue. 179. Replevin: Plaintiff Claiming a General Property in the Goods. 1. On January ist, 1912, plaintiff was, and ever since has been, the owner of the following goods and chattels, to wit: one bay mare of the value of $200, and one top buggy and har- ness of the value of $150 (or, refer to a schedule annexed con- taining a list of the goods). 2. On that day plaintiff was, and ever since has been, law- fully entitled to the immediate possession of the same. 3. On that day, at the barn No. 10 street in Trenton, defendant wrongfully took said goods and chattels from the possession of the plaintiff and has ever since wrong- fully detained, and still wrongfully detains, the same. Plaintiff demands possession of said goods and chattels and $100 damages for their detention. ALTERNATIVE CLAIM FOR RETURN OR DAMAGES. The plaintiff demands possession of said goods and chattels, or in case they cannot be returned to the plaintiff, then $600 damages for their value, and $100 damages for their deten- tion. 180. Replevin: Plaintiff Claiming a Special Property in the Goods. 1. On January loth, 1912, defendant was indebted to plaintiff in the sum of $500, evidenced by the defendant's note of said date payable to plaintiff or order on demand. 2. On that day, defendant delivered to plaintiff, in pledge as security for the payment of said note, one Steinway "grand" piano then owned by defendant and of the value of $600. 3. Said note has not been paid. 4. On the first day of April, 1912. at No street in Trenton, defendant wrongfully took said piano from, and out of, plaintiff's possession, and ever since has wrongfully de- tained and still wrongfully detains the same from plaintiff. Form 181 COMPLAINTS NOTICE TO STRIKE OUT. 166 Plaintiff demands possession of said piano and $100 dama- ges. 181. Replevin: For Unlawful Detention, When the Tak- ing Was Lawful. 1. On January 2Oth, 1912, plaintiff owed defendant $500 evidenced by plaintiff's note of that day payable to defendant or order on demand. 2. On that day, at Trenton, plaintiff delivered to defend- ant in pledge, as security for the payment of that note, one Steinway "grand" piano then, and ever since, owned by the plaintiff, of the value of $600. 3. Plaintiff paid said note on April ist, 1912. 4. On April loth, 1912, and before serving the writ in this action, at Trenton, plaintiff demanded of defendant the re- turn of said piano to plaintiff. 5. Defendant then and there wrongfully refused to deliver said piano to plaintiff and then in the house No. 100 street in Trenton, wrongfully detained and still wrongfully detains the same. Plaintiff demands possession of said piano, or in case it cannot be returned to plaintiff, then $600 damages for its value and $100 damages for its detention. 182. Notice of Motion to Strike Out Under Rule 26. (Title.) To , attorney of plaintiff : TAKE NOTICE that on the day of inst. at ten o'clock in the forenoon, at the Court House in Newark, before the Honorable , Justice (or, Judge) of the above stated Court, I shall move to strike out the complaint filed in this case, upon the ground that it dis- closes no cause of action, in that (specify the particulars in which the statement of the cause of action is defective). Dated, Newark 1912. (Signed) Attorney of defendant. NOTE: The motion may, of course, be made in open Court, if the applicant so elect; in ivhich case the above form should be modified accordingly. 167 ANSWERS. Form 184 Answers. 183. Commencement of Answer. Joint Answer. (FROM SCHEDULE B., MODIFIED.) Supreme Court of New Jersey. Hudson County. A. B. and others, Plaintiffs, / vs - \ Answer. C. D. and others, I Defendants. / Defendants (state the several names and residences) say that: (To be filled up in accordance with the folloiving forms.) (Signed) Attorney for Defendant. NOTE: When one of several defendants has a separate and independent defence, he should answer separately. Under the former practice he could file a separate pica. Stephen's PI- 357- 184. Commencement of a Separate Answer by One of Several Defendants, who is Sued by the Wrong Name. COURT. John Doe, Plaintiff, Separate Answer . , of Richard Poe. Richard Row, et als., Defendants. Defendant Richard Poe residing in Newark, who has been sued in this action by the name of Richard Row, answering separately, say that: Form 185 ANSWERS. 168 185. Commencement of Answer by Infant Defendant. COURT. (State venue if action is in Supreme Court.} John Doe, Plaintiff, vs. Answer. Richard Roe, Defendant. The defendant, Richard Roe, residing in Newark, by A. B. residing in Newark, who was admitted by the Court as the guardian ad litem of this defendant who is an infant within the age of twenty-one years, says: 186. Objections in Point of Law (Under Rule 26) . (NOTE: The objection should be stated as a separate i. e. as a First, Second or other Defense.) (i) Defendant will object that the complaint discloses no cause of action. It fails to show that (specify the particulars in which the statement of the cause of action is defective}. (2) Plaintiff (or, defendant) will object that parole evidence is not admissible to vary the said written agreement, and will also rely on Section of the Statute of Frauds. (3) Defendant will object that the special damage claimed in the complaint is too remote. (4) Defendant will object that the words stated in the com- plaint are not actionable without proof of special damage, and that none is alleged. (5) Defendant will object that the words complained of are incapable of any of the meanings stated in the complaint or of any other actionable or defamatory meaning. 169 ANSWERS. Form 190 187. Answer with Counter-Claim. (FROM SCHEDULE B.) (Title.) Defendant (state residence) says that: 1. He admits the first paragraph; 2. He denies the second paragraph. 3. (To be filled up.) By way of counter-claim against the plaintiff and against X. Y., a third party, defendant says that: 1. He repeats the statements in paragraph 3 above. 2. (To be filled up.) The defendant counter-claims $ damages. (Signed) Attorney for Defendant. 188. General Denial. (FROM SCHEDULE B.) He denies the truth of the matters contained in the com- plaint. 189. General Denial with New Matter. (FROM SCHEDULE B.) 1. He denies the truth of the matters contained in the complaint. 2. On March i, 1911, plaintiff executed and delivered to defendant a release, under seal, discharging all demands then existing in fovor of plaintiff against defendant. 190. Several Defenses. (FROM SCHEDULE B.) First Defense to First Count: 1. On May i, 1911, defendant assigned and delivered to plaintiff a due bill of John Doe for $500, which plaintiff ac- cepted as a full satisfaction of the demand set up in the first count of the complaint. Second Defense to First Count: 2. On July i, 1911, plaintiff signed, sealed and delivered to defendant, a release of all demands of plaintiff against defendant to that date. Form 191 ANSWERS. 170 Defense to Second Count: 1. He denies the first paragraph of this count. 2. As to the statements in the second paragraph, defend- ant has not any knowledge or information thereof sufficient to form a belief. 3. He denies the fourth paragraph of this count except so far as admitted "in the following statement: The plaintiff received (etc. stating the facts as set up by de- fendant) . 191. Unauthorized Acceptance in Name of Corporation, and Want of Consideration. First Defense. 1. John Styles, who accepted said bill in defendant's name, had no authority to accept bills for defendant, and said ac- ceptance was made without the authority or consent of de- fendant, and out of the course of its regular business. 2. Said acceptance was made without any consideration moving to defendant. Second Defense. 1. Said acceptance was for the accommodation of John Doe. 2. Said Doe endorsed said bill and delivered the same to plaintiff after its maturity; and prior to such indorsement, plaintiff had notice of the facts stated in the foregoing para- graph. 192. Acceptance Was for Plaintiff's Accommodation. 1. Defendant accepted the bill mentioned in the com- plaint, for the accommodation of plaintiff and there was never any value or consideration for the acceptance or payment of said bill by defendant. (Adding when the plaintiff is an indorsee) : 2. Said bill was indorsed to plaintiff, and he always held the same, without any consideration. 171 ANSWERS. Form 194 193. The Note Was for Goods Sold by Fraud. 1. On July loth, 1912, in Trenton, plaintiff was engaged in business as a retail grocer and was offering to sell out his stock fixtures and good-will of his said business. 2. Plaintiff then and there, in order to induce defendant to purchase the same, did, with intent to deceive and defraud defendant, falsely and fraudulently represent to him that said business, as theretofore conducted by plaintiff, was a profit- able business, and that the net proceeds thereof realized by him during the year ending July ist, 1912, had exceeded $3,000. 3. Defendant, relying on said representations, purchased of the plaintiff said stock, fixtures and good-will, and gave in payment therefor the note mentioned in the complaint. 4. Said representations were false, and plaintiff then knew them to be false. Said business was not, and never had been a profitable business. Plaintiff had not realized any profit whatever from the same during the year ending July 1st, 1912. 5. Said note was given to plaintiff without any other consideration than said sale. 6. Defendant has never realized any profits from said business. 7. Immediately on discovering said fraud, defendant re- scinded said contract of said sale, and tendered to plaintiff all that defendant had received under said contract, upon con- dition of his returning said note, which plaintiff refused to do. 194. The Note was for Accommodation and was Mis- applied. 1. The note described in the complaint was given by de- fendant to the payee therein named without any other con- sideration than herein stated. 2. Defendant had made his promissory note for $2,000. dated May 15, 1912, to said payee without consideration and solely for the accommodation of said payee and upon his promise to take up and pay the same at maturity. 3. Said note fell due on August I5th, 1912, and, at the request of said payee, defendant then gave him the note in suit, for the special purpose of enabling him therewith to take up and renew said first note of $2,000, he paying the Form 195 ANSWERS. 172 balance; and upon the agreement with him that it should be so used and not otherwise. 4. Plaintiff, having a claim then over-due against said payee, said payee wrongfully diverted said note from the purpose for which it was given, and fraudulently misapplied the same, by giving it to the plaintiff as collateral security for said claim. 5. Plaintiff received the note in suit, with notice of the foregoing facts, and as collateral security for an antecedent debt, and without paying any consideration therefor. (6. Paragraphs one, four and five of the complaint are denied.) 195. That Note was Given to Compound a Crime. 1. On May ist, 1912, at Camden, one John Doe, son of defendant, had stolen and taken away a horse, being the prop- erty of plaintiff. 2. Defendant, in order to compound said crime, gave the note mentioned in the complaint, upon the agreement of plaintiff to desist from giving any information or making any complaint of said crime. 196. Note was for Illegal Sale of Liquor. 1. The consideration for the note mentioned in the com- plaint was the illegal sale of intoxicating liquors sold by (the payee) to defendant at Jersey City. 2. Said (seller), at the time of such sale, had no license for the sale thereof as required by law. 3. Said note was transferred to plaintiff after maturity (and with notice of the foregoing facts). 197. Non-Presentment of Note at Place of Payment. 1. The note on which this action is founded is payable at the First National Bank of Jersey City. 2. When the note fell due, defendant had, and ever since has had, money sufficient for its payment deposited with said bank and ready to be applied to its payment on presentation of the note there. 3. Said note has never been presented at said bank, for pay- ment. 1?:} ANSWERS. Form 193 4. Defendant is, and always has been, ready and willing to pay said note according to its tenor and effect, and offers to bring into court here the money for its payment, to wit. $1,000. 198. Accord and Satisfaction. On May ist, 1912, after making the contract (or, other instrument) and the alleged breach thereof (or, after com- mitting the supposed grievances), stated in the complaint, de- fendant delivered to plaintiff, and the plaintiff accepted and received from defendant, a grand piano in full satisfaction of all damages sustained by the plaintiff by reason of the facts alleged in the complaint. 199. Defendant Indorsed as Agent, Where the Complaint Stated the Contract Untruly in this Respect. 1. Paragraphs three and four (or other paragraphs which state the note and indorsement) are denied except so far as hereinafter admitted. 2. The following is a true copy of the note, on which this action is brought (copy note and indorsement zvith the addi- tion of "Treasurer of the Union Oil Co.," to defendant's sig- nature). 3. At the time of the making and indorsement of the said note, defendant was the treasurer of the Union Oil Company, a corporation, ; and was authorized by it to receive said note and to indorse the same to plaintiff, as such treasurer, of all which facts plaintiff had notice. 4. Said corporation was at the time of said indorsement, indebted to plaintiff in the sum of about $1,000, for goods fur- nished by plaintiff to said corporation, and said note was received and indorsed by defendant as such treasurer, and not in his individual capacity, and was received by plaintiff so indorsed, as an obligation of said corporation on account of said debt due to him from said corporation only. 5. The defendant received no consideration for said in- dorsement. Form 200 ANSWERS. 174 200. Alteration of Instrument. After the making and delivery of said note it was materially altered, by plaintiff, without the consent of defendant, by cutting off the signature of John Styles who was a joint maker thereof (or, by adding the words "payable at the First National Bank of Newark, N. J.," or othernrise, according to the facts}. 201. Invalidity of an Award. (See Form 102.) 1. Paragraph one is admitted. 2. Defendant has no knowledge or information sufficient to form a belief that the arbitrators made an award (in writ- ing, under their hands, and delivered the same to the plain- tiff) within the time limited therefor. 3. Defendant had no notice of the time or place, when or where said arbitrators would meet to hear the matter sub- mitted to them, and no opportunity of appearing or being heard in his defense before them. 4. On May loth, and while preparing their award, or immediately prior thereto, the arbitrators examined several witnesses touching the matter submitted to them, and heard their statements in respect thereto, in the presence of plaintiff, and in the absence of defendant, without his consent and without any notice to him. 202. Bailment: Denial of Plaintiff's Title. 1. Paragraph three (that alleging plaintiff's title} is de- nied. 2. Said (article bailed} was the property of one Richard Fen, of Trenton, and he was entitled to its possession when this action was brought. 3. Before the commencement of this action, defendant had delivered the same to said Fen upon his demand. 203. To a Complaint for Breach of Promise : That Plain- tiff was Unchaste. 1. At the time mentioned in the complaint as the time of the alleged promise, the plaintiff was lewd and unchaste. 2. Defendant was wholly ignorant of that fact at that time. 175 . ANSWERS. Form 207 3. Upon being informed thereof, and for that cause, he refused to marry plaintiff. 204. Payment by Note. 1. On October ist, 1912, defendant paid plaintiff $1,000 in cash, and also gave him defendant's note for $1,000, of that date, payable to plaintiff or order, six months from date. 2. Thereupon plaintiff accepted said note as payment of the balance then due to him in respect to the matters alleged in said complaint, and gave defendant a receipt in full of all demands to that date. 205. To an Action Against Carrier for Injury to Goods: That the Damage was by Plaintiff's Fault. 1. The box of glass mentioned in the complaint, was not marked by plaintiff, as being glass, when delivered to de- fendant. 2. Said box did not bear any indication of the character of its contents. 3. Defendant did not have any notice of its contents. 4. Defendant stowed said box in his vessel with due care, and in a manner which would not have injured its contents had they not been glass. 206. Compromise. 1. Before this action, plaintiff having demanded said sum (or, said goods) from the defendant, the defendant refused to pay the same because (here state the facts showing the claim to have been a doubtful one}. 2. The parties thereupon agreed to compromise said claim, and that defendant should pay, and plaintiff accept, $500 in satisfaction thereof. 3. On July 1st, 1912, defendant so paid, and plaintiff so accepted, that sum of money. 207. Ultra Vires, by a Corporation. i. The plaintiff (or, .said company) was not authorized by law to take, hold or convey real property, except for the following purposes and in the following manner: (here set forth the powers of the corporation relating to the taking, hold- ing or conveying real estate}. Form 208 ANSWERS. . 176 2. The deed stated in the complaint was executed by the grantor and accepted by said corporation for the purpose of (here state purposes and manner, not within the power}. 208. Ultra Vires; Note Taken by a Corporation Outside Its Power. 1. At the times mentioned in the complaint, plaintiff was a corporation created by the State of doing business in New Jersey, and incorporated for the purpose of carrying on the business of Mutual Life Insurance and for no other purpose. A copy of the charter of said company is hereto annexed. 2. By the second section of its charter, it was provided that all persons who should insure in the corporation should, while they continued so insured, be deemed to be members of the corporation ; and by the sixth section it was provided that it should be lawful for the corporation to take the notes of the members for a certain proportion of the premium of in- surance due from them ; but that said corporation should never exercise any banking powers. 3. The notes stated in the complaint were executed by defendant for the accommodation respectively of John Doe and Richard Roe, named in the complaint, who indorsed them to plaintiff, which discounted the same in violation of its charter. 209. Married Women's Act. 1. At the time of making the alleged contract mentioned in the complaint, defendant was the wife of John Doe of Newark. 2. Said contract was made by defendant as surety for Richard Fen ; and defendant did not obtain, directly or in- directly, any money, property or other thing of value for her own use, or for the use, benefit or advantage of her separate estate on the faith of said contract or in consideration thereof 210. Denial that Credit has Expired. Said sale was made upon a credit of six months from July 1st, 1912, which had not expired at the commencement of this action. 177 ANSWERS. Form 214 211. Discharge in Bankruptcy. (See Rev. Stat. of the United States, Sec. 5119.) 1. On May ist, 1911, defendant filed in the District Court of the United States for the District of New Jersey, a petition to be adjudicated a bankrupt under the laws of the United States. 2. On June ist, 1912, said court duly granted to defendant a discharge in bankruptcy, a copy of which is hereto annexed. 3. The indebtedness alleged in the complaint accrued before (or, the contract alleged in the complaint was made before) the filing of said petition. 212. Duress by Imprisonment. Defendant, at the time of making said (contract) was im- prisoned by plaintiff (and others in collusion with him), and then and there detained until, by force and duress of imprison- ment, defendant made and delivered the same. 213. Duress by Threats. The instrument mentioned in the complaint was obtained from defendant by plaintiff (and others in collusion with him), by duress of defendant, in threatening the defendant with bodily harm, endangering his life (state the general nature of the duress according to the facts), in consequence of which and in fear thereof, defendant executed said instrument. 214. The Delivery was in'Escrow. 1. Defendant gave said deed (or other ivriting) to secure the repayment of $1,000 then lent by plaintiff to one John Doe of Newark. 2. Defendant delivered said deed, not to plaintiff or his agent, but to one John Stiles as an escrow to be kept by him upon condition that if said Doe should, within six months, secure the repayment of said sum to plaintiff by a mortgage upon his farm, then said deed to be immediately canceled and returned to defendant; and that said deed should take effect only in case of default of said Doe in so securing the repay- ment of said sum. 3. Within the time agreed, to wit, on May ist, 1912, said Doe did secure the repayment of said sum to plaintiff by a Form 215 ANSWERS. 178 mortgage upon said farm, which mortgage the plaintiff then accepted as such security ; whereby the deed of defendant, so delivered in escrow, became void. 215. Partial Failure of Consideration. 1. The goods mentioned in the complaint, for the price of which this action was brought, consisted of certain machinery for the manufacture of An essential part of said machinery was a pinion called the pinion, without which said machinery could not be operated. 2. The said pinion has never been delivered by plaintiff to defendant, although plaintiff was duly notified, after the delivery of the remainder of said machinery that the said pinion had not been delivered; and although plaintiff has since been often requested to deliver the same. Because of plaintiff's failure to deliver to defendant said pinion, the said machinery is wholly useless. 3. The cost to defendant of replacing said pinion will be $ (state a sum sufficient to cover the cost). 216. The Debt was Incurred in Gambling. 1. On May ist, 1912, defendant and plaintiff played to- gether at a game of chance called poker, for stakes; and at said gaming, the plaintiff won $500 from defendant. 2. Defendant gave plaintiff the note mentioned in the complaint for the money so staked and lost; and that was the sole consideration for said note. 217. Infancy. At the time of making the alleged contract (or, of the delivery of the goods) stated in the complaint, defendant was under the age of twenty-one years, to wit : he was eighteen years of age. 218. Insanity. At the time of making the alleged promise (or, contract, or executing the alleged deed) stated in the complaint, de- fendant was of unsound mind, and thereby incapable of mak- ing, and of binding himself by, the same. 179 ANSWERS. Form 222 219. To an Action on an Insurance Policy: That Plain- tiff Gave a Fraudulent Account of Loss. 1. After the alleged loss, and before this action, plaintiff made and delivered to defendant a false and fraudulent account of the alleged loss and damage, as and for such account as is mentioned in said policy ; in which said account, he stated, with fraudulent intent, to induce defendant to pay him $1,000, that insured goods of the plaintiff to the value of $1,000 had been destroyed by said fire, and that his damage by said fire was to said amount. 2. Said insured goods of plaintiff had not been destroyed by said fire to an amount exceeding the value of $200 and his damage was not over $200, as the plaintiff then well knew. 220. Transfer of the Interest of the Insured. After the making of said policy, and before the loss alleged, on or about May 1st, 1912, the entire interest of plaintiff in said (insured articles) was transferred by plaintiff to one John Stiles of Camden by an absolute sale and delivery of said personal property to him, and remained in said Stiles at' the time of said loss. 221. Insurance: Extra-Hazardous Risk. 1. (Allege provision of policy as to extra-hazardous arti- cles. ) 2. After the making of said policy, and before the loss alleged, and without consent of defendant, the plaintiff re- ceived into his said store a large quantity of goods described in said policy as extra-hazardous, to wit: (describe said goods or refer to a list annexed), and at the time of said fire, he had a large quantity of the same in his said store. 222. Life Insurance : Misrepresentation. A material fact stated in the statement which is mentioned in the said policy, and which fact was thereby agreed to be the basis of said insurance, was untrue ; that is to say, at the time of delivery of said statement to defendant, said John Doe induced defendant to issue the policy by falsely and fraudulently representing to defendant in said statement that he (said Doe) was in a good state of health, and was not afflicted with any disease or disorder tending to shorten life; Form 223 ANSWERS. 180 whereas he was not then in good health, but was afflicted with tubercular consumption, a disease which does tend to shorten life. 223. Insurance: Failure to Give Account of Loss within Limited Time. Plaintiff did not, within thirty days, which was the time limited in the conditions of said policy, nor within a reasonable time after said loss make out or deliver a particular account of such loss and damage as required by the terms of said policy; but neglected to do so for the space of three months after said loss. 224. Invalidity of a Foreign Judgment. 1. No process was served upon this defendant within the State of New York in the action in said State in which the said judgment was recovered. 2. This defendant never appeared in person, or by attorney, in said action. 225. Invalidity of Domestic Judgment Against a Non- Resident. 1. When the action was commenced in which the judgment against this defendant is alleged to have been recovered, this defendant was not a resident of this state, but was a resi- dent of Illinois. 2. Defendant never appeared in that action and was never served with process therein within the state of New Jersey. NOTE: The allegation in the first paragraph is made b\> way of inducement. It appears to be unnecessary as part of the defense. 226. To an Action on Judgment: Reversal of the Judg- ment. i. On March loth, 1911, John Doe sued out a writ of error returnable to the Court of Errors and Appeals on April 5th, 1911, whereby the judgment mentioned in the complaint was removed into that court, and at the next November term of said court said judgment was therein reversed. 181 ANSWERS. Form 228 Or, [i. On July 20, 1912, John Doe filed in said court, notice of appeal from said judgment to the Court of Errors and Ap- peals, and such proceedings were thereupon had that at the then next November Term of that court said judgment was therein reversed.] 227. Former Judgment for Plaintiff. 1. On May ist, 1912, in an action in the Circuit Court of Mercer County, the plaintiff in this action recovered judg- ment against this defendant for the sum of $1,000. 2. The cause of action upon which the said judgment was recovered was the same cause of action as that set out in the complaint filed in this cause. 228. Former Judgment for Defendant. 1. Before this action was commenced, the said John Doe (plaintiff) brought an action in the Supreme Court of the State of Delaware against this defendant, to which action this defendant appeared and made defense. And such proceed- ings were afterwards had therein that on May ist, 1912, a final judgment, upon the merits of the case, was therein rendered in favor of this defendant and against the said John Doe. 2. The alleged cause of action upon which the action above mentioned was brought was the same cause of action as that set out in the complaint filed in this cause. (// the Court was one of inferior, but general jurisdiction, add in another paragraph: The said cause of action was within the jurisdiction of the said court.) NOTE: An English precedent for pleading a judgment of the Supreme Court of Jamaica alleges, "And within the juris* diction of said Court" 2 Chit. P. (244). But the jurisdiction of the Supreme Courts of sister states is judicially noticed. It is enough to allege that the judgment was within the juris- diction, if the Court is one of general, though inferior, juris- diction. It is only in case of tribunals of limited or special jurisdiction that the facts show-ing hoiv jurisdiction was ac- quired must be stated. 23 Cyc. 1527, 1552. As to the allegations necessary in pleading a judgment by way of estoppel, 23 Cyc. 1525. Form 229 ANSWERS. 182 229. Lien for Storage. 1. On May ist, 1912, plaintiff deposited the goods men- tioned in the complaint with the defendant for storage, agree- ing to pay defendant for the same twenty-five cents per month. 2. Defendant has always been, and still is, ready and willing to deliver said goods to plaintiff upon payment of the storage money due. 3. Plaintiff has not paid or tendered to defendant the stor- age money so due. 230. Statute of Limitations. The cause of action stated in the complaint did not accrue within (six) years next before the commencement of this action. 231. Novation, by Substitution of New Creditor. 1. On May roth, 1912, plaintiff requested defendant to make and deliver to one John Doe, defendant's demand note for $500, payable to said Doe or order ; and then agreed that if defendant would do so, it should be a discharge of de- fendant's debt to the plaintiff stated in said complaint. 2. On that day defendant, pursuant to said request, made and delivered the note so requested to said Doe. 232. Denial of Part of Indebtedness ; of Part of Delivery, and of Part of Price. NOTE : In such a case as this form provides for, defendant may answer with a general denial only; but if he does so, plaintiff may move to strike out the answer, and ivould prob- ably get summary judgment for part of his claim, under Rule 59. If part payment has been made, it should be alleged in the answer as a separate defense. i. Defendant admits that he owes plaintiff $600, part of the $1,000 mentioned in the complaint, for the goods therein men- tioned; but as to the residue of said sum, defendant denies that he is or ever was so indebted. (Add allegation of payment into court of the sum admitted, if that is desired; or of tender (Form 244) if tender has been made (Rules 42, 43.) Plaintiff may take judgment at once for the sum admitted. Pr. Act Sec. 20.) 183 ANSWERS. Form 234 2. He admits the sale and delivery of part of the arti- cles stated in the complaint, being those mentioned in the an- nexed list marked A, at the prices stated in the complaint. 3. He denies that the articles stated in the annexed list marked B were reasonably worth the prices charged for the same in the complaint. (Or, 3. He denies that the prices stated in the complaint for the articles set out in the list annexed hereto marked B (being part of the articles stated in the complaint) are the prices agreed upon by plaintiff and defendant, and he says that the prices so agreed on for said articles are those stated in said list marked B.) 4. He denies that plaintiff ever delivered to him the arti- cles stated in the annexed list marked C. (Or, any of the articles mentioned in the complaint except those stated in the annexed lists marked A and B). 233. Denying the Promise as to Part and Pleading Pay- ment as to Residue. 1. Defendant promised to pay plaintiff $200 only and did not promise to pay the sum mentioned in the complaint. 2. Defendant paid said sum of $200 to plaintiff on May 1st, 1912, at New Brunswick. 234. Payment of All the Goods Were Worth. First Defense. i. The goods mentioned in the complaint were not reason- ably worth the sum mentioned in the complaint. They were worth no more than $50. Second Defense. 1. The statements of the first defense are made part of this defense. 2. Defendant paid $50 to the plaintiff for said goods on May ist, 1912, at Trenton. Form 235 ANSWERS. -184 235. Defendant Gave His Note or Acceptance, which is Not Due. After the alleged debt had accrued and before this action, defendant delivered to plaintiff, and plaintiff received from him, for and on accound of said debt, a bill of exchange drawn by plaintiff upon and accepted by, defendant (or, a promis- sory note made by defendant), for $1,000, being the amount of said debt, payable to plaintiff, three months after d^te, which period had not elapsed at the commencement of this action. 236. Part Payment : Part Failure of Consideration : Coun- ter-Claim for Negligence and for Trespass. ANSWER AND COUNTER-CLAIM. First Defense. 1. The total amount of the account for said mirrors and other articles sold and delivered by plaintiff to defendant be- tween the dates stated in the complaint was $650. 2. Defendant paid plaintiff, from time to time, diverse sums of money amounting in all to $500 on account of said mirrors and other articles and re-delivered to him certain of said articles, particulars of which are stated in schedule A hereto annexed. Second Defense. 1. All the foregoing statements of the first defense are made part of this defense. 2. It was agreed between defendant and plaintiff that all mirrors so furnished should be perfect and true, and in every way satisfactory to defendant; and that if any of them, upon inspection, should prove to be untrue or imperfect, the same should be called for and taken back by plaintiff and others substituted in their stead. 3. Among the articles furnished by plaintiff to defendant under said agreement and included in said account, were three large mantel mirrors which were charged at the price of $100. 4. Said three mantel mirrors proved, upon inspection, to be untrue and imperfect, and were entirely unsatisfactory to defendant. 5. He notified plaintiff on June loth, 1912, that the said mirrors were untrue and imperfect and unsatisfactory to him, 185 ANSWERS. Form 237 and requested plaintiff to take them away and substitute others in their stead, in accordance with the contract; but plaintiff has never done so though defendant has at all times been, and still is, ready to re-deliver said mirrors to plaintiff. By zifay of counter-claim: First Count. 1. At the time stated in the complaint, plaintiff was en- gaged in the business of selling and repairing furniture at his store in Newark. 2. On May 2Oth, 1912, defendant delivered to plaintiff at his store one sideboard of the value of $200 to be repaired by plaintiff, for reward; and plaintiff then undertook to repair the same. 3. Plaintiff repaired said sideboard so unskillfully and negli- gently that in so doing, he cracked the mirror forming the front of the same and thereby greatly injured the said side- board. Second Count. 1. On June ist, 1912, defendant was lawfully possessed of one large leather-covered arm-chair of the value of $75. 2. On that day at defendant's dwelling house in Newark, plaintiff forcibly took said chair from the possession of de- fendant and carried it away. Defendant demands on the first count, $50 damages ; on the second count, $75 damages. 237. That Plaintiff Agreed to Accept a Note of a Third Person in Part Payment. First Defense. 1. Said goods were sold and delivered to defendant by plaintiff on an express agreement that plaintiff would accept, in part payment therefor, to the extent of $100, the note of one John Doe, of Trenton, dated June 2Oth, 1912, payable two months after date, and would accept the residue of -$5 in cash. 2. On June 2Oth, 1912, defendant tendered to plaintiff the note above described and is still ready and willing to deliver the same. 3. Defendant refused to accept the same. Form 238 ANSWERS. 186 Second Defense. (As to the residue allege payment or tender, according to the fact, following Form 233, paragraph 2, or Form 244.) 238. Denial of Plaintiff's General Allegation of Perform- ance. Plaintiff has not duly performed all the conditions of said contract on his part, but on the contrary (here state the par- ticular breach; and if the provision broken docs not appear in the complaint it should be stated thus: although said contract contained a provision of which the following is a copy: (here insert the copy} the defendant did not, etc. 239. Rescission of Contract. After the contract alleged in the complaint, and before any breach thereof, it was agreed by and between plaintiff and defendant that said contract should be rescinded ; and they then rescinded the same accordingly. 240. Plaintiff's Breach of Contract as to Place of Delivery. 1. It was a part of the agreement referred to in the com- plaint that the plaintiff should deliver the goods sold at Free- hold. 2. Said goods have not been so delivered and have not been accepted by defendant. 241. Plaintiff's Breach of Contract as to Quality, or Kind. 1. It was a part of the agreement mentioned in the com- plaint that the mattress therein mentioned should be stuffed with horse-hair. 2. Said mattress was not stuffed with horse-hair. 3. The defendant for that reason, on May ist, 1912, im- mediately upon discovering the defect, and within a reason- able time after receiving said mattress, returned the same to plaintiff (or, duly tendered the same back to plaintiff and has ever since been, and still is willing to return it). 187 .\\SWERS. Form 245 242. By a Surety, Alleging an Extension of Time. 1. On May 1st, 1912 (or, at some time unknown to de- fendant) plaintiff agreed with said (debtor) in consideration of $10 (or, for a valuable consideration) to extend the time of payment of said rent guaranteed by defendant, from said day on which the same was due, until June ist. 1912. 2. Defendant did not as?ent to said agreement to extend the time. 243. By a Surety, Alleging a Change in the Terms of the Contract. 1. Defendant gave said bond to plaintiff, as surety for one John Doe, to secure the performance on the part of said Doe of (here state briefly the principal contract ; or, if in writing, refer'to a copy annexed}. 2. Afterwards, and without the consent of the defendant, plaintiff agreed with said Doe as follows: (state the modifica- tion of contract). 244. Tender. 1. Before this action was commenced, on May ist, 1912, at Newark, defendant tendered to plaintiff $1,000 in payment of said (debt or damages), but he refused to accept the same. 2. Defendant has ever since been, and still is, ready and willing to pay plaintiff said sum, but plaintiff has hitherto re- fused to accept the same. 3. Defendant now brings said sum into court here. 245. Denial of Part and Tender of Residue. First Defense. i. Defendant promised to pay plaintiff $500 only and did not promise to pay him the sum mentioned in the complaint. Second Defense. 1. The statements of the first defense are made part of 'this defense. 2. On July ist, 1912, and before this action was com- menced,, he tendered to plaintiff $500 in payment of said sum so promised ; but plaintiff refused to receive the same. Form 246 ANSWERS. ' 188 3. Defendant has ever since been, and still is, ready and willing to pay said sum to plaintiff; but plaintiff has hitherto refused to receive the same. 4. (Same as 3 in the preceding form.} 246. Tender, When Cause of Action is Denied. (State denial, or defense, in the same manner as if no ten- der had been made; then add another defense as follows} : Second Defense. 1. Before this action was commenced, on May ist, 1912, at Newark, defendant tendered to plaintiff $1,000 by way of compromise and in satisfaction of said alleged (debt or dama- ges), but he refused to accept the same. 2. Defendant has ever since been, and still is, ready and willing to pay plaintiff said sum by way of .compromise and satisfaction as aforesaid but plaintiff has hitherto refused to accept the same. 3. Defendant now brings said sum into court here. 247. False Warranty : Note was Given for Price of Sheep : They were Diseased: Counter-Claim. Answer and Counter-Claim. 1. Said note was given for sheep purchased by defendant of plaintiff. 2. In making said sale, plaintiff warranted that the sheep so sold were sound and free from disease. 3. Defendant purchased said sheep relying upon said repre- sentation -of plaintiff and paid him the agreed price. 4. In fact, the sheep were not sound at the time of said sale but were then diseased with the foot-rot, as plaintiff well knew. 5. Defendant was ignorant of that disease and at the time of said sale and delivery and did not know that the sheep were so diseased. 6. By reason of said disease said sheep were, and are, wholly worthless. B\ n'ay of counter-claim: 1. All the foregoing statements in this answer are made part of this counter-claim. 2. Said disease is contagious. 189 ANSWERS. Form 251 3. Defendant was then the owner of 500 other sheep with which he allowed those purchased to run. 4. Before he had any knowledge that the sheep so pur- chased were diseased, and while they were running with his other sheep, the latter became diseasd with said foot-rot by infection from the purchased sheep. 5. He has been thereby compelled to spend $100 in their cure and in endeavoring to cure them and he has been dam- aged, by reason of the infection of his other sheep as afore- said, to the amount of $2,000. Defendant demands $2,000 damages. 248. . Mechanic's Lien : Denial of Lien by Owner or Mort- gagee. Neither said building nor said land is liable for said alleged debt. 249. Mechanic's Lien: Claim of Prior Lien by Mortga- gee. The alleged lien of plaintiff is not paramount, but is subject to, the lien of this defendant's said mortgage. 250. Defense of Son Assault Demesne. 1. On the day mentioned in the complaint, and just before the assault therein complained of, plaintiff made an assault up- on the defendant; and defendant, in self-defense, necessarily beat and bruised the plaintiff a little, doing him no unneces- sary % harm. 2. The acts of the defendant above mentioned are the same of which the plaintiff complained. 251. To an Action for Assault; Defense of Molliter Manus Imposuit. 1. Paragraphs one and two (those as to the beating and injury) are denied. 2. At the time mentioned in the complaint, plaintiff had made an assault on one John Doe, and was then and there beating him (or, the plaintiff and one John Doe, in breach of the peace, were fighting together). Form 252 ANSWERS. 190 3. Thereupon the defendant, in order to preserve the peace and prevent the plaintiff from further beating said Doe (or, in order to preserve the peace and to separate them) gently laid his hands upon the plaintiff, as he lawfully might, doing him no unnecessary injury. 4. Thereupon the plaintiff assaulted the defendant, and de- fendant, in self-defense, necessarily beat and bruised the plain- tiff a little, doing him no unnecessary injury. 5. The acts of defendant above mentioned are the same of which plaintiff complains. 252. To an Action for Assault and Battery ; Self Defense ; Counter-Claim. (See Form 143.) Answer and Counter-Claim. 1. Paragraph one is denied, except as herein admitted. On the day mentioned in the complaint, plaintiff attempted to strike defendant, and defendant thereupon, in order to protect himself from violence, struck the plaintiff using no more force than was necessary in order to defend himself from the attack of plaintiff. 2. As to paragraphs two and three, defendant has not any knowledge or information sufficient to form a belief. By tva\< of counter-claim. 1. The statements in paragraph one of this answer are made part of this counter-claim. 2. Plaintiff, on the day above mentioned, while defendant was defending himself as above stated, struck him many blows with a heavy whip, causing him thereby great pain. Defendant demands $1,000 damages. 253. Probable Cause to an Action for Malicious Prosecu- tion. (See Form 153.) 1. Before the said complaint of larceny was made, the said watch of defendant had been stolen by some person unknown to defendant. 2. Said watch after being so stolen, was found concealed in the house of plaintiff who thereupon falsely asserted that the said watch was his property and that he had bought it of C. D. (state any other ground of suspicion according to the facts). 191 ANSWERS. Form 255 3. Because of the facts above stated, defendant suspected, and says that he had reasonable and probable cause for sus- pecting, that plaintiff had stolen said watch, and thereupon defendant caused plaintiff to be arrested as stated in the com- plaint. 254. By a Railroad Company to an Action by a Passenger; (See Form 144.) 1. Paragraph four is denied, except in so far admitted in the following statement : Plaintiff received, while passing from Elizabeth to Jersey City, in exchange for his said ticket, a certain check which was evidence of his right to travel between those points. By a reasonable rule adopted and enforced by defendant, it was the duty of plaintiff to surrender said check to the conductor of defendant's train during his passage from Elizabeth to Jersey City, upon demand ; and it was the duty of the con- ductor to eject from the train, at the first stopping place, any passenger who refused, in such case, to surrender such check. Plaintiff, while passing as aforesaid, from Elizabeth to Jersey City, refused, upon demand, to surrender said check to the conductor of the train; and -thereupon the conductor, without unnecessary force, attempted to put the plaintiff off the train at the first stopping place, to wit, at Marion, and desisted from said attempt as soon as the plaintiff surrendered said check. 2. As to paragraph 5, defendant has no knowledge or in- formation sufficient to form a belief. 255. Inconsistent Defenses ; Action of Trespass on Land. First Defense. i. Paragraphs one and two of the complaint (those alleg- ing the trespass) are denied. Second Defense. i. Defendant's entry on said premises was made under a writ of attachment in favor of John Doe of Trenton against the plaintiff, directing an attachment of the plaintiff's property to the amount of $1,000; which writ was returnable to the Supreme Court on the 2Oth day of May. 1912, and was direcfed to the Sheriff of Mercer County. Form 256 ANSWERS. 192 2. Defendant on May ist, 1912 was Sheriff of Mercer County and said writ was delivered to him on that day to be executed. 3. Defendant while he was sheriff as aforesaid, attached a pair of oxen of plaintiff by virtue of said writ, and he made said entry in order to levy said attachment. 256. By Sheriff, to Complaint for an Illegal Seizure. (See Form No. 145.) (Answer of Defendant John Doe.) 1. This defendant denies that said 50 barrels of flour be- longed to the insolvent estate of said John Stiles, and denies that he wrongfully seized the same, as alleged in paragraphs 4 and 5. 2. More than thirty days before said proceedings in insol- vency by Stiles were begun, said 50 barrels of flour taken and sold by defendant were lawfully seized by this defendant in said action brought by the defendant James Smith against said Stiles, by virtue of a writ of attachment issued under the Prac- tice Act of 1903 and executed by this defendant. Said flour was afterwards levied upon, according to the provisions of said act, under a special writ of execution issued upon the said judgment, ^nd were lawfully sold by this defendant pursuant to the command of said writ. 257. Privileged Communication in an Action for Slander. (See Form 157.) 1. Plaintiff had been a clerk to defendant. Said John Smith was engaged in the same business, and applied to de- fendant for advice as to the character of plaintiff who was seeking employment of him. 2. Defendant spoke the words complained of while truth- fully giving to said John Smith, in confidence, for the pur- pose aforesaid, his real opinion of the plaintiff. 3. Paragraphs three and four are denied. 193 ANSWERS. Form 260 258. License, to an Action for Trespass to Personal Prop- erty. (See Form 149.) 1. He denies paragraph one, except as herein admitted. Defendant took said horse on the day alleged in the complaint, by authority of a general permission from the plaintiff to ride said horse at such times as it was not required for plaintiff's use. 2. Paragraph two is denied. 259. Ejectment : License. 1. On May loth, 1912, plaintiff gave to defendant a license to enter on and take possession of the said land. 2. Defendant entered thereon on the day, and has ever since remained in possession under that license. 3. Plaintiff never revoked said license before bringing this action. 260. Ejectment : Set-off of the Value of Permanent Im-. provements. (NOTE: See Ejectment Act, Sec. 47; Supreme Court Rules 86.) First Defense. (Under this, make general denial, or state any special de- fense. ) Second Defe-nsc. 1. Defendant has made permanent improvements upon the said land, namely, he has erected thereon a barn of the value of $500, and a poultry house of the value of $200. 2. Said improvements were made in good faith by de- fendant (or, by the persons under whom defendant claims title), while holding adversely to plaintiff, under color of title obtained by a fair, bona fide purchase from John Doe, who was in possession of said land at the time of said pur- chase and was then supposed to have a legal right and title thereto. Defendant demands allowance -and set-off of the value of said improvements against the damages, if any, which plain- tiff may recover. Form 261 ANSWERS. 194 261. Replevin: Denial of Detention, and Disclaimer. (See Form 179.) 1. As to the matters alleged in paragraphs one and two, defendant has not any knowledge or information thereof suffi- cient to form a belief. 2. Paragraph three is denied. 3. Defendant disclaims all right to the property described in the complaint. 262. Replevin: General Denial without Disclaimer; Counter-Claim for Return of Goods and Damages. i. Defendant denies the truth of the matters contained in the complaint. By way of counter-claim: i. Defendant, at the time of the alleged taking, was and still is the owner, and entitled to the immediate possession, of the goods and chattels described in the complaint. Defendant demands possession of the said goods and chattels and $ damages. 263. Replevin: Answer in the Nature of an Avowry Counter-Claim for Return of Goods and Damages. 1. Paragraphs one, two and three are denie'l. 2. On the said tenth day of January, 1912, defendant was and still is a deputy sheriff in and for Mercer County. 3. On said date, defendant, as such deputy sheriff, levied upon the goods and chattels mentioned in the complaint, as the property of Richard Roe of Freehold upon a writ of attachment theretofore delivered to him and which had been issued out of the Supreme Court on January 8th. 1912, in an action in which John Doe was plaintiff and the said Richard Roe was defendant, and at the time of the taking of said goods, mentioned in the complaint, defendant was, as such officer, holding said goods and chattels by virtue of said writ of attachment. 4. Said goods and chattels were at the time of said attach- ment and still are, the property of said Richard Roe. By way of counter-claim: i. All the paragraphs of the answer are made part of this counter-claim. 195 AFFIDAVIT OF MERITS. Form 265 Defendant demands possession of said goods and chattels and $ damages. Iss. 264. Affidavit of Merits. (Caption and Title.) State of County of A. B., being duly sworn on his oath says, that he is the defendant in the above stated cause, and that he believes that he has a just and legal defense to said action on the merits of the case. (Jurat.) OR, when affidavit is made by defendant's attorney or agent: that he is the attorney (or, agent) duly authorized to make this affidavit in this cause for the defendant. That defendant is (state facts shoeing n-hy affidavit is not made by defendant; such as that he is absent from the state, or the like}. NOTE: If the affidavit is made by an officer of a corpora- tion, it should state his authority to make the affidavit, unless his office is such as to imply such an authority; for example. President or General Manager. 265. Notice to be Endorsed on Complaint that Affidavit* of Merits Must Be Filed. To the within named defendant: Take notice that if the within summons and complaint be served upon you personally and you intend to make defense, then you must file an affidavit of merits within ten days of such service and must file an answer within twenty days of such service; and that in default thereof, judgment will be entered against you. Lawful service upon a corporation is deemed personal service. Form 266 COUNTER-CLAIM AND SET-OFF. 196 Counter-claim and Set-off. (See also Counter-claims with Answers; Forms Nos. 187, 236, 247, 252, 262, 263.) (Any matter of strict defense should be stated by way of Answer, before the statement of the counter-claim, or set-off.) 266. Commencement. (FROM SCHEDULE B., MODIFIED.) < (State title.} Defendant (state residence} says, by way of counter-claim against the plaintiff that: (Fill up in accordance ivith the following forms.) (Signed) Attorney for Defendant. NOTE: // the cownter-claim is against others than the plaintiff the names of the persons against whom it is made must be stated (Rule 46.) 267. Against Carrier for Negligence. The transportation of the goods mentioned in the complaint was conducted so badly and negligently that by the negligence and improper conduct of plaintiff and his servants in that behalf, a part of said goods, of the value of $300 were wholly lost to defendant; and a part thereof, of the value of $500, were damaged by water to the amount of $100. Defendant demands $400 damages, or so much thereof as he may be entitled to above the plaintiff's claim. SET-OFF. (See Practice Act (1912), Sec. 12; Set-off Act, Comp. Stat. p. 4836.) (When no other defense is made, the following forms of set-off may be used.) 268. Answer by way of Set-off. At the time of the commencement of this action, the plain- tiff was, and still is, indebted to the defendant in the sum of $1,000 for the following cause: (here state the cause of action relied on as a set-off). 197 COUNTER-CLAIM AND SET-OFF. Form 270 Defendant offers to set-off said debt with interest against the plaintiff's demand (to the extent of the sum that is due plaintiff and demands judgment for such balance as may be found to be due defendant from plaintiff on said account.) MONEY RECEIVED BY PLAINTIFF TO USE OF DEFENDANT. 269. Answer by way of Set-off. 1. Between May ist and July ist, 1912, plaintiff received from one John Roe, of Newark, $1,000 for the use of defend- ant. 2. Plaintiff has not paid the same. (Conclude as in the preceding form.) 270. Answer to Counter-Claim : General Denial with* New Matter. First Defense. Every paragraph of said counter-claim is denied. Second Defense. At the time when said horse is alleged in the counter-claim to have been hired, the plaintiff was an infant, aged only 19 years. Form 271 REPLIES. 198 Replies. 271. General Denial. The plaintiff ^denies every allegation in the answer. 272. Partial Denial. Plaintiff denies the second paragraph of the answer. 273. Duress, Avoiding a Release. Plaintiff replies that said release was extorted from him by the defendant, by threats that, if not given, defendant would beat or main the plaintiff, or by any other threats. 274. Reply, and Answer to Counter-Claim : Son Assault Demesne. (See Form 252.) i. The plaintiff denies that the assault and striking by defendant was in self defense, as alleged in paragraph one of the Answer. By way of answer to the counter-claim. The plaintiff denies that he struck defendant otherwise than as herein admitted. Defendant first beat plaintiff as stated in paragraph one of the complaint, the plaintiff thereupon, in order to protect himself from defendant's attack, struck plain- tiff with a whip, using no more force than was necessary to his self defense. 275. Defendant's Reply to Above Answer to Counter- claim. Defendant denies that the assault and striking by plaintiff was in self defense as alleged in the answer to defendant's counter-claim. 276. Revocation of License. (See Forms 149, 258.) 1. Before the trespasses mentioned in the complaint, plain- tiff had revoked the permission previously given to ride said horse. 2. Plaintiff denies that defendant took said horse by au- thority of a general permission, as alleged in the second para- graph of the answer. 199 REPLIES SUPPLEMENTAL PLEADINGS. Form 279 277. Reply to Answer of Married Women's Act: Con- tract Made in Another State: Foreign Statute. (See Form 209.) 1. Plaintiff replies that the said contract was (made and) delivered and first took effect (or, the said note was made) dated and (delivered or made payable), within the State of New York, and was intended by the parties thereto to be gov- erned by the law of that state. (See Mayer vs. Roche, 77 N. J. L. 681.) 2. By a statute enacted by the Legislature of the State of New York and approved by the Governor thereof on the day of . . entitled it was, among other things, enacted in words as follows: (here copy the part of the statute in question, making married women liable upon all their contracts, whether as surety or otherwise.) 3. Said statute was in force in the State of New York at the time of the making and delivery of the said contract (or, note). 278. Rejoinder to Reply: Duress. Defendant says by way of rejoinder that said release was extorted from defendant by plaintiff's duress, in threatening defendant that plaintiff would shoot defendant ; because of which threat, and in fear thereof, defendant executed said release. 279. Supplemental Pleadings. (Title) Supplemental Complaint (or, Answer). By leave of Court first obtained, the plaintiff (or, defendant) says that : i. Since the commencement of this action (state in num- bered paragraphs the additional matter which has arisen since the commencement of the action). Form 280 200 Postea and Judgments. 280. Postea. (FROM SCHEDULE B.) This case was tried before Justice (or Judge) A. B. with a jury, at the Circuit, on December 10, 1911. The jury rendered a general verdict against the defendant and in favor of the plaintiff for $5.000. (State amount in zi'ords and figures.} (Signed) A. B., J- Rules for Judgment. NOTE: Rules, or Orders, for the entry of judgment will be used under the new Practice Act (1912) asformcrlv. They ma\ be easily framed, according to the nature of the case, from the following forms of judgment. A few forms of such Rules are given here for illustration. 281. Rule for Judgment Interlocutory or Final by Default, Against Defendant. The summons and complaint in this cause having been duly served upon the defendant, on May loth, 1912, and defendant having failed to file an answer, or take any other step in re- sponse to the complaint, within the time limited by the rules of court ; It is ORDERED that judgment interlocutory be entered against the defendant and in favor of the plaintiff. (// damages be unliquidated, add : and that a Writ of Inquiry do issue, di- rected to the Sheriff of County, to assess the dam- ages which the plaintiff has sustained.) Rule actually entered this clay of 1912. On motion of C. D. Attorney of Plaintiff. (If an assessment of damages be made and filed at the time of entering the above Rule, then instead of the last paragraph, the follozving form sJwuld be used: And the damages of the plaintiff having been assessed by the Clerk of this Court (or, in open court) at the sum of $ 201 RULES FOR JUDGMENT. Form 284 It is ORDERED that judgment final be entered against the de- fendant and in favor of the plaintiff for the sum of $ with costs to be taxed. (Add date of entry of the Rule in the Minutes.) 282. Rule for Judgment for Plaintiff on Verdict in the Circuit Court. This action having been tried before Judge A. B. with a jury, in the presence of counsel of the respective parties, on Decem- ber loth, 1911 ; and the jury having returned a verdict in favor of the plaintiff, for $ damages : It is ORDERED that judgment final be entered in favor of the plaintiff and against the defendant for the sum of $ and the plaintiff's costs to be taxed. 283. Rule for Judgment Against Defendant for Failure to Comply with Conditions of Leave to Defend. An order having been regularly made on June 10, 1912 giv- ing leave to the defendant to defend upon condition that (state the condition which the defendant failed to perform} ; and it appearing that defendant has not performed said con- dition, and that after due notice of the application for this order he has failed to show any sufficient excuse for said failure, it is ordered that his answer be struck out and that judgment interlocutory be entered against him. (Continue as in Form 281 in respect of damages.) 284. Order for Summary Judgment. (FROM SCHEDULE B.) It appearing by affidavit, filed in the cause, that the defense made by defendant's answer is sham (or frivolous) and the defendant, after due notice, having failed to show such facts as entitle him to defend ; It is ordered, that the answer be struck out and that final judgment be entered for plaintiff for the sum of $ and costs. (Signed) X. Y., Justice (or Judge). NOTE: For Summary Judgment, see Form 296. Form 285 AFFIDAVIT FOR JUDGMENT. 202 285. Affidavit for Summary Judgment. (FROM SCHEDULE B.) NEW JERSEY, MERCER COUNTY. A. B., being duly sworn, on his oath says ; I am the plaintiff in the above-stated cause. I sold to defendant the goods men- tioned in the complaint, upon his order, and delivered the same to him. The prices charged for the same, and stated in the complaint, were, and are, reasonable prices. No specific prices were agreed upon between us. The full amount of prices for which said goods were sold is $ and the said amount is unpaid and due. I believe that there is no defense to the action. (Jurat} NOTE : // the affidavit is not made by the plaintiff, it should show that the affiant is in a position to be cognisant of the facts stated: 286. Order for Leave to Defend on Terms. (FROM SCHEDULE B.) It appearing probable by affidavit filed in the cause that the defense is sham (or frivolous), but the defendant having shown such facts as entitle him to this order; It is ordered, that defendant have leave to defend, on condi- tion that (state terms; for instance), 1. The cause be put on the list at the present term without notice of trial (or, the cause be tried without notice of trial on the day of instant or such later day as may be hereafter ordered) ; 2. The following facts and documents be admitted: (State uncontested facts and documents not admitted in pleadings) : 3. The defendant, within days, make to the plaintiff, and file in the cause, a bond of himself and a surety company authorized to do business in this State, in the sum of $ , conditioned to pay such judgment, if any, as plaintiff may recover against him in this action. (Or, pay into court the sum of $ , as security for such judgment as plaintiff may recover against him in this action.) NOTE : For Rule for judgment, and judgment, for failure to comply with terms, see Forms 283, 297. 203 JUDGMENTS. Form 287 Judgments. 287. Judgment Record. (FROM SCHEDULE B MODIFIED.) In the Supreme Court of New Jersey. (Or, in the Hudson County Circuit Court). Judgment Record. C. D., the defendant in this cause, was summoned (or, taken on capias ad respondendum) to answer unto A. B., the plaintiff therein, in an action at law upon the following complaint : (Copy complaint, including signature of attorney.) The defendant answered as follows: (Copy the ansiver, in- cluding signature of attorney; copy also further pleadings, if any. If supplemental pleading be added under order giving leave, insert the words "By leave of the Court the plaintiff fur- ther complained," or "The defendant further answered," as the case may be.} (Add the judgment. See Form No. 288.) NOTE: If any other documents filed in the cause be neces- sary to present a question raised on am appeal, they may be printed in the statement of the case. If any pleading be amended, copy it in the amended form only, unless an appeal raises a question upon the right to amend; in that case the original pleading should be copied in the record and the amendment complained of should then be copied, in- troduced thus: "By leave of the Court the plaintiff was al- lowed to amend the said complaint" (or, "The defendant was allowed to amend the said answer) by adding (or striking out) the following." (Then copy the amemdment.) NOTE: The record of a judgment recovered under the pro- visions of the Mechanics' Lien Act, should show how the sum- mons was served. See note to Form 114. and sec. 24 of that Act. On attachment the record should show as heretofore, how the court acquired jurisdiction, ris. : b\ stating a copy of the affi- davit and writ of attachment. NOTE: The follozving forms of judgment may be used in making up the judgment record. The practitioner will, of Form 288 JUDGMENTS. 204 course, distinguish them from rules (or orders) for the entry of judgment. See above, under caption "Rules for Judg- ments.'' When- these forms of judgment are used, the postea may be omitted from the judgment record. It is not intended to give here a complete set of forms for judgments in all cases, but in such only as may be necessary to illustrate sufficiently the changes in form required in order to conform to the ;/^7c r practice. 288. Judgment for Plaintiff on Verdict. (FROM SCHEDULE B MODIFIED.) This action was tried before Justice (or Judge) A. B. with a jury, in the presence of the counsel of the respective parties, at the ............ Circuit, on December 10, 1911. The cause having been heard and submitted to the jury, they returned their verdict as follows : (// a general verdict be found by the jury or entered by order of the court upon an- swers of the jury to the court's questions, copy the verdict at this point. If a special verdict be rendered, copy that at this point.} Whereupon it is adjudged that the plaintiff (name) recover of the defendant (name) the sum of $ .......... and his costs, which are taxed at the sum of $ ........ , making in the whole the sum of $ .......... (State amounts in words and figures.) Judgment entered December ...... , 1911. NOTE : If the cause be tried unthout a jury, the findings of the court should be substituted in the above form for the ver- dict.) 289. Judgment for Defendant on Verdict. (FROM SCHEDULE B.) (Folloiv the foregoing form to and including the verdict or court's findings; then continue thus:) Whereupon it is adjudged that the complaint of the plain- tiff be dismissed and that the defendant recover of the plain- tiff his costs, which are taxed at $ ........ . (Add date of entry.) 205 JUDGMENTS. Form 292 290. Judgment for Plaintiff on One Count and for Defendant on Another, and for a Set-off After Trial by the Court. (FROM SCHEDULE B.) (Folloiv the first paragraph of Form 288, and continue thus'.) The Court, having heard the parties, finds the issues for the plaintiff upon the first count and that $500 is due him thereon ; and also finds the issues for the plaintiff upon the second count and that $1,000 is due him thereon; and finds the issues for the defendant upon both defenses to the third count, and fur- ther finds his defense of set-off true, and that $1,040 is due him thereon. Whereupon it is adjudged, that the plaintiff (name) recover of the defendant (name} five hundred and twenty dollars ($520) and his costs, which are taxed at $ making in the whole the sum of $ (Add date of entry.} 291. Judgment of Non-suit: Plaintiff Not Appearing at Trial. (FROM SCHEDULE B.) This' action came regularly on for trial on the day of April, 1912, before Justice (or, Judge) A. B. at the circuit ; and when called for trial the defendant appeared, but the plaintiff did not appear to prosecute his ac- tion. Whereupon it is adjudged that the complaint of the plaintiff be dismissed, and that the defendant (name) recover of the plaintiff (name) his costs, which are taxed at $ (Add date of entry.) 292. Judgment of Non-suit for Failure of Proof. (Follozn' first paragraph of Form 288.) And the plaintiff having submitted his evidence, and the court, being of opinion that it was not sufficient to entitle him to recover, ordered judgment of non-suit to be entered against him. Whereupon (Follow Form 291, last paragraph). Form 293 JUDGMENTS. 206 293. Judgment of Non-pros for Failure to File Reply, or, of Non-suit for Failure to Notice for Trial. The defendant filed an answer tendering an issue, but the plaintiff failed to file a reply or take any other step in response to the answer within the time limited by the rules of Court, and for that cause the court ordered judgment to be entered against him with costs. (Or, the cause was at issue in time for the same to be no- ticed for trial at the September term of Court 1912 in County, but plaintiff failed to service notice of trial upon the defendant for that term, and for that cause the Court ordered judgment to be entered against him with costs.) Whereupon, it is adjudged that the complaint of the plain- tiff (name) be dismissed and that the defendant (name) do recover of the plaintiff his costs which are taxed at the sum of twenty-seven dollars and fifty cents ($27.50). 294. Judgment by Default Against Defendant for Failure to Plead. Plaintiff served and filed his complaint, but defendant failed to file an answer or take any other step in response to the Com- plaint, and thereupon the damages of the plaintiff were as- sessed by the clerk of this Court (or, in open court) at the sum of $1,000 (or, and thereupon a writ of inquiry was duly is- sued to assess the damages of the plaintiff, and after due pro- ceedings thereon the damages of said plaintiff were duly as- sessed by the verdict of the jury upon said writ of inquiry, at the sum of $1,000). Whereupon (Follow last paragraph of Form 288.) 295. Judgment Against Defendant who Failed to Appear at Trial. This action was regularly called for trial before Justice (or, Judge) A. B., at the Circuit on October 10, 1912, when the plaintiff appeared and moved the case for trial, but the defendant failed to appear. The plaintiff was heard and submitted his evidence and the case was submitted to the jury which thereupon returned a verdict in favor of the plaintiff and against the defendant and assessed the plaintiff's damages at the sum of twelve hundred dollars ($1,200). 207 JUDGMENTS. Form 299 Whereupon it is adjudged (Follow Form 288 last para- graph). 296. Summary Judgment after Answer Struck Out. Afterwards, upon proceedings duly had according to the statute, the Court ordered the said answer to be struck out as sham (or, frivolous). Whereupon (Follow Form 288 last paragraph.) 297. Judgment Against Defendant on His Failure to Com- ply with Conditions of Leave to Defend. Afterwards, upon proceedings duly had, according to the statute, to strike out the answer as sham, the defendant had- leave of Court to defend upon condition, that (state the con- dition of the leave lo defend which the defendant failed to per- form), but defendant failed to comply with said condition ; and because of such failure the Court thereafter, proceeding in accordance with the statute, ordered the answer to be struck out, and judgment to be entered against said defendant. Whereupon (Follow Form 288, last paragraph). 298. Judgment without Pleadings. The parties submitted the foregoing statement of the case for judgment without pleadings; and the cause was afterwards, on October i, 1912, heard (or, if any issues were submitted for trial, tried) before the Judge (or, Justice), named in the statement of the case (or, before the Hon who was, by consent of all parties, substituted for the trial Judge named in the statement of the case). And the parties having been heard by their respective counsel, the said Judge (or, Justice) finds the issues as fol- lows: (Copy findings}. Whereupon, it is adjudged (Follow Form 288 or 289, or other appropriate Forms of Judgment) . 299. Judgment for One of Two Plaintiffs Claiming in the Alternative Against Defendant. (NOTE: See Pr. Act, Sections 4, 20: See Form of Com- plaint, No. 86.) (Follozv Form 288 to end of first paragraph.) The cause having been heard and the Court being of opinion that upon the proper construction of the contract stated in the Form 300 JUDGMENTS. 2 s complaint, as between the two plaintiffs, the plaintiff C. D. is entitled to recover from the defendant. And the issues of fact having been submitted to the jury, they returned their verdict as follows: (Copy verdict.} (Follow the last paragraph of Form 288 and add at the end thereof) and that the complaint be dismissed as to the plain- tiff A. B., without costs. (Add dale of entry.) 300. The Same, when the Trial Court Reserved a Ques- tion of Law and Submitted the Case to the Jury Upon Alternative Propositions of Law, Under Pr. Act (1912) Section 19. (See Form of Complaint No. 86.) (Follow Form 288 to end of first paragraph.) The cause having been heard, the Court reserved the question as to which one of the two plaintiffs was entitled, upon the true construction of the contract stated in the complaint, to re- cover against the defendant; And the Court also submitted the issues of fact to the jury upon alternative propositions of law ; to wit, that if they find said issues against the defendant they should find them in favor of the plaintiff A. B., or in the alternative, in favor of the plaintiff C. D. according to the then future determination by the Court of the question of law reserved as aforesaid. And thereupon the jury returned their verdict as follows : namely, the jury finds the issues of fact against said defend- ant and in favor of the plaintiff A. B., or, in the alternative, in favor of the plaintiff C. D. according to the future determi- nation by the Court of the question which one of said two plaintiffs, as between themselves, is entitled to recover ; and the jury assess the damages of the plaintiff, who may be en- titled to recover, at the sum of $ And the Court afterwards heard argument by counsel of the respective parties upon the question so reserved, and is of opinion that upon the true construction of said contract, as between the two plaintiffs, the plaintiff C. D. is entitled to recover from the defendant. Whereupon it is adjudged (/o//ozc> last paragraph of Form 288 and add at the end thereof} : and that the complaint be dis- missed as to the plaintiff A. B., without costs. (Add date of entry.) 209 JUDGMENTS. Form 302 301. Judgment Against One of Two Defendants Sued in the Alternative. (NOTE: See Pr. Act. Section 6, 20: See Form of Com- plaint No. 59.) (Follow first paragraph of Form 288.) The cause having been heard and submitted to the jury, they returned their verdict as follows: The jury finds that the de- fendant C. D. was the agent of the defendant E. F. as alleged in the complaint and was authorized to sell the securities mentioned therein ; and they find all the other issues of fact in favor of the plaintiff and against the defendant E. F. ; and they assess the damages of the plaintiff at $ (Folloic last paragraph of Form 288, inserting the name of the defendant against idiom the rerdict was rendered, and add at the e\nd thereof) : and that the complaint be dismissed as to the defendant C. D. without costs. (Or and that the plain- tiff recover of the said defendant C. D. his costs, as against the said C. D., which are taxed at the sum of $ ) (Add date of entry.} 302. Judgment (Against Surety and Principal) Allowing Surety the Benefit of the Judgment. NOTE: This form of judgment should be used only when the relation of surety (or guarantor) and principal appears in the pleadings and is admitted therein, or is found by the ver- dict. See Pr. Act. (1903) Sec. 35. This section applies only to suits on bills or notes; but under Pr. Act (1912) sec. 20, it is suggested that the following form may be used if desired in behalf of any surety or guarantor who is sued with his princi- pal under the provisions of Rule 7. Section 179 of the Practice Act (1903) authorizes the Court to control the judg- ment and execution in such case, for the benefit of the surety. (Follow Form 288 to the end; then as follows) : And it appearing that the defendant C. D. is liable for the said damages as surety (or, guarantor) for A. B., it is further ordered and adjudged that if this judgment be paid by said C. D., it shall not be considered as satisfied as against the de- fendant A. B., but the said C. D., on application to this court (or a Justice thereof) and on notice to the said C. D., and upon terms, shall have the full benefit and control of :-aid Form 3023 JUDGMENTS. 2JO judgment for the purpose of compelling repayment from the said A. B. (Add date of entry.} . 302a. Judgment on a Cross-Complaint between Co-De- fendants, on an Agreement to Indemnify. (See Form 121.) (Add at the end of an appropriate form of judgment for plaintiff) : And it appearing by the cross-complaint filed by the defend- ant, John Doe, against his co-defendant, James Smith, and the answer of said Smith thereto (and the said verdict), (or, upon which cross-complaint judgment interlocutory was entered against said Smith for want of an answer) that the defendant, James Smith, is primarily liable to plaintiff, and the defend- ant, John Doe, is secondarily liable to plaintiff, it is further ordered and adjudged (continue as in Form 302). 303. Judgment for Defendant on Motion to Strike Out for Failure to State a Cause of Action. Defendant moved to strike out the complaint on the ground that it disclosed no cause of action ; upon which motion argu- ments for plaintiff and defendant, by their respective counsel were duly heard and the Court, being of opinion that the com- plaint disclosed no cause of action, ordered that the same be struck out. Whereupon it is adjudged that the complaint of the plain- tiff be struck out and that the defendant recover from the plaintiff his costs which are taxed at $ (Add date of entry.} 304. Judgment for Plaintiff Against One of Two Defend- ants After a Separate Trial. A separate trial was ordered of the issues joined between the plaintiff and the defendant, John Doe, and the said issues between the plaintiff and the said defendant were thereupon tried, in the presence of their respective counsel before Justice (or, Judge) A. B., at the Circuit on October 5, 1912. And the said issues having been submitted to the jury, they returned their verdict as follows. (Copy verdict}. 211 JUDGMENTS. Form 306 Whereupon it is adjudged that the plaintiff recover from the said defendant, John Doe, the sum of $ (Continue as in Form 288, last paragraph). 305. Judgment for One of Two Defendants After Sep- arate Trials Against Each and a Previous Judgment Against the Other. A separate trial in this cause was heretofore ordered, and was had, between the plaintiff and the defendant, John Doe, and thereupon judgment was entered, on October 10, 1912, upon the issues tried between the plaintiff and the said John Doe, in favor of the plaintiff and against the said Company for the sum of $ Afterwards, the issues joined in said cause between the plaintiff and the defendant Richard Roe were tried, in the presence of their respective counsel, before Justice (or Judge) A. B. at the Circuit, on October 20, 1912. And said issues having been submitted to the jury, they returned their verdict as follows: (Copy verdict.) Whereupon it is adjudged (follow last paragraph preced- ing form}. 306. Judgment Against an Executor (or, Administrator) of a Deceased Co-Contractor and Against the Sur- viving Co-Contractor, Under Rule 6. (Follow Form 288 to and includiny the recital of the ver- dict. ) Whereupon it is adjudged that the plaintiff (name) do re- cover of the defendant, Richard Roe, and of the defendant, John Stiles, executor of the Will of James Fen, the sum of (the whole amount of the debt or damages awarded by the verdict) and his costs, which are taxed at the sum of dollars, making in the whole the sum of dollars;* to be levied (as to the defendant Tohn Stiles) of the goods and chattels which were of the said James Fen at the time of his death, in the hands of the said John Stiles as ex- ecutor as aforesaid, to be administered, if he have so much to be administered. (State amounts in words and figures.) NOTE: // the judgment be against the Executor personally for the costs, then add after the asterisk: Form 307 JUDGMENTS. 212 The said damages, to wit, the sum of dollars to be levied of the goods and chattels of the said James Fen, deceased, in the hands of the said John Stiles, Executor as aforesaid, to be administered; and the said costs, to wit, the sum of dollars, to be levied of the proper goods and chattels, lands and tenements, of the said defendant, John Stiles. 307. Judgment Against an Executor (or, Administrator), as Such and Against Him Personally, Under Rule 14 (c). (See Form 40.) (Follou 1 Form 288 to and including the recital of the ver- dict.) Whereupon it is adjudged that the plaintiff (name) do re- cover of the defendant, Richard Roe, executor of the Will of Thomas Brown, the sum of (the aggregate of the sums alloived by the verdict upon the claim against the executor as such, and the claim against him personally) upon both counts of the com- plaint, and his costs, which are taxed at the sum of $ , making in the whole the sum of $ ; to be levied of the goods and chattels which were of the said Thomas Brown at the time of his death, in the hands of the said defendant as ex- ecutor as aforesaid to be administered, if he have so much to be administered. And if he have not so much in his hands to be administered, then that $ , part of the sum aforesaid, being the amount awarded by the said verdict upon the count against the said defendant personally, or so much thereof as can not be made of the goods and chattels of said testator, together with the said sum of $ , for costs as aforesaid, be levied of the proper goods and chattels, lands and tenements of the said defendant Richard Roe. (State amounts in words and figures.) 308. Judgment for a Writ of Mandamus. (See Note to Form 17.) And it is further adjudged that a peremptory (or, an alterna- tive) writ of mandamus do issue against the defendant com- manding it* to pay to the plaintiff, the sum herein adjudged to be paid by it to the plaintiff [or show* cause to the con- trary]. 213 MANDAMUS. Form 309 // a mandamus is desired to compel a municipality to in- clude in the ta.v levy the amount of the judgment recovered against it, follow the above Form to the asterisk, then con- tinue thus: to assess and levy upon all the property within said (municipal corporation}, in addition to the regular taxes (of said municipal corporation) the amount due upon this judgment, or upon any execution which may be duly issued thereon with interest to the time when the same shall be paid, and to pay to the plaintiff the said amount with interest out of said tax when collected (or show cause to the contrary). See Shackelton vs. Town of Guttenbcrg, 39 N. J. L., 660; Improvement Co. vs. Sea Isle City, 61 N. J. L., 476, NOTE: As the Practice Act (1912), Section 3, authorises the (Supreme) Court to award a mandamus in an action at law, it would seem to be unnecessary, after a judgment in\ this form, to follow the procedure prescribed in Section 34 of the statute respecting executions against municipal corpora- tions. Comp. St. p. Other Forms. 309. Preliminary Reference Commissioner's Summons. (FROM SCHEDULE B.) (Title.) Commissioner's Summons. To , Defendant: On motion of plaintiff, you are hereby notified that on the loth day of January, instant, at 10 o'clock A. M., at my office, No. 10 street, Trenton, I will hear any motions that may be made by either party in the above-stated cause respecting the pleadings, issues, evidence, or any other matter preliminary to, and in preparation for, trial ; and will make such order respecting the same as the parties respectively may be entitled to. Dated January 4, 1912. Supreme Court Commissioner. Form 310 COMMISSIONER'S ORDER. 214 310. Commissioner's Order. (FROM SCHEDULE B.) (Title.) Commissioner's Order. Having heard the parties (or, having heard the plaintiff, the defendant not appearing, though duly summoned), it is ordered that: 1. PLEADINGS. Complaint be amended by stating where the contract therein stated was made. 2. ISSUES. The issue to be tried upon the first count is whether or not the letter dated June i, 1911, written by plain- tiff to defendant, accepting defendant's offer to sell, was mailed within a reasonable time after receipt of that offer. 3. PARTICULARS. Plaintiff, within ten days, serve fuller particulars as to the items of his claim under the second count. 4. ADMISSIONS. It is admitted that (state relevant facts ivhich are not disputed, other than those admitted in the plead- ings). 5. INTERROGATORIES. The first, fifth, seventh and tenth are struck out. All others allowed. 6. DISCOVERY OF DOCUMENTS. Plaintiff, within five days, serve a list under oath of all documents under his control which are relevant to any issue in the cause, except his per- sonal diaries and his books of account. 7. (Continue as to other matter, if any.) Dated January 10, 1912. (Signed) Supreme Court Commissioner. 311. Statement of the Case for Judgment Without Plead- ings. (FROM SCHEDULE B.) (Title.) Statement of the case for judgment without pleadings. The parties submit the following case for judgment without pleadings : i. On January i, 1911, at Trenton, by written agreement (a copy of which is annexed), defendant employed plaintiff for an indefinite period at a salary of $500 a month, to act as manager of defendant's manufacturing business. 215 FINDINGS OF COURT. Form 312 2. Under said agreement, plaintiff acted as manager of said business from January i, 1911, to January I, 1912, when he was discharged from said employment by defendant, without notice. 3. Plaintiff claims: (a) That he fully performed all his duties under said agreement in an efficient manner and gave no cause for said discharge. (b) That under the terms of said agreement, he could not be lawfully discharged without thirty days' prior notice. (c) That he is entitled to $500 damages. 4. Defendant claims : (a) That plaintiff acted negligently in the performance of his duties under said agreement, in that he neglected to make prompt shipment of goods to customers upon the orders named and on the dates stated in the annexed list. (b) That for the causes aforesaid plaintiff was, under the terms of the said agreement, liable to discharge without notice. (c) That, by the proper construction of said agreement, plaintiff was not entitled to notice of discharge in any case. 5. The above issues are submitted for trial without a jury. 6. The Honorable Justice of the Supreme Court (or Judge of the Circuit Court), is agreed upon as the Judge who shall hear and determine this case. 7. No appeal shall be taken from the judgment entered on his findings. Dated February 10, 1912. (Signed) E. F. Attorney of Plaintiff. G. H. Attorney of Defendant. NOTE : Paragraphs 6 and 7 may, or may not, be used, ac- cording to the agreement of the parties. 312. Findings of the Court on a Trial Without a Jury. (FROM SCHEDULE B.) (Title.) Findings. This case was tried before Justice (or Judge) without a jury at the Circuit on December 10, 1911. Form 313 NOTICE OF APPEAL. 216 After hearing the evidence and counsel for plaintiff and for defendant, the court finds : 1. The statements in paragraph i of the first count of the complaint are supported by the evidence. 2. The statements in the second count are not supported by the evidence. (Continue statement of findings, dealing z^itli each paragraph of the complaint or answer separately, unless a finding upon part of them is conclusive of the case.) 3. The court rules that the letter from plaintiff to defend- ant, dated (Exhibit P. 2), and defendant's reply, dated (Exhibit P. 3), constitute a memorandum in writing within the meaning of the statute of frauds. 4. The court rules that the third count of the complaint discloses no cause of action, because it states no special damage. 5. The court finds for the plaintiff and against the defend- ant upon the first count, and in favor of the defendant and against the plaintiff on the second and third counts of the com- plaint. 6. The damages of plaintiff on the first count are assessed at $ (Signed) NOTE : See also, Judgments, Form 290 for another form of Findings. 313. Notice of Appeal. (FROM SCHEDULE B, MODIFIED TO CONFORM TO RULE 77 AS AMENDED.) (State name of Court from zi'hich the appeal is taken.) (State title of the cause.) NOTICE OF APPEAL. To Attorney of Plaintiff. Take notice that the defendant appeals to the Court of Errors and Appeals (or to the New Jersey Supreme Court, or, as the case may be) from the whole of the judgment entered in this cause (or, from so much of the judgment entered in this cause as adjudges that : state the part of the judgment ap- pealed from) on the following grounds : 217 GROUNDS OF APPEAL. Form 315 1. The first count of the complaint discloses no cause of action. It fails to show that (specify the particulars in which the statement of the cause of action is deficient}. 2. The letter dated written by plaintiff to defend- ant was excluded from evidence. 3. The deed dated made by L. M. to S. T. was admitted in evidence. The following questions were overruled : 4. To the witness B. C. (Copy the questions}. 5. To the witness C. D. (Copy the questions}. The following questions were admitted : 6. To the witness G. H. (Copy the questions}. J. The court charged the jury. (Copy the parts of the charge claimed to be erroneous). (Signed) X. Y., Attorney of Appellant. NOTE : // the grounds of appeal are not stated in the notice of appeal, they must be served, and filed in the court of re- view within thirty days after filing the notice of appeal in the court below. (Rule 79.) See next Form. 314. Grounds of Appeal. (State name of the court to which the appeal is taken.} John Doe, Plaintiff and Respondent (or, Appellant), vs. Grounds of Appeal. Richard Roe, Defendant and Appellant (or, Respondent) . The Appellant states the following grounds of appeal: (Fil- lou' Form 313). 315. Statement of the Case on Appeal. (FROM SCHEDULE B., MODIFIED.) (Title.) On Appeal. Statement of the Case. i. (Insert here copy of the notiee of appeal.) Form 315 APPEAL-STATEMENT OF CASE. 218 2,. (Insert here the judgment record, Form 287.) 3. (Insert transcript of the stenographer's notes of the evi- dence ivith the e.rJiibits and the court's charge; or a statement of the evidence in the foil oiling form) : 3. Plaintiff's witnesses testified as follows: (State testi- mony of plaintiff's witnesses, either by question and anszver or reduced to narrative form; introductory and unimportant matters should be in narrative form, and all matters not rele- vant to the questions raised on review should be omitted.) 4. Defendant's witnesses testified as follows : ( To be filled up.) 5. The court charged the jury as follows: (Copy charge.) 6. The court submitted to the jury the following questions, to which the jury returned the following answers: (Copy, questions and answers.) 7. Whereupon the Court ordered a general verdict to be entered in favor of the plaintiff and against the defendant for $ damages (or in lieu of 6 and 7 when no written questions ivere submitted. The jury returned a verdict for the plaintiff for $ damages). 8. Annexed is a list of the documentary evidence relevant to the questions on review, arranged in order of their dates. (Signed) E. R, Attorney of Appellant. TO (Figures indicate the Form Number.) No. of ACCORD AND SATISFACTION. Form, answer of 198 ADMINISTRATOR. (See Answers, Complaints, Judgments; under "executor.") AFFIDAVIT. of merits 264 notice thereof to be endorsed on complaint 265 for summary judgment 285 ALTERNATIVE. complaints. plaintiffs in 86 defendants in 59 against del credere agent, as such, or for neglect 81 for goods or their value in replevin 178 judgment against defendants; one of two sued in the alternative. . 301 for plaintiff; one of two claiming in the alternative.... 299 ANSWERS. (See Counter-claim and Set-off.) ACCEPTANCE, in name of corporation 191 was unauthorized and for plaintiff's accommodation.... 192 defendant gave note for, which is not due 235 accord and satisfaction 198 agent ; defendant endorsed as 199 alteration of instrument 200 assault ; defense of son assault demesne 250 defense of molliter mantis imposuit 251 self-defense 252 avowry; answer in the nature of; with counter-claim 263 award ; invalidity of 201 BAILMENT ; denial of plaintiff's title 202 bankruptcy, discharge in 211 CARRIER, by ; answer that the damage was by plaintiff's fault, in a suit for injury to goods 205 commencement of answer 183 by infant defendant 185 of separate answer by one of several defendants who is sued by the wrong name 184 compromise 206 consideration ; partial failure of, and part payment, with counter-claim for negligence and trespass 215, 236 credit has expired ; denial that 210 contract as to place of delivery; plaintiff's breach of 240 as to quality or kind ; plaintiff's breach of 241 counter-claim with answer. (See Counter-claim.) ' 187 220 INDEX TO FORMS. No. of Form. DEFENSES ; several 190 inconsistent; action for trespass on land 255 delivery, plaintiff's breach of contract as to place of 240 demurrer (See Objection in point of law.) 186 denial, general 188 with new matter 189 that credit has expired 210 of part of indebtedness, of part of delivery, and of part of price 232 of the promise as to part, and pleading payment as to residue 233 of part, and tender of residue 245 of cause of action, with tender 246 disclaimer, with denial of detention in replevin 261 with general denial in replevin, and counterclaim for return of goods and damages 262 duress, by imprisonment 212 by threats 213 EJECTMENT ; defense of license 259 set-off of the value of permanent improvements 260 escrow; delivery was in escrow 214 FRAUDULENT account of loss given by plaintiff; on insurance policy 219 fraud ; note was for goods sold by 193 GAMBLING ; debt was incurred by 216 general denial 188 with new matter 189 ILLEGAL sale of liquor ; note was for 196 seizure ; by sheriff ; to a complaint for 256 inconsistent defenses 255 infancy ' 217 infant defendant ; commencement of answer by 185 insanity 218 insurance ; extra hazardous risk 221 misrepresentation, in life insurance 222 failure to give account of loss within limited time 223 indebtedness ; denial of in part 232 JUDGMENT ; invalidity of a foreign 224 invalidity of domestic, against a non-resident 225 reversal of 226 former ; for plaintiff 227 former ; for defendant 228 LICENSE; in an action for trespass to personal property.... 258 in ej ectment 259 lien for storage 229 limitations ; statute of 230 MARRIAGE, breach of promise of; that plaintiff was unchaste. . 203 married women's act (Sec Reply.) 209 malicious prosecution: to an action for; probable cause.... 253 mechanic's lien; denial of lien by owner or mortgagee 248 claim of prior lien by mortgagee. (See Mechanic Lien.) 249 misrepresentation ; to action for life insurance 222 tnoliter manus imposiiit ; to an action for assault 251 INDEX TO FORMS. 221 Xo. of Form. NEGLIGENCE AND TRESPASS; counter-claim for; with answer.. 236 note was for accommodation and was misapplied 194 was for goods sold by fraud 193 was given to compound a crime 195 was for illegal sale of liquor 196 non-presentment at place of payment 197 defendant endorsed as agent, where the complaint stated the contract untruly in this respect 199 payment of 204 taken by a corporation outside its powers; ultra vires.. 208 defendant gave his, for an acceptance which is not due.. 235 plaintiff agreed to accept note of third person in part payment 237 was given for price of sheep: they were diseased 247 novation, by substitution of a new creditor 231 OBJECTION in point of law under Rule 26 186 PAYMENT ; by note 204 of residue, with denial of part of debt 233 of all the goods were worth 234 part 236 plaintiff agreed to accept note of third person in part payment 237 performance ; denial of plaintiff's general allegation of.... 238 price ; denial of part of indebtedness, of part of delivery and of part of price 232 privileged communication; in an action for slander 257 quality; plaintiff's breach of contract as to 241 RAILROAD company, by; to an action by a passenger for tres- pass 254 rescission of contract 239 replevin; denial of detention with disclaimer 261 general denial, with counterclaim for return of goods and damages ' 262 answer in nature of avowry; counter-claim for return goods and damages 263 risk ; insurance, extra hazardous 221 SHAM. (See Sham Answers.) sheriff; to a complaint of an illegal seizure 256 slander; in action for: privileged communication 257 son assault desmesne; defense of 250 statute ; how to plead 277 storage lien; answer of 229 surety ; alleging an extention of time 242 alleging a change in the terms of the contract 243 TENDER : 244 denial of part, and tender of residue, of debt 245 when cause of action is denied 246 title: denial of plaintiff's title by bailee 202 trespass; inconsistent defenses; in action for trespass on land 255 defense of license ; trespass to personal property 258 INDEX TO FORMS. No. of Form. Ultra I'ircs, by corporation 207 note was taken by corporation outside its powers 208 unauthorized acceptance in name of corporation 191 unchastity ; to a complaint for breach of promise 203 WARRANTY ; counter-claim for 247 APPEAL. notice of 313 grounds of 314 statement of the case on 315 ARBITRATION. (See Complaints.) ASSAULT AND BATTERY. (See Complaints and Answers.) ATTORNEY. (See Complaints.) AVOWRY. (See Answers.) AWARD. (See Complaints and Answers.) BANKRUPTCY. (See Answers.) BOND. (See Complaints.) COMMISSIONER'S. summons on preliminary reference 309 order on same 310 COMPLAINTS. ACCEPTOR. (Sec Bills of Ex-change.) administrator. (See Executor.) advertising, for 31 agent ; against, for selling contrary to orders 80 del credere; against, on his liability as such and, in the alternative, for neglect 81 by an advertising; for services and disbursements 109 alternative ; against del credere agent as such, or, in alter- native, for ne*glect 81 plaintiffs in ; action against common carrier for loss of goods 86 defendants in ; action on a contract of sale 59 replevin against pawn broker, for return of pledge or damages for its conversion 178 animals, mischievious; knowingly keeping a fierce dog 176 arbitration bond, on 56 assault, for 142 and battery, for ; special damages 143 attorney, against ; for not collecting a note 76 for neglecting to file an answer 77 for negligence in examining title 78 for money collected 79 by ; for services 75 auctioneer, against ; for not accounting 101 award ; on an 102 INDEX TO FORMS. 223 No. of Form. BAGGAGE ; against a carrier for loss of 88 bailee ; against, for misuse of property lent 122 against, for negligence 123 against, for injury to goods hired 124 against for negligence in carrying goods 125 bank ; against, on a certified check 51 bill of exchange, on a; endorsee against endorser 47 endorsee against drawer, acceptor and endorser 48 drawer against acceptor 41 payee against acceptor 42 first endorsee against acceptor 43 subsequent endorsee against acceptor 44 directed by drawer to himself and accepted by him 45 payee against drawer for non-acceptance 46 board and lodging ; for ill bond conditioned to pay money ; on a 52 other than for the payment of money; on a 53 another form, not annexing a copy of the bond 54 for the fidelity of a clerk ; on a 55 arbitration ; on an 56 book account ; on a 18 another form of the same 19 broker ; against a ; for proceeds of note discounted too by, for commissions 26 builder ; against ; for defective work 94 for not completing his work; special damages 95 by. on a written contract modified by parol, with claim for extra work -. 96 business ; against seller by a purchaser of a business for breach of covenant not to compete 99 CARPENTER, by ; for carpentry 30 carrier; action against, for loss of goods; plaintiffs in alter- native 86 against, for non-delivery in a reasonable time 87 for loss of baggage 88 for losing goods 89 counter-claim against, for negligence 267 check ; payee against drawer 49 endorsee against drawer and endorser 51 collision of wagons : negligence 139 commissions of broker, for 26 commencement and conclusion of 4 by an infant 12 by an informer in an action qui tain 13 conclusion of complaint 6 by executor or administrator 7 against an executor as such, and against him personally. . 8 by husband and wife, for injuries to wife, with separate claims by husband 9 by plaintiffs having joint and several claims 10 against several defendants on separate claims 11 conspiring to cheat ; for 164 contribution ; for 112 224 INDEX TO FORMS. No. of Form, contract ; on written, modified by parol, with claim for extra work, by builder 96 to convey land ; on 72 to purchase land ; on 73 conversion of goods ; for 161 another form of same 162 by an executor 163 count; one, for several instalments of rent 82 covenant not to compete ; on, by purchaser of a business 99 of seizin ; on 66 against encumbrances ; on 67 for quiet enjoyment; against landlord; special dam- ages 68 against tenant for breach of covenant to repair 69 against landlord for same ; special damages 71 covenant of warranty of title ; on 65 criminal conversation ; for 159 cross-complaint between co-defendants, on an agreement to indemnify 121 DAMAGES ; special. on warranty of a horse sold 63 on covenant for quiet enjoyment, against landlord 68 against landlord for breach of covenant to repair 71 for loss of rent ; against a builder 95 negligence ; against a railroad company for personal injuries 127 negligence : against a physician for unskillful treatment 128 negligence; against a surgeon for an unskillful operation 129 assault and battery 143 malicious prosecution 153 libel 155 slander 157 another form for same 158 damages, exemplary; trespass to goods 147 trespass to goods and person 148 deceit. (See Fraud.) deficiency; upon sale of land, on foreclosure of mortgage. ... 57 defective work ; against a builder for 94 delivery ; how to allege it 64 demurrage; for, and damages in the nature of demurrage 106 devisee of land against heir ; ejectment i68a distress, wrongful 177 dismissal, wrongful; employee suing for services no INDEX TO FORMS. 225 No. of Form. EASEMENT ; obstruction of a private way 174 public way ; obstruction of 175 ejectment; mesne profits and injury to the property 168 devisee of land against heir i68a grantee against grantor who refuses to give possession. . i68b electric wire causing death; negligence 136 endorsee ; (See Bill of Exchange, Check, Note and Ware- house receipt). encumbrance ; on covenant against 67 escape; against a sheriff for an 169 executor; on a joint note, against one of the makers and the the executor of the other 39 against an ; upon separate notes ; one made by testator, and the other by the executor for the benefit of the estate '. 40 of lessee; against, for rent due before lessee's death.... 70 conversion of goods ; by an 163 by ; on a life insurance policy 93 FORECLOSURE of mortgage; for deficiency upon sale of land. . 57 fraud ; for conspiring to cheat 164 in concealing the insolvency of a third person 165 in sale of horses 166 in sale of a business 167 GOODS ; for loss of against a carrier for losing 89 trespass to 146 trespass to; exemplary damages 147 trespass to goods and person; exemplary damages 148 trespass on lands and to 152 conversion of 161 another form of same 102 guarantee of a precedent debt ; on a 107 HEIR; ejectment against, by devisee of land i68a husband ; against, for necessaries supplied to his wife 113 and wife; for injuries to wife and separate claims by husband 9 INDEMNITY; cross-complaint between co-defendant for 121 infant; by, commencement and conclusion of complaint 12 inn keeper ; against, for loss of goods 90 insurance; on a policy against fire 92 by executor, on a life insurance policy 93 JUDGMENT ; on a foreign 58 LAND ; on a contract to purchase 73 on contract to convey 72 for trespass on with cattle 151 for trespass on 150 for trespass on, land and the goods 152 landlord ; against ; on covenant for quiet enjoyment 68 for breach of covenant to repair: special damages 71 lease ; by surety (on a lease) against his principal 85 libel; for 154 with special damages 155 lodging and board; for in 226 INDEX TO FORMS. No. of Form. MANDAMUS ; prayer for writ of 17 marriage ; for breach of promise of 105 married woman ; by, with separate claims by husband ; con- clusion 9 malicious prosecution; with special damages 153 mesne profits; and for injury to property, in ejectment 168 mechanic's lien; against owner by laborer or materialman. . 114 mechanic's lien ; the same, when there was no express prom- ise or when prices were not agreed on 115 when mortgagee is made a party defendant 116 against builder, and owner; contract not filed 117 by contractor against owner 118 against owner, on a stop-notice 119 where owner has paid contractor in advance of the terms of the contract T. 120 mill ; for diverting water from a mill 173 money lent ; for 20 paid at the request of another 21 paid by mistake 22 received for plaintiff's use 23 paid for defendants use 24 on a note or other written instrument for the p-ayment of money 32 against an attorney for money collected 79 mortgage ; on foreclosure of ; for deficiency upon sale of land 57 NECESSARIES supplied to wife without husbands request.... 113 negligence : against bailee without reward (and see Supra, "A ttorney") 123 against bailee for injury to goods hired 124 against bailee carrying goods for hire 125 for driving a horse immoderately 126 against a railroad company for personal injuries; special damages 127 against a physician for unskillful treatment; special dam- ages 128 against a surgeon for an unskillful operation, special damages 129 against a watch-maker 130 accident caused by obstructing street 131 defendant's servant allowed a weight to fall on plaintiff 132 against warehouseman for loss of goods 133 against warehouseman for injury to goods 134 against wharfinger 135 death caused by electric wire 136 accident at railroad crossing 137 trolley accident 138 collision of wagons 139 leaving open a cellar area adjoining street 140 against telegraph company for not transmitting message 141 INDEX TO FORMS. 227 No. of Form, note: on a; or other written instrument for the payment of money 32 another form for the same, against maker and endorser 33 against person accommodated by maker of accommodation note 34 averment of excuse for non-presentment of - 35 averment of waiver of notice of non-payment of 36 same, where demand and notice were both waived. . 37 on a ; by a surviving p 75 WRITS OF ERROR Abolished in civil cases 25 Issued before this act takes effect 33 A 000679991