THE LAW OF PLEADING m CIVIL ACTIONS AND DEFENSES UNDER THE CODE ALSO PRACTICE IN APPEAL AND ERROR WITH NUMEROUS FORMS AND PRECEDENTS CWTEH SPECIAL REFERENCE TO THE OHIO CODE) BY EDGAR B. KINKEAD Oy THE CoLTTnaus, Ohio, Bas YOLUME I CINCINNATI W. H. ANDERSON AND COMPANY 1895 V. I Copyright, 1894, BY "W. H. ANDERSON AND COMPANY. mXRODUCTORY. In introducing this work the writer has no apology to offer, except that members of the bar have frequently suo-- gested the need of a new book on ))leading. The subject is one of the most important in the whole category of the law, and yet the actual preparation of pleadings is not always attended with that care and technical precision so essential. In this age of experience and practice under the code, the profession generally being of the opinion that it is a model system in all respects, it' is unnecessary to say any- thing in its behalf. It stands out as one of those great reforms peculiar to the American people. The memory of the late distinguished jurist so largely instrumental in the promulgation of the first code will live as long as the code system prevails, while its denunciation by those wedded to the old system is now forgotten. The principles of the common-law system were only moulded into simpler and more convenient form. No inconvenience has been exj3eri- enced in the practical operation of the code system, except in the proper and more desirable mode of trial where leo-al and equitable causes of action have been united. The rules and principles were not materially modified. Changes, how- ever, must always be made as time passes, and new princi- ples of law must be formulated to keep pace with the rapid advancement of civilization, and old principles more clearly defined bv later decisions. Hence new rules and principles of pleading must necessarily be established. This alone justi- fies a new work on pleading embodying the later adjudica- tions on the subject. IV INTRODUCTORY. In attempting to supply the needs of tlie profession, the writer has proceeded upon the theory that it is not so much the theoretical or individual discussion of principles of plead- ing that is desired as the close, careful and thorough collec- tion of rules and principles deduced from decisions old and new, supported by authority, systematically and conveniently arranged for reliable, ready reference. The writer has long entertained the opinion that in the present age the busy lawyer will disregard the personal views or theoretical discussion of a text-writer, unless the author- ity is cited upon which it is based, and is in fact the reason- ing of courts. The different states have advanced in years, and have accumulated a mass of law, and the busy practi- tioner needs this briefly and logically collated. An author who does this is performing the true mission of his calling and rendering service to his profession. His duty is to for- mulate the law as disclosed from the chaos of cases, setting forth inaccuracies, pointing out conflicting rules and princi- ples, not omitting personal discussion and opinion when nec- essary to accomplish this result. Adopting this plan, the writer has endeavored to prepare this work for practical every-day use. It has been the aim to present in the first ten chapters all the general principles of pleading in actions and defenses under the code which are applicable alike to particular actions or subjects. In sub- sequent chapters the subjects have been taken up in alpha- betical order, completing each subject in one chapter, believing this to be more convenient than to refer the reader to another portion of the book for any part of a subject. The eight}'- two particular actions or subjects have been thus treated. In the text preceding the forms in the particular actions, the manner of pleading is pointed out. The work is closed with two chapters on Appeal and Error, embracing the practice in appeal in all its phases and the INTRODUCTORY. practice in error in all courts having jurisdiction in error. These subjects varying in different states, the treatment is largely confined to Ohio. In many instances the region of pleading has been de- parted from, and general rules of law and rights of individ- uals outlined where it seemed advisable to an understanding of the correct mode of jjleading in the particular case ; and in the citation of authority throughout, all available sources have been explored, particularly of those states whose codes are similar. The decisions of courts of inferior jurisdiction are appropriately used because of the fact that many ques- tions' there decided do not go to the higher court. The work is founded upon the Ohio Code, and its provis- ions, as well as statutes not strictly part of the Code, are freely inserted, though not always with verbal accuracy. In many instances it seemed more desirable to state the sub- stance so long as the meaning was not mistaken or destroyed. While the book is based upon the Ohio Code, authorities have been cited from all code states, and the general rules and principles of pleading applicable in code states have been fully discussed throughout. Great care has been taken in the collection of forms and precedents, the aim having been to avoid the beaten path of set forms as much as possible. To this end diligence has been exercised in obtaining forms from cases which have reached the court of last resort, from the reports, and from other cases, in many instances citing the case from which they were taken. Many members of the profession assert that they do not follow forms ; yet they are frequently "of assistance as a guide, and convenient to follow in a general way to aid in drafting pleadings. In some cases special allegations in forms have been separately indexed, thus seeking to make them more useful, as special averments may frequently be used when the whole form cannot. Vi INTRODUCTORY. The references in the index are to pages principally, un- less the sectional reference is indicated by the character. This plan was adopted because of the length of many sec- tions ; but a preference for sectional references is the reason for the mode adopted. Care has been exercised to detect errors in citations and other inaccuracies, but they may appear. Knowing that it is easier to tear down than to build, and that there is great opportunity to err in the citation of so large a number of cases, the examiner's indulgence is assumed. Several gentlemen have rendered valuable assistance in the preparation of the work. Grateful acknowledgment is made to Paul Jones, Esq., of the Columbus, Ohio, bar for the chapter on Municipal Corporations; to W. G. Way, Esq., of the Marietta, Ohio, bar, for valuable assistance in the preparation of the chapter on Demurrer ; and to Judge D. F. Pugh and Col. J. T. Holmes, of Columbus, Ohio, for advice and counsel during the progress of the work. With these introductory remarks the work is submitted to the profession, with the earnest hope that the writer's efforts may, in a measure, be appreciated and found of value. Edgar B. Kinkead. Columbus, Ohio, October, 1894 SYNOPSIS OF CONTENTS. YOLUME L Sections. Ch. 1. Actions Under the Code ' 2. Parties 3. Joinder of Actions ■^ . . 35-44 4. Venue 5 . The Petition, Including Some General Rules of „ . 45-67 Pleading - • • ' : ' nn-f^'T 6. The Answer, Counter-claim and Set-off . . ^°^t ™ T-k • 88—92 7. The Reply 8. Demurrer to Petition, Answer, Reply and Coun- ter-claim . 117-125 9. Motions . • * 10. Amendments, Supplemental Pleadings and Con- SOLU>ATION OF ACTIONS ,QR_U- 11. Accord and Satisfaction ..... J^g^g^ 12. ACCOUNT . . • m-l':A 13. Accounting 175-181 14. Agents ^^^'_^^^ 15. Animals 200-219 16. Arbitration and Award ^ 17. ASSAULT AND B ATTERY - CiVIL ACTION IN DAMAGES ~-0-.34 . 3o5-2bo 18. ATTACHMENT 069-071a 19. ATTORNEYS AT L^W — ^^^ 20. Bailments -, 081-094 21. Banks and Bank Checks 095.345 22. Bills and Notes 346-386 23. Bonds qs^-395 24. Breach of Promise of Marriage . . . • ^^Lsg? 25. Building and Loan Associations ... 398-424 26. Common Carriers . . • • • • * 425.431 27. Contempt , 432-455 28. Contracts 456-4(>l 29. Contribution 4r,2-474 30. Conversion 475-492 31. Deeds 493-529 32. Divorce and Alimony 530-5^55 33. Dower 53^,544 34. Election Contests VI 11 SYNOPSIS OF CONTENTS, Ch. Sections. 35. Executors and Administrators , , . . 545-559 36. False Imprisonment 560-569 37. Foreclosure of Mortgages— Real and Chattel - Redemption and Declaring Deed a Mortgage 570-603 38. Fraud and Deceit, Consisting of False Represen tations and Concealments 604-620 39. Fraudulent Conveyances 621-632 40. Gaming .... 633-640 41. Guaranty. 641-650 42. Habeas Corpus 651-661 43. Husband and Wife . 662-667 44. Indemnity 668-671 45. Infants . 672-677 46. Injunction 678-69 lb 47. Innkeepers 692-697 48. Insurance — Fire 698-716 49. Insurance — Life 717-726 50. Interpleader . 727-728a 51. Intoxicating Liquors 729-731 52. Judgments 732-735 53. Landlord and Tenant . 736-751 54. Libel and Slander . 752-769 55. Liens 770-779 56. Malicious Prosecction 780-785 57. :aiALPRACTICE , 786-789 YOLUME IL Ch. 60. 61. 62. 63. 64. 65. 66. 67. 68. Mandamus Master ant) Servant — Relating to Matters Other Than Negligence — Contracts of Serv ice Mistake Money Had and Received Municipal Corporations Negligence Causing Death . Negligence of Master Causing Death of or In jury to Servant Negligence Causing Personal Injury, Including A Discussion of General Questions of Negli gence Relating to Various Relations of Par ties Negligence Causing Injury to Property Nuisance ....... Partition Sections, 790-814 815-822 823-825 826-835 836-877 878-895 896-913 914-934 93.5-941 942-952 953-966 SYNOPSIS OF CONTENTS. IX Ch. 69. PARTNERSHrP .... 70. Principal and Surety . 71. Private Corporations . 72. Proceedings in Aid of Execution 73. Quo Warranto 74. Real Actions, Including Actions to Quiet Title Recovery of Possession, and Other Actions Relating to Real Estate 75. Receivers. 76. Replevin .... 77. Reformation, Rescission and Cancellation 78. Revivor of Actions and Judgments 79. Sales 80. Seduction . 81. Specific Performance 82. Statute of Limitations 83. Stock and Stockholders 84. Street Railways 85. Subscription . 86. Taxes 87. Trespass . 88. Trusts 89. Warehousemen 90. Warranty 91. Waste 93. Wills 93. Relief After Judgment 94. Appeal 95. Proceedings in Error in Civil Cases — Embracing THE Practice in Error in the Supreme, Cir- cuit and Common Pleas Courts .... Sections. 967-977 978-989 990-1015 1016-1021 1022-1038 1039-1060 1061-1077 1078-1093 1094-1106 1107-1112 1113-1122 1123-1132 1133-1145 1146-1150 1151-1161 1162-1167 1168-1174 1175-1180 1181-1189 1190-1191 1192-1194 1195-1200 1201-1206 1207-1216 1217-1219 1220-1234 1285-1295^ LAW OF PLEADmG. CHAPTER 1. ACTIONS UNDER THE CODK Sec 1. Action defined. [ Sec. 5. Parties, how designated, 2. Form of action under the code. 6. Issues under code. 3. Civil action embraces what. 7. An action is commenced 4. Legal and equitable actions when. under the code. | Sec. 1. Action defined. — An action is an abstract legal right in one person to prosecute another in a court of justice; a suit is the actual prosecution of that right.^ The words action and suit, however, as used in the code have the ^ame meaning,- though we still speak of an action as applied to an action at law, and a suit as applicable to a suit in equit}', thus keeping in mind tlie former distinction. Sec. 2. Form of action under the code, — The code* merely abolished the distinction between actions at law and suits in equity as to name and form, and substituted therefor a civil action;* and the difference between legal and equitable rights still exists in reality, although not in form. The rights and liabilities of parties, legal or equitable, as distinguished from the mode of procedure, remain the same since as before the adoption of the code,® and the court is to be regarded as a court of equity or a court of law, and the petition a declara- iPer Wright. J., in Joseph Hunt- v. Howard, 13 O. S. 165, 168; Culver er's Will, 6 Ohio, 502. v. Rogers, 33 O. S, 537, 540 ; Hager v. 2 Kennedy v. Thompson, 3 O. C. C, Reed, 11 O. S. 626, 635; Clayton v. 446-7; 3 Blackstoue, 116, Freet, 10 O, S. 546. 3 Sec. 4971; 51 V, 57. 5 Dixon v. Caldwell, 15 O. S. 415; ♦ Kloone v. Bradstreet, 7 O. S. 33?-5 ; Van Buskirk v. Duniap, 2 W, L. it Neilson v. Fry, 16 0. S. 552 ; Goble 135-9. 2 ACTIONS UXDEK THE CODE. [§ 3. tion or a bill in chancery, according to the nature of the case as shown by the statement and proof of the cause presented.^ A judgment, when presented and recorded, is in fact a decree, conferring the same relief which a party might have obtained in a court of chanc3ry, provided that mode of relief be ap- propriate to the facts of the case.- The abolishment of the distinction between actions did not affect the principles of law and equit}'', but only changed a portion of the machinery theretofore used in administering the same; every cause of action invokes the law or chancer^'' powers of a court as completely as did the separate proceed- ings under the old practice. Sec. 3. Civil action embraces Avhat.— At one time it was considered that the term civil action embraced only such cases as were known as actions at law and suits in equity, and that there was a distinction between statutory proceedings and a civil action; that therefore suits in partition, dower, divorce and alimony, haheas corpus, quo warranto and mandamus, Avere not included within the meaning of a civil action.^ This distinction has been abandoned, at least as to partition pro- ceedings, which is now regarded as a civil action.^ An application for the probate of a will is not included in the definition of an action or suit.* The code commissioners in their report to the legislature said that a civil action comprehended every proceeding in a court theretofore instituted by any and all of the forms abol- ished. Every other proceeding will be something other than an action, namely a special proceeding; it was also provided that special statutory remedies not theretofore obtained by action were not affected. An attachment proceeding has not been regarded as an ac- tion but only a provisional remedy;" nor is a proceeding by citation against an administrator,' or to vacate a judgment iHager v. Reed, 11 O. S. 635 ; Myers Rush v. Rush, 29 O. S. 440 ; Linton V. Miller, 2 VV. L. M 420. v. Laj'cox, 33 O. S. 128. And so is 2 Kloone v. Bradstreet, supra. mandamus. See sec. 800, post. 3 Barger v. Cochran, 15 O. S. 461. 5 Joseph Hunter's Will, 6 O. S. See, also. Mack v. Bouner, 8 O. S. 367 ; 501-2. Yaple"s Pldg., p. 288; Chinn v. Trust- 6 Watson v. Sullivan, 5 O. S. 43;, ees, 32 O. S. 236. Harrison v. Howe, 9 O. S, 388. Whitman v. Keith, 18 O. S. 134. 8 TAiCTIES. [§ 9. replevin may sue in his own name on a redelivery bond, which is made to an officer, as the real part}'' in interest;^ and a partner to whom his copartner has assigned a partnership claim may sue thereon as the real party in interest.^ A de- fendant may set up the fact that the plaintiff is not the real party in interest. He must do it, however, by setting forth the facts in an answer like other defenses.' And the right of set-off, counter-claim and defense allowed by law shall not be impaired.* Sec. 9. Trustee of an express trust. — There are three classes of exceptions to the rule that the real party in interest shall prosecute an action, namely: An administrator, execu- tor, guardian, or trustee of an express trust, a person with whom or in whose name a contract is made for the benefit of another, or a person expressly authorized by statute, who may sue without joining with him the person for whose bene- fit it is prosecuted, that is, the real party in interest; and officers may sue and be sued in such name as authorized b}'' law.^ A trustee of an express trust only is noticed in this section.'' The Xew York code has defined a trustee of an ex- press trust as a person with whom, or in whose name, a con- tract is made for the benefit of another;^ and it was not intended to limit it to a particular class, but rather to enlarge its sense.* Under this provision the beneficiary of a contract, or he for whom it was made, though not named therein, may bring an action thereon in his own name as the real party in interest.^ And this is so where the contract is a verbal one.'* » Kimball v. Bleick, 32 Pac. Rep. 766. Miller v. Florer, 15 O. 8. 148 ; Gilder- - Stuckey v, Fritsche, 77 Wis. 329 sleeve v. Burrows, 24 O. S. 204. As (1890). to negotiable paper see chapter on 3 Curtis V. Gooding, 99 Ind. 45 ; Bills and Notes. Hammond v. Earle, 58 How. Pr. 426 : ^ q. Code, sec. 495. Jackson v. Whedon, 1 E. D. Smith, *> See ch. 35, Executors and Ad- 141 : Coffin v. Hydraulic Co., 18 ministrators, sec. 548 ; ch. 45, Infants, N. Y. S. 782 ; aff'd, 136 N. Y. 655. It sec. 672. is too late on error. Giraldin v. Uow- '^N. Y. R. S., sec. 113 (449). ard, 103 Mo. 40. s Weaver v. Trustees, CS Ind. 112 4 O. Code. sec. 4993. See a very com- (1867). plete exposition of this provision in 9 Emmitt v. Brophy, 42 O. S. 82; Pomeroy's Code Rem., sec. 154 etseq. Stevens v. Flaunagan. 131 Ind. 122; If Grant v. Pendery. 15 Kan. 236; Piano Mfg. Co. v. Burrows, 40 Kan. Harrison v. Simpson. 17 Kan. 508 ; 361. Center v. McQueston, 18 Kan. 476; § 9.] TARTIES. & The provision is plain, and it should be an easy matter to de- termine what cases fall within it. It does not apply or extend to those who are only indirectly or incidentally benefited.* Where property is conveyed to trustees of a corporation for its benefit, the corporate body may bring an action with re- spect thereto.^ It will include a collector of a claim,^ a loan agent,* a person to whom a note and mortgage are given for the benefit of others,^ or ^ne who holds the legal title to a cause of action as agent or trustee,'' or an auctioneer,' or a factor,^ or an insurance broker holding a policy for himself and others, though the only one named,' or a part owner of property in whose name a policy of insurance is issued for the benefit of all owners,^" or a guest at an inn who has in his pos- session property belonging to another which he leaves with the innkeeper,'^ or a trustee in a deed of trust to secure a debt,^- or the payee of a note who is acting as a trustee of another, whether the beneficiary be dead or alive,'-^ or an agent of a syndicate to whom a note is made payable," or one who de- posits money of his principal in bank as agent,'^ or an agent of a foreign corporation to whom a subscription note is made payable as agent.^'^ But an agent who makes a contract in Crumbaughv.Kugler.30.S. 544,549; and cases cited; Cottle v. Cole, 20 Bagaley v. Waters, 7 O. S. 359, 367 ; la. 481 ; Rice v. Savery, 22 la. 470. Trimble v. Strother, 25 O. S. 378, 381 ; ' Minturn t. 3Iain. 7 N. Y. 220 Thompson t. Same, 4 O. S. 333 ; Car- 8 Ladd v. Arkell, 37 N. Y. Super. 35. Italian v. Tousey, 93 Ind. 561 ; Leake » Insurance Co. v. "Wilson, 6 O. S. T. Ball, 116 Ind. 214 : Hewitt v. Young, 553. 82 la. 224 ; Ellis v. Harrison, 104 Mo. i*' Knight v. Insurance Co., 26 O. S. 270 ; 16 S. W. Rep. 198 (1891) ; An- 664. thony V. Herman, 14 Kan. 494 ; Bren- " Arcade Hotel Co. v. Wiatt, 1 O. ner v. Luth, 28 Kan. 581. C. C. 55; S. C, 13 W. L. B. 294; Kel- 1 Burton v. Larkin, 36 Kan. 246. logg v. Svveenej', 1 Lans. 397. 2 Church T. Branham, 90 Cal. 22; 12 Gardner v. Armstrong, 31 Mo. 27 Pac. Rep. 60 (1891). 535. 3Noe V. Christie, 51 N. Y. 270. is Beck v, Haas, 31 Mo. App. 180 4 Consolidated B. Wire Co. V. Pur- (1888); Goodnow v. Litchfield, 63 cell. 48 Kan. 267 (1892 1; Stillwell v. la. 275. Hainm, 97 :M>. 579 (1888). '* Coffin v. G. R Hydraulic Co., 136 sLundberi v. Elevator Co., 42 N. Y. 655 ; 32 N. E. Rep. 1076. Minn. 37 ; 43 N. W. Rep. 685 (1889) ; 15 McLaughlin v. Bank, 43 N. W. Hays V. Gas Light & Coal Co., 29 Rep. 715 (Dak.. 1889). O. S. 330. i« Considerant v. Brisbane, 22 N. Y. 6 Cassidy v. Woodward, 77 la. 354, 389 (1860> lU PARTIES. [§ 10. the name of his principal is not in any sense a person with whom a contract is made and cannot sue thereon.^ Nor can he sue in his own name upon an implied liability to his prin- cipal,^ although as shown by the foregoing illustrations he may sue upon express contracts made for the benefit of an- other,'' in which case he need not join his beneficiary.* But members of a township board of health are not within the provision under consideration so as to enable them to sue in their own names to recover money for the use of the board.'' And in an action against a trustee for a debt for which he is personally liable, the beneficiaries are not necessary parties.^ Sec. 10. Action by officers. — Officers may sue and be sued as is provided by law." Commissioners of a county, when a cause of action for the use of the county arises out of a sub- ject-matter within their control, may sue thereon in their own name.* They may bring suit on the bond of a county treas- urer.^ They are not necessary parties to be joined in an ac- tion on a recognizance brought in the name of the state; ^^ nor can they be sued in their corporate capacity for damages for private injury to property caused by their negligence," or held personally responsible.'- A master commissioner may sue to recover the purchase-price of real estate sold by him,'^ and township trustees may sue to recover a statutory pen- alty for obstructing a highway,'* or for the use and occupa- tion of township lands; '' or a sheriff may prosecute an action 'Ferguson v. McMahon, 52 Ark. bridge injured by a railroad compan}'. 433 (1889). Perry Co. v. Railroad Co., 43 O. S. •■2 Palmer v. Ptailroad Co., 11 N. Y. 451: R. S., sec. 86:3. 376-390. s Hunter v. Commissioners. 10 O. S. 3Ruckman v. Pitcher, 20 N. Y. 9. 515; R. S.. sec. 1133. See R. S., sec. 4 Considerant v. Brisbane, 22 N. Y. 845 ; 78 O. L. 121. To establish bound- 389, and cases cited generally supra, aries. R. S., sec. 808. 5 Sanderson v. Gordo Co., 80 la. 89 ; lo Gamble v. State, 21 O. S. 183. 45 N. W. Rep. 560. i' ("omTuissiouers v. Mighels, 7 O. S. 6 Connolly V. Lyons, 82 Tex. 664. 109; Grimwood v. Commissioners, ' O. Code, sec. 4995. 23 O. S. 600. 8 Commissioners v. Noyes, 35 O. S. '^Thomas v. "Wilton. 40 O. S. 516; 201; Shanklin v. Commissioners, 21 Gregory v. Small, 39 O. S. 346; Stew- O. S. 575; Overseers of Poor V.Sam e, art v. Southard, 17 O. 402; Ramsey 18 Johns. 407 ; Supervisors v. Stim- v. Riley, 13 O. 157. son, 4 Hill, 136. Suit to recover " Mayer v. Wick, 15 O. S. 548. money due county (15 O. 15) ; and '•• Higgins v. Grove, 40 O. S. 521. for expenses paid in repairing a ^■' Wilson v. Trustees, 8 O. 174-9. §§ 11-13.] rAiniEs. 11 against a surety on a replevin bond,' or for conversion of at- tached property,- or for the price of property sold at judicial sale,' except after confirmation and assignment of his right of action to the creditor.* But a township clerk cannot sus- tain an action against a township treasurer for money had and received.^ When an action is brought bv an officer it should be in his individual name, with his official designation and averments of official character." Sec. 11. IVlieu wife may defend. — When husband and wife are sued together, the wife may defend for her own right ; and, if the husband neglect to defend, she may also defend for his right.' By recent changes in the status of a married woman, she may sue and be sued, the same as if unmarried. The only portion of the provision of the code just stated applicable is, that she may defend for her husband when he neglects so to do,^ in which case she may make a complete de- fense as to both.^ Sec. 12. Insane persons. — A defense by an insane person must be by his legally appointed guardian, or bj" a trustee, for the suit, appointed by the court. If he becomes insane after the action is instituted, it will thereafter be prosecuted or de- fended by his guardian or trustee.^'' Such a person, though incapable of defending for himself, is still civilly liable, and should be brought into court before any action can be taken," although a judgment rendered against him without the in- tervention of a guardian or trustee is not necessarily void.'- The guardian of a lunatic must sue in his own name.'^ Sec. 13. Joinder of parties plaintiff. — "All persons hav- ing an interest in the subject-matter of the action and in ob- taining the relief demanded may be joined as plaintiffs, except as otherwise provided," is the provision of the code.^* It is 1 Greer v. Halstead. 41 O. S. 591 ; 7 o. Code. sec. 49!)7. ■Cheseldiue v. Mathers. '2 Disu. 592. ''R. S., sec. 3112 et seq. 2Schaeffer v. Marieiuhal. 17 O. S. 9 Lowe v. Redgate, 42 O. S. 339. 183. "" O. Code, sees. 5000-2. 3Galpin v. Lamb, 29 O. S. 529: n Sturgess v. Longworth. 1 O. S. 545. McKee v. Liueberger, 69 N. C. 217. 550. * Mayer v. Wick. 15 O. S. 548. i- Johnson v. Pomeroy. 31 O. S. 247. 5 Mount V. Lakeman, 21 O. S. 643. i^Wageman v. Brown. 1 "VV. L. J. 6 Pomeroy's Code Rem., sec. 179. 454. See chapter on Taxation. 1*0. Code, sec. 5005. 12 PARTIES. [§ 14. Otherwise provided tliat '' if the consent of one who should have been joined as plaintiff cannot be obtained, or, if he is insane, and the consent of his guardian cannot be obtained, or he has no guardian, and that fact is stated in the petition, he may be made a defendant." ^ Persons whose interests depend upon the same right, and who may be affected in the same manner, may be joined.- But a demurrer to an insufficient answer will be sustained even though the petition shows a cause of action in favor of but one of several plaintiffs who are joined.* Sec. 14. Joinder of parties (lefeiidaut. — Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of a question involved.* There are necessary and proper parties. Where a party will be directly affected by a decree he is an indis- pensable or necessary one.^ Proper parties are those who, though not absolutely essential, ought to be made parties so that all interests may be determined. The important ques- tion to decide in making parties defendant is whether an ob- ligation is joint or joint and several. In the absence of any special words so indicating, a liability is usually regarded as joint, and a several one where the words "' we jointly and sev- erally promise" are used.^ These questions. will be found itt special chapters. It may here be stated that one or more of the persons severally liable on an instrument may be in- cluded in the same action thereon.^ But where the only remedy is a joint suit against obligors, it is error to render judgment against one and allow the action to proceed against others,* although such a course may be taken where it appears from the pleadings that a several judgment will be proper.** This abrogates the common-law doctrine that the death of - O. Code, sec. 5007. ^ See Pomeroy"s Code Rem., sec. 2 Creed v. Bank, 1 O. S. 6 ; Catlin 271, and see chapter on Bills and V, Wheeler, 49 Wis. 519. Notes. 3 Rothweiler v. Ryan, -i O. C. C. 338. ' O. Code, sec. 5009. *0. Code, sec. 5006. SAucker v. Adams, 23 O. S. 543; 5 Board v. Walbridge, 38 Wis. 179- Daugherty v. Walters, 1 O. S. 201-3. 88; Williams v. Bankhead, 19 Wall. ^'Hempy v. Ransom, 33 O. S. 312;. 563. Oliver v. Gilmore, 52 Fed. Rep. 562 §§ 15-17.] PARTIES. 13 one of several joint makers of an obligation, extinguishes all remed}'- at law against his estate.^ Sec. 15. Oi»e suing for all. — When the question is one of common or general interest to many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.- The general rule that all parties must be united is only departed from when it is inconvenient or im- possible to comply with it.* When parties falling under this rule are divided in classes, the one ?uing can only act for those of his own class.* Sec. 16. Ordering parties brought in. — The court is authorized to determine any controversy between the parties before it when it can be done without prejudice to the rights of others, or by saving their rights ; but when this cannot be done without the presence of other parties, the oouBt may order them brought in, or dismiss the action without preju- dice.' If the rights of the parties not before the court must be determined before the rights of those who are already par- ties can be adjusted, then it becomes an absolute judicial duty.® But if it is not essential that other parties be brought in, then it cannot be done against the will of the plaintifp.'^ Sec. 17. Remedy for misjoinder of parties. — The remedy for a misjoinder of parties pointed out by the code is by demurrer;"^ but objection to misjoinder or non-joinder not appearing on the face of the petition, according to some author- ities, cannot be raised by a general demurrer, but must be by answer.^ The demurrer to raise the question of parties must J Burgoyne v. Insurance Co., 5 O. S. ^ o. Code. sec. 5013. 586; Weil v. Guerin, 43 O. S. 302. epomeroy's Code Rem., sec. 419. 2 0. Code, sec. 5008; Upington v. "Chapman v. Forbes. 123 N. Y. Oviatt, 24 O. S. 232 ; Quinlan v. Myers, 5o3 ; 29 N. E. Rep. 3 ; Pomeroy's Code 29 O. S. 500-8. See ch. 86, Taxes Rem., sec. 420. sec. 1175 ; ch. 83, Stock &S., sec. 1151; »0. Code, sec. 5062. See sec. 98, Alexander v. Gish, 88 Ky. 13 (1888), j^ost holders of county bonds. » Creashaw v. Ullraan, 20 S. W. Rep. 3 Board v. Walbridge, 38 Wis. 188 1077 (Mo., 1893) ; McFadden v. Seliill, 4 Quinlan V. Myers, 29 O. S. 500-8; 84 Tex. 77 (1892); Williams v. Brad- Macon R. R. Co. v. Gibson, 85 Ga. 2 ; bury, 9 Tex. 487 ; Railroad Co. v. La Pomeroy's Code Rem., sec. 388 ; 1 Gierse, 51 Tex. 200. A demurrer for Daniell's Ch. Pr. 234-7 ; Hawes on misjoinder will not lie unless the peti- Parties, sec, 92 : Story's Eq. PL, sec. 94. tion shows the defect on its face. u PARTIES. [§n. be special;^ and unless obiection is. made by demurrer or answer it is waived.- Carico v. Moore, 29 N. E. Rep. 928 (Ind.. 1892): Tatum v. Rosenthal, 30 Pac. Rep. 186 (Cal., 1892). ^ Whipperman v. Dunn, 124 Ind. 349; 24 N. E. Rep. 1045 (1890). -Leucke v. Tredway, 45 Mo. App. 507; Hurd v. Simpson, 47 Kan. 245; 26 Pac. Rep. 465 (1891); Ostrander v. Weber, 114 N. Y. 95; Christian v. Bowman, 49 Minn. 99 ; 51 N. W. Rep. 663(1892\ Where a defect appears on face of petition it is waived un- less demurred to. Bank v. Gilpin, 105 Mo. 17; 16 S. W. Rep. 524 (1891); Melsheimer v. Honimel, 15 Colo. 475 ; 24 Pac. Rep. 1079 ; Railroad Co. v. Kin- dred, 43 Kan. 134; 23 Pac. Rep. 112; Coulsou V. Wing, 43 Kan. 507. See sec. 106, post. CHAPTER 3. JOINDER OF ACTIONS. Sec. 26. Contracts, express or im- plied. 27. Injuries to person or prop- erty. 28. Injuries to character. 29. Recovery of personal prop- erty with damages. 30. Recovery of I'eal property with damages. 31. Claims against trustees. 33. Actions to enforce liens. 33. Remedy for misjoinder. 34. Venue and parties in ac- tions joined. Sec. 18. Joinder of actions generally. 19. A single cause of action. 20. Separately stating and num- bering causes of action. 21. Consistency in causes united. 23. Single recovery upon two grounds further consid- ered. 23. Same transaction, or trans- action connected with same subject of action. 24. Same transaction contin- ued — Actions held join- able. 25. Same transactions contin- ued — Actions held not joinable. Sec. 18. Joinder of actions generally. — The code^ pro- vides that several causes of action may be united in the same petition, whether they are such as have formerly been de- nominated legal or equitable, or both, when they come within the provision of any of the enumerated classes, which will be treated separately in their order in this chapter. A plaintiff having separate, distinct and independent claims cannot be cornpellad to unite them in a single action.^ Causes of action to be joined must be existing and not prospective.^ Sec. 19. A single cause of action. — The general rule is that each contract or wrong constitutes but one cause of ac- tion, and that where there are several breaches, or losses, there is but one cause of action.* It is a rule too well understood to warrant the citation of 1 Sec. 5019. •-' Merrill v. Lake, 10 O. 373. •' Weinland v. Cochran, 9 Neb. 480. 4 Bliss on Code Pldg., sec. 118; Commissioner v. Plumb, 20 Kan. 147. 16 JOINDER OF ACTIONS. [§ 19. authority, that a party having but one demand or cause of action cannot divide and split it and bring suits upon each, but is limited to one recovery. He may elect to sue upon one ground, or, if there be several reasons or grounds for re- covery, they may be united, but the single claim cannot be split.i While it is well settled that an indivisible demand cannot be separated and collected by several actions, yet where there is an agreement between parties that an account for goods sold for each month shall be due and payable, such monthly account constitutes a separate demand for which recovery may be had, and will not operate as a bar to an action for an- other month.- In an action for false representation in the sale of sheep, a petition containing averments that representations were made that the sheep were sound when they were not, and also that they were turned into a field with other sheep, thereby in- fecting other sheep and injuring the pasture, constitutes but one cause of action ; ' and so with a charge that a defendant entered a dwelling and removed the roof, thereby exposing the family and property to the weather : * or a claim for stat- utory damages and costs of protest on a bill of exchange;* or items on a running account for merchandise;^ or a claim for loss to a person of his wife's services and expenditure by him of means and labor in healing and caring for himself and children, being the result of the same negligent act ; " or dif- ferent acts of fraud in obtaining payment of many different fraudulent claims at different times in pursuance of an al- leged conspfracy;^ or in conversation in which slanderous iDulaney V. Payne, 101 111. 325(1882) ; ^ Wilcox v. McCoy, 21 O. S. 655. 8 W. L. B. 96 ; Upjobu v. Ewing, ^ Brown v. Lake, 29 O. S. 64. 2 O. S. 13 ; Railroad Co. v, Nichols, 5 Summit Co. Bank v. Smith, 1 54 111. 464 ; Hazard Powder Co. v. Handy, 575, Viergutz, 6 Kan. 471; Bliss on Code « Stevens v. Lockwood, 13 Wend. Pldg., sees. 118-165. For a more full 646. discussion see Bendernagle v. Cocks, ' Railroad Co. v. Chester, 57 Ind. 19 Wend. 207 ; Secor v. Sturgess. 16 297. N. Y. 548; Mills v. Garrison, 3 Keyes, ^ People v. Tweed, 63 N. Y. 194; 40. 5 Hud, 353. ^Beck V. Devereaugh, 9 Neb. 109. See Parris v. Hightower, 76 Ga. 631. § 20.] JOINDKR OF ACTIO.NS. 17 words were used ; ' or a claim for services, a portion of wliiJi are rendered to a firm of which the defendant is the surviving partner, and the other portion under the same contract to the defendant alone; 2 or a claim for damages for the wrongful dismissal of a person from employment, and for wages earned during the term of emplo^^ment ;^ or an action to recover in- stalments of an illegal and void assessment paid,-* — may all be treated as a single cause of action. But a claim for damages resulting from injuries to personal or real estate occurring prior to the assignment thereof to an assignee, and a claim for damages arising from the same source subsequent to such an assignment, constitute a separate cause of action, and should be separately stated and numbered;* and so a peti- tion which states a contract for the sale and delivery of goods to be delivered in lots at different times, alleging two breaches, one that those delivered did not correspond in qual- ity with the terms of the contract, the other, that the portion contracted for were not delivered at all.*^ Sec. 20. Separately stating and uuinberiiig causes of ac- tion.— When the petition contains more than one cause of action, each cause must be separately stated and numbered.^ Artificial pleading having been abolished, a plaintiff having but one cause of action should state the facts without repeti- tion. He is not permitted to state them in different form, or to so subdivide them as to present two or more distinct and fictitious causes of action. The facts should be set forth as they actually occurred, and the same cause of action cannot be stated in different forms as so many distinct causes of ac- tion.^ The object of this provision is not only to preserve as far as practicable the legal distinction between causes of action iCracraftv. Cochran, IG la. BOl. R. & JL G40; Cinciuuati, N. O. & 2Butler V. Kirby, 53 Wis. 188. T. P. Ry. v. Bank, 1 Ohio C. C. 203. 8 Perry v. Dickerson. 85 N. Y. 345. Duplicate statements for the same 4 Hic-gins V. Peltun. 4 W. L. B. 751. cause of action are not absoUitely pro- 5 Fall V. Raihoad Co., 1 Disn. 58. hibited ; they are permissible where 6 Work V. Mitchell, 1 Disn. 506. the party cannot anticipate what the 7 Code, sec. 5061. evidence may be, so as to go to trial ssturgessv. Burton, 80. S. 215 ;Fer- on a single statement. Cramer v. guson V. Gilbert, 16 O. S. 88 ; Bliss on Oppenstein, 16 Colo. Mi. Code Pldg.,sec8. 118. 110; Pomeroy's o 18 JOINDKK OF ACTIOXS. [§ 20. in a petition, but to enable a defendant to answer fully, defi- nitely and clearly, that the facts alleged may be denied or admitteil, and the court readily understand the principal points in controversy.^ The causes of action which are re- quired to be specifically stated and numbered are such as by law will entitle the plaintiff to prosecute separate actions therefor.' Where a single cause of action is stated separately or in two counts, as at common law, the plaintiff may be re- quired by motion to elect upon which he will proceed, as he cannot frame one count so as to meet one construction, and a second count to meet another view; ^ or the court may upon objection treat the additional action as mere surplusage.* But where two causes of action are properly joined in a pleading, but are not separately stated or numbered as re- quired bv law, objection should be made thereto by motion to make the petition definite and certain. A defendant who does not so object, but answers the two causes and pro- ceeds to trial thereon, is considered to have waived the in- formality. He cannot on trial, under a general denial, in- sist upon a ground of defense which, to have been avail- able to him, he should have objected to uniting the causes of action without properly stating and numbering them.^ This irregularity can be reached only by motion,^ although the court may upon its own motion require a plaintiff to sep- arately state and number several causes of action contained in one petition." A demurrer is not the proper remedy to 1 Works V. Miicliell, 1 Disn. 506. v. EdwarJs. 11 How. Pr. iOl ; Cincin- ■''Sturge.ss v. Burton, supra; Globe uati, etc. Ry. v. Bank, 1 O. C. C. 203. Rolling Mill Co. v. King, 2 C. S. C. R. « Ferguson t. Gilbert, 16 O. S. 88- 21 ; Maxwell's CodePldg., p. 343 ; Pike 91 ; Bliss on Code Pldg., sec. 119, V. Van Woruier, 5 How. Pr. 171; ^jicKinney v. McKinney, 8 O. S. White V. Cox, 46 Cal. 169; Mooney v. 423: Freer v. Denton, 61 N, Y. 49'i; Kennett. 19 Mo. 551; Hathaway v. Globe Rolling Mill^ Co. v. King, 2 Railroad Co., 2 W. L. M. 481 ; Fern C. S. C. R. 21 : Sentiiiel Co. v. Thoaip- V, Vanderbilt, 13 Abb, Pr, 72: Lackey son, 38 Wis. 489: Hathaway v. Rail- V. Vand.rbilt, 10 How, Pr. 155. road Co,, 2 W, L. M. 481, 482; Works sSturgess v. Burton, sxpra: Fern v. Mitchell, 1 Disn, 506, See as to V, Vanderbilt, supra; Hillnian v. waiver, Lane v. Wheelwright, 23 Hillman. 14 How. Pr. 456; 11 Am. N, Y. Supp. 576, & Eng. Eucy, of Law, 989: Keens 6 Hartford r, Bennett, 10 O. S, 441. V, Gaslin, 24 Neb, 310 (1888;; Young -Bailey v, Hugh.o, 35 O, S. 597, 001, § 2<).] JOINDER OF ACTIONS. 19 reach such matters,' arnl a general demurrer to each paragraph is not well taken if the pleading as a whole states a good cause of action, although the omission to state them in sep- arate counts does not necessarily deprive the defendant of his right to demur.- Xor can an objection be by motion to dis- miss the action, or for judgment upon the pleadings.' Al- though a petition upon an ordinary account may contain allegations which would properly constitute two causes of action, as for money had and received, or money loaned, and for cash advanced to another or third person, the proper practice is to make a motion to require the pleader to sepa- rately state and number the causes, and not to strike the alle- gations from the petition as to one cause of action, and dismiss as to the otlier.* And a petition praying for damages in the nature of a trespass, and also for an injunction in equity, should be separately stated and numbered;® or an ac- tion on an account, and an action in the same petition asking the enforcement of a mechanic's lien securing the sarae;^ or an action for damages for injury to personal or real estate sus- tained by a lessor before conveyance to a lessee, and for damages arising after purchase by the lessee;^ or an action by the heirs of a deceased shareholder, in what is known as a syndicate, against trustees in whom the management is placed, charging them with mismanagement of their trust and failure to properly account for sales by them made, and also praying for a partition and an accounting;^ or where a peti- tion alleges two breaches of a contract for the sale or deliv- ery of g'oods, one that those actually delivered were not of the quality required by the contract, the other that a portion of those contracted for were not delivered at all.-* The same 1 Prows V. Insurance Co., 3 C. S. 523; Spaulding v. Saltiel, 18 Colo. C. R 14: Globe Rolling ilill Co. v. 86: 81 Pac. Rep. 486 (1892). King, 2 C. S. C. R 21 ; Bailey v. " .McKemy v. Goodall, 1 O. C. C. 23. Hughes, supra. Cf, Lane v. Wheel- ^ jjathaway v. Springfield, etc. Ry. Wright, 23 N. Y. Supp. 576. Co., 3 W. L. M. 481. 2 Wiles V. Suydam, 64 N. Y. 173; eQIippenger v. Ross, 8 W. L. M. Lamming v. Galusha, 17 N. Y. S. 645. 328; Everett v. Way mire, 30 O. S. '^Hall v. Railroad Ca, 1 Disn. 58 308; Shillito v. Insurance Co., 3 W. (1855). L. G. 296. 8 Horner v. Meyers, 29 W. L. R 3 Watson V. Railroad Ca, 50 Cal. 403 (1893X • Works V. Mitchell, 1 Disn. 506^ 20 JOINDER OF ACTIONS. [§ 20. rule applies to defenses set up in an answer,' although a mo- tion to separately state and number alleg-ations of new matter in an answer which are without merit as matter of defense, although the}" do not relate to other facts therein which con- stitute a defense, cannot be sustained, but such new matter should be stricken out.- But a general denial in an answer and also an averment of an estoppel constitute two defenses, and should be separatelj'^ stated and numbered;^ and so should a defense in an action bv heirs as'ainst their father restrainincj him from interfering with land, on the ground that he had for- feited his rights therein, that he deeded all the premises with bis own money and placed the title in their name, and also that he had subsequently redeemed the land from tax sale.^ Where a motion to require the plaintiff to separately state and number his causes of action is granted, merely placing numbers opposite paragraphs,^ or an interlineation by writing '"'•first cause of action,'' and "second cause of action," over the different causes, is not sufficient.^ A prayer for judgment should not be asked in each cause of action, but the petition should contain a general pra3"er at the end, for all.^ Where a single cause of action is stated in several divisions, a separation of which may be unnecessary in all cases, yet essential as to some, the plaintiff cannot urge his own inaccuracy in making the separation as a ground for defeating a demurrer which adopts and follows his own division and classification.^ Each cause of action must be complete in itself; yet the prevailing judicial opinion is that in stating several causes of action in a petition, it may not be necessary to repeat some general aver- ments essential to each, but that reference may be made to distinct allegations or paragraphs in a preceding cause of ac- J O. Code, sec. 5071. stated : " Plaintiff for his second cause 2 Ridenour V. Mayo, 29 O. S. 138. of action adopts the words in his 3 French v. McConnell, 1 Clev. Rep. first cause of action herein, the same 187. as if fully here rewritten, beginning ♦Smith V. Smith, 1 Clev. Rep. 117. with the word ' ' in the first line 5Weisenoglev. Powers, 1 Clev. Rep. thereof, and ending with the word 141. ' ' in the line thereof." 6 Elizabeth V.Morrison, 1 Clev. Rep. "Brainard v. Rittberger, 2 Clev. 195. The petition or auswershould be Rep. 154. rewritten, and in stating the cause of ^Victory Webb, etc. Mfg. Co. v. action after the first, it should be Beecher, 26 Hun, 48. § -^1-J jolXDEU OF ACTIONS. 21 tion, thereby incorporating the same in a subsequent cause of action and avoiding repetition.^ Where a note and mortgage are pleaded in one paragraph, they may be referred to in a subsequent cause of action as having been set forth in a pre- ceding paragraph, without repeating the same.- AVhere an amendment is made setting forth another and different cause of action, which in fact does not constitute a cause of action, there is no misjoinder, as it may be disregarded.^ Sec. 21. (.'oiisistency iii causes united. — That causes of action may be united in one petition they must be consistent with each other, and belong to one of the classes enumerated by the code;* inconsistent statements are construed against the one pleading them;^ but it should not be assumed that a plaintiff under a second or general count intends to set up and prove facts inconsistent with the allegations in the first count." A party may, however, prosecute as many remedies as he legally has, if they are consistent and concurrent.' Legal and equitable causes, when consistent, may be united,** but a plaintiff cannot be permitted in one petition to allege a. I Jasper v. Hazeii. 2 N. Dak. 401 ; 51 N. W. Rep. 585 (1S92): Simmons v. Fairchild. 43 Barb. 4(i4 ; Manufactur- ing Co. V. Beecher, 55 How. Pr. 193. Contra, Pennie v. Hildreth, 81 Cal. 127 ; 22 Pac. Rep. 398 ; Green v. Clif- ford, 94 Cal. 49 ; 29 Pac. Rep. 331. " It has never been the settled law that the preliminary averments of a petition can never be made part of subsequent counts by apt and express reference and without being rewritten. Each count must stand by itself, but is not fatally defective because it incorpo- rates, by reference, certain general averments necessary to all the counts, if the reference be so plain and ex- plicit as to leave no doubt as to its meaning. Such a pleading is not, in general, to be commended; it may be, as it has been called, 'slovenly,' but is not bad enough to upset a judgment." Green v. Clifford, 94 Cal. 49. See, also. Little v. Commis- sioners, 34 N. E. Rep. 499 (Ind.. 189:3). 2 Yost V. Bank. 94 Cal. 494 ; 29 Pac. Rep. 858. See Mausiield v. Shipp, 128 Ind. 55. 3 Hawkins v. Fnrnace Co., 40 O. S. 507. 1 Campbell v, McElevey, 2 Disn. 574, 584 ; Thomas v. Railroad Co., 97 N. Y. 245 ; Henderson v. Jackson, 40 How. Pr. 168; Bowen v. Mand.n-ille. 95 N. Y. 237-9 ; Hause v. Hause, 2!) Minn. 252; Smitli v. Hallock, 8 How. Pr. 73 ; Stewart v. Huntington, 2 N. Y. Supp. 205. •^Mechanics' Sav. & Bldg. Loan Ass'n V. O'Conner, 29 O. S. 651; Board of Education v. Shaw. 15 Kan. 41; Butler v. Kaulback, 8 Kan. 671. « Ferguson v. Gilbert, 16 O. S. 91. ''Bowen V. Maudeville, supra; Mor- gan V. Skid more, 55 Barb. 263 ; Whit- ney V. Allaire, 1 Hill, 484. - sSturgess v. Burton, 8 O. S. 215; Lattin v. McCarty, 41 N. Y. 107 ; New York Ice Co. v. Insurance Co., 21 How. Pr. 290. 22 JOINDKR OF ACTIONS. [^21. cause of action which would affirm a contract, and in another seek to rescind it ; ^ nor can a forfeiture of a lease for non- payment of rent, and a judgment for the rent due, be sought in the same petition,^ and the prayer in the petition may operate as an election.' It has been held by a court of inferior jurisdiction of Ohio, that a claim cannot be alleged against a corporation for dam- ages "arising from its refusal to transfer certificates of stock upon its books, as one cause of action, and as another cause in the same petition, that, if the claim of the corporation that such stock was illegally issued, an overissue and void, be tru.>, then the plaintiff is entitled to damages because the cor- poration negligently and fraudulently issued the stock and permitted its circulation, as such causes of action are incon- sistent; that the question of the legality of the stock is one cause, and that of the illegality of the issue, fraud and neg- ligence another; each requiring different pleadings and dif- ferent rules of evidence, so that an election should be made upon which the plaintiff would rely.* Still another court of inferior jurisdiction, in three well-considered cases arising from the same source, although different ones, took a contrary view, holding that such causes could be united and the plaint- iff not required to make an election, upon the principle that the plaintiff cannot safely determine before the development of the trial what will prove to be the true nature of the transaction on the defendant's part.^ The court last mentioned correctly states the rule of law 1 Owens V. Hickman, 2 Disn. 471 ; T. P. Ry. Co., 16 W. L. B. 399 (1886); Trimble v. Doty, 16 O. S. 118, 129; 11 "VV. L. B. 86. Judge Force says: Morris v. Rexford. 18 N. Y. 552 ; " A plaintiff seeking to recover upon Bowen v. Maudeville, 95 N. Y. 237. either of two causes of action, both 2 Campbell v. McElevey. 2 Disn. of which cannot be true, and he does 571 ; Countee v. Armstrong, 10 W. not knew wliich one is true, may L. B. 339. state them as separate causes of ac- ^Corry v. Gaynor, 21 O. S. 277. tion, staling them in the alternative. ^ Cincinnati, N. O. & T. P. Ry. Co. in one petition. A plaintiff seeking V. Third Nat. Bank. 1 O. C. C. 206 a single recovery upon tvN-o grounds. .( 1 885). both of which may be true, may state 5 Citizens' Nat. Bank v. C, N. O. & both grounds in a single cause of ac- T. P. Ry. Co., 9 W. L. B. 355, opinion tion." See Spreen v. Sandman, 2 O. C. by Judge Force, Cincinnati superior C, 441-3. See, also, art 10, W. L. B. court : First Nat Bank v. C, N. O. & 142. § 22.] JOlNDKk OF ACTIONS. 23 as to the right of the pleader to plead in the aUei'iiative,^ and deemed the causes of action consistent.- This rule is ex- tended to defenses; a defendant is allowed to make as many defenses as he may have, when they are consistent with each other.-^ To compel an election between inconsistent counts the pleader should do so by motion and not by demurrer;* but where the causes united are entirely inconsistent and therefore a misjoinder, a demurrer of course will lie.'^ A court is not bound to act unless the defect is specifically pointed out.* Sec. 22. Single recovery upon two grounds further eou- sidereil. — -The rule is well settled that where there are several ^rounds or alternative reasons "for crrantinsf a sing-le relief, all of which constitute but one cause of action, the}' may be stated in two counts and alternative relief souo'ht. Althousfh the rules of pleading do not allow the pleader to split his cause of action without sufficient reason, yet courts hold this rule flexible when justice requires, and justice will have no better reason for making an exception than where a plaintiff cannot safel}'" determine which cause may be the true one, the facts being in the possession of his opponent. These are the grounds and principles upon which this doctrine rests, and it has been frequently enunciated by the courts. It has been held that, in an action for work and labor, a count setting forth an agree- ment to pa}^ an agreed price is not inconsistent with another count claiming recovery u])on the quantum 7nermt and no election is required ; ^ that a contract may be sought to be set aside as illegal, or if found valid some relief consistent with that view ; ' that in an action for recover v of loss bv fire against an insurance company, one count claiming that a company in consideration of certain sums i)aid it had insured plaintiff, and in another, that in consideration of a sum of money paid to its lid. 'Bates'Pldg., p. 214. 2 See sec. 22, posf. swiigon v. Smith, 61 Cat 209; ^ See sec 18, post. Jones v. Palmer, 1 Abb. Pr. 442; 4 Pavey v. Pavey, 30 O. S. 300 ; Pet- Stearns v. Dubois, 55 Ind 257 ; Loog- erson v. Roach. 32 O. S. 374 prey v. Yates, 31 Hun, 432. Contra, 5 Campbell v. McElevey, S Disn. Hewitt v. Brown, 21 Minn. 163; Plum- 574. mer v. Mold, 22 Minn. 15. 6 Gilbert v. Sutliflf, 3 O. S, 129. 9 Granville v. Society, 11 O. 392. -i JUINDEU OF ACTIONS. [§ 22. duly authorized agent it had insured him, was permissible;' and so with a count in an action by a corporation against the maker of a note, that it was given for part of the capital stock of the company, and in another that it was given for a premium upon a jiolicy of insurance, as an agreement to con- tribute ratably to the losses and expenses of the company ; -' or a count alleging an agreement to exchange merchandise and failure to deliver as agreed, and another averring a sale and deliver}'' of goods by plaintiff for a certain sum;^ or it may be alleged in one count that an animal was killed through the negligence of a railroad compan}^ and in another that it was killed where the company had the right to construct a fence but did not;^ or in an action for the recovery of the ])rice and value of land sold, the petition may contain a para- graph declaring upon a special contract, and another upon (pcantum valehat, in order to meet every phase of the evidence.' A court will not compel an election to be made in an action upon a petition alleging a promise by a common carrier to safely carry and deliver goods, and in another count a promise on the part of the carrier to store and preserve the goods in its warehouse at a certain station, where the goods were de- stroyed by fire, as it might api)ear that it was liable 'for a portion as a carrier and as to the rest as warehousemen.^ Separately stating two grounds for a single cause of action does not make it two causes.' Alternative averments should not be made unless a good cause of action is set forth in each, as alternative relief cannot be granted unless each cause sets out a o-ood cause of action.^ I Velie V. Newark Citj' Ins. Co., 65 Boone's Pldg., sec. 17; Williams v. How. Pr. 1 ; 12 Abb. N. C. 809. Lowe, 4 Neb. 383; Walters v. Insur- 2Birdseye v. .Smith. 32 Barb. 217. auce Co., 5 Hun, 343; Matthews v. 'Jones V. Palmer. 1 Abb. Pr. 442. Copeland, 71) N. C. 493, suit on two 4 Pearson r. M. & S. P. R. R. Co., bonds of officer; Thatcher v. Hauu. 45 Iowa, 497. See, also, generally, 12 Iowa, 303. Van Brunt v. :Mat!ier, 48 Iowa, 503. " Welch v. Piatt, 32 Hun, 194. 5 Stearns v. Dubois, 55 Ind. 257. 8 Mobile Savings Bank v. Burke, 94 6 Whitney v. Chicago & N. W. Ry.. Ala. 125; 10 S. Rep. 328 (1891); Sum- 27 Wis. 327. .See generally on this mit Co. Bank v. Smith, 1 Handy, 575 : subject, Pomeroy's Rem. R. & R.. sec. Anderson v. Speers, 58 How, Pr. 68 : 576 ; Bliss on Code Pleading, sec. 120 ; Krutz v. Fisher, 8 Kan. 90. §§ 23, 2-1.] ■ JoIXDER OF ACIIONS. 25 Sec. 23. Same transaction, or traiisaetioii connected with same subject of action, is the first division of actions which the code * provides ma}" be united. It may here be noted what others have said, that this division is one which courts and writers have found difficult of treatment; necessarily so be- cause its scope is broad and varied, and a decision of one case will hardly be applicable to another. One of the latest writers - states that so far as he is aware no court lias attempted to define the word "transaction," with the qualification added that each case must be decided upon its own circumstances. The latter is probably true, but man}- aitempts have been made at a definition. A very simple one is given by the supreme court of Kansas,'* saying that it probabl}-" means whatever may be done by one person which affects the rights of another, out of which a cause of action may arise. In Xew York,* with reference to contract and a tort, it is defined as the whole proceeding, commencing with the negotiation and ending with the performance of the contract. It is also de- fined as a broader term than contract, including not only that, but any occurrence between the parties that may become the foundation of an action.'* This provision was purposely made general, so that courts, following the liberal rules of the chancery courts, may adopt such interpretations as may be found most convenient and best calculated to promote the ends of justice.® Sec. 24. Same transaction continued — Actions held joiu- ahle. — A review of the actions which the courts have held joinable under this division will be made in this section. An action upon an account may be joined with a cause of action to enforce a mechanic's lien on real estate given to secure the same, if the two causes of action affect all the parties;^ or an action on a tort and a contract, when arising out of the same transaction and between the same parties;^ an action upon 10. Code. sec. 5019. Beikey. 10 Minn. 203-5; Palmer v. -Maxwell on Code Pldg., p. 343. Tyler, 15 Miuu. 100; Poiueroy's Rem. 8 Scarborough v. Smith, 18 Knn. R. & R., pp. 505-21; Bliss on Code 399-406. Pldg., sec. 125. * Robinson v. Flint. 16 How. Pr. 240. ^ Clippeng^r v. Ross, 8 W. L. M. 645 5 Bliss on Code Pldg.. sec. 125. (Union Co. C. P., 1861). See sec. 586, 6 New York & X. H. R R v. Schuy- as to mode of trial. ler, 17 N. Y. 5S)2, 604 (1858); Fish v. sSturgess v. Burton, 8 O. S. 215-18, 26 JOINDER OF ACTIONS. [§ 24. an indebtedness and promise by an administrator as such, and one upon a promise of his intestate, if the demand be con- nected with the estate ; ^ or a cause of action entitling a party to damages and one for an injuBction ;- or several causes of action for penalties for repeated violations of a statute by a railroad company for excessive charges for fare ;^ or an action for dam- ages in ejecting a ]iassenger, and for the statutory penalty for demanding excessive fare;* or an action for purchase-money on a land contract, and one for the enforcement of a lien ; ' or an action by a judgment creditor of an insolvent railroad com- pany to enforce the payment of any balance due on stock sub- scriptions, the fund primarily liable, an.l in case that fund is insufficient he may ask the enforcement of the stockholder's individual liability, it being the peculiar province of a court of equity to marshal and apply such funds where all parties are in court ;^ or an action to declare and enforce a trust and to determine the equitable rights of the parties under a will;^ or an action for a breach of promise to marry and to pay a cer- tain sum of money ;^ or an action to recover upon a policy of insurance and to reform the same;' or an action for a personal judgment founded on an original decree in foreclosure, and for a revivor of that decree and an order of sale for the amount due on the original decree, upon the ground that both causes of action are ex contractu in their nature and affect the parties defendant only ; ^" or an action for fraud in the sale of a horse which was a suit by the creditors of 3 Railroad Co. v. Moore, 33 O. S. a bank to recover from tlie directors 384 ; Raih-oad Co. v. Cook, 37 O. S. a penalty for the overissue or wrong- 126. fulissueof bills, the claim being made ■* Railroad Co. v. Cole, S!i*operty. — Actions for injuries to the person and property may be joined in one ac- tion.* This inchides actions for false imprisonment, assault and battery, injuries to personal property, negligence in the performance of duty, fraud and deceit, false representations, seduction, — in fact all torts excepting libel, slander and mali- cious prosecution, and all those for injuries to property, ex- cepting causes of action for the recovery of real or personal property.^ An action for an injury to property caused by an overflow arising from an obstruction in the street before the plaintiff became the owner of the premises, and also an action for damages for injury to the premises from the same cause after he became the owner, are joinable.' But where a petition unites a cause of action for damages for false im- prisonment with one for malicious prosecution, the plaintiff should be required to make an election upon which he will proceed to trial.^ As a wrong arising from fraud belongs to the class of injuries denominated injuries to property, a cause of action for deceit in the sale of property may be united with an action for the conversion of property, for both con- stitute injuries to property .* Where two sales of property have been made by a public officer, one by the officer himself and the other by his deputy, in an unlawful or fraudulent manner, the two sales come within the division of transactions connected with the same- subject of action, and also within the "taeaning of the third subdivision of the code as injuries to property, and as such may be joined in the same petition.^ Injuries to two pieces of property would not seem to con- stitute two causes of action unless the plaintiff should choose- to divide the petition itito two counts and call them such, the injury in respect to both being alike and continuous, even 1 O. Code, sec. 5019. juries to piopeity. see Howe v. Peck- 2 Bliss on Code Pldg., sec, 129 : Pom- ham, 10 Barb. 656 ; 6 Ho-v. Pr. 229 ; eroy's R & R, sees. 495-498; Max- De Silver v. Holden, 18 J. & S. 236. well on Code Pldg., pp. 351-2. As to ^ Hall v. Railroad, 1 Disn, 59. injuries to person, see Wiley v. Keo- ^ Nebenzahl v. Townsend, 10 Daly, kuk, 6 Kan. 94 ; Cahill v. Terrio, 55 232. N. H. 571: Holmes v. Sheridan, 1 * Cleveland v. Barrows, 59 Barb Dili 351 ; Freeman v. Webb. 21 Neb. 304. 160, person and property. As to in- <> Freeman v. Webb, 21 Neb. 160. § 28.] JOINDER OF ACTIONS. 31 though they should be considered two causes of action, an 1, so stated, they are properh' joined.^ Actions for distinct and independent injuries to property, whether the property injured in each case be the same or different property, and either real or personal, may be joined in the same petition ; ^ or an action for damages for an injury to the person and to his property while a passenger upon a steamboat on the same voyage; or an action for damages to a horse caused by excessive driving with one for the conver- sion of the horse may be joined.' Sec. 28. Injuries to character. — Different causes of action for injuries to character may be united in one petition,* such as an action for slander and one for malicious prosecution,* or for slander, libel and malicious prosecution,^ or an action for slander and false imprisonment when arising out of the same transaction,' or for assault and battery and false im- prisonment.* But a petition claiming damages for slander and for assault and battery in the same count is bad on demurrer;^ and so with a petition charging slander against two defendants, alleg- ing that they both spoke the slanderous words.^" Where a petition contains a general charge of uttering slanderous words at sundry times, each utterance furnishes a ground for recovery, and constitutes a separate cause of action and should be separately stated and numbered.'' But if the defendant fails to move to require such a general charge to be separately stated, evidence of utterances between the dates in the petition may be admitted.'- Under codes abolishing the distinction between actions of ' Biickner Woolen Mills Co. v. " Harris v. Avery, 5 Kan. 146 ; Henry. 73 Wis. 229. Carter v. De Camp, 40 Hun, 258. 2 More V. Massini, 32 Cal. 590. * kahili v. T(nTio. 55 N. H. 571 ; sSomerville T. Metcalf, 15 N. Y. Wiley v. Keokuk, 6 Kan. 94. Week. Dig. 154; Jones v. Steamboat, 'J Anderson v. Hill, 53 Barb. 238. 79 Am. Dec. 142. See generally. Bliss "> Anderson v. Pack, 4 W. L. B. 596, on Code Pldfr. sec 129 ; Maxwell on I'Alpin v. Morton, 21 O. S. 536 Code Pldg. 3')1. Swinney v. Nave, 22 Ind. 178 * O. Code, see. 5019, Fleischmann v. Bennett, 87 N. Y. 231 5 Shore v. Smith, 15 O. S. 173. See Secor v. Sturgis, 16 N. Y. 558; e Brown v. Rice, 51 Cal. 489 ; Hull Cracraft v. Cochran, 16 la, 301. V. Vreeland. 42 Barb. 543: Martin v. i-Alpin v, Morton, s»;jr<7. See, also, Mattisoii. K Abb. I'r. 3. sec. 754. post. 32 .loI.NDKU OF ACTJOXS. [^'^ 2'J, ^0. trespass and case, it has been held that counts cliarging ina- licious prosecution, false imprisonment and slander may be united.' The theory upon which such rulings are made is that reputation may be as effectuallj^ injured by malicious prosecu- tion and false imprisonment, as by spoken and written words, although the latter is not generally considered as belonging to this division.^ A petition alleging a series of acts consisting of a publica- tion of a libel and raaliciousl}' causing an arrest does not mis- join causes of action.^ In an action for slander a defendant may deny having ut- tered the words, and also set up as an additional defense by way of justification that the words were true.'' Sec. 29. Recovery of possession of personal property with damages. — Claims for the recovery of the possession of per- sonal propert}^ with or without damages for the withholding thereof, is the fifth class.^ The action falling under this head is replevin. An action on an account stated and i7idebif-atus assumpsit cannot be joined with replevin.^ The most com- mon claim which is united with an action of replevin is one for damages.^ Sec. 30. Recovery of real property with damages. — Actions for the recovery of real property, with or without damages for the withholding thereof, or to recover the rents and profits of the same, or for the partition thereof, may be united in one petition ; ® but being separate causes of action tliey should be separatel}' stated and numbered." An action, however, to recover rents due upon a lease, as- serting a forfeiture in consequence of such non-payment, and 1 Krug V. Ward, 77 III. 603; Barr v. 8 0. Code, sec. 5019 ; Perry v. Ricli- Shavv, 10 Hun, 580. ardson, 27 O. S. 110. partition and ac- 2 Shore v. Smith, 15 O. S. 173 ; Hull count for rents. See Black v. Drake, T. Vreeland, 42 Barb. 543; Noonan 28 Kan. 482 ; Harrall v. Gra3\ 12 Neb. V. Orton, 32 Wis. 106. 543 ; Vandervoort v. Gould, 36 N. Y. 3 Watts V. Hilton, 3 Hun, 606. 639 : Scarborough v. Sniitli, 18 Kan. 4Buhler v. Wentworth, 17 Barb. 390; Van Alstine v. McCarty,51 Barb. 649. See sec. 754, post. 326 ; Stern be rger v. McGovern, 50 5 O. Code, sec. 5019. N. Y. 12. fiCorbin v. Bouve, 1 C. S. C. R nicKinney v. McKinney, 8 O. S. 259-61. -123-29. "! Pharis v. Carver, 13 B. Mon. 230. See chapter on Replevin. § 31.] JOINDEK OF ACTIONS. 33 asking to be restored to the possession of the property, can- not be maintained, as the remedies are inconsistent with each other ;^ or a petition stating a cause of action for the recovery of realty upon the forfeiture of a lease, with damages, for an injunction against waste and for a receiver, is a misjoinder.^ It has been held, too, that an action to have certain real and personal property partitioned, and also for an accounting be- tween the joint owners, may be joined, and if justice requires the real and personal property to be sold together, that may be done;'' or a claim for the recovery of land, and for the value of the occupancy of it, may be united.* As legal and equitable causes of action may be joined, an action for specific performance of a real contract, and one for damages, may be joined ; and if it appears to be necessary to obtain the rights of a party, he may have both tried, but the modes of trial will be diflFerent;^ but a plaintiff in an action for the recovery of real property cannot claim absolute own- ership, and damages for keeping him out of the use of it, to a greater extent than may be covered by the defendant's lease thereof.'' In an action for the recovery of real property the plaintiff may also attack a deed under which the defendant claims title upon both legal and equitable grounds.' Sec. 31, Claims agaiust trustees. — The last class is claims against a trustee by virtue of a contract or by operation of law.^ "Where one of two persons who have signed a bill of ex- change dies and the surviving debtor is appointed his execu- tor, suit upon such bill cannot be sustained against the sur- vivor personally and as trustee ; ^ nor can an action against a trustee of an insolvent bank for the recovery of damages oc- casioned by illegal and unauthorized investments made by 1 Owens V. Hickman, 2 Disn. 471, ^ Prentice v. Janssen, 7 Hun, 86. holding that judgment may be ren- < Armstrong v. Hinds, 8 Minn. 254. dered for the rent and the action for 6 sternberger v. McGovern, 56 N. Y. the recovery dismissed. See Stuy- 12-20. vesant v. Davis, 9 Paige Ch. 427, 430 ; « Smith v. Hallock, 8 How. Pr. 73. Underbill v.Raih-oad Co., 20 Barb. 467. ^phiUips v. Gorham, 17 N. Y. 270. 2Countee V. Armstrong, 10 W. L. ^O. Code, sec. 5019. B. 339. 9 Landau v. Levy, 1 Abb. Pr. 376. 3 34 JOINDER OF ACTIONS. [§ 32. him be joined with an action upon a bond given by him to assist in making up a deficiency in the assets of the bank.^ Causes of action arising out of a breach of trust by a testa- tor may be united with an action against his executor to com- pel him to account to the extent of the assets in his hands for the misconduct and breach of conduct of his testator,- or several breaches of the same trust.^ Where an agent who has been intrusted with money with which to buy real estate purchases the property and takes title in himself and sells and appropriates the proceeds thereof to his own use, an action may be maintained against him as for money wrongfull}'' withheld, and also for money wrong- fully or fraudulently exacted and paid.* A claim to enforce an express or implied trust may be united with one to enforce a vendor's lien existing without any writ- ten contract.' An action to compel an agent who has purchased certain stock for another at a judicial sale, and who was to hold it in trust for the payment of a debt, to account for the same may be joined with another alleging want of jurisdiction in the court making the sale, and that the agent under color of such proceedings procured the transfer of the stock and received dividends thereon.* Sec. 32. Actions to enforce liens. — A doubt was once ex- pressed as to whether an action on a note, and one on a mort- gage securing the same, were joinable.^ After the passage of the act in 1864- which provided that in suits to foreclose a mortgage given to secure the payment of money, or to enforce a specific lien for money, a judgment for money claimed to be due may be asked, as in a civil action for the recovery of money, and a construction given it^ to the effect that an action on a note, and another on a mortgage securing the same, could be joined in a single action, this practice has been followed.^" 1 French v. Salter, 17 Hiin, 546. ' McCarthy v. Garraghty, 10 O. St. 2 Price V. Brown, 10 Abb. N. C. 67. 438. 3 Id. 8 o. Code, sec. 5021. * Kraemer v. Deusterman, 37 Minn. sKing v. Saflford, 19 O. S. 587. 469. icButzman v. Wliitbeck, 42 O. S. 6 Burt V. Wilson, 28 Cal. 632. 237. 6 Williams v. Lowe. 4 Neb. 383. § 33.] JOINDER OF ACTIONS. 35 The right to sue in equit}^ to enforce a mortgage lien, and to proceed at law to collect a debt, are regarded as different but concurrent remedies, but both available in the same action. In order, however, to secure a personal judgment, the petition must contain a prayer to that effect,^ ai.d a judgment for money in such cases creates a lien upon the land of the debtor other than that conveyed by the mortgage.'^ Judgment, too, may be rendered in a single action against all the makers of a note, although the mortgage is executed by a part only of the makers of the note,' and against a defend- ant who has been served with process in a county other than the one in which the action is pending,* but not where serv- ice has been made by publication.' The section of the code providing for personal judgment, and under which the joinder of actions on the note and mort- gage is allowed, is held not applicable to an action against a mortgagor and his grantee for the foreclosure of a mortgage, the grantee not personally assuming the indebtedness, but ap- plies only where the party against whom the lien is sought to be enforced is also personally liable for the debt secured.* Following the principle of the common law, that three ac- tions could be maintained upon a debt secured by a mortgage/ it is not considered* mandatory that the two remedies be de- manded under the code, but that separate actions may be maintained, one to foreclose and the other for a personal judg- ment, in the same count at the same time.^ An action to recover a statutory assessment for tax and penalty may be joined with another to enforce the lien created by such statute.^ Sec. 83. Remedy for iiiisjoinder. — The code'** provides that when several causes of action have been improperly united a demurrer may be filed. '^ iGiddingsv. Barney, 31 O. S. 80; Ch. 330 : Delahey v. Clement 2 Scam. Spence v. Insurance Co., 40 O. S. 520. 575; Joslin v. Millspaugh, 27 Midi. -McCarthy v. Garraghty, 10 O. S. 517: 2 Daniell. Ch. Pr. 815. 43S: Linsley v. Logan, 33 O. S. 379. "Spence v. Insurance Co., 40 O. S^ ••* King V. Safford, 19 0. S. 587. 517-20. niaholm V. Marshall, 29 O. S. 611. "Butzman v. Whitbeck, 42 O. S. 5 Wood V. Stanberry, 21 O. S. 142. 223. « Fleming v. Kerkendall. 31 O. S. lOQ. Code, sec. 5062. . 568; Corry v. Gay nor, 21 O. S. 277. "See sec. 101, post: O. Code, sec. " Dunkley v. Van Buren. 3 .Jnhn-<. 5064. 36 JOINDER OF ACTIONS. [§ 34. Sec. 34. Yenue and parties in actions joined. — It is an essential requirement of the code that the causes of action united must not require different places of trial, and, except as otherwise provided, must affect all the parties thereto.^ 10. Code, sec. 5020. CHAPTER 4. VENUE. Sec. 35. Actions for recover^' of real I Sec. 39. Against domestic corpora- estate. 36. Sale of realty under mort- gage or incumbrance. 37; Action for specific perform- ance. 38. Where the cause of action arose. tion. 40. Against railroad and other companies. 41. Against non-residents. 40. Other actions. 43. Against administrators, ex- , ecutors,jetc. 44. Change of venue. Sec. 35. Actions for recovery of real estate. — It must be borne in mind that the code provides reasonable and conven- ient rules with respect to the places where actions may be prosecuted, which must be liberally construed with a view to advancing the remedies afforded.^ Actions for the recovery of real property, or of an estate or interest therein, must be brought where the subject of the action — the land — is situated.^ If in more than one count}'^ the action may be brought in either; but this can be done onh^ when the property is an en- tire tract.^ But the courts have no power or jurisdiction over an injury to land lying in another state.* Under the California code an action for the determination of a right or interest in real property, "in any form,'' is one affecting the title, and is tried in the county where the land is.^ This will include an action to establish and enforce a vendor's lien,^or an action to set aside a fraudulent conveyance of land by a debtor," although he lives in another county.* It will 1 Oj;borne v. Lidy, 51 O. S. . -' O. Code, sec. 50'>2. 3 O. Code, sec. 5023. iDu Breuil v. Penna. Co., 130 Ind. 137; Eachus v. Trustee, 17 III. 35; Dodge V. Colb}', 108 N. Y. 445 ; Allen V. Com. etc. Co., 6 L. R A. 416 and note. 5 Franklin v. Button, 79 Cal. 605. 8 Henderson v. Perkins, 21 S. W. Rep. 1035 (Ky., 189-3). ' Leaf V. Marriott, 29 W. L. B. 225 (Ham. Co. C. P., 1893) and cases cited ; Mahoney v. Mahoney, 21 N. Y. S. 1097 (1893); Beach v. Hodgdon, 66 Cal. 187. * !Marcum v. Powers, 9 S. W. Rep. 255 (Ky., 1888). 38 VENUE. [§§ 36, 37. also embrace' an action for a trespass for an injury to real es- tate, which must be brought in the county where the land is.^ And so with an action for the reformation of a contract of sale,^ or an action to restrain a threatened injury.* The rule is (liffereit with regard to trusts, which are more of a per- sonal character. Thus, a court of equity which has acquired jurisdiction over the parties may enforce a trust in relation to lands situate in another state. This is a doctrine settled by numerous authorities.* IS'or does an action for the removal of trustees holding lands in trust, and for the appointment of a receiver, fall within this provision.' A suit to enforce A trust upon realty may be brought in any county where the trustee resides, although the land be situate in another county.^ But it has been held that ^an action to enforce a resulting trust in land of which a person died seized may be brought in the county in which the land lies, even though tlie decedent die and his estate is administered in another county.' Sec. 36. Sale of realty under mortgage or incuml)iance. An action for the sale of real property under a mortgage lien or other incumbrance or charge must be brought in the county where the land is situate.^ Under this head may be classed an action to foreclose a mortgage, or deed of trust,^ or a cred- itor's bill,^" but does not apply to an action for the settlement of an insolvent corporation or partnership, in which case a court which has acquired jurisdiction over it may decree a sale of land in another county.'^ Sec. 37. Action for specific performance. — An action for the specific performance of a contract of sale of real estate may be brought in the county where the defendants or any 1 Du Breuil v. Penna. Co., 130 Ind. 6 Le Breton v. Superior Court, 66 137 (1891). Cal. 27. 2 Franklin V. Dutton, 79 Cal. 605. "Reese v. Murnan, 31 Pac. Rep. s Drinkhouse v. Water Works, 80 1027 ; 5 Wash. 373. Washington Cal. 308. Code, 158, is substantially the same as * Buruley v. Stevenson, 24 O. S. the Ohio Code. 474 ; Penn v. Lord Baltimore. 1 Yes. ^ O. Code, sec. 5022. 444; Massie v. Watts. 6 Cranch. 148; ^Mathias v. Bridge, McCahon, 118. Penn v. Hayward, 14 O. S. 302 and lo Butler v. Birkey, 13 O. S. 514. cases cited. ^^ Mechanics' Trust Co. v. Cobb, 20 5 More V. Superior Court, 64 Cal. S. W. Rep. 391 (Ky.. 1892); Webb v. 345; 28 Pac. Rep. 117. Wright. 2 Bush. 126. §§ 38, 39.] VENUE. 39 of them reside.^ It may, in fact, be brought either in the county where the land lies, or in the place where one of the defendants resides.'- And where all of tlie parties are within the jurisdiction of the court, a decree for the specific perform- ance of an agreement to convey land lying in another state may be made.^ But this cannot be done where part of the defendants are non-residents.* Sec. 38. Where the cause of action arose. — An action for the recovery of a fine, forfeiture or statutory penalty, except- ino- that imposed for an offense committed on a river, water- course or a road which is the boundary of a state or of two or more counties, or against a public officer for an act done by him by virtue of or under color of his office, or for neg- lect of his official duty, or on the bond of an official, shall be brought in the county where the cause of action arose. Under the exceptions given an i,ction may be brought in any' county bordering on such river, water-course, or road, or opposite to the place where the offense was committed.' There is also another exception allowing the attorney -general of the state to brinff an action on behalf of tlie state in the countv where the capital is located, even though none of the defendants reside there.*" It is needless to undertake an extended review of ad- judications which fall under this head, as questions of venue of actions falling within this class must be determined by the facts of the particular case. Sec. 39. Against domestic corporations.— Actions against a corporation may be brought in the county in which the cor- poration is situate or has its principal place of business, or in which the corporation has an office or agent, except actions for the recovery, partition or sale of property, or to compel the specific performance of a contract of sale of real estate, or for the recovery of a fine, forfeiture or penalty. But an action ma}" be brought against an insurance company in the county in which the cause of action, or some part thereof, arose. Or if it be a mining corporation the action may be brought in any county where such corporation owns or oper- 1 0. Code, sec. 5024 * Id. See, also. Boswell v. Sharp, 15 2 Owens V. Hall, IS O. S. 571. O. 447. 3 Penn v. Hay ward. 14 O. S. 303 ; 5 o. Code, sec. 5025. Biirnlev v. Stevensou. 24 O. S. 474. 6 State v. Newtou. 26 O. S. 200. 40 Yi:NUB. [§ 40. ates a mine, and the cause of action, or some part thereof, arose.^ An action may be brought upon a life insurance policy issued by a company organized within the state in the county where the death of the person insured occurred,- or in the county where the cause of action arose, even though it has no agent there. ^ "Where a mining company does business in one county and has an office in another, it may be sued in the latter county.* Sec. 40. Against railroad and otlier companies. — An ac- tion against the owner or lessee of a line of mail stages, or other coaches, for an injury to person or property upon the road or line, or upon a liability as carrier, and an action against a railroad company, may be brought in any county through or mto which such road or line passes.' A railroad company may be sued in any county through or into which its road passes without regard to the nature of the cause of action.^ An action for services may be brought against it in any county where it has an office or place of business, or where any person resides upon whom process may be served," The provision that a railroad company may be sued in any county where an injury occurs is permissive and cumulative, and therefore not exclusive,® ' O. Code, sec. 5026. Service of summons upon a foreign '■^Insurance Co. v. Pyers, 36 O. S. railway company cannot be made by 544. serving the writ upon a mere travel- 3 Insurance Co. v. McLimaus, 28 ing solicitor of business for such Neb. 653 (1890). company. Wilson v. Railroad Co., 4 Dade Coal Co. v. Haskett, 83 Ga. 16 W. L. B. 6. Service may be made 549 (1890). upon a foreign corporation by serv- 5 0. Code, sec. 5027. ing a managing agent within the « Railway Co. v. Jewett, 37 O. S. state (R. S., sec. 5046 ; American 649. As to service on railroad com- Express Co. v. Johnson, 17 O. S. 641), pany, see Railway Co. v. McLean, 1 and upon the general freight agent O. C. C. 112. A service of summons of a foreign railroad corporation. on a regular ticket and freight agent Transportation Co. v. Railroad Ca, 1 at and in charge of an established C. S. C. R. 311. See Gibbon v. Coal station, the road being in the hands Co., 3 C. S. C. R. 7.5. of a receiver, and such agent having '' Railroad Co. v. Spellbring, 1 Ind. been designated and appointed by App. 167 (1890). the receiver, is not good service. s Williams v. Railway Co., 16 S. E. Railroad Co. v. Orme, 1 O. C. C. 511- Rep. 303 (Ga., 1892), §§ 41, 42.] VENUE. 41 Sec. 41. Action against non-residents. — An action other than those specially provided for ^ against a non-resident or a foreign corporation may be brought in a,ny county in which there is property of or debts owing to the defendant, or where the defendant may be found.^ If a foreign insurance com- pany, it may be brought in a county where the cause or some part thereof arose." The words " foreign corporation " do not include a corporation created by the laws of the state and located therein.^ Nor is the provision necessarily confined to an insurance company, but may apply to any foreign corpora- tion which may be found in the state and sued in any county.^ But if the defendant cannot be found and personally served, jurisdiction can only be acquired by publication.^ And where the action is connected with the business of an office of a for- eign corporation located in a particular county it may be brought there ; ' or where all the defendants are non-residents, suit may be brought in any county.^ If a foreign corporation makes a contract in a county where it has an office, but which is to be performed in another county, a cause of action for its breach arises in the latter county.^ Where both plaintiff and defendant are non-residents, suit may be brought in anv county in which the defendant may be found.^^ A suit against a foreign corporation need not be brought where an agent resides, but may be commenced in any county and the writ directed to the county where the agent resides.'^ An action for damages for negligenca may be brought in any county where the defendants or any one of them reside or may be served.^- Sec. 42. Other actions.— After enumerating the various causes of action and their venue, the code provides that "every 1 O. Code, sees. 5022-25 ; ante, sees. 7 Debb j v. Dalton, 34 N. E. Rep. 35-40. 236 (Ind., 1893). 2 0. Code, sec. 5030; Williams v. ^ Estill v. Railroad Co., 41 Fed. Rep. Welton, 28 O. S. 451. 849- » O. Code, sec. 5030. 9 Equitable Mortg. Co. v. Wedding- 4 Boley V. Insurance & Trust Co., ton, 21 S. W. Rep. 576 (Tex., 1893). 12 O. S. 189. "'Bryant v. McClure, 44 Mo. App. 5 Handy v. Insurance Co., 37 O. S. 553. 371. 11 Stone v. Insurance Co., 78 Mo. 6 Williams v. Welton, 28 O. S. 451. 655. 12 Drea v. Carrington, 32 O. S. 595. 4i> VENUE. [§ 43. other action may be brought in the county in which a defend- ant resides or may be summoned, excepting those in the next succeeding section."^ It frequently happens that two de- fendants reside in different counties, in which case an action mav be brought in thecountvin which either resides, and service made upon the other in the county in which he resides. This occurs most frequently in commercial transactions. The rule is stringent, and justly so, that in order to give juris- diction over the defendant residing in a county other than that in which the action is brought, he must have a real or substantial interest in the subject of the action adverse to the plaintiff.^ If it be shown that the one residing in the county where the action is brought is not liable, then the other de- fendant should be dismissed.^ It has been held that an action to enforce a stockholder's liability cannot be brought in a county where none of the defendants reside, even though one of them acknowledges service.* Sec. 43. By and against administrators, executors, etc. — An action may be brought against an administrator, executor, guardian, or trustee, in the county where he was appointed or resides or may be summoned.^ It is said that an action by an executor for the price of bank stock, or to specifically enforce a contract of sale, is transitory and not local.'* although in a very early case in Ohio it was held that no such division as local and transitory actions was recognized.' A suit by an adminibtrator for the sale of lands should be brought in the county where the appointment was made, although the land is in another county;^ but an action ufjon the bond of an ad- 1 0. Code, sec. 5031 ; sec. 43, pos^ county where some of them reside. 2 Allen V. Miller, 11 O. S. 374. Mathias v. Pridham, 20 S. W. Rep. Where one of two defendants in a 1015 (Tex., 1892). county where suit is brought ac- sq. Code, sec. 5031 : Osborn v. Lidy, knowledges service, a writ may be 510. S. — ; Steel v. Burgert, 1 Clev. issued for another defendant in an- Eep. 377. other county. Hendricks v. Fuller, 6 Trimble v. Lebus, 23 S. W. Rep. 7 Kan. 331. 329 (Ky.. 1893). 3 Dunn V. Hazlett. 4 O. S. 435. "Geuin v. Grier. 10 O. 210 (1840); -• Lamont v. Insurance Co., 10 W. Railroad Co. v. Morey. 47 O. S. 207. L. B. 413 (C. S. C. R,). It may be » Walker v. Yowell, 21 S. W. Rep. maintained against the stockholders 873 iKy., 1893;. jointly under the Texas statute in the § 44.] VENUE. 43 ministrator is properly brought in the county of the residence of the parties, and not in the county of the administration.' Sec. 44. Change of venue. — A change of venue may be had to an adjoining county where it appears that a fair and im- partial trial cannot be had in the county where the suit is pending. It may be made from one superior court to another superior court, or to the court of common pleas of an adjoin- ing county.- A change of venue may be had when the judge is interested in the cause,^ which must, however, be a pecun- iary interest in' the result of the trial.* An objection that the removal is not to the nearest county must be taken before trial, otherwise it is waived.^ An application for a change of venue because of the undue influence of the plaintiff over the inhabitants of the district is addressed to the discretion of the ■court;" in fact in any case the power to change the venue in a civil action rests to a great extent in the sound discretion ■of the court, depending upon circumstances, and should be upon clear and satisfactory proof." 'Stewart v. Morrison, 81 Tex. 396. ^Skelly v. Bank, 9 0. S. 606. 2 0. Code, sec. 5032. A corporation «Bigelow v, Wilson, 54 N. W. Rep. may have a change of venue. See 465 (la., 1893). •Code. sec. 5033. "Bank v. Ward, 11 O. 128; Utsey 8 R. S., sec. 550 ; 84 O. L. 129 : Bar- v. Railroad Co.. 17 S. E. Rep. 141 ; nett V, Ashmore, 31 Pac. Rep. 466 Vaughn v. Hixon, 50 Kan. 773; (Wash.. 1892). Fletcher v. Stowell, 17 Col. 94. Ti>e estate ex rel. v. Winget, 37 O. S. privilege may be waived. Fletcher 153. When a stockholder, Gregory v. Stowell. Hupra. ^. Railroad Co., 4 O. S. 675. CHAPTER 5. THE PETITION, INCLUDING SOME GENERAL RULES OF PLEADING. Sec. 45. Pleadings defined. 46. What pleadings allowed. 47. Construction of pleadings. 48. Formal requisites of petition. 49. Same continued — Verifica- tion. 50. Statement of facts. 51. Conclusions of law should not be pleaded. 53. Material allegations. 53. Pleading statutes — Some judicially noticed. 54. Other matters judicially no- ticed. 55. Presumptions of law should not be stated. 56. Redundant and irrelevant matter. Sec. 57. Attaching copies. 58. Pleading by copy. 59. Pleading conditions prece- dent. 60. Attaching interrogatories. 61. Objections to interrogato- ries. 62. Same — Answer. 63. Motion to strike out inter- rogatories. 64. Substitution of copies for lost papers. 65. Motion to substitute lost pa- pers. 66. Demand for relief. 67. Rule days. Sec. 45. Pleadings defined. — Pleadings are the written statements by the parties of the facts constituting their re- spective claims and defenses; all fictions are abolished, and the title of a cause shall not be changed at any time, except when a defendant prosecutes error.' A pleading is the state- ment of the facts in a logical and legal form, which, consti- tute a cause of action. Sec. 46. What pleadings allowed. — The only pleadings; allowed under the code are the petition, demurrer and answer^ which, when affirmative relief is demanded therein, may be styled cross-petition, and reply.- Only the more general prin- ciples and rules are discussed in this chapter, which are appli- cable alike to all particular actions. Sec. 47. Construction of pleadings. — When codes were adopted new methods of construction of pleadings were also- 'O. Code, sec. 5058. ^O. Code, sec. 5058. § 47.] THE PETITION, ETC. 45 adopted. It was enacted that : The allegations of a pleading shall be liberally construed, with a view to substantial justice between the parties.^ While the common-law rule that pleadings must be con- sidered most strongly against the pleader has been abrogated, under the present system it is not necessary to consider every equivocal word or phrase most strongly in favor of the pleader ; but the meaning must be fairly ascertained with regai-d to technical rules from the whole pleading, giving to legal and technical words their ascertained meaning, unless the text shows that they were used in some other sense.- While the hand of innovation has done its work upon the old sj'stem so far as forms are concerned, yet we must think and act very largely in the old terms and actions.^ The object of pleading is to reach a specific and definite issue upon a material fact constituting the subject-matter of dispute, which should be done in their logical order, with clearness and p^ecision.^ The character of a pleading should be determined by its allega- tions, not by any name which may be given it.' The aver- ments should be consistent." The facts alleged, when material, will always control rather than the conclusions of the pleader.^ A petition w-hich has been attacked after answer filed, because it does not state facts sufficient to constitute a cause of action, should be liberally construed.^ A pleading must not only.be judged by its general scope," but the language used must be given a reasonable and fair construction. If it can be construed so as to withstand a de- murrer, the same should be overruled. This is not incon- sistent with the rule that when doubts arise upon pleadings, 1 Code, sec. 5096 ; Stoutenburg v. 5 Cincinnati v. Cameron, 33 O. S. Ly brand, 13 O. S. 228-33. They must 336. be fairly and reasonably construed, ''Rutledge v. Railway Co., 110 Mo. not strictly. McCurdy v. Baughman, 312. 43 O. S. 78 ; Crooks v. Finney, 39 O. ' Spargur v. Roman, 57 N. W. Rep. S. 57 ; Robinson v. Greenville, 43 O. 523 (Neb., 1894). S. 625. s Robbins v. Barton Bros., 50 Kan. 2 Robinson v. Greenville, 42 0. S. 120. 625. 9Rolet v. Heinman, 120 Ind. 511; SBiddle v. Boyce, 13 Mo. 532. Bank v. Root, 107 Ind. 224; Railway 4 Railroad Co. v. Wilson, 31 O. S. Co. v. Schmidt, 106 Ind. 73. 555-9. 46 THE PETITION, ETa [§ 48. or where they are ambiguous, they are to be construed most strongly against the pleader.' Although the language must be construed in its popular and ordinary meaning, that mean- ing must conform substantially to the proof.- Sec. 48. Formal re({iiisites of petition. — The first requi- site of a petition is that it shall contain the name of the court and the county in which the action is brought.' Under the old practice the omission of the name of the court was a fatal defect;^ but a mistake in its designation, or an omission of the style or name, is now regarded as an immaterial clerical error,^ and may be corrected on motion,^ but cannot be remedied by a demurrer." A sabstantial compliance, however, with this provision will answer.** So, where the name of the court is given, but the name of the county is inadvertently omitted, it will le sufficient,^ and the petition may be amended so as to cure the defects in this respect at an}" time, even after answer.^** It is not essential that any particuhir place within a county be named. '^ The names of the parties to an action must be stated, followed by the word " petition." '- This means that the names of all of the parties plaintiff and defendant shall be stated in the caption, and here will probably arise the most important feature of what may be termed the formal requisites of a petition. It is said, however, that a slight vari- ance in the spelling of the names is immaterial;'^ nor will a petition which omits the name of the plaintiff and defendants 1 State V. Casteel, 110 Ind. 174; Lowry v. Dutton/iSInd. 473; Co o.lall Railway Co. v. McDaniels, 32 N. E. v. Mopley, 45 Ind. 355 ; Ewing v. Rep. 728 (Ind., 1892). Hatfipll 17 Ind. 513. 2 Hill V. Supervisor, 10 O. S. G21. ^Ammeruian v. Crosby, 26 lad. 3 O. Code, sec. 5060. 451 : Pudd v. Kramer, 14 Kan. 101 ; ^ Ward V. Springhara, 1 Code R Van Benthyser v. Stevenson, 14 How. 118. Pr. 70. 5 McLaran V. Morgan, 27 Ark. 148 ; ^ Blackwell v. Montgomery, 1 Clark V. Comford, 12 S. Rep. 763; 45 Handy, 40. See Hotchkiss v. Crocker, La. Ann. — (1893). 15 How. Pr. 336. 6 McLai'an v. Morgan, supra. ^^ Merrill v. Grinnell, 10 How. Pr. ^ Blackwell v. Montgomery, 1 31 : Hotchkiss v. Crocker, supra. Handy, 40. It being a matter of n Martin v. Martin, 51 Me. 366; form, an omission of the name of the Bean t. Ayers, 67 Me. 48' court cannot be reached by demurrer ^- O. Code, sec. 5060. where a good cause of action is i' Besley v. Pease, 24 S. W. Rep. 379 stated. Smith v. Flack, 95 Intl. 121 ; (Tex., 1893j. § 48.] THE PETITION, ETC. 47 in the caption, or the word petition, be subject to a demurrer ; * nor will it be stricken from the files for the same reason. ^ There is no rule more certainly and satisfactorily settled or understood than that the full Christian and surname of the parties to an action must be set forth;'' and where the full Christian name does not appear in the title or elsewhere it is held to be a" fatal defect;^ and if not cured in any manner the petition will be subject to a demurrer.'^ While it may be true that such a defect is considered by some authorities as fatal unless corrected in some manner, a correction will al- ways be made upon motion filed for that purpose,^ so that in any event, as a matter of fact, it cannot be looked upon as a fatal defect in the strict sense of the term. It is, however, a loose and vicious practice to use the initials." It is only necessary to give the names in the caption of the pleading, and they need not, therefore, be repeated in the body.^ It is also specially provided that parties to a written instrument by initial letter, or a contraction of the name, may be so des- ignated in an action.^ The initial letter, however, is consid- ered by some authorities as part of the name, thus holding that there is a variance when the name is charged without a middle initial, and the proof shows an initial letter.'" It is • Blackwell v. Montgomery, 1 names are properly stated." Juris- Handy, 40. diction is acquired over a party even - Hogan V. Capener, 1 Clev. Rep. though his Christian name is wrong 173 ; Blackwell v. Montgomery, supra; and he is so served. Lyons v. Donges, Butcher v. Bank, 2 Kan. 70. 1 Disn. 142. 3 Weisz v. Davey, 28 Neb. 566, 569. « Elliott v. Hart, 7 How. Pr. 25 ; 4 Herf V Shulze, 10 O. 263. But Real v. Honey, 58 N. W. Rep. 136 ; see Ferguson v. Smith. 10 Kan. 402: Dole v. Manley, 11 How. Pr. 138. A Zvvickey V. Haney, 63 Wis. 464, which misnomer cannot be noticed upon hold it not to be fatal. demurrer. Slocum v. McBride, 17 sBascom v. Toner, 31 N. E. Rep. O. 607. 856 (Ind., 1892). The omission was ' Kellam v. Thomas, 38 Wis. 601. held in a dictum in Peden v. King, ^Lovvry v. Button, 28 Ind. 473; 30 Ind. 181, to be only matter of E.xpress Co. v. Harris, 120 Ind. 73: abatement. And in Bridges v. Lay- 21 N. E. Rep. 340: Stubendorf v. man, 31 Ind. 386, that the omission Sounensclieim, 1 1 Neb. 235. of the Christian name was irregular ■' O. Code, sec. 5010 : Ferguson v. but not void. In Sherrod v. Shirley, Smith, 10 Kan. 396. 57 Ind. 13, the court said on this sub- '^lead v. State, 26 O. S. 505; Bliss jeet: "This is a fatal objection if on Code Pldg., sec. 146a. This cer- not cui-ed by the process, amend- tainly would not apply to civil ac- ment, oi- by pleading, wherein the tions. 4S THE PETITION, ETC. [§ 48. also provided that a plaintiff who is ignorant of the name of a defendant may designate any name and description, and when the true one is discovered amend the, pleading accord- ingly. In such cases it must be stated in the verification of the petition that he could not discover the true name, and the summons must contain the words "real name unknown,"^ and it should be averred that the plaintiff is ignorant of the true name.^ The ignorance of a plaintiff, however, mu3t be real and not wilful, or such as might be removed by mere in- quiry or resort to means of information easily accessible.^ It is also essential that parties sue in their proper name, although an instrument upon which a suit is founded may have been executed by a wrong name;'' and also that the action be brought in the name by which a party is generally known, or that by which he has been known from boyhood, although he may have at some prior time had another name ; ^ and when known equalh' well by two different names he may be sued by either.^ The words " and others " have been held in error proceedings to be sufficient against all of the parties to the record.^ Every pleading must be subscribed by the part}-" or his attorney,* and the amount for which judgment is demanded should be indorsed on the summons.^ A judgment will not be reversed where the petition was not signed by the plaintiff or his attorne}^, although the plaintiff had signed the affidavit, when no motion had been made to strike the petition from the files; ^^ nor when the name of plaintiff's attorney is printed instead of written." 10. Code, sec. 5118; Morgan v. 111.609; Becker v. Insurance Co.. 68 Thrift, 2 Cal. 563. There must be a 111. 412. distinct allegation that the real name -^ Cooper v. Berr, 45 Barb. 9 : Don- is ui kno vn. Gardner v. Kraft, 52 aldson v. Same, 31 W. L. B. 102; How. Pr. 499 ; Crandall v. Beach. 7 England v. New York Pub. Co., 8 How. Pr. 271. Where the name is Daly, 375. not known but could be ascertained "^ E;i":leston v. Son, 6 Robt. 640. by inquiry, a party cannot be- sued "Buckingham v. Bank. 21 0. S. 131. by a fictitious name. Rosencrantz v. SQ. Code, sec. 5102; Finckh v. Rogers, 40 Cal. 489. Evers. 25 O. S. 82 ; Conn v. Rhodes, 2 Rosencrantz v. Rogers, 40 Cal. 489. 26 O. S. 644. 3 Rosencrantz v. Rogers, supra. ^ Id. iPinckard v. Millmine, 76 111. 453. loConn v. Rhodes, 26 O. S. 644. See, also, Board v. Greenebaum, 39 n Hancock v. Bowman, 49 Cal. 413. I § 4:;).j TlIK 1 EriTION, ETC. 49 Sec. 49. Same continued — Yeriftcation.— Every pleading must be verified by the affidavit of the party, his agent or attorney,^ except in the case of a guardian defending for an infant or a person of unsound mind, or an attorney of a per- son imprisoned; and in any case where the admission of the truth of a fact stated in a pleading might subject the party to a criminal or penal ])rosecution.- Pleadings in divorce pro- ceedings need not be verified.' But when an injunction is souo-ht, a verification should be made to complv with the prac- tice in injunction proceedings. A verification on behalf of a corporation may be made by an officer thereof or its agent or attorney. And when the state, or any officer thereof in its behalf, is a party, it may be made by any person acquainted with the facts, the attorney prosecuting or defending the ac- tion.* It is no part of the petition, but is sim})ly a proceeding required to secure a truthful statement of facts.^ The verifi- cation may be made by one of several parties united in inter- est,'^ although this cannot apply to those whose interests are several.' A party in interest, even though not a party to the record, may veriTy.' The verification may be made before a proper officer, excepting an attorney of a party,*^ and must be subscribed and certified by the officer before whom it is taken. ^" A pleading may be stricken from the files for want of verification, 1' although the omission may be supplied by amendment,^- in which case a new summons must be issued." The omission of the word "plaintiff" in the verification is im- 1 O. Code. sec. 5102. ^^ Stevens v. White. 1 \V. L. M. 394 ; 2 O. Code, sec. 5103. Warner v, Warner. 11 Kan. 121; 3 O. Code, sec. 5697. Puduey v. Burkhart. 62 lud. 179. A ■*0. Code. sec. 5103. defective verification may be waived. •^ Meade v. Thorne. 2 W. L. M. 812. Hay ward v. Grant, 13 Miuu. IGo ; 313; George v. McAvoy. 6 How. Pr. Smith v. MuUiken. 2 Minn. 319. 200. ' '-^ White V. Freese, 2 C. S. C. R. 30 ; 6 O. Code, sec. 5104. Boyles v. Hoyt. 2 W. L. M. 54S; ' Gray v. Kendall, 10 Abb. Pr. 66. Kerns v. Roberts. 3 W. L. M. 604. 8 Taber V. Gardner. 6 Abb. Pr. (N. S.) Where no verification has been at- 147. As to verification by uon-resi- tached or one which is null this can- dent, see 0. Code, sec. 5107 ; by agent not be done. Stevens v. White. 1 W. or attorney. Code. sec. 5109. L. M. 394. 9 Meade v. Thorne. 2 W. L. M. 312, i* White v. Freese. siijira: Kerus v. 313; Warner v.V.'amer, 11 Kan. 121. Roberts, sujjra; Stevens v. White, •a O. Code. sec. 5107. sii2)rii. 4 50 THE TETITION, EXa [§ 50, material ; * and so with a verification in a petition upon which judgment is authorized to be confessed.^ An objection to a verification cannot properly be raised on trial.' Sec. 50. Statement of facts. — It would seem that the lan- guage of the code that the petition must contain "a state- ment of the facts constituting the cause of action in ordinary and concise lano-uaofe" would not need much elucidation. Yet it is one of the most difficult tasks to determine just what should be stated. There can only be a few well-known rules observed here, the more detailed discussion b^ing treated in the chapters on the particular actions. A fact in a pleading is a circumstance, act, event or incident.* The old rules of pleading required that it should be stated when every material fact happened. This is only necessary under the present sys- tem when time may be the essence of a contract, or the time when a fact happened is material.^ And if not so stated the pleading will be demurrable.® That the allegation of owner- ship is the statement of a fact can hardly be questioned," but it is not necessary to show how title is acquired.^ It is essen- tial that all of the facts necessary to be proved to make a cause of action should be stated,^ which means those facts which the evidence upon the trial will establish and not the evidence which will be required to prove their existence.'" A failure to allege an essential fact will prove fatal, as proof of any fact not set forth cannot be offered.^' The petition must of course contain a caase of action in favor of the plaintiff.'^ But there 1 Lessen! t. Wilson, 43 la. 488. ciety. 84 N. Y. 330 ; In re Gharky, 57 2 Bank v. Reed, 31 O. S. 435. Cal. 274. a Schwarz v. Oppold, 74 N. Y. 307 ; 5 People ex rel. v. Ryder, 12 N. Y. Payne v. Flourney, 29 Ark. 500. 434. •» Drake v. Cockroflf, 10 How. Pr. « Patterson v. Baker, 3 Hun, 398. 377 ; Gerrity v. Grady. 44 111. App. ' Swan's Pldg. 156 ; Hume v. Watt, 203. A mere statement that an in- 5 Kan. 40 ; Commissioners v. Young, jury is irreparable is not the state- 18 Kan. 444, 445. ment of any fact. Van Wert v. Web- s Malcolm v. O'Riley, 89 N. Y. 156. Bter. 31 O. S. 420. An averment of ^ Prindle v. Carruthers, 15 N. Y. reorganization of a corporation is a 425-27 ; Griggs v. St Paul, 9 Minn, fact and not a conclusion (Hyatt t. 246. McMahon, 25 Barb. 458) ; and so with lo Wooden v. Strew, 10 How. Pr. 48. an allegation as to unsoundness of ^i Bailey v. Ryder. 10 N. Y. 363-70. mind. Riggs v. Jimerican Tract So- '- Weidner v. Rankin, 26 O. S. 522; Tye r. Catching, 78 Ky. 463. § 50.] THE I'ETITION, ETC. . 51 is no teclinical mode of stating it, and according to the code it should be in ordinary rather than technical lano^uao-e. "Whenever the rules of common-law pleading are in accordance witii the code they are still applicable.^ A petition, though inartistically drawn, which contains facts sufficient, if properl}'- stated, to constitute a cause of action, will support a judgment.- It is still allowable pleading under the code to state facts according to their legal effect, without giving evidence, circum- stances, arguments or inferences;" as, for instance, in stating a cause of action upon a contract of sale, or in fact upon any kind of a contract, it is not necessary to state how the sale or the contract was made, whether through an agent or other- wise, but simply that the sale or the contract was in fact raade.^ It is essential that only the ultimate or issuable facts be stated. Those facts, therefore, which lie behind or transpire before the ultimate one are only probative and constitute the evidence; and this has no place in a pleading, tenders no issue, but detracts from the simplicity and logical directness which should be observed.* Hence it follows that the evi- dence, or rather evidential facts, must not be stated.* Aeain. it is held that under our present ?.ystem a party should state the actual facts which raise a cause of action in his favor as they occurred, rather than their legal effect,'' and the plead- ing will not be demurrable because it does not state the leo-al effect thereof.^ In fact this is pronounced by different writers as the better rule." In pleading fraud the facts from which ' Trustee v. Odlin, 8 0. S. 297. mick, 20 Kan. 107; Badeau v. Niles, - Youngstown V, Moore, 30 O.S. 133. 9 Abb. N. C. 48; Ensign v. Dickin- 3 Railroad Co. v. Robinson, 133 son, 19 N. Y. S. 438 ; Hyatt v. McMa- N. Y. 242 (1892): Thayer v. Gile, 42 hon, 25 Barb. 458. a" statement of Hun, 268 (1886); Boyce v. Brown, 7 evidence can only be justified when Barb. 80 (1849) ; Gnsper v. Adams, 28 it is such that the conclusion of facts Barb. 441; Brown v. Champlin, 66 necessary to sustain the action must N. Y. 214-19 (1876). See Pomeroy's inevitably follow. Zimmerman v. Code Rem., sec. 537. Morrow. 28 Minn. 367. ■* Sherman v. Railroad Co., 22 Barb. " Barney v. Worthington, 37 N. Y. 239; Railway Co. v. Nickless, 73 Ind. 112-16. 382. 8 Hemmingway v. Poucher, 98 N. 5 Miles V. McDermott, 31 Cal. 271; Y. 281. Osborn v. Clark, 00 Cal. 622 ; Cowie » Pomeroy's Rem., sec. 537 ; Bry- V. Toole. 31 la. 513-16. ant's Code Pldg., p. 187. ** Kansas, etc. Ry. Co. v. McCor- o2 THE PETITION, ETC. [§ 50. the inference of fraud is derived may be stated without des- ignating them as fraudulent ; ^ nor is it necessary to state the manner in which the fraud was discovered, as it is no element of the action.- If an action be founded upon a statute it is essential that every fact necessary to bring the case within the statute should be stated,* If in any case a petition does not contain facts sufficient to constitute an action, merely filins: an answer will not constitute a waiver of that defect/ But it is sufficient if the facts stated in the petition warrant the judgment, although the grounds upon which it was ren- dered were other than those contemplated by the pleader.^ It is a fundamental rule that facts must be stated directly, definitely and positively,^ only what the party knows to be the truth, and not in different forms to meet different con- structions, as was formerly done;' nor upon mere belief.' "When this rule is violated the remedy is by motion to make definite and certain, and not by demurrer.^ In some instances where facts have been defectively alleged, and no objection has been made by motion or otherwise, they will be cured by the evidence and verdict."^ This cannot be the case, however, where allegations of material facts essential to the mainte- nance of an action have been omitted.'^ And where a petition is challenged after answer by an objection to the introduction of evidence that it does not state facts sufficient to constitute an action, it should be liberally construed for the purpose of sustaining the same.'- But every material averment in a pe- 1 Wliittlesay v. Delaney. 73 N. Y. STruscott v. Dole, 7 How. Pr. 2^1. 571. * Stoutenburg v. Lybrand, 13 O. S. 2 Kansas, etc. Ry. Co. v. McCor- 228; Bank v. Smith, 36 Npb. 190 mick, 20 Kan. 107-11. (1893); Smith v. WoodruflF. 1 Handy. 3 Brown v. Harnian. 21 Barb. 508. 276 ; Trustee v, Odlin, 8 O. S. 293 ; *Farrar v. Triplett, 7 Neb. 240; Louis v. Coulter, 10 O. S. 451 ; Bank O'Donahue v. Hendrix, 13 Neb. 255. t. Bell, 14 O. S. 208 ; Hindman v. 5 Wright V. Hooker, 10 N. Y. 51. Timme, 35 N. E. Rep. 1046 (Ind., 1893j. As where the fact stated was an ac- i" Railroad Co. v. McCafferj', 72 Ind. tion on contract, although in form it 294; Morrison v. Collier, 79 Ind. 411: wa's for a conversion. Conaughaty Trammel v. Chipman, 74 Ind. 474 : V. Nichols, 42 N. Y. 83. Railroad Co. v. Noel, 77 Ind. 110. 6 Stoutenburg v. Lybrand, 13 O. S. n Cox v. Hunter, 79 Ind. 590. 228-33; Bank v. Oliver, 1 Disn. 159. i2Robbins v. Barton, 50 Kan. 120. " Dunning V. Thomas. 11 How. Pr. 281. § 51.] THE T'ETITION, ETC. 53 tition which is not denied by answer will be taken as true for the purpose of the action.' It is also a well established rule that an omission of a material fact in the petition, or a defective allegation, will be cured when the same is shown in the answer.- But the allegations in an answer cannot cure defects in a pe- tition, where the plaintiff by reply denies the averments in the answer.' Sec. 51. Conclusions of law should not l)e pleaded. — It is a well understood rule that facts only should be pleaded, and not conclusions of law — such facts as are capable of proof and will establish a conclusion of law.* A statement of a conclu- sion of law is usually of a right or liability flowing from cer- tain facts and is subject to a demurrer.^ The pleader should not state propositions of law, or the law upon which he relies.^ The rule is well established, but the difficulty lies in its application and in determining what are conclusions of law, so that mere illustrations need here be given. For ex- ample, merely setting out a copy of a contract, stating that a defendant thereby became' liable, — the promise must be al- leged.' And so Avith an allegation that a contract is void for want of consideration ; ^ or a general averment of the require- ments of a statute.^ It should not be stated that a person is bound to do a certain thing enjoined by statute, but the facts showing the liability should be set forth.'" A general allega- tion that a defendant neglected and refused to do an act ac- cording to the terms of an agreement is also a conclusion.'' And so with an allegation that the defendant is indebted to plaintiff and that the debt has not been paid : '- or that there 1 Livesay v. Brown, 35 Neb. 112; 276; Hemmingvvay v. Poucher, 9S Cobbey v. Wright, 34 Neb. 771. N. Y. 287. 2 Barrett v. Lingle, 33 111. App. 91 ; * Bean v. Ayers, 67 Me. 483. Strauss v. Trotter, 26 N. Y. S. 20; 8 Hammond v. Earle, 58 How. Pr. Allen V. Choteau. 102 Mo. 309 ; Sal- 426. azar v. Taylor, 33 Pac. Rep. 369 (Colo., 9 .State v. Hudson, 13 Mo. App. 61. 1893). !<» B. & O. R. R. Co. v. Wilson, 31 ^ Mossiiess V. Insurance Co., 52 N. O. S. 555. W. Rep. 932 (Minn., 1892). n Wilson v. Clarke, 20 Minn. 367; 4 Baylies' Pleading:, sec. 6; Law- Van Schaick v. AVinne, 16 Barb. 90 rence v. Wright, 2 Duer, 673; Clay (1852). Co. V. Simonsen, 1 Dak. T. 403 ; Ger- i^ Moore v. Hobbs, 79 N. C. 65; rity V. Brady, 44 111. App. 203 (1892). Butts v. Phelps, 79 Mo. 302; Br.-- 5 Moore v. Hobbs, 79 N. C. 535. shears v. Strock, 46 Mo. 221 ; Robe: ■ "People V. Commissioners, 54 N. Y. v. Tronihvcll. 50 Cal. 520. 54 THE PETITION, ETC. [§ 52. is nothing due;* or that a contract is not in any manner bind- ing, or that defendant is not liable ; - or that plaintiff is en- titled to the possession of land and to the rents and profits thereof;' or an allegation in an action for a personal injury from a sidewalk that " then and there, and long prior thereto, it had been the duty of said defendant to keep said sidewalk in safe condition; " * or that a warrant is illegal, null and void and issued without authority of law ; ^ or that a certain thing is illegally done ; " or that an attachment was illegal, unau- thorized and void ; ' or that certain parties became subscribers to capital stock of a corporation by signing and delivering an agreement among themselves;^ or that an assessment has been increased by reason of illegal actions, frauds and irregu- larities of the officers." And so with a denial that an ap- praisement was illegally and duly raade;^*^ or that plaintiff is the actual legal, bona fide holder of a note." A demurrer will not admit the truth of conclusions of law.^- Sec. 52. Material allegations. — A material allegation is defined by the code to be one essential to the claim or defense, .which could not be stricken from the pleading without leaving it insufficient." Each allegation contained in the petition when not controverted by answer for the purpose of the action is taken to be true ; ^* and so with allegations of new matter in the answer not controverted by the reply; but not as to new matter in the reply, which is deemed controverted by force of the statute.^^ An allegation of the execution of \vritten instru- ments and of the existence of a corporation is taken to be true 1 Larimore v. Wells, 29 O. S. 13. ^Sprague v. Parsons, 13 Daly, 392 2 Rolling Stock Co. ▼. Railroad Co., Hammond v. Earle, 58 How. Pr. 426 34O.S.450-67;Bankv. Lloyd, 18 0. S. 8 Wheeler v. Mining Co., 9 Nev 353 ; Railroad Co. v. Wilson, 31 O. S. 254. 555 ; Railroad Co. v. Walker, 45 O. S. « Knapp v. Brooklyn, 97 N. Y. 520 53;l Swart v. Schermerhorn, 35 Hun. 281. 3 Sheridan v. Jackson, 72 N. Y. lo Trustees v. OdHn, 8 O. S. 293. 170; Scotield V. Whitelegge, 49 N. Y. " Downer v. Reed, 17 Minn. 493, 259. 494. ■JSammins v. Wilhelm, 6 O. C. C- 12 Patterson v. Roach, 32 O. S. 374; 565. Smith v. Henry Co., 15 la. 385. 5 In re Denny, 10 Nev. 212 ; Pelton i^O. Code, sec. 5082. V. Bemis, 44 O. S. 51. ^* O. Code, sec. 5081 ; Lumber Co. v, 6 Bowers v. Smith, 20 S. W. Rep. Town Co.. 51 Kan. 394. 101 (Mo., 1892). 15 O. Code, sec. 5082. g 53.] THE PETITION, ETC. 55 unless denied.^ A failure to plead a material fact raises a pre- sumption that it does not exist.- Sec. 53. Pleading statutes — Some judicially noticed.— It is an established rule that it is not necessary to plead those thins-s of which courts take judicial notice.^ A fact which is judicially noticed is to be regarded as matter of law, and therefore cannot be pleaded.* Judicial notice will be taken of general, local or special statutes, which need not, therefore, be pleaded.5 But judicial notice cannot be taken of the laws of a sister state,** or of a foreign country,'' or of a private statute,^ or of laws published but not properly certified,'' all of which must be specially pleaded as other facts. Judicial notice not being taken of municipal ordinances, they also must be spe- cially pleaded when made the basis of a liability.'" And so with a charter or foreign franchise." The following rules should be observed in pleading statutes : In the case of a foreign statute it is not necessary to set forth an exact copy, but only ' its substance may be stated, making such reference that it may be clearly identified.'- It is also essential that the construction given it b}^ the courts of a sister state be stated ; '^ and no in- quiry can be made as to the correctness thereof." If it be claimed that a law of a sister state relieves a person from a liability, 1 Lumber Co. v. Town Co., 51 Kan, s Railway Co. v. Moore, 33 O. S. 384 : 394, Railroad Co. v. Blackshire. 10 Kan. 2 Railroad Co. v. Lancaster Co., 4 477-87. Neb. 307 ; Cheney v. Duulap, 21 Neb. ^ State ex rel. v. Kiesewetter, 45 404, O. S. 254. 3 0. Code, sec. 5083. "' Ricliter v. Harper, 54 N. W. Rep. * Cooke V. Tallman. 40 Iowa, 133; 768 (Mich., 1893). So with nuiuicipal Shaw V. Tobias. 3 N. Y. 188. by-laws. Harker v. Mayor, 17 Wend. 5 Jones V. Scudder, 2 C. S. C. R. 178 199 ; People v. Mayor, 7 How. Pr. 81. (1872); Shaw v. Tobias, 3 N. Y. 188; » Devoss v. Gray, 22 O. S. 159. Brown v. State, 11 O. 280. Of acts of '-'Minn. H. Works v. Smith, 54 N. incorporation. Brown v. State, 11 O. W. Rep. 973 (Neb., 1893). 276. Of canal laws. State v. Perry, i^Smith v. Bartram, 11 O. S. 690; W. 662 ; Division of Howard Co., 15 Bank v. Baker, 15 O. S. 68 ; Williams Kan. 195. v- Finlay, 40 O. S. 342 ; WMielan v. 6 Shed V. Augustine, 14 Kan. 282; Kinsley, 26 O. S. 131 ; James v. Rail- Railroad Co. V. Lewis, 33 O. S. 196 ; road Co., 2 Disn. 261-2. Williams v. Finley, 40 O. S. 342. " Bank v. Baker, 15 O. S. 6a ' Evans v. Reynolds, 32 O. S. 163 ; Monroe v. Douglas, 5 N. Y. 447. 56 THE PETITION, ETC. [§ 54. the state of the law when the same is supposed to have arisen should be given.^ It is not proper to allege that under the law of another country plaintiff is entitled to relief hereinafter prayed for.- In pleading a private statute it should be referred to by its title and date of its passage.^ Every fact necessary to show that a case is clearly within a statute should be stated.* Where an action is brought under a general statute it is not necessary to plead or refer to the same in any manner.* And where the provision in a statute restrictive of a rif^ht of re- covery against the defendant is in a separate clause from that giving the right of action, it should be introduced by the de- fense.^ Sec. 54. Other matters judicially noticed. — Courts gen- erally take judicial notice of such facts or conclusions from facts as are not proper objects of evidence. This will include mat- ters of public histoiy of the country," civil divisions of the state,* the executive of a state,^ and other public officers; ^^' of election days;" the various arts and sciences; ^- the commence- ment of a term of court, though not of its duration; ^^ all prior proceedings in a case ;^* the genuineness of the records of a court ;^* seals of foreign states;^** acts of contempt committed in the presence of the court; '' and of a municipal charter cre- 1 Railroad v. Lewis, 33 O. S. 196. ^Dewees v. Colorado Co., 32 Tex. 2 Rieudeau v. Vieu, 21 N. Y. S. 506. 570. 3 O. Code, sec. 5092 ; Railway Co. V. i" People v. Johr, 22 Mich. 401; Moore, 33 O. S. 384. Ragland v. Wynn, 37 Ala. 132 ; Gil- 4 Austin V. Goodrich, 49 N. Y. 266. liland v. Adm"r, 2 O. S. 223. 5 Denver, etc. R R Co. v. DeGroff, ^ Ellis v. Reddin, 12 Kan. 307. 29 Pac. Rep. 664 (Colo., 1892) ; Clark i-'Luke v. Calhoon Co., 52 Ala. 1 15 : V. North Muskegon, 50 N. W. Rep. 254 People v. Chee Kee, 61 Cal. 404 ; Biif- (Mich., 1891) ; Hayes v. Bay City, 91 fitt v. State, 46 Am. Rep. 631. Mich. 418 ; 51 N. W. Rep. 1067 (1892). ri Spencer v. Curtis, 57 Ind. 221 : Gil- 6 Clark Thread Co. v. Board, etc., liland v. Adnvr, 2 O. S. 223: David- 23 Atl. Rep. 820 (N. J., 1892). son v. Peticolas, 34 Tex. 27. See ^ Ludlow V. Brewster, 3 O. C. C. Kent v. Bierce. 6 O, 336. 82-4 ; Sperry v. Tebbs, 20 W. L. B. '^ Kansas v. Bowen, 16 Kan. 475. 181; Swinerton V. Insurance Co., 37 i'> State v. Schilling, 14 la. 455-6; N. Y. 174; Rice v. Shook, 27 Ark. State v. Bowen, 16 Knn. 475; Robiu- 137 ; People v. Snyder, 41 N. Y. 397. son v. Brown. 82 III. 279. ? Hinckley v. Beckwith, 23 Wis. '♦'Lazier v. Westcott, 26N. Y. 146; 328; W. Lake Co. t. Young, 40 N. H. Stauglein v. State, 17 O. S. 463. 420. ' ' jNIyers v. State, 46 O. S. 473. §^ 55, 50.] THE rETITION, ETC.. 57 ated by public act.^ Judicial notice cannot be taken of state- ments published in the report of a state commissioner of railroads,- ncr of the names of navigable rivers,^ nor of facts of recent occurrence relating to a particular section of country,^ nor of municipal ordinances,^ nor of the width of streets or sidewalks of a city," nor of the population of a city according to any particular census.^ Sec. 55. Presumptions of law slioultl not be stated. — Pre- sumptions of law,^ that is, whatever the law presumes to be a fact, should not be pleaded. For example, it is presumed that a seal of a corporation affixed to a deed was so affixed by author- ity.* And so with official acts,'** ownership of a note,'' or that it is in writing,'- or that an act of the legislature was passed by the requisite vote.'* A presumption of death exists where a husband leaves his family and residence, and is not heard from for a period of seven years. '^ "While presumptions of law need not be stated, this does not apply to presumptions of fact.'' Sec. 56. Redundant and irrelevant matter. — The code prohibits the insertion of redundant, irrelevant, scurrilous or obscene matter in a petition.'^ Redundancy consists of need- less repetition of material averments ; '^ and matter incorpo- rated into a pleading which has no connection or bearing on the subject-matter of an action may be considered irrelevant.'^ An answer may be frivolous, but not necessarily irrelevant.'* Allegations which are unnecessar}'-, yet qualify and restrict other allegations, so as to show that the plaintiff's relief is barred, cannot be rejected on demurrer as surplusage.-'' This subject is treated elsewhere.-' 1 Montgomery v. Wright, 72 Ala. n Bank v. Wadsworth, 24 N. Y. "47. 411. ' 12 Bank v. Edwards, 11 How. Pr. -' Railroad Co. v. Hoffiiines, 46 O. S. 216. 643-50. >3 Steamboat Northern Indiana v. 3 Raccoon River Xav. Co. v. Eagle, Millikin, 7 O. S. 383. 29 O. S. 238. ^* Rosenthal v. Mayhugh, 33 O. S. * Morris v.Edwards, 1 O. 189. loo. •■* Garvin v. Wells, 8 la. 286 ; Porter '■* Draper v. Cowles, 27 Kan. 488. V. Warring. 69 N. Y. 250. '« O. Code, sec. 5087. ''Porter T. Warring, 69 N. Y. 250. i' Bowman v. Sheldon, 5 Sand. ■ Bolton V. Cleveland, 35 O. S. 319. (N. Y. Super.) 657-60. i^ O. Code, sec. 5083. '"^ Fasnacht v. St.-hn, 53 Barb. 650. sSheehan v. Davis, 17 O. S. 571. i^Id. 10 Reynolds v. Schweiuefiis. 27 O. S. -OGray v. Ulrich. 8 Kan. 113. 311. '^ See post, sec. 121. ■58 THE PETITION, ETO. [§ 57. Sec. 57. Attachiii;? copies. — Despite the fact that a dis- tinguished jurist and author/ while the code was in its in- fancy, placed a construction on sections 5085 and 5086 of the code, relating to attaching and pleading copies of written in- struments, which has not since been made clearer by any court or writer, there is at this time considerable confusion, diver- sity of practice and lack of understanding as to these two provisions. An attempt, therefore, will here be made to throw such further light upon the subject as may be derived from the practice and experience of the bar, and adjudications in those states w^iich have adopted the same provisions. Both provisions must be kept in mind. The first and the one considered in this section is: "When the action, counter- claim or set-off is founded on an account, or on a written in- strument as evidence of indebtedness, a copy thereof must be attached to and filed with the pleading; and if not so attached and filed, the reason for the omission must be stated in the pleading." ^ The other, section 5086, treated in the next sec- tion, may be termed pleading by copy, as distinguished from section 5085. There is this distinction to be observed : Section 5085 embraces accounts and written instruments as evidence of indebtedness, while section 5086 also includes accounts, and, in addition thereto, instruments for the unconditional payment of money only. It is therefore apparent that both sections unite upon some instruments — that is, many fall within both provisions. For example, an account or promis- sory note will come within the purview of both provisions, as an instrument as evidence of indebtedness and for the unconditional payment of money only. But section 50S5 is broader in its terras and will include all kinds of instruments, whether conditional or uncondilioiial, when evidencing an in- debtedness. Here is the point at which the confusion and diversity of practice have arisen. Section 5085 is imperative in its provision: "a copy thereof must be attached to and filed with the pleading;" while section 5086 reads: "it shall be sufficient for a party to set forth a copy of the account or instrument." This, however, was made plain by Judge Swan many years ago in the following language: "Some » Swan's Pleading, pp. 192-200. 20. Code, sec. 5085. § 57.] THE PETITION, ETO. 59 have supposed that the instruments named in section 122^ must be copied into the pleading, and also a copy annexed to the same pleading, so as to comply with both of these sections of the code." He then adds : " This is manifestly a mistake. It is absurd to suppose that the code would require a copy of the instrument to be annexed and filed with a ])leading, for the purpose of advising the opposite party of the written evi- dence of indebtedness stated in the pleading, when a copy of the same instrument is incorporated into the pleading itself." ^ The text quoted from Judge Swan is now fully supported by authority under similar provisions in this and other states. When a note is copied or pleaded in hceo verba in the petition in the manner provided in section 5086, it is a substantial and sufficient compliance with the section requiring a copy to be attached. The fact that a copy has been incorporated in the pleading furnishes the reason for the omission to attach a copy as required by the section under consideration.' The direct question has been before the supreme court of the state of Kansas, which state has adopted the same provision.* It was there held that when a note was set out in full in the body of the petition, and thereby made part of it, an omission to attach a copy was not error. While technically it may be, if it is part of the petition it is not attached to and filed with it, and therefore the provision requiring a copy to be attached is not complied with; yet as it does not affect any substan- tial rights it will be immaterial.' The principal point of difficulty where the confusion arises, is in promiscuously attaching copies of instruments not fall- ing within either section 50S5 or 5086, being neither evidence of indebtedness nor for the unconditional payment of money only, as well as those instruments evidencing indebtedness but not for the unconditional payment of money only, at- 1 Code, sec. 5086. Code, sees. 124-139. That is. these two - Swan's Plead., p. 192. states have adopted in exact language s Rouse V. Groninger, 2 W. L. M. both sections 5085 and 5086 of the 273; Phoenix Ins. Co. v. Stocks, 36 Ohio code. N. E. Rep. 408 (III, 1893) ; Benjamin » Budd v. Kramer, 14 Kan. 101. V. Delahay, 2 Scam. 574. Tlie original note instead of a copy 1 Daniell's Ch. Pr., star page 547, relief. 1 Daeieirs Ch. Pr., side page and cases cited. 548; Brownell v. Curtis, 10 Paige, "Railway Co. v. Howard, 124 Ind. Ch. 214. It is held in Higgenbotham 280; Stevens v. Flannagan, 131 Ind. V. Burnet. 5 John. Ch. 184, that where 122-3. the bill is for discovery and relief ^Templeton v. Morgan, 4 W. I* the defendant should answer as to M. 146. the discovery and demur to the re- 70 THE PETITION, ETC. [§§ 62-65. Sec. 62. Same — Answer. — A party may decline to answer any interrogatory from which he may protect himself by demurrer.^ But in the absence of a demurrer or other objec- tion the interrogatories must be plainly and fully answered under oath, and may be enforced by nonsuit or judgment by default as justice may require.^ But a nonsuit cannot be entered for failure to answer as fully as the interrogator thinks he ought to do.' An order may be made that inter- rogatories attached to a pleading be answered by a certain day or stand dismissed. But it must be actually dismissed at the time fixed.* Sec. 63. Motion to strike out interrogatories. — The defendant moves the court to strike out the following interrogatories of the plaintiff attached to his petition filed herein, for the reason that the same are irrelevant and not pertinent to the matters in issue, to wit: [State interrogato- ries.'] Note. — See ante, sec. 61 : Railway Co. v. Howard, 124 Ind, 280; Stevens V. Flannigan, 131 Ind. 12^3. Sec. 64. Substitution of copies for lost papers. — When a pleading or other paper pertaining to the files in a case is lost or destroyed or is withheld, the court may, upon application of any party to the action, order a copy or substantial copy thereof to be substituted.^ A court cannot hear a cause " nor render a judgment without pleadings being on file, either original or substituted copies.^ It is not necessary to give any notice to the opposite party of the substitution of lost plead- ings.* Sec. 65. Motion to substitute lost papers. — The plaintiff [or, defendant] now comes and moves the court for leave to substitute a petition (or other papers) for 1 Fuller V. Knapp, 24 Fed. Rep. 100. 49 O. S. 681. As to when the inter- 2 O. Code, sec. 5101 ; Ne\t-burg Pet. rogatories must be answered, see O. Co. V. Weare, 44 O. S. 610 ; Chapman Code, sec. 5100. V. Lee, 45 O. S. 366 ; Devore v. Dins- » O. Code. sec. 5084. more, 4 W. L. M. 144; Longstreth, 6 Mason v. Embree, 5 O. 278. But etc. Mfg. Co. V. Halsey, 4 O. C. C. see Hallam v. Jacks, 11 O. S. 692 ; 307. Wilkinson v. Daniel, W. 368. ' Longstreth, etc. Mfg. Co. v. Hal- "^ Grimison v. Russell, 11 Neb. 469. sey, supra. s Marks v. Harris, 12 W. L. B. 184. * Railway Co. v. Cov.struction Co., I QQ.] THE PETITION, ETC. 71 the original petition herein, which has been lost or destroyed without plaintiff's neglect. Note. — Code, sec. 5084. Sec. 66. Demand for relief. — A petition must contain a demand for relief; if the recovery of money is demanded the amount sliall be stated, and if interest is claimed the time for which interest is to be computed shall also be stated.^ It is well understood that while a demand for relief is part of a petition, it is no part of the statement of facts required to constitute a cause of action."^ The entire omission of the same would not be a ground for demurrer, but could only be reached by motion,^ and may be amended to conform the re- lief to the facts proved.* It will not in any case determine the character of the action or the interest of the parties, which must depend entirely upon the facts pleaded.^ The prayer may be if or equitable relief, and the facts alleged and proved may constitute a legal cause of action." Where the allega- tions warrant legal relief only, the plaintiff cannot have equi- table relief, and he must bring his case and proof within the allegations." It has been held that where the facts stated make a case for specific performance of a contract as well as one for damages, the plaintiff is entitled to have both tried if necessary to obtain his rights.^ The prayer may be for the cancellation of an instrument as well as for general relief, and the court may decree a reconveyance instead of cancellation, as equity will adapt its relief to the exigencies of the case.^*^ 1 0. Code, sec. 5060. ^ Reed v. Reed, supra; Williams v. 2 Draper v. Moore, 3 C. S. C. R. 167 ; Slote, 70 N. Y. 601 ; White v. Lyons, Corry v. Gaynor, 31 O. S. 377 ; Phil- 43 Cal. 379. The mere fact that lips V. Dugan, 31 O. S. 466 ; Culver equitable relief is improperly asked V. Rogers, 33 O. S. 546 ; Ashley v. where a good cause of action is stated, Little Rock, 56 Ark. 391 ; 19 S. W. does not make it an equitable action. Rep. 1058; Hiatt v. Parker, 39 Kan. Brown v. Bank. 5 Mo. App. 1. 765-771 ; Pomeroy's Code Rem., sees. 'Bradley v. Aldrich, 40 N. Y. 504; 454-57. " Arnold v. Angell. 63 N. Y. 508 ; Bank 3 Asliley V. Little Rock, 56 Ark. v. Mitchell, 73 N. Y. 415. 391 ; 19 S. W. Rep. 1058. » Sternberger v. McGovern. 56 N, * Cul ver V. Rodgers, 33 O. S. 540. and Y''. 13. cases cited. 9 Riddle v. Roll. 34 O. S. 573. 5 Reed v. Reed, 35 O. S. 433 ; Moore »i Murtha v. Curley. 90 N. Y. 373. V. Chittenden, 39 O. S. 563-71. 72 THE Fi; IITION, ETC. [§ Q9, Under a prayer for damages for a breach of a contract as well as for a reformation if necesoary, the court may give such relief in damages as may be just, although the action for refor- mation is not sustained.! A petition may ask for an injunc- tion and for personal judgment' or for injunction and an account,^ or a prayer for personal judgment for an assessment and for the enforcement of a lien.* Under the old system re- covery was confined to the case made b;/ the petition or bill,^ but the code requires sufficient facts to constitute a cause of ac- tion ; ^ and any relief regardless of the prayer consistent with the case stated and embraced within the issuej or consistent with justice or justified by the facts,* may be granted. And relief hostile to the theory of the allegations should not be erranted,^ But where there are two causes of action and the relief asked is inconsistent with only one, the plaintiff may be compelled to elect upon which he will rely.^" .Specific relief need not be asked, but if asked no greater amount can be granted without amendment." A petition which entitles the plaintiff to some relief will be good against a demurrer ;!- and so with a prayer for more than the facts will warrant.'^ If the defendant fails to answer and judgment is taken by de- fault, the rule applicable to cases where trial is had cannot be invoked, but only such relief as is demanded can be had." A prayer for general relief which is inconsistent with that for judgment for a sum certain will not be stricken out." A prayer for relief may be in the alternative where the plaint- 1 N. Y. Ice Co. V. Insurance Co., ? Davidson v. Burke, 143 111. 140. 23 N. Y. 357. See Hale v. Bank, 49 9 Graham v. Reed, 57 N. Y. 681. N. Y. 626. i** Brundidge v. Goodlove. 30 O. S, 2Brundidge v. Goodlove, 30 O. S. 374. 374. 11 Armstrong v. St Louis, 3 Mo. App. 3 Converse v. Hawkins. 31 O. S. 209. 100. ^Corry V. Gaynor. 21 O. S. 277. 12 Baker v. Alien, 92 Ind. 101; 5Ashley V. Little Rock. 56 Ark. 391 ; Crosby v. Bank. 107 Mo. 436; 17 S. 19 S. W. Rep. 1058 (1892). W. Rep. 1004 (1891). 6 Id. 13 Missouri, etc. Land Co. v. Bush- -< Ross V. Purse, 17 Colo. 24 : 28 Pac. nell, 11 Neb. 192 (1881). Rep. 473 (1891) ; Stevens v. Mayer, 84 ^ Lane v. Gluckauf, 28 Cal. 288-94 ; N. Y. 296 ; Southwick v. Bank, 84 Peck v. Railway Co., 85 N. Y. 246. N. Y. 420 : Davidson v. Burke, 143 111. i^ Durant v. Gardner, 19 How. Pr. 140 ; Bradley v. Aldrich, 40 N. Y. 504. 94. § 67.] THE r£TITION, ETC. 7S iff is unable to state exactly the relief to which he may be ea- titled.* Sec. 67. Rule days. — Defendant must file an answer or demurrer on or before the third Saturday, and the reph^ or demurrer by the plaintiff on or before the fifth Saturday, after the return day of the summons, or service by publication,^ The rule day for filing a petition in the court of common pleas in a case appealed from a justice is the third Saturday after the expiration of the time limited for filing the tran- script; and subsequent pleadings shall be filed within such times thereafter as is provided for the filing thereof in cases commenced in that court after the return of the summons.^ The answer or demurrer of a defendant to a cross-petition shall be filed on or before the third Saturday, and the reply or de- murrer thereto on or before the fifth Saturday, after the cross- petition is filed.* Where an answer demands affirmative relief^ the plaintiff becomes defendant to the cross-petition and is given the same time to plead as is allowed a defendant.^ An answer day in quo warranto is within thirty days after the return day of the summons, and not the third Saturday.^ A defend- ant is not excused from filing his answer within the rule merely because the plaintiff has failed to comply with an order for security for costs." The court or a judge in vaca- tion is authorized, for good cause shown, to extend the time for filing any pleading upon such terms as are just.^ A de- fendant shall have the same time in which to answer or demur to a petition which has been amended as to an origi- nal petition.'' It rests largely within the discretion of a court as to whether or not a pleading will be permitted to be filed after rule da}'', but a meritorious answer should never be re- fused."* The time within which an answer may be filed to an ' See ante, sees. 21, 22 ; Lyke v. « O. Code, sec. C. 73 ; State, etc. t. Post, 65 How. Pr. 298. C/. Duraut v. Robinson, 11 W. L. B. 294. Gardner, 10 Abb. Pr. 445. ^Newsoni v. Ran. 18 O. 240, 2 O. Code, sec. 5097. 8 o. Code, sees. 5098, 6773. As to 3R. 8., sp''. 6598. interrogatories, see Code, sec. 5100. <0. Code, sec. 5097. 90. Code. sees. 5111, 5112. 'Kimniell v. Pratt, 40 O. S. 344. lOHengehold v, Gardner, 4 W. L. B. 958. 74 THE PETITION, ETC. [§ 67. amended petition is also within the discretion of the court. If no time be fixed, but the case is set for trial on a specified day, the action of the court in setting the case for trial will be construed in effect as an order that the issues be made up by that time.^ iNeininger v. State, 50 0. S. 394 CHAPTER 6. THE ANSWER, COUNTER-CLAIM AND SET-OFF. Sec. 68. General requisites of answer, 69. The specific denial 70. The general denial 71. Immaterial allegations need no denial. 73. Denial on belief. 73. The negative pregnant 74 Sham denial. 75. New matter. 76. Joint answer. 77. Answer of guardian and at- torney. 78. Several defenses. 79. Answer and cross-petition. Sec. 80. Counter-claim — Defined — Nature of, 81. Counter-claim — How pleaded. 83, Counter-claim — When may be set up — Judicial expo- sitions, 83. Trial on counter-claim. 84. Set-oflF, 85. What subject of set-off, 86. Cross-demands deemed com- pensated. 87. Judgment upon default. Sec. 68. General requisites of answer, — The same course will be pursued in treating the subject of the answer as in the preceding chapter upon the petition. As the work is made up largely of special treatment of particular actions and sub- jects, answers are there discussed more in detail. Only the more general features, therefore, will be examined here. In •doing so it is difficult to add much that is new, or to improve upon what others better qualified have alreadj^ written. All writers start out upon the same basis. The answer shall con- tain : first, a general or specific denial of each material allega- tion of the petition controverted by the defendant; second, a statement of any new matter constituting a defense, counter- claim or set-off in ordinary and concise language.^ The same rules of verification are applicable here as given in a former section.^ Prayer for relief is unnecessary unless affirmative relief is sought.^ The rules as to the statement of facts,* con- clusions^ and presumptions of law,^ redundant and irrelevant I O. Code, sec. 5070. * Ante, sec. 50. 2 Ante, sec. 49. 8 Ante, sec. 51. ' Bendit v. Annesley, 27 How. Pr. ^ Ante, sec, 55. 184. 76 ANSWER, COUNTEK-CLADd AXD SET-OFF. [§ 69. matter,^ and pleading conditions,- as pointed out elsewhere, should be observed in the preparation of the answer. Sec. 69. The specific denial, — Material uncontrorerted al- legations are taken as true.' The answer must therefore con- tain a general or specific denial of each material allegation in the petition.* A denial of facts, whether general or special,, should be direct and specific' What is a specific denial? The answer must depend largely upon circumstances, though there are a few general rules which have been frequently asserted by courts and writers. It is apparent that it was designed that the defendant should point out the particular allegations denied. How well it may be done mast depend upon the pleader's skill in the English language and his legal acumen. There have been many expressions of opinion upon a form of averment frequently adopted: Defendant denies each and every allegation of the petition not before admitted or denied. It is generally considered good.^ Another form often used, which upon a liberal construction has been held good as against a demurrer, is : " The defendant denies all the mate- rial allegations of the petition." ^ It does not authorize the introduction of evidence tending to show a special defense;* nor is it a commendableor a proper form to be followed.^ So has it been held that merely denying " each and every mate- rial allegation in the complaint" is evasive and not proper.^" A denial of all and singular the allegations of a petition is also objectionable, and subject to a motion to make definite and certain. ^^ Xor is the refusal to admit certain allegations considered a denial,^- or a denial of facts as alleged in the peti- 1 Ante, sec. 56. sec. 325, citing Kiugsley v. Gilnian, * A7ite. sec. 59. 12 Mine. 515; Leyde v. Martin, 16 8 Livesay v. Brown, 52 N. W. Rep. :Miun. 38. 838 (Neb., 1892). 7 Lewis v. Coulter, 10 O. S. 451. * O. Code, sec. 5070 ; Creighton v. « Hauser v. Metzga, 1 C. S. C. R. 164. Kellerman, 1 Disn. 548 ; Everett v. 3 Lewis v. Coulter, supra; Thomas Waymire, 30 O. S. 308. v. Cline, 1 Clev. Rep. 123. 5 Insurance Co. v. Meier, 28 Neb. if»Coal Co. v. Sanitarium Co., 7 124. . Utah, 158, 161 (1891); Mattison v. 6 Griffin v. Railroad Co., 101 N. Y. Smith. 19 Abb. Pr. 290. 348 ; Smith v. Gratz, 59 How. Pr. u Lawrence v. Cooley, 1 Clev. Rep. 274. It is good as against a general 178. demurrer. Reucher v. Hudson. 1 i^Bomberger v. Turner, 13 0. S. Clev. Rep. 218; Bliss on Code Pldg., 263. § 70.] A^•SWEK, COUNTER-CLAIM AND SET-OFF. 77 tion.^ How then should the denial be made? Jud Anglo A. L. ]\I. etc. Co. v. Broh- §§ 77, 78.] ANSWER, COUNTER-CLAIM AND SET-OFF. S3 See. 77. Answer of guardian and attorney. — A guardian of an infant, or of a person of unsound mind, or an attorney for a person in prison, shall deny in the answer all material allegations of the petition prejudicial to such defendant,^ The guardian must bring the rights of his ward properly be- fore the court bv a denial or otherwise.- An answer allesinsr ignorance of the matters in the petition, praying to have the rights of the infant protected, is in effect a general denial.^ And even though a guardian does not expressly deny the allegations made by plaintiff, a judgment will not be dis- turbed if it appears from the record that the court treated it as a denial.* Sec. 78. Several defenses. — A defendant is permitted under the code to set up as many grounds of defense, counter-claim and set-off, whether legal or equitable, as he may have, so long as they are consistent with each other ; those not set up are waived.' There is no provision requiring the defenses to be technically consistent with each other, except that they must be verified, and two inconsistent defenses cannot be verified.* In Xew York a defendant may set up as many defenses as he may have, whether consistent or not.^ It is not consistent with the spirit and intention of the code that a party having two good defenses, and not knowing which of the two in fact or in law is his true one, shall, at his peril, be compelled to elect in advance on which he will rely, to the exclusion of the other. "When from the nature of the case it is uncertain which of the two grounds of defense is the proper one, it is competent to set them both up if the answer can be sworn to without falsifying the one or the other.® In a suit upon a note the defendant may deny its execution, or, if 1 O. Code, sec. 5078. defense is not necessarily waived by -Long V. Mulford, 17 O. S. 484. setting up other defenses inconsistent •' Wood v. Butler, 23 O. S. 520. therewith. Insurance Co. v. Frick, 29 * Randall v. Turner, 17 O. S. 262. O. S. 466. 5 0. Code, sec. 5071 ; Bank v. CIos- 6 Bank v. Closson, 29 O. S. 78. son. 29 O. S. 81 : Witte v. Lockwood, ' Society Italiana v. Sulzer, 138 N. 39 O. S. 141, and cases cited ; McKins- Y. 468 ; Bruce v. Burr, 67 N. Y. 287; ter V. Hitchcock, 19 Neb. 105. See Goodwin v. Wertheimer, 99 N. Y. ante, sec. 21 ; Pavey v. Pavey. 30 O. S. 149. 600 : Richardson v. Bates, 8 O. S. 264 ; 8 o. Code, sec. 5071 ; Bank v. Clos- Judy V. Louderman, 48 O. S. 572. A son, 29 O. S. 81. 84 ^, ANSWER, COUNTER-CLAIM AND SET-OFF. [§ 79. the signature to the note is genuine, that it was fraudulently obtained;^ or the defendant may deny its execution and also claim that there was no consideration therefor ;2 or he may aver want of consideration in that it was made upon false representations, and also ask recoupment of damages.'^ In an action of ejectment a plea of not guilty and a disclaimer are inconsistent, the former being an admission of possession put- ting the question of title in issue, while the latter admits title but denies possession.* Each defense must be complete in itself,^ although to avoid repetition allegations in one defense or count may be incorporated into another by proper refer- ence.^ Two or more defenses must be separately stated and numbered as is required in tv:o or more causes of action,^ though it will be a sufficient compliance with the rule if sep- arated into paragraphs and not numbered.' Sec. 79. Answer and cross-petition. — When a defendant demands affirmative relief, the pleading filed by him is termed an answer and cross-petition.^ A defendant may admit the claim set up in the petition, and join in the relief there sought by wa}^ of cross-petition. Only those allegations controverted should be denied. Hence, to enable a defendant to claim re- lief by way of cross-petition, it is not essential that he deny the allegations of the petition.'" An answer will be treated as a cross-petition, and the proper relief granted, though not so denominated, if the necessary facts to warrant the same are set forth." Only such relief can be prayed for as relates to the matters contained in the petition; '- so that a defendant cannot bring in a controversy with a third person not con- 1 Bank v. Closson, 29 O. S. 78. 5 Reid v. Huston. 55 Ind. 173 ; Bank zPavey v. Pavey, 30 O. S. 600. See v. Green, 33 la. 140. Nelson V. Brod hack, 44 Mo. 596 : Bell ^See sec. 20. ante; Hammond v. V. Brown, 22 Cal. 671 ; Hopper v. Earle, 58 How. Pr. 426. Hopper, 11 Paige, 46; Springer v. 'See ante, sec. 20; O. Code, sec. Dwyer, 50 N. Y. 19 ; Buhler v. Went- 5071. worth, 17 Barb. 649 ; Mott v. Burnett, niundy v. Wight. Ce Kan. 173. 2 K D, Smith. 50; Weston v. Luni- ^O. Code, sec. 5059. ley, 33 Ind. 486 ; Derby v. Gallup, 5 l" Bradford v. Andrews, 20 O. S. 208. Minn. 119. Contra, Barnes v. Scott, n Klonne v. Bradstreet, 7 O. S. 322. 11 S. Rep. 48 (Fla., 1892), ^W. Code, sec. 5071; Brown v. 3 Springer v. Dwyer, 50 N. Y. 19. Kuhn, 40 O. S. 485. *Torrey v, Forbes, 94 Ala. 135; 10 S. Rep. 320 (1891). § 80.] ANSWER, COUNTER-CLAIM AND SET-OFF. 85 nected with the case,' bvit may against other defendants in the same petition.- The real party in interest may intervene b}'' way of cross-petition as against an apjiarent party or owner, and obtain the necessary relief.^ The plaintiff in the case be- comes a defendant to the cross-petition, and is entitled to the same period in which to reply as is allowed a defendant, to wit, the third Saturday after the cross-petition is filed.* It is not necessary to issue a summons for a person already in court upon the filing of a cross-petition.'^ But the rule is otherwise where a personal judgment is sought by way of cross-petition when the defendant filing the same is in default for answer. Summons is necessary in such cases.^ Sec. 80. Counter-claim — Defined — Nature of. — "We have seen that the new matter which a defendant may set up in his answer may consist of matter constituting a counter-claim ; ^ and that a defendant may set up as many defenses as he may have, whether made up of new matter, counter-claim or set- off,^ and claim such relief touching the matters in question in the petition against the plaintiff'.'* He may state facts which may be both a defense and a counter-claim, in which case the two should be stated separately and numbered.'** A counter- claim which a defendant is permitted under the code to set up by way of defense must be a complete, independent cause of action, legal or equitable, other than set-off, existing in favor of a defendant against a plaintiff, between whom a several judgment might be bad in the action," or one of which the court in which the action is pending would have jurisdiction in a separate case.'- Before final submission of the cause the court may upon motion allow the counter-claim to be with- drawn, and the same may become the subject of another action.'^ If an independent action has already been instituted 1 Bartlett v. Patterson, 10 W. L. B. « Thatcher v, Dickinson, 3 O. C. C. 367. 144. 2 O. Code, sec. 5071. " Ante, sec. 75 ; O. Code, sec. 5071. 3 0sborn v. McClelland, 43 O. S. ^Ante, sec. 78; O. Code, sec. 5071. 284. 9 0. Code, sec. 5071. * Kummel v. Pratt, 40 O. S. 344. lo Lancaster &c. Mfg. Co. v. Colgate, 5 Brown v. Kuhn, 40 O. S. 485. Not 12 O. S. 344. necessary in divorce proceedings. li O. Code, sec. 5073. Young V. Young, 9 W. L. B. 24. l2Cregin v. Lovell. 88 N. Y. 258. 18 O. Code. sec. 5089. ,S6 ANSWER, COUNTER-CLAIM AND SET-OFF. [§§ 81, 82. thereon, the court may refuse to consider it.^ It must arise out of the contract or transaction set forth in the petition, or be connected with the subject of the action.- It must have some direct connection with the transaction sued on.^ The words " subject of the action " are construed to mean the questions in dispute between plaintiff and defendant, or the facts con- stituting plaintiff's cause of action.* It is synonymous with the term " cause of action." ' Sec. 81. Counter-claim — How pleaded.— An answer set tino- up a counter-claim must contain facts which constitute a cause of action in itself, in such a manner as to entitle the de- fendant to a judgment or decree in a separate action,® and with the same distinctness and certainty as if in a petition.^ The usual way is to designate it as a counter-claim and ask for affirmative relief.^ The same rules of pleading are ap- plicable as in stating any cause of action. A defect in a counter-claim must be reached by a demurrer or motion to make definite and certain.^ If it appears that other new par- ties are necessary to a final decision upon a counter-claim, they may be made by permission of court, or the counter-claim may be dismissed and made the subject of a separate action.'" Sec. 82. Couuter-claim —When may be set up — Judicial expositions.— As against a note for goods sold, a defendant may set up, by way of counter-claim, a breach of contract of sale or fraudulent representations,'^ or failure of considera- tion.^^ If delivery of goods and payment appear to have been concurrent conditions, the answer will be ineffectual as showing a counter-claim unless it avers an offer or readiness to pay.'^ An overpayment of a note may be set up as a counter-claim against an action thereon.'* A creditor of a 1 Becroft v. Dossman, 2 W. L. B. ' Dale v. Hunneman, 12 Neb. 221-5. 1 10. 8 Bliss" Code Pldg. sec. 367 : Bates v. - O. Code, sec. 5072. Rosekrans. 37 N. Y. 409. 3 Brothers v. Mason, 2 C. S. C. R. » Fittretch v. ]\IcKay. 47 N. Y. 426. 66 ; Roots v. Nye, 2 Handy, 22V» lo O. Code, sec. 5074 See Evans v. Hall, 1 Handy, 434-7; "Timmons v. Dunn, 4 O. S. 681 ; Marthens v. Dudley. 1 W. L. B. 302. Upton v. Julian. 7 O. S. 95. 4Chamboret v. Same. 41 How. Pr i-' Holzwoith v. Koch, 26 O. S. 33. 125. See Bliss' Code Pldg., sec. 373. * i'' Chambers v. Frazier 29 O. S. 362. 5 Borst V. Corey, 15 N. Y. 509. •* West v. Meddock, 16 O. S. 418. 6 Hill V. Butler, 6 O. S. 207 ; Cregin V. Lovell, 88 N. Y 258. § 83.] ANSWER, COL'NTER-CLAIM AND SET-OFF. 87 mortgagor of personalty may be made a party defendant to an action by the mortgagee and enforce his right to relief by way of counter-claim.^ As against a foreclosure of a mort- gage the mortgagor may set up a claim for damages arising from fraud of the mortgagee in selling the premises to the mortgagor ; - or in case of a sale of business and good-will as against a mortgage securing the purchase-money, he may set up a breach of contract;^ or the mortgagor may set up a counter-claim for damages for misrepresentations as to the premises,* or for an unpaid assessment due at the date of sale.^ A tenant may claim damages for a breach of a lease in an action by the lessor for rent,^ but not wrongful acts of landlord, as trespass or negligence,^ or that the premises were rendered uninhabitable by reason of noise.^ Damages for failure on the part of the landlord to build a fence according to contract,® or breach of covenant to make repairs,'" may be set up as a counter-claim against rent. A vendee may set up as a counter-claim against the vendor of realty a claim for damages sustained by reason of false representations," or for any breach of covenants of warranty,^'^ though a defect in title is not available as a counter-claim as against purchase-money, unless there has been an eviction.^^ An incumbrance may be set up even against a transferee of a note without indorse- ment.'* As against an action for the purchase price of goods sold, a defendant may claim damages arising from fraud or breach of warranty,''^ as for a defect of quality or quantity.'^ Sec. 83. Trial on eoiiiiter-claim. — A defendant who has properly set up a counter-claim has the right to have the same tried, even though the plaintiff may have dismissed his action 1 Morgan v. Spangler, 20 O. S. 38. lo Cook v. Soule, 45 How. Pr. 340 ; 2 Allen V. Shackelton, 15 O. S. 145. Block v. Ebuer, 54 Ind. 544 3 Buickhardt v. Burckhardt. 86 O. ii Mulvey v. King, 39 O. S. 491. S. 261. '" Guest V. Kenner, 2 Handy, 86. i Pierce v. Tierch, 40 O. S. 168. '^ Picket v. Picket, 6 O. S. 525. See ■^ Craig V. Heis, 30 O. S. 550. chapter on Deeds, sec. 477. «Cook V. Soule, 56 N. Y. 420 ; Black i^ Kyle v. Thompson, 11 O. S. 616. V. Ebner, 54 Ind. 544; Myers v. 15 Bounce v. Dow, 57 N. Y. 16 ; Day- liurns, 35 N. Y. 269. ton v. Hoogluml, 39 O. S. 671 ; Upton " Edgerton v. Page, 20 N. Y. 281. v. Julian. 7 O. S. 95 ; Moore v. Wood- ' Boreal v. Lawton, 90 N. Y. 293. side, 26 O. S. 537. ^ Hay V. Short, 49 Mo. lo9. i" Moore v. Woodside, 26 O. S. 537. 88 ANSWER, COUNTEK-CLAIM AND 8BT-0FF. [§ 84. or failed to appear. This right only exists, however, where the allegations in the answer are such as entitle the defendant to affirmative relief.^ But a plaintiff in suc!i case cannot dis- miss the action so as to defeat the right of the defendant to have his counter-claim so tried.- And where the counter-claim, being within the original jurisdiction of the court, is tried without objection, the plaintiff is considered to have waived his right to raise the question whether the cross-demand is a proper subject of counter-claim.^ Sec. 84. Set-off. — Falling under the head of new matter which a defendant is permitted to set up as a defense is set- off, which may be defined as a cross-demand not arising out of the transaction set forth in the petition, nor connected with the subject of the action. It must be a cause of action arising upon contract, and can be pleaded only in an action founded on contract.'' The right of set-off is purely statutory,^ and under some codos it is embraced in counter-claims." It exists only when there is a cross-demand between the same parties at the same time, and on which an action might be maintained at the same time by either party.'' It may be claimed against an equitable owner of the demand in suit,* and is governed by the law of the place where the action is brought.^ The intention of the code was to preserve the right of set-off as against an assignment of a demand,^" so that a party may recover a set-off by virtue of an assignment.^^ But this is not true of an assignment of a non-negotiable con- tract before 'due.^- It may also be asserted as against a re- ceiver of an insolvent corporation.'^ jf ^ new party be nec- essary to a final decision upon a set-off, such new party may be brought in.'* IBank v. Weyand, 30 O. S. 126. ages against assignee must exist at 2 Wiswell V. Church, 14 O. S. 31. the time. Heister v. Insurance Co.. 3 Fitzgerald v. Cross, 30 O. S. 444. 6 Am. L. Rec. 238. See Ashley v. Marshall, 29 N. Y. 494; miller v. Florer, 15 O. S. 148. Vann v. Rouse, 94 N. Y. 401. ^ Bank v. Hemingray, 31 O. S. W>^ * O. Code, sec. 5075; Swan's Pldg., lORoss v. Johnson, 1 Handy, 388. p. 263: Ernst v. Kunkle, 5 O. S. 521. n O. Code, sec. 4993. 5 Ross V. Johnson, 1 Handy, 388. '-'Fuller v. Steiglitz, 27 O. S. 355. 6 Boone's Pldg., sec. 85. " Hade v. McVay, 31 O. S. 231. 7 Whims V. Grove, 1 O. C. C. 98; ^*0. Code, sec. 5076. Ross V. Johnson, 1 Handy, 388. Dam § 85.] ANSWEK, COUNTER-CLAIM AND SET-OFF. 89 Sec. 85. What subject of set-oif*.— In an answer founded on contract a defendant may claim as set-off any cause of action he may have against the plaintiff, arising upon contract, whether it be a liquidated demand or for unliquidated dam- ages.^ Ordinarily, separate and joint claims cannot be set off against each other, but a natural equity in fav^or of such set- off will be protected.- And in an action on a separate note a defendant may set off an overdue joint note made by plaintiff and another where both are insolvent.^ A set-off may be pleaded against an administrator if against the estate,'* but not by one who has property belonging to the estate when sued therefor.^ A defendant may claim as a set-off an indi- vidual claim against a surviving partner to whom an account has been assigned by his partner;" and so with a debt due from a firm as against a suit by a surviving partner on a part- nership contract.' But where only one member of a firm is served in a suit against a firm, a claim held by him individ- ually cannot be set off against the plaintiff.^ A stockholder cannot offset a sum of money by him paid on a judgment rendered against the corporation against a note given by him for stock.^ An indorser of a note cannot set off his liabilit}' against the maker,"* nor is a note assigned after maturity the subject of set-off against the assignor.^^ In an action on a joint debt against principal and surety a demand due from plaintiff to the principal ma}' be set off.^- A claim on which iNeedham v. Piatt, 40 O. S. 186; -'Bank v. Heniingray, 1 C. S. C. R- R. S., sec. 5075; Stevens v. Able, 15 435; 34 O. S. 381 : Baker v. Kinsey, Kan. 584 ; Fuller v. Steiglitz, 27 O. S. 41 O. S. 403 : Stanbery v. Smytlie. 355; Doppler v. Cox, 10 Am. Law 13 0. S. 495; Miller v. Florer, 19 O. S. Rec. 306. Cf. McCulloch v. Lewis, 1 356. Disn. 564: Evens v. Hall, 1 Handy, 3 Baker v. Kinslej% 41 O. S. 403. 434; Rubber Co. v. Bradford, y W. 4 Granger v. Granger, 6 O. 35. See L. B. 35. A defendant cannot under O. Code, sec. 5077. a plea of set-off for money received 5 McDonald v. Black, 20 O. 185. by plaintiff to the use of defendant ^ Beesley v. Crawford, 19 O. 126. recover damages for breach of an 'Beach v. Hay ward, 10 O. 455. express contract. Smith v. Machine » Williams v. Pultze, 2 W. L. B. Co., 26 O. S. 562. See Corbin v. 253. Bouve, 1 C. S. C. R. 259. As to a s) Bates v. Lewis, 3 O. S. 459. judgment, see Freeman on Judg- "' Follett v. Buyer. 4 O. S. 586. ments, sec 446: O'Brien v. Young, n Knisely v. Evans, 34 O. S. 158. 95 N. Y. 428 ; May v. Culyer, 55 N. i-' Wagner v. Stocking, 22 O. S. 297. \V. Rep. 744 90 ANSWER, COUNTER-CLAIM AND SET-OFF. [§§ 86, 87. the original action was founded cannot be set off in an action on a restitution bond,' nor can a mayor set off unpaid costs appearing on his docket against an action for fines by him collected.- A claim to be allowed as a set-off must be one \vhich belonged to the defendant at the time of the commence ment of the action in which it is souo^ht to be established. Claims purchased to be set up are not available.^ And the statute of limitations begins to run against a set-off from the date of the commencement of the action in which it is pleaded.* Sec. 86. Cross-demands deemed compensated. — When <3ross-demands have existed between two persons under such circumstances that, if one had brought suit against the other, a counter-claim or set off could have been set up, neither can be deprived of the benefit thereof by assignment by the other, or by his death, but the two demands must be deemed com- pensated, so far as they equal each other.' Sec. 87. Judgment upon default. — When all or part of one or more of the causes of action are not put in issue by answer, judgment may be taken, as upon default, for so much as is not put in issue.^ A default judgment cannot be taken against a lunatic or infant," or in an action not founded upon contract,^ though it is not error to take default judgment upon an account." Where judgment by default has been taken for a sum less than due, there can be no recovery for the re- mainder.^" A default judgment may be set aside to allow a meritorious defense to be made," though not after the term nt which it was taken.'- 1 Bickett V. Garner, 31 O. S. 28. " Sturgess v. Longworth, 1 O. S. 2Deatrick v. City, 1 O. C. C. 340. 544; Long v. Mulford, 17 O. S. 484. 3 Strauss v. Insurance Co., 5 O. S. » Pollock v. Pollock, 2 O. C. C. 14:5. 59. " Dallas v. Ferneau, 25 O. S. 635. 4McEwing V. James, 36 O. S. 152. iC'Ewing t. McNairy, 20 O. S. 315. 5 O. Code, sec. 5077. l' Messick v. Roxbury, 1 Hand}', Ifto. 6 O. Code, sec. 5320. '2 Johnson v. Taylor, 2 Handy, ITS. CHAPTER 7. THE REPLY. Sec. 88. The reply — Contents. 89. A reply must be made when. 90. When reply need not be made. Sec. 91. New matter in reply — De- parture. 93. Remedy for departure. Sec. 88. Tlie reply — Contents. — "When the answer con- tains new matter the plaintiff may either file a demurrer or a reply thereto. The reply may deny generally or specifically each allegation of new matter contained in the answer; and it may also allege any new matter not inconsistent with the petition which constitutes an answer to the new matter con- tained in the answer.^ A reply may be permitted to be filed after verdict upon the theory that the allegations of the answer are denied ; ^ but defendant waives the filing of a reply by proceeding to trial without objection.' An aver- ment in a reply that the pleader cannot admit or deny the allegations of the answer, and demands proof of the same, is not such a denial as will require the defendant to prove his averments.* And failure to deny matter set u]) in an answer which is mere surplusage is not fatal, and does not therefore entitle the defendant to judgment upon the defense contain- ing the sarae.^ Sec. 89. A reply must be made when. — Every material allegation of new matter in the answer not controverted by the reply will be taken as true; but allegations of new matter in the reply shall be deemed controverted by the adverse party, as upon a direct denial or avoidance, as the case may require.^ The question always to be decided, therefore, is whether new matter is alleged. An answer setting up pay- 10. Code, sec. 5079. < Building Assn v. Clark, 43 O. S. 2 Whitney v. Preston, 29 Neb. 243. 427. SKepley v. Carter, 49 Kan. 72; 5 Kyser v. Cannon, 29 O. S. 359. 30 Pac. Rep. 182 (1892); Lovell v. «0. Code, sec. 5081. Failure to Wentworth, 39 O. S. 614. reply to a paragraph in an answer 92 THE KEPLT. [§ 90. ment of a claim sued upon is new matter requiring an answer,* and unless denied judgment may be rendered upon the plead- ings.- And so with an answer setting up want of considera- tion.^ A plea of justification goes to the entire cause of action, and a reply must be filed thereto.* And where in an action by a stockholder against a corporation it is claimed that the plaintiff ratified the act complained of, a reply must be made thereto.' And so an answer to an action against a railroad company for ejecting a passenger, which admits the assault but justifies it, must be replied to before any evidence of excessive force can be introduced.^ Sec. 90. When reply need not be made. — A reply need not be made when the new matter contained in the answer does not constitute a defense;'' nor does an allegation which in effect amounts to merely an argumentative denial need a reply ; ^ or a plea of non est factum in an action on a note ; * or when an answer purports to admit a certain fact stated in the petition, when it does not state such a fact; ^^ or when the answer contains facts which could have been given under a general denial. ^^ If the legal effect of the allegations in an answer amount t9 a general denial, it is not new matter requiring a reply.^^ Where an answer to an action for the re- covery of goods stored with a warehouseman denies plaint- iff's allegation and sets up a lien for storage, such lien is con- troverted without a reply.'* Where an answer denies the containing a good affirmative defense ^"West v. Cameron, 39 Kan. 736; admits its truth, and entitles the de- 18 Pac. Rep. 894 (1888). fendant to judgment. Adams v. ^ Singer Mfg. Co. v. Brill, 9 Am. Tuley, 1 Ind. App. 490. Law Rec. 43 ; s. C, 5 W. L. B. 533. iFevvster v. Goodard, 25 O. S. 276; » Brown v. Ready, 20 S. W. Rep. Edwards v. Edwards, 24 O. S. 402; 1036 (Ky., 1893). Agricultural Works v. Creighton, 21 ^^ Hoisington v, Armstrong, 22 Kan. Ore. 495; 38 Pac. Rep. 775. 110. 2 Id. " Corry v. Campbell, 25 O. S. 134. 3 Brown v. Ready, 30 S. W. Rep. 12 Insurance Co. v. Kelly, 24 O. S. 1036 (Ky., 1893). 345 ; Hoffman v. Gordon, 15 O. S. 4 Nelson v. Wallace, 48 Mo. App. 212; State v. Williams, 48 Ma 210; 194 (1891). Simmons v. Green, 35 O. S. 104. 5 Steinway t. Same, 22 N. Y. S. 945 is Eisler v. Storage Co., 16 Daly, (1893). 456. <> Powell T. Railway Co., 2 Am. Law Rec. 403. § 91.] THE REPLY. 93 commission of an act and alleges that it was done by a third party, it is a mere denial requiring no reply. ^ In some states new matter not stating a counter-claim is deemed contro- verted without a reply.- A set-oflf can never be set up in a reply except to a cross-petition.^ Sec. 91. New matter in reply —Departure.— As before stated, any new matter not inconsistent with the allegations of the petition which will constitute an answer to the new matter in the answer may be set forth in the reply.* If new matter be set up which should properly go into the petition, it need not be stricken therefrom, as it may be permitted to be incorporated into the petition by amendment.'' A ])laint- iff, however, in stating new matter in a reply must not de- part from the grounds taken in his petition. He cannot introduce a new cause of action,^ nor refer to documents not appearing in a previous pleading." It is a rule that every pleading subsequent to the ]>etition on the part of the plaintiff must support the petition." Thus, where the petition charges a direct undertaking, and the reply charges a guaranty, it is a departure.^ And where the petition charges suretyship, a reply which shows a liability upon a subsequent under- taking is bad for departure.^* But matter in a reply which explains or avoids the facts stated in the answer does not constitute a new cause of action.'^ And where an answer al- leges payment of a note sued upon, and a redelivery of it by him to the maker, and the reply admits the fact of the rede- livery, but alleges that the maker had subsequently, for value, transferred it to another, who in turn transferred it to plaint- iff, such a reply is not a departure.^- But where a defendant 1 Hoffman V. Gordon. 15 O. S. 212. 6 Durbin v. Fisk. 16 O. S. 533; 2Spriuger v. Bien, 16 Daly, 275; School Dist. v. Caldvvell, 16 Neb. 68. Arthur v. Insurance Co., 78 N. Y. " Insurance Co. v. Brown, 35 Atl. 462; Day v. Insurance Co., 75 la. Rep. 989 (Md., 1893). 700. ' 8 Heath v. Doyle, 27 Atl. Rep. 333 3 West V. Meddock, 16 O. S. 417; (R. I.. 189-3). Heath v. Doyle. 33 Atl. Rep. 333 (R. I., ■> Philibert v. Burch, 4 Mo. App. 470. 1893). It is cured by verdict. Id. * See ante, sec. 88 ; Fanning v. In- lo Chaplin v. Baker, 124 Ind. 885. surance Co., 37 O. S. 344. n Anderson v. Imhoff. 34 Neb. 335. 5 Hiltz V. Scully, 1 C. S. C. R. 555. i- Bishop v. Travis. 54 N. W. Rep. 460 (Minn., 1892). 94: THE KEPLY. [§ 92. sets up an award in a suit upon an account, to which the plaintiff makes a reply admitting the same, there is no such departure as will vitiate a judgment for the amount admitted to be due.' Sec. 1)2. Remedy for departure. — When the reply is a de- parture from the petition, the proper remedy for reaching the irregularity is by demurrer.^ A motion to strike from the files and a demurrer cannot properly be made at the same time ; * and indeed it is questionable whether a motion to strike from the files should ever be made upon this ground, although it has been held that it may bedone.^ It must be remembered, however, that motions are made with a view to further plead- ing, and there can be no pleading filed after a reply. Failing to demur to an insufficient reply, however, does not deprive the defendant of his right to insist upon the proper judgment after verdict,^ New matter in a reply which explains or avoids facts stated in an answer does not constitute a new cause of action and is therefore not subject to a demurrer.^ 1 Benson v. Stein, 34 O. S. 294, « Philibert v. Burch, 4 Mo. App. 2 Laws V. Carrier, 3 C. S. C. R. 80; 470. Anderson v. Imhoff, 34 Neb. 335 » Brown v. Kroh. 31 O. S. 493. (1892) ; Insurance Co. v. Brown, 25 6 Anderson v. Imhoff, 34 Neb. 335. Atl. Rep. 989 (Md., 1893). See chapter on Demurrer, sec. 109. 3 Laws V. Carrier, supra. CHAPTEE 8. DEMURRER TO PETITION, ANSWER, REPLY AND COUNTER- CLAIM. Sec. 93. Nature and eflfect of murrer, 94. Demurrer to jurisdiction. 95. Want of legal capacity to sue. 96. Form of demurrer for want of legal capacity to sue — Corporation. 97. Another action pending. 98. Misjoinder of parties plain t- iflE. 99. Defect of parties plaintifE and defendant 100. Form of demurrer for de- fect of parties. 101. Misjoinder of actions. 102. Misjoinder of separate causes of action against several defendants. 103. Form of joint demurrer. de- Sec. 104. Facts sufficient to consti- tute a cause of action not stated. 105. Must be specific. 106. Waiver of objections. 107. When sustained for mis- joinder. 108. Demurrer to part and an- swer to part. 109. Demurrer to reply. 110. Form of demurrer to reply. HI. Demurrer to answer. 112. Form of demurrer to an- swer. 113. Demurrer to counter-claim. 114. When demurrer will lie — General rules. 115. When demurrer will not lie — General rules. 116. Miscellaneous general rules. Sec. 93. Nature and effect of demurrer. — It seems hardly necessary to make the statement that the purpose of a demur- rer is to deny the legal sufficiency of a pleading and to raise issues of law upon the facts stated.^ It is made a pleading by the code,- and like any other pleading may be amended.'' It can only properly be filed where the grounds for its support are apparent on the face of the pleading.* And unless the ob- 1 Brennan v. Ford, 46 Cal. 7 ; W^ilson V. Mayor, 15 How. Pr. 502. -O. Code, sec. 5059; Oliphant v. Whitney, 34 ('al. 25 ; Howard v. Rail- road Co., 5 How. Pr. 206. 3 Morrison v. Miller, 46 la, 84. * O. Code, sec. 5062 ; Neil v. Board of Trustees, 31 O. S. 15; Getty v. Hudson River R, R., 8 How. Pr. 177; Wilson V. Mayor of New York, 15 How. Pr. 500; Coe v. Beckwith, 31 Barb. 339 ; 6 Abb. Pr. 6 , Simpson v. Loft, 8 How. Pr. 234; Mayberry v. Kelly, 1 Kan. 116; Aurora v. Cobb, 21 Ind. 492 ; Collins v. Davis, 57 la. 256. 96 DEMURRER TO PETITION. [§ '^i. jection raised by it so appears, an answer and not demurrer is the proper pleading.^ It is a fundamental rule that a demurrer admits the truth - of such facts only as are well pleaded,' and does not therefore admit a conclusion of law, unwarranted by the facts on which it is predicated;* nor will it reach indefiniteness and uncer- tainty,' or duplicity in a pleading.® As a demurrer searches the whole record,^ it will raise the question of the sufficiency of a petition, though filed to an answer;* or it may search a distinct and independent defense set up in a supplemental answer which is complete in itself.' Relief cannot always be obtained under a general demurrer, but the specific objections should be pointed out.^'' If any count of a petition or answer is good, a demurrer to the whole petition should be overruled.^^ If the plaintiff is entitled to 1 Gillian v. Sigman. 29 Cal. 637; Moore v. Hobbs, 77 N. C. 65; Power V. Ames, 9 Minn. 178. 2 Hance v. Hair, 25 O. S. 349. 3 Finch V. Board of Education, 30 O. S. 37-41 ; Faurot v. Neff. 32 O. S. 446 ; Peterson v. Roach, 32 O. S. 374 ; Railway Co. v. Moore, 33 O. S. 384; Van Doren v. Tjader. 1 Nev. 380: Freeman v. Hart, 61 la. 525. Epithets charging fraud not admitted. Kent V. Railway, etc. Co., 144 U. S. 75. * Railway Co. v. Moore, 33 O. S. 384 ; Finch v. Board of Education, 30 O. S. 41 ; Peterson v. Roach. 32 O. S. 374 ; H. & R. Hydraulic Co. v. Rail- road Co.. 29 O. S. 341; Supervisor, etc. V. Seaborn. 11 Abb. X. C. 461; Mitchell V. Treasurer. 25 O. S. 143- 53 ; Wilson v. Clark, 20 Minn. 367 ; Sherwood v. Sherwood. 45 Wis. 357 ; Kleecamp v. Meyer, 5 Mo. App. 444 : Freeman v. Hart, 61 la. 525 ; Hall V. Bartlett, 9 Barb. 297; Boley v. Griswold, 2 Mont. 447. 5 Trustees v. OdUn, 8 O. S. 293; Lewis V. Coulter. 10 O. S. 451 : Union Bank v. Bell et al.. 14 O. S. 208 : Rail- way Co. V. Iron Co.. 46 O. S. 44; Garard v. Garard, 34 N. E. Rep. 443 (Ind., 1893); Railroad Co. v. Maddux, 34 N. E. Rep. 511 ilnd., 1893); Kirsch V. Derby, 96 Cal. 602 ; 31 Pac. Rep. 567. 6 Corpening v. Worthington, 12 S. Rep. 426 (Ala., 1893). ' Gordon v. Preston, \V. 341 ; Trott V. Sarchett 10 O. S. 241 ; Hillier et al. V. Stewart et al., 26 O. S. 652 ; Bliss, Code Pldg.. sec. 417a. 8 Casper v. Hopple, 3 O. C. C. 105 ; Rothweiler v. Ryan. 4 O. C. C. 338. 9 Eckert v. Bmkley, 33 N. E. Rep. 619 (Ind.. 1893). KJ Lancaster Co. v. Trimble, 34 Neb. 752. n Ford v. Rehman, W. 434 ; Carter V. Longworth, 4 O. 384; Spicer v. Giselman, 15 6. 338; Schroyer v. Richmond, 16 O. S. 455; Pinkum v. Eau Claire, 81 Wis. 301 ; 51 N. W. Rep. 550 (1892). In Churchill v. Pac. Imp. Co., 96 Cal. 490 ; 31 Pac. Rep. 560, it was held that a general de- mtirrer to a petition which contains two separate counts is good. § 94.] DEMDKRER TO PETITION. 97 any relief a demurrer is not well taken, ^ and if bad in part it is bad in toto? A general demurrer to an answer which con- tains new matter and a specific denial is not well taken if the allegations denied are material.^ A demurrable objection cannot be taken b}^ answer;* and where a demurrer is pend- ing and the defendant answers to the merits, the former is thereby waived.' The filing of a demurrer also waives any defect in the serv- ice of process or return.*" AVhere the court is equally divided the demurrer will be overruled.' The overruling of a demur- rer, without further order made, is not a final order.^ A joint demurrer may be made, and even though there is no cause of action against one defendant, it is no reason for sustaining a demurrer by him jointly with two others against whom a cause of action appeared." One proper plea is good on joint demurrer.^" A pleading is not demurrable under the code svstem unless it is subject to some of the objections made grounds of demurrer by statute.^^ Nor will a demurrer lie to a petition on a contract which is merely voidable, as when made on Sunday, but such an objection must be raised by an- s\ver.'2 A motion to strike from the files and a demurrer can- not be filed at the same time, as the latter will waive the former.^^ Sec. 94. Demurrer to jurisdiction. — A demurrer will lie when the court has no jurisdiction of the defendant or the subject of the action,^* though a demurrer to the juris- 1 George v, Edney, 54 N. W. Rep. v. Murray, 3 O. C. C. 431. Cf. sec. 986 (Neb., 1893); Qieviet v. Lumber 106, posf. Co., 4 Wash. St 721; 31 Pac. Rep. 24. » Howard v. Edwards, 89 Ga, 368; 2 Carter v. Lougworth, 4 O. 384; May v, Jones, 88 Ga. 308; 14 S. E. 1 Ves. 248 ; 1 Atk. 450 ; 3 Atk. 44 ; Rep. 552 ; Lancaster v. Roberts, 33 N. Mad. Ch. 226; 1 John. Cli. 51 ; 5 E. Rep. 27 (111., 1893); Benedict v. John. Ch. 186. Farlow, 27 N E. Rep. 307 (Ind., 1891). 3 Railroad Co. v. Hall, 26 O. S. 310. lo Kent v. Bierce, 6 O. 336 ; Shroyer * Petrie v. Lansing, 66 Barb. 357 ; v. Richmond, 16 O. S. 455. Bebinger v. Sweet, 1 Abb. N. C. 266. " Boone, Code PL, sec. 41 ; Marie v. 5 Vore V. Woodruff, 29 O. S. 245. Garrison, 83 N. Y. 14 6 Klonne v. Bradstreet, 2 Handy, 74. 12 Western Union Tel. Co. v. Esk- ' Putnam v. Rees, 12 O. 21. ridge, 33 N. E. Rep. 238 (Ind., 1893); 8 Baldwin v. Creed, W. 729 ; Hoi- Hoavenridge v. Monday. 34 Ind. 28. brook V. Connelly, 6 O. S. 199 ; Hart i^ Wyman v. Hayes, 1 Clev. Rep. 17a » O. Code, sec. 5062. 98 DEMCKRER TO PETITION. [§ 95. diction of the person is seldom available.^ The phrase " that the court has no .jurisdiction of the person" refers tu the power of the court over the person, and not to the regu- larity of the proceedings.^ Where a petition shows a defend- ant to be within a county, it cannot be demurred to merely because the return of a summons shows him •' not to be found." ^ Nor will it reach defective service, but is limited to the ques- tion whether or not the defendant is such a person as may be subjected to the process of the court.* The want of jurisdic- tion of the person or subject-matter of the action can only be taken advantage of by demurrer when it is apparent on its face,* and if not so apparent by answer/ but it is not waived if not so raised.' Want of jurisdiction being a specific ground of demurrer should be specially assigned. A demurrer to the sufficiency of a petition will not therefore raise the question of jurisdiction.^ An objection to the jurisdiction of the court cannot be waived by failure to demur or answer," but may be taken advantage of at any time before judgment.^"^ Sec. 95. Want of legal capacity to sue. — A demurrer on the ground that the plaintifiF has not legal capacity to sue can be sustained only when the pleadings disclose incapacity, as infancy, lunacy, or when under some other disability." The objection when apparent on the face of the petition is properly taken by demurrer,'-' and unless so raised, or by answer, it is 1 Bliss' Code Pldg., sec. 405. * Atlantic, etc. Tel. Co. v. Railroad 2 Nones v. Hope Ins. Co., 5 How. Co., 87 N. Y. 355. Pr. 96; Railroad Co. v. Railroad Co., 'O. Code, sec. 5064; 4 Abb. N. C. 16'AbU N. C. 249; Winfield Town 111; Blossom v. Barrett, 37 N. Y. Co. T. Maris, 11 Kan. 128; Boone, 434; Fourth Nat'l Bank v. Scott, 31 Code Pldg., sec. 48. Hun, 301 ; Patchin v. Peck, 38 N. Y. 3 Swann v. Iron & Coal Co., 58 Ga. 39 ; Zabriskie v. Smith, 13 N. Y. 322. 199. ?Saxton v. Seiberling, 48 0. & * Railroad Co. v. Railroad Co., 16 554 ; 29 N. R Rep. 179. Abb. Pr. (N. S.) 249; Nones v. Insur- SQ. Code. sec. 5064. ance Co., 5 How. Pr. 96; People v. lo Youngstown v. Moore, 30 O. S. Mt Morris, 27 N. E. Rep. 757 (111., 133. 1891). It cannot be reached on a ^Dale v. Thomas, 67 Ind. 570; motion to set aside a defective sum- Farrell v. Cook, 16 Neb. 483 ; Win- mons. A. & T. Telegraph Co. v. field Town Co. v. Maris, 11 Kan. 128; Railroad Co., 87 ,N. Y. 355. Boone. Code PL, sec. 48. 6 Southern Pacific Ca v. Denton, izuaskins et al v. Alcott et al, 13 146 U. S. 202 ; Adams v. Store Serv- O. S. 210 ; Koenig v. Nott, 2 Hilt ice Co., 13 N. Y. S. 118. 323. §95.] DEMUBREB TO PETITION. 99 waived.^ The question of capacity must affirmatively appear from the facts stated, and not from a want of facts.'^ As cor- porate capacity is an essential fact to be alleged in a suit by a corporation, if it appears upon the face of the petition that a plaintiff suing as a corporation is not such in fact, a demur- rer is the proper remedy.' If, however, it is not so apparent it must of course be taken by answer.'' This will apply to foreign corporations under the statute requiring them to register before they can sue or be sued ; ^ and if it appears that a foreign corporation has not complied with the laws of registration, so called, then a demurrer may be filed thereto, and if it is not so apparent it should be raised by answer.*^ If it appears that the plaintiff is an infant and sues in his own name a demurrer will lie.'' Where a person brings an action in a representative capacity but fails to make it apparent that he so sues, demurrer will lie rather than answer.® To raise the question of capacity to sue it should be specially assigned, and cannot be raised under any of the other grounds, as that the facts do not constitute a cause of action.^ Where there 1 Haskins v. Alcott, 13 O. S. 210- 217; Hoop V. Plummer, 14 O. S. 448-9 ; Buckingham v. Buckingham, 36 O. S. 68-78; Fulton Fire Ins. Co. V. Baldwin, 37 N. Y. 648 ; Hast- ings V. McKinley, 1 K D. Smith, 273 ; Tapley v. Tapley, 10 ' Minn. 448; Palmer v. Davis, 28 N, Y. 242; Van Amringe v. Barnett, 8 Bosw. 357 ; Jones V. Steele, 36 Mo. 324; Petti- grew V. Washington Co., 43 Ark. 33. 2 Boone, Code PL, sec. 48 : Phcenix Bank v. Donnell, 41 Barb. 571 ; 40 N. Y. 410; Minneapolis Harvester Works V. Libby, 24 Minn. 327 ; State V. Torinus, 22 Minn. 272 ; Am. But- ton Hole Co. V. Moore, 2 Dak. 280- 290. 8 Phoenix Bank v. Donnell, 40 N. Y. 4ia See sec. 990, post. *U. * See sec. 990, post. •In Elektron Mfg. Co. v. Jones Bros. Electric Co., 8 O. C. C. 311, the circuit court of Hamilton county, Ohio, held that a general denial will not raise the question of the right or capacity of the plaintiff to sue ; and suggests that if this is desired, a spe- cif plea in the nature of a plea of abatement should be made. The pre- vailing view is that the question should be raised as pointed out in the text ; and it is in harmony with principles discussed in another sec- tion. See sec. 99. Pleas in abate- ment are in fact abolished. The an- swer raises the same questions. Wei) V. Guerin, 42 O. S. 299. " Bartholomew v, Lyon, 67 Barb. 86. SMoir V. Dodson, 14 Wis. 279; Secer v. Pendleton, 47 Hun, 281. So where petition fails to show qualifi- cation of guardian. Spillane v. Mis- souri P. Ry., Ill Mo. 555; 20 S. W. Rep. 293. As to foreign administra- tor, see Robbins v. Wells, 26 How. Pr. 15. 9 Saxton V. Seiberling, 48 O. S. ""i :. 100 DEMUKEER TO PETITION. [§§ 96, 97. are several parties plaintiff and it appears that any one of theni has capacity to sue, a demurrer cannot be sustained.^ Sec. 90. Form of demurrer for >vaut of legal capacity to sue — Corporation. — The defendant demurs to the petition herein, and states as the grounds therefor : 1. That it appears by the petition that the plaintiff has not legal capacity to sue. 2. That it does not appear that the plaintiff is a corporation dul}^ incorporated and entitled to sue. And for a further and separate ground of demurrer to said petition, this defendant states : That the petition does not state facts sufficient to constitute a cause of action. Note. — This may be varied to suit the circumstances. See ante, sec. 95. If a guardian has not properly quahfied, so state, etc. The codes generally provide that the grounds may be stated in the language of the statute, ex- cept as to want of capacity to sue and defect of parties, which must be specifically pointed out. See Bryant's Code Pldg.. p. 214. and his table of Code References, p. 352, No. 143. which is a most excellent, convenient and useful compilation of references. Sec. 97. Another action pending. — A demurrer lies when tliere is another action pending between the same parties.- The pendency of a former suit between the same parties for the same cause is matter of defense to a second suit in a court of the same state, which has its foundation in justice and is firmly established.^ It must appear that the suit already pend- ing will afford the plaintiff the relief to which he would have been entitled under the petition demurred to ; * the reason beins:, if full relief can be had in one suit no other shall be maintained.^ The pendency of an action in one state has been held to be no bar to a subsequent action for the same cause in another state.® A demurrer will not be sustained where a like action is pending in a court of another state or in the United States courts.' This is an objection which can very seldom appear on the face of the petition,^ A demurrer cannot be 1 O'Callaghan v. Bode. 84 Cal. 489 ; Browne v. Joy, 9 Johns. 221 ; Walsh 24 Pac. Rep. 269. v. Durkin. 12 Johns. 99. 2 O. Code, sec. 5062. " Boone's Code Pldg., sec. 49 ; Bur- •^ Weil V. Guerin, 42 O. S. 301. rows v. Miller, 5 How. Pr. 51 ; 4 How. 4 Law V. Rigby, 4 Brown Cli. 60. Pr. 349 ; Sloan v, McDowell, 75 N. C. 5 Boone's Code Pldg.. sec. 49 ; Gro- 29. Cf. Williams v. Ayrault, 31 Barb, shen V. Lyon, 16 Barb. 461 ; Daumb- 364. man v. Schulting, 51 How, Pr. 337. » Nash's Pldg., vol. 1, p. 155. s Burrows v. Miller, 5 How. Pr. 51 ; §§ 98, 99.] DEMUKKER TO PETITION. 101 sustained if the action pending is for relief which cannot be granted in that action.^ Sec. 98. Misjoinder of parties plaintiff. — A misjoinder of parties is ground for demurrer and can be taken advantage of in no other way.^ By a misjoinder of parties is meant an excess of parties.^ A demurrer upon this ground should be taken to the whole petition.1 The code does not recognize the misjoinder of parties defendant as a cause for demurrer.^ A defendant improperly joined may demur for the reason that no cause of action is stated against him," Where parties are improperly joined, advantage of this misjoinder cannot be taken by parties properly joined.^ The demurrer must show wherein the misjoinder exists, by pointing out the par- ticular plaintiffs misjoined, giving the reasons.^ It has been held in Ohio that a misjoinder of parties may be raised by general demurrer.^ If the misjoinder appears on the face of the petition, objection must be raised by special demurrer, and if not so taken is waived.^" If it does not appear on the face of the petition, an answer is proper, and it may be a ground of nonsuit.'^ If a petition makes a good cause against some of the parties, or against each of them separately, if they were improperly joined a demurrer will lie.^- Sec. 99. Defect of parties plaintiff and defendant. — De- murrer on the ground of defect of parties means a deficiency 1 Haire v. Baker, 5 N. Y. 357. Lewis v. Williams. 3 Minn. 151-154; 2 burns v, Ashwoith, 72 N. C. 496, Belkrfap v. Caldwell. 83 Ind, 14, 3 Neil V, Trustees, etc., 31 O. S. 15- ' Phister v. Dacey (Sup. Ct. Cal.), 3 20 ; Powers v. Bumcratz, 12 O. S. West. C, Rep. 303. 273 ; Palmer v. Davis, 28 N. Y. 245 ; 8 Fultz v, Walters, 2 Mont, 165 ; Berkshire v. Shultz, 25 Ind. 523 ; Barney v, Drexel, 33 Hun, 419 ; 19 Mornan v, Carroll, 35 Iowa, 22; N. Y. Week. Dig. 515; Irwine v. Truesdell v. Rhodes, 26 Wis. 215-220 ; Wood, 7 Colo. 477, Pomeroy on Rem., sec. 287. ^Bartges v. O'Neil, 13 O. S. 72, 76, ^Hammond v, Hammond, 28 Abb. C'OHira,Tennantv,Pfester,51Cal.511. N. C. 318, lOQ-Cctllaghan v. Bode, 84 Cal, 489; 5 Code, sec. .5062; Clark v. Bayer, 24 Pac. Rep. 269 (18—); Gellam v. 82 O, S. 299-311; Palmer v. Davis, Sigman, 29 Cal, 637; Tennant v, 28 N, Y. 242; Richtmyer v. Richt- Pf ester, 51 Cal, 511-515; Patchin v, myer, 50 Barb. 55 : Fish v. Hose, 59 Peck, 38 N, Y. 39. How. Pr. 238; Powers v. Bumcratz, ''South Fork, etc. v. Snow, 49 Cal. 12 O. S. 273 ; Neil v. Trustees, etc., 31 155. O. S, 15-20. 12 Shamokin Bank v. Street, 16 O. S. 6 Nichols V, Drew, 94 N. Y. 22; !-& 102 DEMUKEER TO PETITION. [§ 99. of, and not too many, parties.^ The same general principle underlying all grounds of demurrer is applicable here. When the defect appears on the face of the petition it may be de- murred to, but when it does not so appear and it is necessary to introduce evidence to make the defect apparent, then an answer is the proper remedy.^ A demurrer to a petition upon the ground of defect of parties should specifically point out and name those who should have been, but were not, made parties;^ and no one can demur to a petition upon this ground unless his own interest requires that the defect be cured.* A demurrer for non-joinder of parties is well taken where it appears that the court cannot determine the contro- versy before it without prejudice to the rights of others, nor by saving those rights.'^ In an action against one of two obli- gors or contractors on a joint obligation or contract, the pe- tition is demurrable for defect of parties.® And where one of the joint owners is not made a party plaintiff, but the defend- ant fails to avail himself of such defect, he cannot be allowed to show such non-joinder in dimmution of the amount to be recovered.' A personal representative of a deceased partner cannot be joined as a party defendant with the surviving partner to an action for a partnership debt, when the petition does not show that the same can be made of the survivor.^ A 1 Richtmyer v. Same. 50 Barb. 55 ; defect of parties apparent on the face Railroad Co. v. Schuyler, 17 N. Y. of a petition can only be raised by 592. Whei'e there is a misjoinder, or demurrer. An answer raising a de- an excess of parties plaintiff, there is feet of parties tenders an issue to not a defect of parties. It must be a be tried. McCormick v. Blossom, 40 defect, not an excess. McKee v. Eaton, Iowa. 256 ; Lowry v. Harris, 12 Minn. 26 Kan. 226 ; Murray v. McGarigle, 69 255. Wis. 484 (1887). 3 Dewey v. State, 91 Ind. 182 ; New- 2 Petition filed by husband and come v. "Wiggins, 78 Ind. 305, 315 ; wife showing no cause of action in Cox v. Bird, 65 Ind. 277 ; Durham v. their favor jointly may be demurred Bischof, 47 Ind. 211 : Baker v. Haw- to. Bartges v. O'Neil. 13 O. S. 72. kins, 29 Wis. 576; Murray v. Mc- The right to make the defense by Garigle. 69 Wis. 483-90 ; O'Callaghan answer is not waived by failure to so v. Bode, 84 C5al. 489. demur. Masters v. Freeman, 17 O. S. * Newbould v. Warrin, 14 Abb. Pr. 323. If no objection be made by an- 80. swer or demurrer it is waived. Hoop ■''Wallace v. Eaton, 5 How. Pr. 99. V. Plummer. 14 O. S. 448. If not « Eaton v. Balcom, 33 How. Pr, 80. raised by demurrer it is waived. " Zabriskie v. Smith. 13 N. Y. 323. Ryan v. MuDinix, 41 Iowa, 631. A » Voorliis v. Ciiilds, 17 N. Y. 354 §§ 100, 101.] DEMURRER TO PETITION. 103 demurrer on the ground that the petition does not state facts sufficient to constitute a cause of action does not raise the question of defect of parties. Sec. KM). Form of demurrer for defect of parties.— [Cttptio7i.'] Defendant [or, plaintiff] demurs to plaintiff's petition [or, defendant's answer] upon the following grounds, to wit: 1. That there is a defect of parties plaintiff in this: A. B. is a necessary party plaintiff and should be joined; or, that there is a defect of parties defendant in this : A. B. is a party de- fendant and should be joined. Note.— See sec 99, ayite. Sec. 101. Misjoinder of actions.— As the code specifically points out what classes of actions may be joined,^ it follows that, where these provisions are not complied with by the pleader, objections may be taken thereto by the defendant. This may be done by demurrer,- and the plaintiff compelled to elect upon which of the actions improperly joined he will rely.' Or it may also be taken by answer.* A demurrer will lie where two causes of action are improperly joined, one be- ing good and one bad.' It is no ground of demurrer that separate causes of action which may be united in the same petition are all stated in one count and not separately as re- quired by the code. It has been stated elsewhere that demur- rer is not the proper remedy in such cases.* A demurrer on the ground that there is a misjoinder of causes of action will lie only where the joinder itself is forbidden, such as uniting a cause of action in tort with one arising on contract, and has no reference whatever to the manner in which causes are joined.^ If it appears that t'.iere are two causes of action im- properly joined, it will vitiate the whole petition, even though there are other causes of action properly joined.^ The fact that two causes of action are improperly joined in one count does not deprive the defendant of his right to demur thereto iSee ch. 3, ■' Higgins v. C'richton, 63 How. Pr. 2 O. Code, sec. 5062. 354 ; 2 Civ. Pioc. R. 317. 3 Boone's Pldg.. sec. 53. * See ante. sec. 20. * Cloon V. Insurance Co.. 1 Handy. ' Hardy v. Miller. 11 Neb. 395 (1881). 82; Bratton V. Smith. 2 W. L. M. 497 ; 9 Stanton v. Railway Co., 15 Civ. James v. Wilder. 25 Minn. 305. Proc. R 293. 104- DEMUKKEK TO PETITION. [§§ 102-104. for misjoinder.^ The purpose of the demurrer upon this ground is to compel the plaintiff to elect upon which of the two or more causes of action improperly united he will proceed.^ Sec. 102. Misjoinder of separate causes of action against several defendants. — Where causes of action are joined against two or more defendants which do not affect all of them, a demurrer will lie thereto at the instance of a defend- ant who is so affected.^ It is not to the misjoinder of parties ; and the rule that a defendant against whom a good cause of action is pleaded may not demur because too many are joined does not apply.* An action against trustees or executors for negligence cannot be joined with one against a lessee upon a contract.* Sec. 108. Form of joint demurrer. — Now come [naming defendants] And separately and sever- ally demur to the plaintiff's cause of action, and say that said petition does not state facts sufficient to constitute a cause of action against them jointly or severally. Note.— Hanover School Tp. v. Gant, 135 Ind. 557 ; Axtel v. Chase, 83 Ind. 546. Sec. 101. Facts sufficient to constitute a cause of action not stated. — The extent or scope of this ground of demurrer is so far reaching that it will be impracticable to attempt to enter into anything like a full discussion, except to state a few general rules. That a petition may be subject to a demurrer upon this ground, the facts stated, if admitted to be true, must be such as will warrant the court in holding that there is a cause of action stated ; ^ and this must be ap- parent from all the allegations in the petition." In determin- ing this question it is well understood that mere matters of form will be disregarded,^ so that it matters not if facts are 1 Taylor v. Elevated Railway, 52 5 Compton v. Hughes, 38 Hun, 377, N. Y. S. 299 ; Wiles v. Suydam, 64 378. N. Y. 173; Goldberg v. Utley, 60 » People v. Mayor, 28 Barb. 240; N. Y. 427. Spear v. Dovi-ning. 23 How. Pr. 30. -Sullivan v. Railroad Co., 1 Civ. ' Piersou v. McCurdy, 61 How. Pr. Proc. R 285. 134 ; Calvo v. Davies, 73 N. Y. 211. 3 0. Code, sec. 5062; Nichols v. ^ Lyon v. Fish, 20 O. 100; Trust- Drew, 94 N. Y. 22 ; Church v. Stan- ees. etc. v. Robinson, AV. 486 ; Wood ton, 44 Hun, 628 ; Hess v. Railroad v. Funk, 7 O. (pt. 1), 196 ; Burns v. Co., 29 Barb. 391. Patterson, 2 Haudj', 270. Remington v. Walker, 21 Hun, 270; Myers v. Croswell, 45 O. S. 543. 322. *Sec. 5064; Youngstown v. Moore, i' Code, sec. 5065. SeeCloon v. City «0 O. S. 133. Ins. Co., 1 H. 32 : 14 Kan. 130. 6 Masters v. Freeman et al, 17 O. S. i- O. Code, sec. 5066. ■323. 108 DEMLKKEK TO PETITION. [§§ 109, 110. of action at the same time. The court will, in such case, com- pel him to elect between them.^ A demurrer cannot be joined with a motion. It is not good practice to allow it.^ A de- murrer to certain defenses and reply to others is permissible.* The statute allowing double pleading does not extend to allow- ing a general demurrer and a plea going to the whole dec- laration at the same time.^ Where there are several defend- ants, one may demur and another file an answer.* Sec. 109. Demurrer to reply. — The defendant may also demur to the reply, or to a separate traverse, or avoidance contained in the reply, of a defense or counter-claim, on the ground that it is insufficient in law on its face.^ A failure to demur to the reply because it does not contain matter sufficient to avoid a defense set up in the answer is not a waiver of the right to object to the sufficiency of the reply, and will not affect the judgment to be rendered.'' A demurrer will lie to a reply that contains new matter inconsistent Avith the facts alleged in a petition.* Error in sustaining a demurrer to a reply setting up new matter sufficient to avoid a defense is ground for reversal of judgment, unless the record shows such error to have been otherwise waived.^ A judgment will not be reversed on error for sustaining a demurrer to a reply, where plaintiff files an amended reply, presenting the same issues in addition to others and the case proceeding to trial and judgment on the issues thus presented.^** Sec. 110. Form of demurrer to reply. — {^Captio7i.'\ The defendant demurs to the reply of plaintiff for the fol- lowing reasons apparent on the face thereof, to wit : 1st. That the facts stated therein are not sufficient in law to constitute a defense to the answer of the defendant. 2d. Etc. 1 Davis V. Hines, 6 O. S. 473; Penn. » Allison Bros. Co. v. Hart, 9 N. Y- & O. Can. Co. t. Webb, 9 O. 136 ; S. 692. Stocking V. Burnett, 10 O. 137. 6 o. Code, sec. 5067. -' Gibson & Co. v. Ohio Farina Co., ^ Brown v. Kroh, 31 O. S. 492. See 2 Disn. 499; Laws v. Carrier, 2 C. S. McWilliams v. Same, 27 O. S. 592. C. R, 80; 4 W. L. G. 8i ; Wyman v. f Newcomb & Co. v. "Weber, 1 C. S. Hayes, 1 Clev. Rep. 178. C. R 12, 14. 3 Stewart v. Welch, 41 O. S. 483, a Knox County Bank v. Lloyd, 18 491. O. S. 3.53. * Craighead v. Kemble, Tapp. 246. "'Sage v. Sleutz, 23 O. S. 1. § 111.] DEMUEEEE TO PETITION. 109 Sec. 111. Demurrer to answer. — The plaintiff may demur to a counter-claim, set-off or defense consisting of new matter contained in the answer on the ground that it is insufficient in law on its face.^ The only ground specified under this pro- vision is that the answer is insufficient in law on its face. The JS'ew York code is similar.'- It is there held that if the new matter does not state facts sufficient to constitute a de- fense, it may be subject to a demurrer for insufficiency.^ In demurring to an answer it will be sufficient to allege generally that the answer is insufficient to enable the plaintiff to avail himself of any questions affecting the merits of the answer.* A o:eneral demurrer to an answer containing several distinct grounds of defense may be overruled if any one of the defenses is sufficient to bar the action.^ And such a demurrer to an answer searches the record only to the extent that a general demurrer to the petition would lie, and does not reach de- fects available only upon special demurrer, such as misjoinder of plaintiffs.^ An answer to a petition seeking equitable re- lief is not demurrable for the reason that it sets up a partial and not complete bar.' And so is an answer denying all ma- terial allegations good on demurrer.^ An objection to the sufficiency of the answer should betaken by demurrer when it relates to matters of substance.' A motion to strike out an entire answer for insufficiency cannot be entertained, as de- murrer is the proper remedy.^^ If defenses set up in a joint answer of several defendants are not available to all, a de- murrer will lie to the answer.'^ Where, in an answer to a suit by a widow for her distribu- tive share of an estate, an answer is interposed that she is 1 O. Code, sec. 5068. Minn. 150; Seaver v. Hodgkin, 63 2N. Y. Code, sec. 494. How. Pr. 128. 3 Merritt v. Millard, 5 Bosw. 645 ; « Rothweiler v. Ryan, 4 O. C. C. Otis V. Shantz, 28 N. Y. St R. 69. 338-40. < Arthur v. Brooks, 14 Barb. 533 ; ^ Peebles v. Isanainger, 18 O. S. 490. Hyde V. Conrad, 5 How. 112. 8 Lewis v. Coulter, 10 O. S. 451 ; 5 Mansfield, Coldwater & Lake Ketcham v. Zerega, 1 E. D. Smith, Michigan R R v. Hall, 26 O. S. 310; 553. Shroyer v. Richmond. 16 O. S. 455 ; 9 Finch v. Finch, 10 O. S. 501. Hale V. Omaha Nat. Bank, 49 N. Y. lo Goodman v. Rohb, 41 Hun, G05. 626; Hyde v. Supervisors, etc., 43 ^ Tailor v. Spaulding, 13 Civ. Pro. Wis. 129 ; Bruce v. Benedict. 31 Ark. R 12a 301; First Nat. Bank v. How. 28 110 DEMUKREK TO PETITION. [§§ 112-114. barred by a post-nuptial agreement, such answer is insuflBcient on demurrer, unless it contain an averment that the provision made for her was fair, reasonable and equitable.^ A plaintiff cannot, without leave of court, dismiss his action without preju- dice after his demurrer to the answer is overruled. It is a final submission unless leave is obtained to reply or amend. ^ Sec. 112. Form of demurrer to answer. — Plaintiff demurs to the answer of the defendant upon the following grounds, to wit : 1st. That the facts stated therein are insufficient in law, on its face, to constitute a defense to plaintiff's cause of action. 2d. Etc. Sec. 113. Demurrer to counter-claim. — The plaintiff may also demur to a counter-claim or set-off upon which the de- fendant demands an affirmative judgment, when it appears on its face, either — 1. That the court has no jurisdiction of the subject thereof. 2. That the defendant has not legal ca- pacity to recover on the same. 3. That there is anothei action pending between the same parties for the same cause. 4. That the counter-claim is not of the character specified in section 5072. 5. That the counter-claim or set-off does not state facts sufficient to entitle the defendant to the relief de- manded.' This provision can be resorted to only where a defendant asks an affirmative judgment, so that he becomes practically a plaintiff. It does not apply when the counter-claim set up merely extinguishes the plaintiff's cause of action.* Sec. 114. When demurrer will lie — Some general rules. A demurrer will lie on the ground of triviality of cause,' to a part of a claim," or an answer,^ or to an indictment or infor- mation,® or to variance on profert,^ to lapse of time appearing on the face of the pleading,^" to misjoinder of defendants," for 1 Miller v. Miller, 16 O. S. 527. » Kemp v. McGuigin, Tapp. 18. 2 Beaumont V. Herrick, 24 O. S. 445. ^o "Williams v. Presbyterian, etc., 1 3 0. Code, sec. 5069. O. S. 478; 9 W. L J. 303; Hill v. * Otis V. Shantz, 38 N. Y. St R 434 Henry. 17 O. S. 11 ; Sturges v. Bur- 8 Carr v. Inglehart. 3 O. S. 457. ton, 8 O. S. 215 ; Commissioners, etc. SHiggms V. Pelton, 4 W. L. B. 751. v. Andrews, 18 O. S. 49. 'Everett et aL v. Waymire et al., 'iFoote v. City of Cincinnati, 9 O. 80 O. S. 308. 81 ; Milius v. Marsh, 1 D. 512. 8 State V. Brower, 30 O. S. 101 ; Da- vis V, State, 32 O. S. 24. i I §§ 115, 116.] DEMURRER TO PETITION. Ill misjoinder of husband and wife,' for misjoinder of causes of action,/ to an action brought in a firm name where it is not alleged that they are doing business in the state.^ Sec. 115. When demurrer will not lie — Oeneral rules. — A demurrer will not lie for want of parties/ nor for omission to attach copy of instrument,^ nor to bill of particulars before a justice of the peace,® nor to matter of form,^ nor for defective process or service,^ nor for indefiniteness,^ nor to a negative pregnant,'** nor to the title of a suit wrongfully stated," nor to a part of a cause,'- nor for duplicity or redundancy,'^ nor because a petition asks relief that cannot be granted,'* nor to make a petition definite and certain,'' for misnomer,'* for argumentativeness or surplusage,'^ for irrelevant matter merely,'^ nor because the allegations are hypothetical,'* nor for want of verity in the allegations,-" nor for statements of mat- ters of belief,^' nor where different grounds of defense are im- properly intermingled in one statement,^ nor because of incon- sistent statements.^* Sec. 116. Miscellaneous general rules. — On demurrer judgment is always given against the party that commits the first fault in pleading.-* Where a demurrer to an indictment is sustained, and the defendant discharged by the court of 1 Bartges V. O'Neil, 13 O. S. 73. "Blackwell v. Montgomery, 1 2 Corbin v. Bouve, 1 C. S. C. R 259; Handy, 40 ; Cunningham v. Phillips, Nimocks v. Inks, 17 O. 596. T. 152. 3Haskins v. Aicott, 13 0. S. 210; izgniith v. Wyatt, 2 C. S. C. R 12. Brownson v. Metcalf, 1 H. 188. "Cannon v. Lindsay, 85 Ala. 198. < Trustees, etc. V. McCaughy, 20. S. l^Townsend v. Bogert, 126 N. Y. 153. 870. » Calvin v. State, 12 O. S. 60. is Everett v. Waymire, 30 O. S. 308. •Bruder v. Biehl, 1 O. C. C. 85. le Slocomb v. McBride, 17 O. 607. ^ Trustees, etc. v. Robinson, W. 436 ; " 13 Abb. Pr. 334. Lyon V. Finch, 20 O. 100; Wood v. is Watson v. Husson, 1 Duer, 3431 Funk, 7 O. (pt. 1), 196; Burns v. Pat- is Taylor v. Richards, 9 Bosw. 679. terson et al., 3 H. 270. -^ McGregor v. McGregor, 21 Iowa, 8 58Ga99. 441. 9 Railway Co. v. Iron Co., 46 O. S. 21 Stoutenburg v. Lybrand, 18 O. S. 44; Trustees, etc. v. Odlin, 8 O. S. 228. 293; Lewis v. Coulter, 10 O. S. 451 ; 22 Akerly v. Vilas, 25 Wis. 703. Union Bank, etc. v. Bell, 14 O. S. -^ Larimer v. Kelley, 10 Kan. 298. 20a 24Trott V. Sarchett, 10 O. S. 241; "Lawrence v. Cooley, 1 Clev. Rep. Headington v. Neff, 7 0. (pt 1), 239. 17a 112 DEMUKREE TO PETITION. [§ 116. common pleas, the circuit court, under section 7356 of the Re- vised Statutes of Ohio, has no jurisdiction on a petition in error filed in behalf of the state to review the action of the court of common pleas in sustaining the demurrer.^ A judgment will not be reversed for error in sustaining a demurrer to a defense, where the defendant does not stand upon such de- fense, but so amends his answer that upon the trial he has the benefit of all the averments of the original defense.- A de- murrer to a reply reaches the cross-petition.' Where a de- murrer is filed to an entire defense it is error to sustain it as to part and strike out the remainder.* The rule that the demurrer reaches the first defective plead- ing is subject to the qualification that it is only an objection to the jurisdiction, or that the petition does not state facts sufficient to constitute a cause of action, that searches the rec- ord upon a demurrer to an answer.' A defect in the conclu- sion of a plea cannot be reached by general demurrer.^ Error in sustaining a demurrer is waived by setting up the same matter in the answer or reply.^ A ruling on a demurrer is vacated by an appeal of a cause,* and a demurrer waives the right to file a motion.^ A wife may demur even though her husband has filed an answer.'*^ Joinder on demurrer is not necessary 11 1 State V. Simmons, 49 0. S. 305. 2 Kitchen v. Lauderback, 48 O. S. 177. 3 Hillier et al. v. Stewart et al, 26 O. S. 652. * Armstrong v. Hinds, 9 Minn. 356. sstratton v. Allen, 7 Minn. 502; Eaton V. North, 25 Wis. 514. 6 Lyon V. Fish, 20 O. 100. T Davis & Co. V. Gray, 17 0. S. 330 ; Sage V. Sleutz, 23 O. S. 1. 8 Wanzer v. Self, 30 O. S. 378 ; Rust V. Rustet.al., 29 0. S. 440. 9 Wyman v. Hayes, 1 Clev. Rep. 178. 10 Graf V. Wirthvvein, 1 Handy, 19. "1 McCracken v. West, 17 O. 16. CHAPTER 9. MOTIONS. Sec. 117. Remedy for formal defects. 118. Motion as to jurisdiction. 119. Motion to quash summons and dismiss action for want of jurisdiction. 120. Motion should specifically point out Sec. 121 132 To strike out To strike from files. 123. To make definite and cer- tain. 124. Other motions. 125. Notice of motion. Sec. 117. Remedy for formal defects.— Under the code all matters of form are remedied upon motion/ which is an application addressed to a court for an order with respect thereto.- This is a departure from the common law, as the remedy there pursued was a special demurrer. Several ob- jects may be included in the same motion if they all grow- out of or are connected with the action or proceeding in which it is made.^ It is said that when a motion is filed to a petition the defendant will not be in default, although he has failed to file a demurrer or answer until the motion is disposed of.* This is the universal practice; but where a motion is without merit and made for delay the court would be justified in ren- dering judgment by default.-^ Otherwise, where a motion is made in good faith, it would be a hardship upon a defendant to declare him in default when he has a motion pending. He may be unable to plead until the same is disposed of. Sec. 118. Motion asto jurisdiction.— Amotion may prop- erly be made by a defendant for the purpose only of ques- tioning the jurisdiction of the court, without submitting him- self thereto, and when based only upon that ground it does not amount to an appearance or waiver. But if based on an irregularity it amounts to an appearance by the party and a ' Grannis v. Hooker, 29 Wis. 65. 2 O. Code, sec. 5121 ; Callender v. Railroad Co.. 11 O. S. 520. ' n. Code. sec. 5122. 4 IMaxwell on PIdg.. p. 362. 5 Kellogg V. Churchill, 1 W. L. M, 45. 114 MOTIONS. [§§ 119-121. waiver of the question of jurisdiction.* A motion made to dismiss an action for the reason that the court has no juris- diction has been held to be a waiver of defective service and a voluntary appearance.^ And so with a motion to quash summons and return for improper service.^ That a person may not submit himself to the jurisdiction of a court, he must appear for the sole purpose of objecting to jurisdiction. It is not then a waiver of any defect in the manner of obtaining the same.* If, however, the motion involves the merits of the case made, the rule is otherwise.' Sec. 119. Motion to quash summons and dismiss action for want of jurisdiction. — Now comes the defendant C. E., not intending in any manner to enter his appearance herein, but for the sole purpose of protesting and objecting to the jurisdiction of this court over this defendant, therefore moves the court to quash the sum- mons issued herein and to dismiss the action against this de- fendant for want of jurisdiction. Sec. 120. Motion should specifically point out. — It is the duty of a party who asks relief by motion to specifically point out what he desires.** It should indicate the part to which objection is made in such a manner that it may be ascertained.' A motion to make definite and certain should point out the alleged defects.^ Sec. 121. To strike out. — Eedundant, irrelevant or scur- rilous matter inserted in a pleading may be stricken out on motion of the party prejudiced thereby; and so with obscene words, which may be stricken out by the court of its own motion.* Kedundancy consists of repetition, and irrelevancy has reference to matter which has no bearing upon the issues made. A plain and concise statement does not contemplate I Maholm v. Marshall, 29 O. S. 611 ; "^ Walker v, Morse, 33 Neb. 650. Mardsden v. Soper, 11 O. S. 505-6. 'Jackson v. Bowles, 67 Mo. 609; ^Elliott V. Lawhead, 43 O. S. 171 ; O'Connor v. Koch, 56 Mo. 253. Handy v. Insurance Co., 37 O. S. 366. ^ Fischer v. Coons, 26 Neb. 400 ; 42 3 Railway Co. v. McLean, 1 O. C. C. N. W. Rep. 417 (1889) : Kerr v. Reece, 112. 27 Kan. 338. ^ Smith T. Hoover, -39 O. S. 249; »0. Code, sec. 5087; N. Y. Code, Elliott V. Lawhead, 43 O. S. 171. sec. 545. See Reichel v. Magrath, L. '" Handy v. Insurance Co., supra; R. 14 App. Cas. 665 Maholm v. Marshall, 29 O. S. 611. § 121.] MOTIONS. 115 a long and prolix history of the cause of action.^ If there is a semblance of a cause of action set forth in the petition, its sufficiency cannot be determined upon a motion to strike out ; ' nor will suck a motion be entertained after an answer or de- murrer iiled.3 When a pleader becomes prolix and states more than is essential to his action, it becomes surplusage and falls under the head of irrelevant matter, and may prop- erly be stricken out,-* or it may be disregarded by the court.* A motion to strike out is addressed to the discretion of the court, and error cannot be predicated thereon unless some sub- stantial right has been jeopardized.^ This discretion, however, should usually be confined to cases where the mover will be prejudiced by the matter complained of.^ Among those mat- ters which may be properly stricken out upon motion falling within the provision of the code under consideration are evidential facts « or arguments.^ A motion to strike out certain allegations of fact stated by way of justification and mitiga- tion, in an action for libel, cannot be entertained, as both may be set up at the same time.^" 'Nor can an entire answer be stricken out as redundant," or specified defenses for uncer- tainty.^2 ^Vhere one defense in an answer contains a general denial, a like denial embraced in other defenses may bef stricken out.'3 A motion to strike out a reply on the ground of de- parture, and a demurrer to it at the same time upon the same ground, is not proper; the motion may be stricken from the files.'^ And v/here new matter in an amendment is intended as another or different cause of action against one defendant only, but is not sufficient to constitute a cause of action, it iMcGlothlin v. Hemery, 44 Mo. 8 Railroad Co. v. Bristol, 26 Atl. 350. Rep. 122 (Conn., 1893); Bowen v. 2Walterv. Fowler, 85 N. Y. 621. Aubrey, 22 Cal. 566; Wooden v. 3 Best V. Clyde. 86 N, C. 4; Russell Strew, 10 How. Pr. 48. V. Chambers. 31 Minn. 54. 9 Gould v. Williams, 9 How. Pr. 51. * Petty V. Trustees, 95 Ind. 280. lo Van Ingen v. Newton, 1 Disn. 5 Ashe V. Gray, 90 N. C. 137. 458. 6 Cogswell V. State, 65 Ind. 1; Gate " Fasnacht v. Stehn, 53 Barb. 650. V. Gilman, 41 Iowa, 530; Potree v. ^-'Smead v. Chrisfield, 1 Disn. 17. Brotherton, 133 Ind. 692 : 32 N. E. " Campen v. Murray, 3 O. C. C. 93. Tiep. 300. See Boone's Pldg., sec. 250, note 11. 1 Boone's Pldg., sec. 249, note 13, " Laws v. Carrier, 2 C. S. C. R. 80. 116 MOTIONS. [§ 122. may be stricken out.^ A court may in its discretion order the plaintiff to so amend his petition as to strike out irrelevant and redundant allegations.' And a frivolous answer, de- murrer or reply may be stricken out upon motion.^ A form of a motion of this character is xery simple and may be as follows: Defendant now comes and moves the court to strike out of the petition as redundant and irrelevant, the following, to wit. Sec. 122. To strike from files. — There are instances in which courts have power to strike pleadings from the files upon motion, but such a motion cannot be made to subserve the purposes of a general demurrer.* It is most commonly employed in case of sham pleadings, which are those good in form but false in fact, and are not permitted under the code, the court having inherent power to strike them from the files.^ For example, a general denial which is false in fact may be stricken off as sham, and the court may hear evidence and determine whether it was filed in good faith or is false in fact." On the contrary it has been held that the pleading should prima facie show no defense or falsity ; ' and that a pleading cannot be declared frivolous where it requires argu- ment so to do,^ and that this cannot be done where it is veri- fied or supported by aindavit.' The right to object to the overruling of a motion to strike a pleading from the files is w^aived by pleading over.^'^ A motion cannot be made to strike a pleading from the files for any reason which affects the sub- stance, but only upon the ground of some irregularity or forni.^' A pleading not filed within the prescribed time may be stricken from the files.^^ 1 Hawkins v. Furnace Co.. 40 O. S. ^ Upton v. Kennedy, 36 Neb. 66 ; 53 507, N. W. Rep. 1042 ; Cottrill v, Cramer, 2 Drake v. Bank, 33 Kan. 635. 40 Wis. 559. 3 Bliss on Code Pldg.. sec. 421. 8 Barney v. King, 13 N. Y. S. 685. * Robinson v. Fitch, 26 O. S. 659-62 ; ^ Bryant's Pldg., p. 200. Ellis V. Reddin, 12 Kan. 306, See i" Shugart v. Pattee, 37 Iowa, 422. chapter on Demurrer, sec. 109. •' Finch v. Finch. 10 O. S. 501. 5 Upton V. Kennedy, 36 Neb. 66; i- Acock v. Halsey, 90 Ca'. Slf,; 37 Wayland v, Tyson, 45 N. Y. 281. Pac. Rep, 193 (1891> 6 Wertheimer v. Morse, 23 W. L. B. 453. Ill § 123.] MOTIONS. 117 Sec. 1'2S. To malvo definite and certain.— When the alle- gations of a pleading are so indefinite and uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and cer- tain by amendment.^ The remedy for uncertainty and in- definiteness is by motion and not demurrer;- so that where the language of a pleading will fairly admit of a construction that will sustain it against a demurrer, it should, in the ab- sence of amotion to make definite and certain, be so construed.^ Questions of the sufficiency of the averments in a pleading can only be raised by motion to make definite and certain or to strike out.^ Such a motion may reach a want of cer- tainty as to time,-5 ambiguity caused by alternative averments,^ or an allegation that an appraisement was not legally and duly made," or an allegation as to the title of a note sued upon,^ or the sufficiency of a reply.^ And while an allegation or denial of ownership is not a mere conclusion of law, yet as a statement of facts it may be indefinite and subject to mo- tion.'" It must be clear to the court, however, that the plead- ing is uncertain before sustaining such a motion, '^ and the question cannot be raised for the first time on appeal. '^ Where two causes of action are set up, but not separately stated and numbered, a motion may be made to reach this irregularity.'^ But it is entirely discretionary with the court as to whether the two causes shall be so separately stated and numbered, and its refusal to so order is not reviewable.'^ While it is competent for a party to move to make a pleading of his ad- versary definite and certain, yet inasmuch as it is the primary duty of the party pleading to present a clear and unequivocal 10. Code, sec. 5088, ^ Jamison v. King. oO Cal. 133. - Railway Co. v. Iron Co., 46 O. S. 'Trustees v. Odlin. 8 O. S. 293. 44 ; Lorrillard v. Clyde, 86 N. Y. 384 ; ^ Schrock v. Cleveland, 29 O. S. 499. Roe V. Lincoln Co., 56 Wis. 66; nVhelan v. Kinssley. 26 O. S. 131. Trustees v. Odlin, 8 O. S. 293; Lewis J"Stoutenburg v. Lybrand. 13 O. S. V. Coulter, 10 O. S. 451 : Bank v. Mas- 228. sillon, 14 O. S. 208 : 44 O. S. 55. ^i People v. Tweed, 63 N. Y. 201. s Railway Co. v. Iron Co., supra. J2 0sborn v. Graves, 11 Ora 526. ^Pelton V. Bemis, 44 O. S. 55, and ^^gee ante, sec. 20; Township v. cases cited. Bennett, 10 O, S. 441. « Railroad Co. v. Shanklin, 94 Ind. i* People v. Tweed, 63 N. Y. 194. 297, 118 MOTIONS. [§§ 124, 125. statement of his allegations, the onus of having them so made cannot be cast upon his adversary by his own fault in failing to perform his duty.^ The form of the motion may be : Now comes the defendant and moves the court for an order requir- ing the plaintiff to make his petition definite and certain, in this, to wit — stating the grounds with particularity. Sec. 124:. Other motions. — A defendant may at any time before the commencement of the trial file a motion to require a non-resident of the county in which the action is brought to give security for costs.^ Sec. 125. Notice of motion. — Notices of motions are usu- ally regulated by rules of court. When required, it must be in writing, and contain the names of the parties or proceed- ing in which it is made, the name of the court or judge be- fore whom it is to be made, the place where and the day and hour on which it will be heard, the nature and terms of the order to be applied for, and must be served a reasonable length of time before the hearing.' Parties are bound to take notice of all motions made in court and during the pendency of an action in the manner pointed out by the rules.* Mo- tions to strike pleadings and papers from the files may be made with or without notice, as the court or judge shall di- rect.* ' Clark V. Dillon, 97 N. Y. 374. As to service of motions, see 0. Code, 2 O. Code, sees. 5340-43, 5344 sees. 5124, 5125. 3 O. Code, sec. 5123. * O. Code, sec. 5128, 4 Garner v. Cline. 2 W. L. M. 829. I I CHAPTER 10. AMENDMENTS, SUPPLEMENTAL PLEADINGS AND CONSOLIDA- TION OF ACTIONS. Sec. 131. Amendment relates back. 133. Amendment liow made. 133. Supplemental pleadings. 134. Same continued — Supple- mental petition. 135. Same continued — Supple- mental answer. 136. Immaterial errors. 137. Consolidation of actions. Sec. 126. Amendment of pleadings generally. 127. Amendment changing ac- tion not allowed. 128. Amendments — What and when made. 129. Same — After demurrer sus- tained. 130. Continuance after amend- ment. Sec. 126. Amendment of pleadings generally.— The law has always been fayorable to amendments of pleadings. Even when made orally the pleader was not held to the form of statement first made, and so the idea descends to us under the code. It has been considered that the code confers al- most unlimited power upon the court to permit amendment of pleadings in furtherance of justice/ but the time when they may be made is regulated by statute.'- Amendments are ])er- mitted upon the theory that it is better to preserve .and im- prove what has already been done than cast it aside. Impor- tant defects should be corrected as well as unimportant ; those of substance as well as ot form." Amendments may be made at the times prescribed by the code without leave. But at any other time an application for leave so to do must be made,^ and it rests largely in the discretion of the court. ^ And pleadings filed out of time without leave or consent of court will be disregarded.*^ A pleading which does not con- 1 Dresslei v. Davis, 12 Wis. 58 ; Deck V. Smith, 12 Neb. 393. ''' See sec. 128, j^ost. » Ellison V. Railroad Co., 87 Ga. 691. •«Tull03 V. Lane, 12 S. Rep. 508 (La., 1893). 5 Stith V. Fullenwider, 40 Kan. 73 ; Burtis V. Wait, 33 Kan. 482 ; Clark V. Clark, 20 O. S. 128 ; Bruck v. Bate- man, 25 O. S. 009 ; New burg Pet. Co. V. Weare, 44 O. S. 610 ; Ellison v. Railroad Co., supra. « Hopkins v. Cothran. 17 Kan. 173, 120 AMENDMENTS, ETC. [§ 127. tain a substantial cause of action is held not amendable in form ; ^ nor should an amended petition which states no cause of action be allowed to be filed,- and it will be disregarded or stricken out as irrelevant.^ Amendments must not be made for delay but in good faith.* Sec. 127. Amendment cliaiiging action not allowed. — It has been frequently asserted by the courts that an amendment cannot be permitted when a new or different cause of action is introduced ; ^ and this is the provision of the code, that is, the amendment must not substantially change the claim or defense.® It does not refer to the form of the remedy, but only to the claim or defense." A cause of action which has ac- crued since the commencement of the action cannot be brought in,^ This must be by supplemental petition.^ An action upon a contract cannot be changed to one in tort,^" or from tort to contract." Or an action on a fire insurance policy cannot be amended so as to make it an action upon a parol contract made after the issuance of the policy.^- A new cause of action, however, is not added where the amendment merely adds a specification of further allegations of negligence and unskil- fulness against a defendant.^^ And so with an amendment showing that an injury occurred in a different manner from that alleged in the original petition.^* Or an action for dam- ages resulting from the purchase of a horse may be amended to show an express warranty.'^ And where an action has been brought upon an account the petition may be amended so as to bring in a note given in settlement thereof.'^ The rule for- ' Ellison V. Railroad Co., supra. 9 See sec. 133. j^ost 2Rippe T. Stogdill, 61 Wis. 38; lOLink v. Jar vis, 33 Pac. Rep. 206 Hawkins v. Furnace Co., 40 O. S. (Cal., 1893). 507. "Cox V. Railroad Co., 87 Ga. 747; 2 Hawkins v. Furnace Co., supra. Carmichael v. Argard, 53 Wis. 607. 4 Ostrander T. Conkey, 20 Hun. J21. ^- Hill v. Assurance Corp., 26 Abb. 5 Shields v. Moore, 2 W. L. M. 437 ; N. C. 203. Freeman v. Grant. 132 N. Y. 22; 13 Ehlein v. Brayton. 21 N. Y. S. 825. Smead v. Chrisfield, 1 Handy, 573 ; i^ Smith v. Bogenschutz, 19 S. W. Hollister v. Livingston, 9 How. Pr, Rep. 667 (Ky., 1892). 140; Reeder v. Sayre, 70 N. Y. 181. i^Culp v. Steere, 47 Kan. 746, 6 0. Code, sec. 5114. J6Roe v. Holbert 18 S. W, Rep. 417 7 Poor V. Scanlan, 7 W. L. B. 15. (Tex., 1892). But see ch. 12, see. — . t* Randall v. Christiansen, 51 N. W. Kep. 253 (Iowa, 1892). § 128,] AMENDMENTS, ETC. 121 raerly was that amendments were not permitted where the purpose was to set up defenses which were termed uncon- scionable though legal, as usury, statute of limitations, or the like.^ But this has been departed from somewhat and amend- ments are permitted without regard to the nature of the de- fense.- It is perfectly clear that a party may, so long as he is permitted to amend as of right, set up any kind of a defense; but, as suggested by Mr. Bliss, when it becomes discretionary with the court, it should be controlled by equitable considera- tions,^ and an unconscientious defense is not favored inequity.* This may be correct in theory, but amendments are seldom refused in practice, and the rule adopted in the ]S"ew York cases is that most generally followed. In an action for slander where the petition charges the words to have been spoken against the plaintiff individually, an amendment may be made by showing that they were spoken of him in hi? business.^ It may easily be determined whether the same evidence will support the original and amended petition,^ and if not, then the pleading cannot be considered an amendment.' An ac- tion for money had and received cannot be changed to one for conversion,^ nor specific performance substituted for damages.* But a petition for false imprisonment may be changed to one for malicious prosecution,^" and malicious prosecution to false imprisonment." A new and different cause of action cannot be set up in an action on appeal. ^- Sec. 128. Amendments — ^Vhat and when made. — The ])laintiff may amend his petition without leave, at any time be- fore the answer is filed, without prejudice to the proceeding ; but notice of such amendment shall be served upon the defendant 1 Bliss on Code Pldg.. sec. 4ol. ^ Bliss on Code Pldg., sec. 431. 2 McQueen v. Babcock, 23 How. Pr. * Treasurer v. Martin, 50 O. S. 197. 239. Usury may be set up. Barnett ^ Shields v. Moore. 3 W. L. M. 437. V. Meyer, 10 Hun, 109. It is held « Scovill v. Glasner, 79 Mo. 449; to be discretionary in "Wisconsin. Lumpkin v. Collier, 69 Mo. 170. Plumer v. Clark, 59 Wis. 646 : Smith ' Scovill v. Glasner, 79 Mo. 449. V. Dragert, 61 Wis. 333. In Treasurer * Kotch v. Sieplein, 1 Clev. Rep. 17. V, Martin, 50 O. S. 197, the court say ^ Evens v. Hall, 1 Handy, 434. that the statute of limitations is a i" Johnson v. Corrington, 3 W. L. B. meritorious defense, but where an 1139. unfair advantage has been taken so ^' Spice v. Steinruck. 14 O. S. 213. that it becomes an unconscionable 12 Grant v. Ludlow, 8 O. S. 33; Wil- defense it should not be allowed. son v. Wilson, 30 O. S. 365. 122 AMENDMENTS, ETC. [§ 128. or his attorney; and the defendant shall have the same time to answer or demur thereto as to the original petition.^ And at any time within ten days after a demurrer is filed, the ad- verse party may amend, without leave, on payment of costs since the filing of the defective pleading; and notice of filing an. amended pleading must be forthwith served upon the other party, who shall have the same time thereafter to answer, or reply thereto, as to an original pleading.- When a demurrer is overruled, the demurrant may answer or reply, if the court is satisfied that he has a meritorious claim or defense and did not demur for delay.* The court may, before or after judg- ment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding, by add- ing or striking out the name of any party,* or by correcting a mistake in the name of a party,' or a mistake in any other re- spect, or by inserting other allegations material to the case, or when the amendment does not substantially change the claim or defense, by conforming the pleading or proceeding to the facts proved; and when an action or proceeding fails to conform to the provisions of this title of the code, the court may per- mit the same to be made conformable thereto by amendment." Amendments under this provision rest entirely within the discretion of the court, and should be allowed at any stage of the trial in furtherance of justice.^ In fact it is considered the duty of the court to so allow the amendment.^ This, however is subject to the limitation that the cause of action must not be changed, nor cause delay, or be prejudicial to the defendant,* nor should the amendment leave the cause of ac- 1 O. Code, sec. 5111 ; Quinlan v. Co. v. Wysong, 8 O. C. C. 211, 212, Danford, 28 Kan. 507. aTiiendment after verdict 2 O. Code, sec. 5112. ' Tli is does not substantially change 3 O. Code, sec. 5113; Roose v. Per- the claim or defense. Dewey v, Mr- kins, 9 Neb. 304, 310. Lain, 7 Kan. 126. < Liggett V. Ladd, 23 Greg. 26; 31 *'0. Code, sec. 5114 Pac. Rep. 81 (1892). The real party in 'Railroad Co. v. Brown, 29 Nel'. interest may be substituted. Clawson 492 ; Link v. Jarvis, 33 Pac. Rep. 20(i V. Cone, 2 Handy, 67. As to adding (Cal; 1893) ; Guidery v. Green, 95 Cal. or striking out the name of a party, 630; 30 Pac. Rep. 786; Railway Co. see Ansonia Rubber Co. v. Wolf, 1 v. Morgan, 132 Ind. 430 ; 31 N. E. Rep. Handy, 236. As to amendment add- 661 (1892). ing new parties, see Liebmann v. 8 Becker v. Walworth, 45 O. S. 17."). McGraw, 3 Wash. 520. See Railway »HaIl v. Railway Co., 84 lowji, 311 ; 51 N. W. Rep. 150 (1892). § 128.] AMENDMENTS, ETC. 123 tion* incomplete.' "Where justice requires it, an amendment may be made in the court of last resort ^ as well as upon np- peal.' The petition may be amended to conform to the proof ; * as, for instance, where the proof shows that the plaintiff had been run over, which the petition fails to state, it may be amended to meet the proof.^ An amendment may be made by inserting the time of payment of a note sued upon," or the dates when slanderous words were spoken may be inserted by amendment in an action for slauderJ And in an action on a contract the petition may be amended so as to claim the act- ual value of work done and materials furnished instead of the contract price as originally claimed.^ A new cause of action not inconsistent with the one originally stated may be set forth ; ' or a petition claiming damages for a wrongful arrest may be amended by striking out the averment of " want of probable cause " and alleging that it was made illegally and with force ;'° or matter may be more fully set out.'' Addi- tional material allegations which change the nature of the ac- tion may be inserted,''^ so long as the subject-matter of the action remains the same.'' Matters of description in a suit affecting realty may be changed ; '^ and so may some fact omitted in a petition essential to raise a duty involved in the action be supplied,'^ or the prayer may be changed.'" But such an amendment will be unavailable unless the original petition contained a cause of action." It has been held that amend- 1 Ellison V. Railroad Co., 87 Ga. 691. w Spice v. Steinrock, 14 O. S. 213. 2 Humphries v. Spafford, 14 Neb. A part of a cause of action may be 488. 490. withdrawn. Watson v, Rushmore, 3Horton v. Horner. 14 O. 437; 15 Abb. Pr. 51. Grant V. Ludlow, 8 O. S. 1 ; Brock v. ^^ Hiutrager v. Richter, 52 N. W. Bateraan, 25 O. S. 609 ; Kilgore v. Rep. 188 (Iowa, 1892J. Emmett, 33 O. S. 410. 12 Railway Co. v. Salmon. 14 Kan. 4 McWhinne v. Martin. 77 Wis. 182. 512. See Railway Co. v. Morgan. 31 N. K 13 Baldock v. Atw ood, 21 Oreg. 73. Rep. 661. 1^ War4 v. Parlin, 30 Neb. 376 ; 46 5 Foley V. S. & T. Co., 85 Mich. 7. N. W. Rep. 529 {1890> See Frey v. 6 Tribune Pub. Co. v. Hamill, 2 Colo. Owens, 27 Neb. 862. App. 237 ; 30 Pac. Rep. 137 (1892). " Ellison v. Railroad Co., 87 Ga. 691. 7 Beneway v. Thorp, 77 Mich. 181. 16 Draper v. Moore, 2 C. S. C. R 167 ; 8 School District v. Boyer, 46 Kan. Getty v. Railroad Co., 6 How. Pr, 54; 26 Pac. Rep. 484 (1891). 269: Dawson v. Mighton, 1 Clev. Rep. 9 Brown v. Leigh, 49 N. Y. 78; 115. Sheldon v. Adams, 41 Barb. 54. '" Dawson v. IMigbton, supra. 124 A>!ENDMENTS, ETC. [§§ 129, 130. ments may be made by reference to and adoption of specified portions of counts, and by adding thereto averments so as to constitute another separate count.^ An amendment may be made for the purpose of explanation or more fully setting forth a cause of action.- Greater privileges are granted a de- fendant in respect to amendment. He may urge as many defenses as he may have, and he may change or add to them, and is restricted only to the extent that he should not be al- lowed to set up a new defense late in the action.^ See. 129. Same — After demurrer sustained. — If the de- murrer to a pleading be sustained the adverse party may amend, if the defect can be remedied by amendment, as the discretion of the court may direct.* But where leave to amend is not granted judgment may be rendered on the petition.* And if a petition is amended after a demurrer is sustained all errors are thereby waived.^ And so with a defendant who files an amended answer after demurrer has been sustained to his original answer.* A defendant is not entitled as a matter of right to demur anew to an amended pleading.^ And it cannot lie on the ground that it predicates its right to recover upon a fact which did not exist when the original petition was filed.® Sec. 130. Continuance after amendment. — When either party amends a pleading or proceeding and the court is satis- fied, by aflBdavit or otherwise, that the adverse party can- not be ready for trial in consequence thereof, a continuance may be granted to some day in term, or to another term of court.^*' After filing an amended petition the defendant is en- titled to the usual time in which to answer.^^ A court may properly refuse to admit an amendment which may necessi- 1 Birmingham, etc. Ry. Co. v. Allen, Pac. Rep. 386 (1892) ; Evans v. Insur- 13 S. Rep. 8 (Ala., 1892). ance Co., 5 Ind. App. 198; 31 N. E. 2 Valencia v. Couch, 33 Cal. 339 ; Rep. 843 (1892) ; Harris v. Railroad Stryker v. Bank, 28 How. Pr. 20. Co., 88 Va. 560 (1892). 3 Bryant on Code Pldg., sec. 230. 8 Smith t. Dorn, 96 Cal. 73. See an^e, sec. 78. ^Null v. Jones, 5 Neb. 500. Only *0. Code, sec. 5116. the amended pleading can be looked SDevoss V. Gray, 22 0. S. 159. 160. to. Id. 6 Gale V. Tuolumne W. Co., 14 Cal. lOQ. Code, sec. 5117. 26 ; Canceart v. Henry, 33 Pac. Rep, ^i Mather t. Furoace Co., 1 W. L. M. 92 (Cal., 1893). 351, ''Sylvester v. Craig, 18 Colo. 44; 31 §§ 131, 132.] AMENDMENTS, ETC. 125 tate a continuance without abusing its discretionary powers.* Where delay is caused by an amendment to an answer the court may impose such terms as will compensate the plaintiff for any injury caused t hereby .- Sec. 131. Ameudment relates back.— The amended plead- ing is substituted for and takes the place of the original;' the latter of which is disregarded and the case tried upon the amended one, and no benefit can be derived from the original.* The amended pleadmg or petition relates back to the com- mencement of the action, and the rights of the parties are determined as of that time ; the statute of limitations ceases to run when the original petition is filed.* Sec. 132. Ameiidmeiit, how made, — Some courts have held it to be the settled and approved practice to make minor amendments, such as adding to or striking out the name of a party, correcting dates or obvious errors, by way of inter- lineation and erasure. But where new claims and demands are introduced, or allegations are added or stricken out, the pleading should be rewritten and the new matter set forth as in an original. It cannot be done by mutilating' or alter- ing the files.*^ The rule as shown by the authorities in the note is believed not to be the universal one.' It is not in any event necessary to rewrite the entire pleading, but the iSkagil Ry. etc. v. Cole, 2 Wash. 1890); Wisner v.Ocumpaugh, TIN. Y. 57. 113. 2 Burns v, Scooffy, 98 Cal. 271; 33 ^Hill v. Supervisor, etc., 10 O. S. Pac. Rep. 86 (1893) ; Griffin v. Same' 621. In Missouri it is held that it 33 Pac. Rep. 88 (Cal., 1893). may be made by interlineation, even » Bank v. Telegraph Co., 30 O. S. an averment of an additional de- 555; Gillman v. Cosgrove, 22 Cal. mand. South Jophin Land Co. v. 356; Brown v. Mining Co., 32 Kan. Case, 104 Mo. 572. See Werborn v. ^28. Austin, 8 S. Rep. 280; 82 Ala. 498; *Bank v. Telegraph Co., siqyra; Fitzpatrick v. Gebhart, 7 Kan. 35, Smith V. Wigton. 35 Neb. 460 ; 53 holding that it may be made by in- N. W. Rep. 374 (1892). An amended terlineation by writing on separate answer supersedes the first. Reihl v. paper. If the amendment is short Likowski, 33 Kan. 515. and scarcely if at all material, it is 5 Barber v. Reynolds. 33 Cal. 497 ; not an abuse of discretion to allow Allen V. Marshall, 34 Cal. 165 ; Brown it to be made by interlineation. See V. M. & S. Co., 32 Kan. 528 : Loren- Simpson v. Greeley, 8 Kan. 586. zana V. Camarillo. 45 Cal. 125; Link 'See ante. sec. 20: Blank v. Mor- V. Jarvis. 33 Pac. Rep. 206 (Cal. 1893) : rison. 1 Clev. Rep. 195. Miller V. Cook, 25 N. K Rep. 756 (111., 126 AMENDMENTS, ETC. [§ 133. amended part may be written upon separate paper, and alle- gations in the original pleading may be incorporated into the amended one by reference.* The better and more orderly' course, however, is to rewrite the original and incorporate the amendment in it. Sec. 133. Supplemental pleadings. — The right to file sup- plemental pleadings conferred by the code simply declares the law as it existed before,^ and while it is so conferred by statute it is still largely discretionary with the court.' It can only be allowed on motion, but should not be permitted upon trial.* It is provided that : Either party may be allowed, on such terms as to costs as the court, or a judge thereof, may ]irescribe, to file a supplemental petition, answer or reply,' al- leging facts material to the case which occur subsequent to the filing of the former petition, answer or reply; but reason- able notice of the application must be given when the court or judge so requires.^ It is almost a matter of course to allow a supplemental pleading to be filed, when the application is promptly made,^ though it should not be allowed upon an ex 2>aHe application.^ It is designed, not to supply omissions or defects, but to introduce facts that have transpired since the action was brought, to strengthen a cause of action or de- fense.*' Unlike an amended petition, a supplemental one- never takes the place of an original ; the issues joined in the original pleadings remain as issues to be tried, and as a gen- eral rule the supplemental petition does not state a cause of action.'" Upon the theory, therefore, that a supplemental petition is not an independent one, or complete in itself, but must be taken and considered with the original, to constitute the petition, a demurrer, therefore, should not be filed to the 1 Mahaska County State Bank v. ' Sage v. Mosher, 17 How. Pr. 367. Crist, 54 N. W. Rep. 450 (la., 1893); spleischman v. Bennett. 79 N. Y. Birmingham, etc. Ry. Co. v. Allen, 579. 13 S. Rep. 8 (Ala., 1892i; Eigenman sNave v. Adams, 107 Mo. 414-15; T, Rockport, etc., 79 Ind. 41. Dillman v. Dilhnan, 90 Ind. 585 :: - Spears v. Mayor, 72 N. Y. 442. Porter v. Wills, 6 Kan. 453 ; Gibbon 3Medbury v. Swan, 46 N. Y. 200; v. Dougherty, 10 O. S. 365. Smith T. Smith. 22 Kan. 609: Hard- layers v. Met. EL Ry.. 12 N. Y. S. ing V. Minear. 54 Cal. 69^. 2 ; Hay ward v. Hood. 44 Hun, 129 : i Lyon V. Isett, 42 How. Pr. 155. Farmers' L. & T. Co. etc. v. Tel. Co.,. 5 Ormsbee v. Brown, 50 Barb. 436. 47 Hun, 315. «0. Code, sec. 5119. § 134.] AMENDMENTS, ETC. 127 supplemental pleading, as it is not authorized by the code. This view is adopted by a number of authorities.* A defend- ant may also be permitted to file a supplemental answer,^ and the plaintiff a supplemental reply.' The course pursued to obtain leave to file a supplemental pleading is to file a mo- tion for that purpose, which is generally supported only by professional statements of counsel. The name of a pleading is not controlling and if one be styled supplemental but con- tain facts which should properly be in an amended petition, it will be so treated.* To avoid repetition it may be made a part of the original petition by reference.* Sec. 134. Same continued — Supplemental petition. — A new cause of action or claim cannot be set up in a supple- mental petition, especially one to which the plaintiff was not entitled when he commenced his action." As already stated,^ only those rights which have accrued subsequently to the fil- ing of a petition,^ as title acquired after suit is brought, may be set up;^ or a suit may be continued by supplemental plead- ing against a representative of a deceased party;'" or to in- clude a note falling due during pendency of foreclosure pro- ceedings;" or it may not only insist upon relief already prayed for, or upon different relief when facts occurring since may require it ; '^ and by stockholders seeking to enforce a contingent liability of other stockholders who have assigned their stock ; '^ or new parties defendant who have become lia- ble since the filing of the action may be thus brought in." A wholly defective petition, however, cannot be amended by filing a supplemental petition founded upon matters which have subsequently taken place.'^ ' Myers v. Met. El. Ry., 12 N. Y. S. Farmers', etc. Trust Co. v. Telegraph 2; Lewis v. Rowland, 30 N. E. Rep. Co., 47 Hun, 315. 796; 131 Ind. 37 (1893); Peters v. 7 ^jife, sec. 123. Banta, 120 Ind. 416; Farris v. Jones, sporter v. Wells, 6 Kan. 453. 112 Ind. 498. 9 Moon v. Johnson, 14 S. C. 434. 2Hoyt V. Sheldon, 4 Abb. Pr. 59. l« Carter v. Jennings, 24 O. S. 182. 3 Ormsbee v. Brown, 50 Barb. 436. n Glenn v. Hoflf man, 3 W. L. M. 599. < Cincinnati v. Cameron, 33 O. S. 12 Miller v. Cook, 135 III. 192. 336. See Miller v. Cook, 135 111. 192; iSKilgrus v. Si. Ry. Co., 8 W. L. B. Lewis V. Rowland, 131 Ind. 37. 23. 5 Gibbon v. Dougherty, 10 O. S. 365. ^* Prouty v. Railroad Co., 85 N. Y. « Tiffany v. Bowerman, 2 Hun, 643 ; 272. 15 Miller v. Cook. 135 111. 193. 12S AMENDMENTS, ETC. [§§ 135-137. Sec. 135. Same eoiitiiiiied — Supplemental answer. — A defendant is given more latitude than is the plaintiff in refer- ence to filing supplemental answers. A supplemental answer takes the place of the \Aesi pitis darreigyr continuance at com- mon law. and must be pleaded before the next continuance, after the facts or events have occurred and become known.^ That a defendant may file such an answer as a matter of right, the proposed plea must be true and a good defense.- He may introduce matters of defense which existed at the time of fil- ing his original answer but of which he was ignorant ; ^ or title acquired during the pendency of the suit, and other matters subsequently arising,* if material to the defense,' though as a rule a technical defense should not be allowed to be filed after time to answer has expired.' Although the right to file a sup. plemental answer is in a measure discretionary,' yet if the facts set forth make a perfect defense, it becomes the duty of the court to admit it.^ See. 136. Immaterial errors. — The code requires that in every stage the court must disregard any error or defect in the pleadings or proceedings which does not affect the sub- stantial rights of the adverse party, and no judgment shall be reversed by reason of such error or defect." This provision has reference to motions to amend,^" or other motions touching formal matters,^^ and unless there has been an abuse of dis- cretion the ruling of the court thereon cannot be disturbed. Sec. 137. Consolidation of actions. — When two or more actions are pending in the same court, the defendant may, on motion, and notice to the adverse party, require him to show cause why the same shall not be consolidated ; and if it appear that, at the time the motion is made, the actions could have been joined, and if the court find that they ought to be joined, the several actions shall be consolidated.^'^ The whole question 1 Tilton V. Morgaridge, 12 O. S. 104. 2 Morel V. Garelly, 16 Abb. Pr. 269. 3 Hoyt V. Sheldon, 4 Abb. Pr. 59. 4 Moss V. Shear, 30 Cal. 467. sRadley v. Houghtaling. 4 How. Pr. 251; Lyou v. Isett, 42 How. Pr. 155. 6 Hoyt V. Sheldon. 4 Abb. Pr. 59. 7 Medbury v. Swan, 46 N. Y. 200 ; Teflft V. Tiery, 22 Kan. 753 ; Spears v. Mayor, 72 N. Y. 442. s Drough V. Curtis, 8 How. Pr. 56. 9 O. Code, sec. 5115. 10 Fitzgerald v. Neustadt, 91 CaL 600 ; 27 Pac. Rep. 936 ; Rogers v. Hodg- son. 46 Kan. 276. 1' Bear v. Knowles, 36 O. S. 43. 12 0. Code, sec. 5120. I 13T.J AMENDMENTS, ETO. 129 under this provision hinges on the fact whether the two cases may properly be joined.^ And the power to order a consolida- tion exists independently of statute.' Where actions brought by different parties are consolidated without change in the pleadings, the petition of one plaintiff cannot aid that of another of which it is no part,^ and the original actions are discontinued, the consolidated one only remaining.^ An action for services may be consolidated with one for breach of con- tract of sale;* or several actions in ejectment;® or a separate suit upon a note with one upon the mortgage securing it may be consolidated.' The object of consolidation is to prevent a multiplicity of suits and to save costs. 1 Newberry v. Alexander, 44 O. S. * Hiscox v. N. Y. S. Zeitung, 93 N. 346. Y. S. 682. 2 Patterson v. Eakin, 87 Va. 49; 12 'Grant v. Davis, 31 K E. Rep. 587 S. E. Rep. 144 (1890). (Ind. App., 1893). 3 Hinckley v. Pfister, 83 Wis. 64. « Jackson v. Stiles, 5 Cow. 282. ' Hewlett V. Martin, 3 W. L. G. 266. 9 CHAPTER 11. ACCORD AND SATISFACTION. Sec. 138. Defined. 139. Consideration therefor. 140. What constitutes an accord and satisfaction. 141. Who may make. 142. Rules of pleading in accord and satisfaction. 143. Setting aside. Sec 144. General answer of accord and satisfaction. 145. Answer claiming settle- ment by note. 146. Answer pleading compro- mise. 147. Answer pleading compro- mise with creditors. Sec. 138. Defined. — An accord and satisfaction is defined to be an agreement between parties to receive some act or thing in satisfaction of a claim or injury; to be of any effect as a defense or bar, it must be upon a consideration; it is also essential that there be an actual acceptance before satis- faction will be deemed to have been made ; as an accord with- out a satisfaction is not a bar to an action ; there must also be a performance under the accord.^ Sec. 139. Consideration therefor. — An accord and satis- faction being a new agreement between parties into which an original one is merged, must necessarily be upon a new consideration, as any other contract. While it may be true that what will or will not constitute a consideration may de- pend upon the particular circumstances of each case,^ there have been many adjudications upon this question which will serve as a guide in like cases. A mere moral obligation, how- ever, cannot be deemed a sufficient consideration ; an obliga- tion of honor cannot be enforced ; as, for example, where a man has compromised with his creditors by paying a certain per cent, of his indebtedness, a subsequent promise by the debtor to pay one of the creditors the full amount of his indebtedness is without consideration, and cannot be enforced.' 1 Ellis V. Bitzer, 2 O. 89-94; Frost V. Johnson, 8 O. 394; Ogilvie v. Hall- man, 58 la. 714; Russell v. Lytle, 6 Wend. 390. 2 Hall V. Smith, 15 la. 584; Bab- cock V. Hawkins, 23 Vt. 561. 3 Lewis V. Simons, 1 Handy, 83; Way V. Langley, 15 O. S. 392. See as § 140.] ACCORD AND SATISFACTION. 131 Among the things which, have been held to constitute a consid- eration is an agreement to pay at an earlier date or different place; ^ or the taking of other and different securit}'-;^ but in order that the acceptance of new security shall operate as payment it must appear that such was the intention of the parties.^ Or a release of a claim which might be brought against a party ; even though the claim be invalid, it will nev- ertheless operate as a sufficient consideration to support an accord.* Mutual promises to do something in the future simply amount to an accord without satisfaction, and do not, therefore, furnish any consideration ;5 nor does an agreement by parties to a suit that it shall be decided for one or the other according to the result of another suit pending between them constitute a consideration, as it is a mere waffer. and void.^ But a compromise made by a debtor with his creditor by which it was agreed that the debtor should pay a claim which the creditor was owing a third party, which is less, however, than the amount due from his debtor, is neverthe- less a good consideration ; especially where it is made under an agreement that a trial should not be had of a suit which the creditor had instituted for the enforcement of his claim while negotiations are pending for settlement, the compro- mise being the result of that agreements The new consider- ation having been accepted and acted upon, a suit cannot then be brought upon the original liability, but must be upon the compromise.^ The subject of consideration runs largely into the next section. Sec. 140. What constitutes an accord and satisfaction.— The rule at common law and the general American rule sup- ported by numerous authorities is that part payment of a to moral consideration, Jennings v. * Wilder v. Railroad Co., 25 Atl. Brown, 9 M. & W. 496 ; Eastwood v. Rep. 896 (Vt., 1892). Kenyon, 11 A. & E. 438. 6 Frost v. Johnson, 8 O. 393; Dunn 1 Barry v. Goodrich, 98 Mass. 335 ; v. Life Insurance Co., 8 Am. Law Bowker v. Childs, 3 Allen. 434. Rec. 569 ; Bird v. Smith, 34 Me. 63 ; 2 Boyd V. Hitchcock, 20 Johns. 76 ; 56 Am. Dec. 635. Pullian V. Taylor, 50 Miss. 251 ; Mc- 6 Gittings v. Baker, 2 O. S. 21. Intyre v. Kennedy, 29 Pa. St 448; Ulitchell v. Knight, 7 O. C. C. 204. Bowker v. Harris, 30 Vt. 424 ; Kel- 8 Parkison v. Boddiker, 10 Colo, ler V. Salisbury, 33 N. Y. 648. 503 ; 15 Pac. Rep. 806 (1887). •Kemmer's Appeal, 102 Pa. St. 558. 132 ACCORD AND SATISFACTION. [§ 140. debt, although accepted by a creditor in satisfy ,ction thereof, does not constitute an accord and satisfaction, nor operate as a bar to an action for the recovery of a balance, even though the parties have expressly agreed that it shall be a release of the entire amount ; there is no consideration, but is merely a midum pactum} The strict common-law rule, however, was so technical and so often fostered bad faith that it has been very materially departed from, and a very slight considera- tion allowed to support an agreement to accept a less sum, or an actual acceptance of a loss sum, made binding upon va- rious considerations ; as, for example, payment at a different place than that named in the contract or before the debt is due;^ or a payment of a debt in bills of exchange, goods on hand and goods to be manufactured, although it amounts to less than the debt ; ' but the surrender of a doubtful right and a settlement made upon it, in the absence of fraud, will not be disturbed, especially where the parties cannot be restored to their original situation.* Want of consideration cannot be urged in such case as a defense, as the compromise of a doubt- ful right or claim is regarded as a sufficient foundation for an agreement.' It has been held in Pennsylvania that a partial payment of an undisputed claim under an agreement to re- ceive it in full satisfaction cannot be treated as an accord and 1 Bailey v. Day, 26 Me. 88 ; White V. Jordan, 27 Me. 370 ; Rose v. Hall, 2G Conn. 392 ; S. C, 68 Am. Dec. 403 ; Kerr v. O'Connor. 63 Pa St. 341; Tuitchell V. Sha%v. 57 Am. Dec. 80; Grinnell v. Spike. 128 Mass. 25 ; War- ren V. Skinner, 20 Conn. 559; Ryan V. Ward, 48 N. Y. 204; Fire Insur- ance Co. V. Wickham, 141 U. S. 464; W\\\en V. Eldridge, 126 Ind. 461 ; S. C, 27 N. E. Rep. 132. See Curran v. Rummell, 118 Mass. 482; Clifton v. Litchfield, 106 Mass. 34. If the debt is uncontroverted, payment of an amount less than the amount due is no defense. Fletcher v. Wurgler, 97 Ind. 223; Markel v. Spitler, 28 Ind. 488. The assignee is bound by the agreemeutof the assignor. Pontious V. Durflinger, 59 Ind. 27; Shade v. Creviston. 93 Ind. 591. 2 Ante, sec. 139 ; Harper T. Graham, 20 O. 105 ; Smith v. Wyatt, 2 G S. S. R 13: Mitchell v. Kniglit, 7 O. C. C. R 207; Jones v. Perkins, 64 Am. Dec. 136 ; Fenwick v. Phillips, 3 Met 87 ; McKeuzie v. Culbreth, 66 N. C. 534 ; Harriman v. Harriman, 12 Gray, 341. 3 Rose V. Hall, 68 Am. Dec. 402 ; 26 Conn. 392. * More V. Powell, 1 Disn. 144 5 Svvem V. Green, 9 Colo. 358 ; Moore V. Powell, supra; Commissioners v. Hunt. 5 O. S. 488; S. C, 67 Am. Dec. 303; Weed v. Terry, 45 Am. Dec. 257 ; Mills v. Lee, 17 Am. Dec. 118. § 140.] ACCOED AND SATISFACTION. 133 satisfaction so as to prevent a recovery of the balance.^ And a promise made upon a compromise of a doubtful claim which is groundless is not binding.^ Even though there may have been fraud in a settlement or compromise, the contract must be re- scinded and the amount received thereunder tendered back if the party desires to repudiate it.^ Dismissal of a suit for a nuisance prosecuted in good faith is a good consideration for a contract to discontinue the business, such as a chemical lab- oratory which was the cause of the nuisance;^ or the receipt of a portion of money lost at gambling may operate as a satis- faction for a larger sum so lost.' If a mortgage be released by a compromise between parties, the transaction or compromise is an entirety and the consideration for the release cannot be avoided without also avoiding the release;' and where a third person who has by agreement with a mortgagor assumed pay- ment of a note and mortgage desires to obtain more time, whicli the holder refuses, gives the holder his check, and procures another person to buy the note and mortgage, such other per- son not knowing that he is buying from a party who is obliged to pay, but believing he is buying title from some one else, may recover from the maker.' There must alwavs be a mutuality of understanding be- tween the parties to an accord and satisfaction. So. where an insurance company places insurance upon property and afterwards there is a re-issue by another company, and, loss occurring, the insured settled with the first company for a certain sum in full satisfaction of his claim, and the second company settled upon the same basis, without any agreement with the insured, such an accord cannot be binding because the parties did not arrive at a mutual understanding.* Where a person who has secured a judgment against several parties makes an arrangement with the sheriff by which a compro- mise is made through that officer, and one of the parties is 1 Commonwealth v. Cummina 155 5 Smith v. Wyatt, 2 C. S. C. R 12. Pa. St. 30 ; 25 Atl. Rep. 996 (1893). SHeighway v. Pendleton, 15 O. 736 2Schnell v. Nell, 17 Ind. 29; S. C, (1846 j. 79 Am. Dec. 453. 7 McFarland t. Norton, 3 W. L. B. 'East Tennessee, etc. Ry. v. Hayes 368. 83 Ga. 508 (1889); Home Ins. Co. v. 6 Detroit, etc. Ins. Co. v. Commer- McRichards, 121 Ind. 121 (1889). cial Mutual Ins. Co., 1 Clev. Rep. 81. V. St.>rv. 4 E. D. Smith. 54. 140 ACCORD AND SATISFACTION. [§§ 144, 145. be unknown in law.^ It might be added that a distinction can be clearly drawn between an adjustment amicably made and one made under duress or restraint. Sec. 144. General answer of accord and satisfaction, — \_Caption.'] On the day of , 18 — [or^ after the cause of ac- tion stated in the petition accrued, and before this action was brought], defendant paid to the plaintiff the sum of dollars, which sum the said plaintiff received in full satis- faction and discharge of the claim set forth in his said pe- tition. Wherefore he demands judgment for costs. Another form : — That he, tb-^ said defendant, before the commencement of this action, to wit, on the day of . IS — , paid to the said plaintiff the sum of dollars in full satisfaction and discharge of the sum in the said breach of covenant men- tioned, and of all the damages mentioned, by reason of the non-payment thereof: which said sum of dollars the said plaintiff then and there accepted and received of and from this defendant in full satisfaction and discharge of the said sum in the said breach of covenant mentioned, and of the damages of the said plaintiff by him sustained by reason of the said breach of covenant. Sec. 145. Answer claiming settlement by note. — [Capt{o7i, etc.'] That prior to the day of , 18 — , defendant made several payments in different amounts on the account sued on, and a dispute having arisen between the plaintiff and de- fendant as to the amount of said payments and the sum act- ually due on said account, and in consideration of which, and to avoid expense and litigation, it was mutually ao-reed that defendant should execute and the plaintiff receive, in full sat- isfaction of said account, the defendant's note, due on the day of , 18 — , for the sum of dollars, in full satisfac- tion of said account and in settlement of said dispute, which note defendant then and there executed to the plaintiff, and said plaintiff accepted the same in full satisfaction of said ac- count. Note. — Many authorities hold that a note given and actually received and accepted in settlement of a debt will bar an action on the oritrinal, even though the note is not paid, Wytnan v. Fabeus, 111 Mass. 81 ; Bangor v. Warren, 34 Me. 324; Stephens v. Tlionipson, 28 Vt 77; Fowler v. Bush, 21 Pick. 230 : Hudson v. Bradley, 2 Cliff. 130. Circumstances may, however, vary cases, and evidence may be received to show that it was not intended as a settlement or payment of a contract debt Lovell v. Williams, 12-5 Mass. 439: Parnham Machine Co. v. Brock, 113 Mass. 194: Perrin v, Keene, 19 Me. 35.5 ; Graham's Estate. 14 Phila. 2^0, As to checks, see Weddigen v. Boston Elastic Fabr. Co., 100 Mas?. 422, ' Matthews V. Driggs, 1 W. L. B. 31. 4 §§ 146, 147.] ACOOED AND SATISFACTION. 141 Sec. 146. Answer pleading compromise. — That before this action was brought, to wit, on the day of , 18 — , the plaintiff presented to this defendant a claim for the sum of $ , which he claimed to be due [for services rendered him as — whatever they may be], which said defend- ant refused to pay because [state facts as to grounds of refusal^ as, for example, that the claim was doubtful, or, that the de- fendant denied that plaintiff had rendered services to the extent claimed]. That thereupon it was mutually agreed between the said plaintiff and defendant that they should compromise said claim, and it was thereupon agreed that the defendant was to pay and the plaintiff to accept the sum of $ in full satis- faction thereof, which said sum the defendant so paid, and the plaintiff in pursuance of said agreement accepted the same. Sec. 147. Answer setting up compromise with creditors. Defendant admits that on the day of , 18 — , he was indebted to the plaintiff as set forth in the petition, but al- leges that on or about the day of , 18—, being in embarrassed circumstances, a composition agreement was en- tered into between himself and his creditors, including the plaintiff, whereby he was to pay a certain sum, to wit, $ , to be distributed jpT-o rata among said creditors, upon the pay- ment of which sum the said plaintiff and the other creditors were to release the defendant of the remaining per cent. of the original indebtedness ; that the defendant thereupon complied with all the terras of said agreement, and paid the sum agreed upon to the plaintiff and other creditors in full satisfaction of the plaintiff's deb<- and the several debts of such creditors respectively, each covenanting and agreeing with the defendant to accejpt the sum in full satisfaction of all claims and demands against him. CHAPTER 12. ACCOUNT. Sec. 148. Account defined — What may be subject of ac- count. 149. Payments on account, how treated. 150. Effect of charges as reflect- ing on whom credit is given. 151. Pleading in account. 152. Ordinary form of petition, and notes on evidence. 153. Petition for goods sold and money advanced. 154. Petition for labor performed and materials furnished. 155. Petition on account against partnership — Averment as to acknowledgment of correctness. Petition for account for at- torney's fees. For services rendered as auctioneer and money expended. 156. 157. Sec. 158. Action by assignee of ac- count and form of plead- ing- 159. Limitation of actions on. 160. Account stated — Defined. 161. Account stated may be opened. 162. Pleading account stated. 163. Petition on account stated. 164. Petition to correct account stated. 165. Answer and cross-petition claiming set-off for serv- ices rendered. 166. Answer setting up statute of limitations. 167. Answer of settlement by note. 168. Answer setting up fraud or mistake in account stated. 169. Judgment on account. Sec. 148. Account defined — What may be subject of ac- count. — An account is defined as a detailed statement of the mutual demands in the nature of debt and credit between parties, arising out of contract or from a fiduciary relation.' A book account is an entire thing, as much as articles of agreement or a bond. It is made up of difl'erent items charged from time to time as articles may be delivered or labor per- formed, but it is the whole — all the items charged constituting the account. It is not closed until the dealings between the parties have ceased, or until it is done by some other act by them performed.^ It is kept in a regular book of accounts, iWhitwell v. Willard. 1 Mete. 216. 2 James v. Eichmond, 5 O. 337. § 148.] ACCOUNT. 143 although it is not essential that the items be so entered, if they are such as usually form the subject of a book account.^ A statement of a balance is not an account, and the debits and credits must therefore be given.^ The proper subjects or items which go to make an account must necessarily depend upon the facts in particular cases and vary with the nature of dealings between parties. It may consist of articles properly the subject of an account, and also other cash items not or- dinarily the subject of an account;^ or it may be for work and labor performed, and goods sold and delivered ; * or for services and money loaned or paid for the use of another; ' or goods sold and delivered and cash paid for shipment, or for the value of goods sold for another on commission;^ or rent of real estate, when so considered by the parties, may be the subject of account.^ Otherwise, in the absence of any inten- tion of the parties to treat it as an account, an action must be regularl}" brought for use and occupation as pointed out elsewhere.^ A check book is not a book account.^ Money of any considerable amount is not the proper subject of a book account ; ^^ still, if in the course of business small sums are pass- ing between parties, these may with propriety be charged on book, and proved as other items of account." An account made out on a loose sheet of paper is not a book account.^- Where a claim or demand for money arises upon a contract and is for something furnished or performed by one party for » Black V. Chesser, 12 O. S. 621-3. where there are mutual dealings and 2McWillianis v. Allan. 45 Mo. 573, accounts between the parties, and ar- 3 McKemy v. Goodall, 1 O. C. C. 23 ; tides are delivered or services ren- 13 W, L. B. 295. dered which are intended to be ap- * Dallas V. Fernan, 25 O. S. 637. plied in payment of rent, then the 5 Averill Coal & Oil Co. v. Verner, same may be adjusted in the form of 22 O. S. 372 ; Ralston v. Kohl, 30 O. S. an account. Book debt will not lie 92. for use and occupation. Beach v. 6 Dudley v. Geauga Iron Co., 13 O. Wills, 5 Conn. 493. S. 172-3. *< See ch. 53, Landlord and Tenant, 7Nedvidekv. Meyer, 46MO.600. In sec. 739. Trial courts in Ohio have Roe V. Holbert, 18 S. W. Rep. 416 (Tex., sustained demurrer to petition on an 1892), a suit was filed before a justice account for rent, on an open account for rent. In Case 9 Wilson v, Goodin, W. 219. V. Berry, 3 Vt. 332, it was stated that 'O Hough v. Henk, 8 O. C. C. 354 an action would not lie on account ^ Cram v. Spear, 8 O. 496. for use and occupation of lands. But i- Kennedy v, Ankrum, Tapp. 8. 144 ACCOUNT. [§ 149. another, but is not founded upon a promissory note or other instrument In writing, and a statement of such claim is made out in detail in writing and presented to the debtor, such statement constitutes an account.^ By virtue of statute- a contract granting an option to buy or sell at a future time, when the commodity is not to be de- livered, the party losing to pay the difference in the market price, is a gambling contract or wager upon the future price of the commodity, and an account cannot be founded upon such transaction. The fact that one of the parties assumes to make the purchase or sale as a commission merchant merely will not alter the relation, and the loser may recover ' from the winner.* Nothing is more productive of mischievous re- sults than dealings in options ingrain or in other commodities, and no subtle finesse of construction ought to be adopted to t'efeat the penalties against such gambling transactions.^ Sec. 149. Paymeuts oii account, liow treated. — Payments upon a single open current account between parties, not shown to have been made in the discharge of a particular item, are always imputed to the earliest item on the debit side at the time of payment, as the law, upon equitable principles, in- fers the debtor's intention to appropriate the payment in dis- charo'e of the earliest items in the order of their dates.® If a general payment is made, the creditor has the right to elect where to credit it, though the debtor may, where he owes several distinct accounts, direct his payments to either.'' Cred- its on a book account are payments, the balance appearing due is only the debt ; ^ so that payments may extinguish so much of the debt as to reduce it within the jurisdiction of a justice of the peace. A check given in payment of an ac- count will be so considered wheie it cannot be collected.^ In 1 Railway Co. v. Gould, 44 Kan. 68. 2 Sec. 6934a. R. S. 3 Under sec. 4270, R. S. 4 Lester v. Buell, 49 O. S. 240. oPearce v. Buell, 113 111. 228, 239. See Kahn v. Walton, 46 O. S. 195- 210. Contracts to sell but not to be delivered are against public policy. Irwin V. Willar, 110 U. S. 499; Cock- rell V. Thompson, 85 Mo. 510 ; McCor- mick V. Jiichols, 19 111. App. 334; Beveredge v. Hewitt, 18 HI. App. 467 ; Story V. Solomon, 71 N. Y. 420; Johnson v. Brown, 2 C. S. C. R 83. 6 Gaston v. Barney, 11 O. a 511; Cain V. Dietz. 3 O. C. C. R 612 ; Clay- ton's Case, 1 Merivale, 572. ■ 7 King V. Andrews, 30 Ind. 429; Rogers v. Gumes, 99 Ind. 224 8 Means v. Smith, Tapp. 60. » Fleig V. Sleet, 43 O. S. 53. §§ 150, 151.] ACCOUNT- 145 pleading payment it will, be sufficient to allege it geaerall3'" without stating the amount.^ Sec. 150. Effect of charges as reflecting on whom credit is given. — The fact that goods are charged upon books to on« person is not conclusive evidence that the credit is given to such person.- Thus, if B. furnishes goods to C. on the ex- press promise of A. to pay for them, as if A. says to him, let C. have goods to such an amount, and I will pay you, and the credit is given to A., in that case, C. being under no lia- bility, there is nothing to which the promise of A. can be col- lateral, and A. being the immediate debtor, it is his original undertaking and not a promise to answer for the debt of an- other.' Goods may be sold and delivered to one person and so charged upon the books, yet not sold upon his credit, but upon the credit of a third person. Difficulty may arise in such cases in determining whether or not the undertaking of such third person is collateral, and therefore within the stat- ute of frauds, as being a promise to pay the debt of another ; or whether it is an original undertaking and not within the statute. The test is, to whom was the credit given? If no credit be given the party receiving the goods, but is given solely to a third party verbally promising to pay the same, it becomes an original promise and is not within the statute of frauds.* Sec. 151. Pleading in account. — In an action upon an ac- count, the party pleading should set forth a copy thereof, with all credits and indorsements thereon, and state in his petition that there is due him a specified sum which he claims with interest from a certain date.-^ If the items of account are not numerous they may properly be embodied in the pleading; but if numerous the pleading may state the facts constituting the cause of action, and a copy of the account, appropriately identified, should be attached as pointed out 1 Johnson v. Breedlove, 104 Incl * Cahill v. Bigelow. IS Pick. 369 ; 521. ■ Walker v. Richards, supra; Geary v. 2 Swift V, Pierce. 13 Allen. 136: O'Neil. 73 111. 5!)3. See Cowdin v. Lyon V. Chamberlain, 8 Am. Law Gottgetren, 55 N. Y. 650; Dean v. Rec. 330; Walker v. Richards. 44 N. Tallman, 105 Mass. 443. H. 388. 5 0. Code, sees. 5085, 508G. See 3 Elder V. Warfield. 7 Harr. & John, ante, sec. 58; Whittaker's Code, 391. pp. 126-7; Bates' Pidg. 98-104, 193. 10 146 ACCOUNT. [§ 151. elsewhere.^ The practice of attaching instead of embodying the copy, whether the account be long or short, is commend- able and proper. Even though the account has not been entered in a regular book of accounts, it is a sufficient compli- ance with the statute if the items thereof be set down in the form of an account in the petition.- It is essential that a copy be specific, and distinct claims should not be grouped in one general statement.'' It has been held that if the copy imper- fectly describes goods or merchandise, a bill of particulars may be demanded under the code.* The general practice, however, is to reach such matters by motion, as the code provides that when the allegations are so indefinite and uncertain that the precise nature thereof is not apparent, the court may require the same to be made definite and certain,^ and this is brought about by motion.^ In an action upon an account for attorney's fees it is not necessar}'" to make a statement of each particular item of serv- ices rendered, where they refer to one transaction, and state the charge for each item separately.^ If, however, the chargesf are for services in more than one transaction, then the value of the services rendered in each should be stated.^ A general demurrer will not lie to a petition which sets forth a cause of action upon an account which contains items properly the sub- ject of a book account, and also other cash items not ordinarily the subject of an account. The proper practice in such cases is to demur to the particular items objected to, or to move to strike them out, and answer as to the others. But where the items not ordinarily the subject of an account are made so by agreement or consent, a demurrer or motion cannot then be filed to them when sued upon, upon the ground that such items are not the subject of book account." An allegation stating a loan of money to another at his request, and that it 1 See ante, sec. 57. 2 Black V. Chesser, 13 O. S. 621-2 ; Swan's P. & P., p. 183. SGoodheart v. Powers, 1 Handy, 559. 4 Gibson v. Farina Co., 2 Disn. 499 ; R S., sec. 5292. 5 O. Code, sec. 5088. 6 Trustees v. Odlin, 8 O. S. 293; Stoutenberg v. Lybrand, 13 O. S. 228 ; Derringer v. Pugh, 7 O. C. C. 158; Calvin v. State, 12 O. S. 60 ; Byers v. Insurance Co., 35 O. S. COG. ' See Form, sec. 156 ; Derringer v. Pugh, 7 O. C. C. R. 158. 8 Id. 9 McKemy v. Goodall, 1 0. C. C. R. 23. § 152.] ACCOUNT. 147 is due and unpaid, or that-the defendant is indebted to plaintiff therefor, clearly states a good cause of action, and is beyond the reach of a demurrer or motion.^ An allegation of an amount due upon an account, after deducting all credits, is a material one in an action upon account,- and must be contro- verted by answer, or judgment may be rendered without proof.' In an action upon an account judgment may be entered at any time during the term after the defendant is in default for answer;* and it is not error to so render judgment by default without proof of plaintiff's claim. It is discretionary with the court as to whether or not it will require proof to be made in such a case.^ Sec. 152. Ordiuary form of petition on account, and notes on eyidence. — [Caption.'] A. B,, plaintiff, says there is due to him from C. D., defend- ant, on the account, a copy whereof is hereto annexed and herewith filed, marked " Exhibit A," the sum of dollars, which he claims with interest thereon from the day of , 18 — , for which with costs he prays judgment. >[OTE. — This is substantially the old code commissioners form, and the one used by many practitioners, and a sufficient statement of facts, and the most convenient when the account is lengthy. Another is: The above-named plaintiff, , says that the above- named defendant is justly indebted to him in the sum of dollars, which he claims on an account of which the following is a copy, together with all the credits and indorsements thereon: [Oopij of account.] Wherefore this plaintiff demands judgment against the said defendant for the said sum of dollars, with interest from the day of , IS — , and costs. Note.— Cincinnati v. Cameron, 33 O. S. 336, See chapter on Petition, sees. 57, 58. Questions of evidence are eliminated from this work, but for con- venience of reference the following authorities are here given : An account book of original entries is admissible in evidence in favor of the party by whom it was kept, when shown to be accurately kept; or that it was kept in the usual course of business. Anchor Milling Co. v. Walsh, 103 Mo. 277; 18 S. W. Rep. 904 (1892). And as part of the res gestae where the book-keeper testifies that they were correctly kept. Muckle v. Rennie, 16 N. Y. S. 208. Or they may be used to refresh one's memory. Lester v. Thompson, 91 Mich. 245 ; 1 McKemy v. Goodall, 1 O. C. C. 27 ; 3 Lyons v. Fidelity Lodge L O. F., Swan's P. & P. 183. 2 W. L. B. 97. 2 Dallas V. Furneau, 25 O. S. 638. ^ q. Code, sec. 5133. 6 Dallas V. Furneau. 25 O. S. 635. 148 ACCOUNT. [§§ 153, loi. 51 N. "W. Rep. 893 (1892). They will serve the purpose of evidence of the non- payment of a claim where no credit appears thereon. Union School Furo. Co. V. Mason, 52 N. W. Rep. 671 (S. D., 1892'. They cannot be received to negative the payment of cash items. Schwarze v. Roesler, 40 111. App. 474. Charges of goods to a person to whom they were delivered are not conclu- sive evidence that they were furnished upon the credit of another who promised orally to pay for them. Mackey v. Smith, 21 Ore. ^9S: 28 Pac. Eep. 974. An account book is not admissible in evidence unless a prelimi- nary foundation has been laid for its admission either as a book of original entries or as part of the res gestae. Watrous v. Cunningham, 71 Cal. 30. A merchant's account books are not evidence in his favor as to rt-ceipt of money by him. Oberg v. Breen, 50 N. J. L. 145 : 12 Atl. Rep. 20-3. See. 153. Petition for goods sold and money advanced. — Plaintiff says there is due him from defendant for goods and wares sold to said defendant and foi- money advanced to him, a balance on account, the sum of dollars, which ho claims with interest from . of which said account the fol- lowing is a copy, with all credits thereon: [Copy.'] Wherefdre plaintiff asks judgment, etc., as in sec. 152. Note. — From Weiss v. Emmitt. supreme court, unreported. As to neces- sary averments, see Kerstetter v. Ravmond, 10 Ind. 199 : Abadie v. Carrillo, 32 Cal. 233: Magee v. Kast. 49 Cal 141; Smith v. Holmes, 19 N. Y. 271; Roberts v. Treadwell. 50 Cal. 520 ; Wilkinson v. Moore, 20 Kan. 538. See. 154. For labor performed and materials furnished. Plaintiff says that on the day of , 18 — , the de- fendants were indebted to him for labor performed and ma- terials furnished in the manufacture of [desci^ihe goo'l-i], of the value of $ — — , and one [describe other goods'], of the value of $ , which, on or about the day of , IS — , the de- fendants had ordered the plaintiff to manufacture for them, and which price so mentioned the defendants had agreed to pay plaintiff therefor: yet the said defendants, though often requested, have not paid the plaintiff said sum of $ , nor any part thereof. Second cause of action: [Formal averments.] Plaintiff further says that on the day of , 18 — , the defendants were and still are indebted to the plaintiff in the sum of S for work and labor by the said ;)laintiff before that time performed and bestowed in the manufacture of [describe goods] for the said defendants, and at their special instance and request, and also for divers materials and other necessary things by the said plaintiff befoi'e that time found and provided in and about that work and labor for the said defendants, and at their like request, and which said sum of money the said })laintiff avers was then and still is due and payable ; yet the said defendants, though often requested, have not paid said sum of money nor any part thereof. Plaintiff further says that a detailed statement of the labor so performed and materials so furnished by the plaintiff is hereto attached [or copied., if so desired, as in ante, sees. 151^ §§ 155, 156.] ACCOUNT. 149 -?-5,?], and that the said labor and materials are well worth the several amounts claimed, herein and therein charged. AVherefore plaintiff prays judgment against defendants for said sura of $ , together with interest thereon from the day of , IS — ,• Note. — See another Form approved in Farron t. Sherwood, 17 N. Y. 227. The code has not changed the rules of pleading as to right of a party who has performed a special contract. He may also sue upon implied contract, and is not bound to declare on special contract. See, also, Wilkins v. Stidger, 22 Cal. 234. See as to statement of facts iu such cases, Busta v. Wardall, 52 N. W. Rep. 418 (S. D.. 1892j. Sec. 155. Petition on account against partnership — Averment as to acknowledgment of correctness. — For a cause of action herein plaintiff says that during the period embraced in the account hereinafter set forth [or, a copy of which is hereto attached, marked Exhibit A] said de- fendants and were partners as , doing business as in the state of : that during the existence of said partnership there were numerous commercial transactions, a true copy of the account of which transactions between the plaintiff and said defendants, and , is as follows: [copy of account], [or, is attached]; that there is now due and owing to said plaintiff from said defend- ants an unpaid balance on said account of dollars, which he claims with interest from , 18 — . Plaintiff further says that on the day of , IS — , the defendants above named acknowledged the correctness of the account attached hereto, and promised to pay the same by an instrument in writing. Wherefore plaintiff prays judgment, etc. Note. — From Kerper v. Wood, 48 O. S. 613. See rules stated in sections r>7, 58, and 151, ante, as to pleading by copj-. The record of this case dis- closes the fact that tl>e plaintiff in the trial court filed an amended petition setting out the fact tliat the defendants acknowledged the correctness of the account sued upon, and promised to pay the same bj- a promissory note, a copy of whicli was embraced in tiie amended petition. Tiiis was on motion stricken from the tiles and leave granted to file an amendment to the original petition upon the condition that the cause of action should not be changed. A plaintiff cannot amend a petition on account by setting forth a note given in settlement thereof. The allegation given in the fore- going form was allowed, however, in the case above cited. Sec. 156. Petition on account for attorney's fees. — Plaintiffs say there is due them from the defendant the sum of dollars for professional services rendered by them as attorneys at law to him. at his request, between and , •' in examining records and the law, giving an opin- ion and furnishing an abstract of the defects in a certain tax title and tax deed claimed and held by one to the real estate of the defendant, and counseling and advisii ,, 150 ACCOUNT. [§§ 157, 158. him in relation thereto," ^ or for professional services in learn- ing and preparing tlie facts, ascertaining and preparing the law for, prosecuting and trying a case in the court of entitled [give action'] ; and preparing for and arguing a motion for a new trial in said court, and preparing for and arguing the case in the court of count}^ and other work done by them in said cause in the line of their duty as attorneys."^ Wherefore, etc. Sec. 157. For services rendered as auctioneer and money expended. — The plaintiff states that there is justly due to him from the defendant the sum of dollars, which he claims with in- terest from the day of , IS — , at the rate of per cent, per annum, on a balance of account, a copy of which is as follows [or, is hereto annexed, according to sec. 57, ante\ for services rendered as auctioneer, and for money paid out and expended by the said plaintiff for the said defendant at his special instance and request, and which said sum of money the said plaintiff avers was due and payable on the day of , 18 — , and yet the said defendanl, though often requested. has not paid said sum of money, nor any part thereof. Wherefore the plaintiff prays judgment, etc. Note. — Ralston v. Kohl, 30 O. S. 92. Where services have been rendered under a special contract which has been wrongfully terminated, recovery- may be had as upon an implied quantum meruit. 30 0. S. 92. Licensed auctioneers must render quarterly accounts of all property sold by them, the amounts realized from such sales and for whom they were made, verify the same, and file with county treasurer and a duplicate copy to the county auditor. R. S., sees. 4231-32. Sec. 158. Action toy assignee of account. — The code' pro- vides that actions must be brought in the name of the real party in interest.* The assignee of an account is a legal holder, his title being a legal, not an equitable one, as before the code. The incidents of inviolability which attach to com- mercial paper do not affect an assignee of accounts. The debtor may, however, dispute the indebtedness and also the fact of validitv of the assignment.' 1 Derringer V. Pugh. 7 O. C. C. R value of services upon an express 158. contract, however. See "Contracts." 2 Holmes v. Holland, 29 W. L. B. sr. s., sec. 4993. 115. The petition in the case just *See, also, sec. 8, ante. cited was for the recovery of the 5 Allen v. Miller, 11 O. S. 374-7. § 159.] ACCOUNT. 151 While it has been said that the rulino: in Sarfjent v. Rail- road Co.,^ that extrinsic facts showing title to a note need not be expressly averred, is broad enough to cover account also,' it is now considered better practice to include an averment as to the assignment, as follows : That on the day of , IS — , for a valuable consid- eration, said sold, transferred and assigned said ac- count to this plaintiff.^ Sec. 159. Limitation of action on. — An action upon ac- count must be brought within six years.* The right of action accrues and the statute, therefore, begins to run on each item from the day of its proper date — that is, from the day of the delivery of the article or work done or money furnished; and the action will be barred in six years unless it is taken out of the statute on some special ground. Part payment, or a written acknowledgment of liability, or a promise to pay the same in writing, will take it out of the statute.^ In order that items of credit appearing upon an account, such as: "1870. By one churn, S7." " 1870, July 5th. By his account rendered, 819.65." — dated long after the account is barred, shall be available against the statute, it must appear that there was an agreement by the parties that such credits were to be treated as part payment thereof.^ Items of credit in an account book of the deceased, made after the statute had barred an action, constitute no evidence that it was the intention of the parties that the articles should be applied on the barred account.' It is the act of payment on account of the debt which takes the case out of the statute.^ A defendant pleading the statute in an action on a running account may introduce in evidence separate bills and receipts given after the last item of account sued on, as tending to prove that neither party recognized the payment as an admission of the correctness of any former account.^ 1 33 O. S. 449. 424-8 : Waugh v. Cope, 6 M. & W. 2 Bates' Pldg., p. 254. 824. '^ Bay V. Saulspaugh, 74 Ind. 397. " Kaufman v. Broughton, 31 O. S. * R. S., sec. 4981. 429. * R. S., sec. 4992 ; Courson's Ex'rs 8 Blanchard v. Blanchard, 123 Mass. V. Courson, 19 O. S. 454. 5')2. 6 Kaufman v. Brouglitou, 31 O. S. » Schock v. Bieler, 5 O. C. C. R. 49. 152 . ACCOUNT. [§ 160. Sec. 160. Account stated defined. — An account stated is merely the admission of a balance due from one party to another, or an account ^vhich has been examined by the par- ties thereto and all items found to be true, and a just and true balance struck, and a mutual assent or agreement thereto.^ The mutual agreement to the balance may be implied from the retention of an account rendered for a reasonable time without any objections thereto.^ What is a reasonable time is said to be a question of law, but must necessarily depend upon the circumstances of each case," and is open to explana. tion.^ Assent may be implied from circumstances,^ but there must be proof either express or implied.^ It is not necessary that the parties should sign the account.' A partial accounting without striking a balance is not an account stated.^ If a debtor writes upon an account which has been rendered him, and which he has retained, a word meaning " balance," subsequent payment of a portion thereof and a failure to dispute any item will make it an account stated ; ^ and so will the retention of an account rendered at the time of the delivery of goods, or at the end of each month, with a statement of a balance, without objection;^"' or a verbal acknowledgment of a monthly account rendered and the giving of a written acknowledgment of the debt.*'^ Where an objection is made to an item in an account at the time of its rendition, and the balance so rendered is carried into subsequent accounts, payment of such balance under an agreement that the disputed item should remain open, the 1 Uuiou Bank v. Knapp, 15 Am. * Guernsey v. Rexford, 63 N. Y. Dec. 181 ; Tassey v. Church, 39 Am. 631. Dec. 65; Langdon v. Roane, 41 Am. SMcCall v. Nave, 52 Miss. 494. Dec. 60 ; Anding v. Levy, 57 Miss. 51 ; ^ Stenton v. Jerome, 54 N. Y. 480. 34 Am. Rep. 435. "Lockwood v. Thorne, 11 N. Y. ^ Wiggins V. Burkham, 10 Wall. 170 : 62 Am. Dec. 81 ; Brown v. Van 129 ; Quincey v. White. 63 N. Y. 370 ; Dyke, 55 Am. Dec. 250. Bobson V. Bohm, 22 Minn. 410 ; Lang- ^ Bouslog v. Garrett, 39 Ind. 338. (Ion V. Roane, 41 Am. Dec.. 60; 9 Holler v. Apa, 17 N. Y. Supp. 504. Stenton v. Jerome, 54 N. Y. Super. lORobbinsv. Downey, 18N. Y. Supp. 485 ; Freeman v. Howell, 50 Am. Dec. 100. 561 ; Lockwood v. Thorne, UN. Y. " Mackay v. Kahn, 17 N. Y. Supp. 170;62 Am. Dec. 81. 50a s Wiggins V. Burkham, supra. ^§ 161, 162.] ACCOUNT. 153 accounts so rendered are not regarded as accounts stated as to the disputed item, and may be corrected after settlement.^ Balancing an account without the consent of both parties will not constitute an account stated.- A mere proposal to extend the time of payment, not acted upon, will not change the char- acter of an account stated.^ Sec. 161. Account stated may be opened. — A mistake, fraud, omission or inaccuracy will deprive an account stated of its conclusive character and render it subject to a re-exam- ination;* but the right of a party to so open the account may be lost by his own silence or acquiescence.' When there is clear and convincing proof of fraud or concealment, courts vvill open an account barred by the statute of limitations, but these matters must be specificall}^ alleged in the pleadings,^ A party alleging a mistake in an account must point out the error of which he complains," and must furnish the data whereby it may be corrected.^ An account stated cannot be opened for a mistake in law.^ Sec. 162. Pleading account stated. — In pleading an ac- count stated the plaintiff must aver that the same has been balanced with the assent of the parties,^" but it is not necessary to allege a promise to pay." An account is not available as an account stated unless it is specially pleaded as such.^^ 1 Dudley v. Iron Company, 13 O. S. 170; 62 Am. Dec. 81 ; Wilde v. Jen- 168. kins, 4 Paige Ch. 481. 2Nostrand V. Ditmis, 127N. Y.355; 'Zent v. Watts, 1 N. Y. S. 702; 88 N. E. Rep. 27. Barker v. Hoflf, 52 How. Pr. 382 ; 3 Laweon v. Douglas, 17 N. Y. Warner v. Myrick, 16 Minn. 91 ; Supp. 4. Mayo v. Bosson, 6 O. 525. * Sampson v. Freedman, 102 N. Y. ^Chubbuck v. Varnum, 42 N. Y. 699 ; Scioto Co. v. Gerky, W. 493 ; 432 ; Insurance Co. v. Carpenter, 49 Fowler v. Pratt, W. 206 ; Hawley v. N. Y. 668. Harran, 79 Wis. 379; 48 N. W. Rep. » Commissioners v. Gherky, W. 493. 676 ; Fleischner v. Kubli, 20 Oreg. 328; ^^ Volkening v. De Graaf, 81 N. Y. 268. 25 Pac. Rep. 1086 ; Frankel v. Mather, ii Heinrick v. Englund, 34 Minn. 58 Hun, 543; Farnham v. Brooks, 9 395; s. C, 26 N. W. Rep. 122. Pick. 212 ; Goodwin v. U. S. Ins. Co., 12 Oregon R. & Nav. Co. v. Swin- 24 Conn. 591 ; Roberts v. Totten, 13 burne. 22 Oreg. 574 : 30 Pac. Rep. 322, Ark. 609. 323 (1892): Bump v. Cooper, 10 Oreg. » Cross V. Savings Bank, 66 Cal. 81; 26 Pac. Rep. 848 (1891); McCor- 462. mick, etc. Co. v. Wilson, 39 :\Iinn. 467 ; •Lockwood T. Thome, 11 N. Y. 40 N. W. Rep. 571 (1888). 154 ACCOUNT. [§§ 163-165. Sec. 163. Petition on acconnt stated. — Plaintiff says that on the day of , 18 — , an acconnt was stated between the plaintiff and defendant, upon which accounting the said defendant was found to be indebted to the plaintiff in the sum of dollars (of which amount said defendant paid the sum of dollars, and there is now due plaintiff from the said defendant the sum of dollars with interest from the day of , 18 — ). [Or, that defendant has not paid the said amount so found due or any part thereof, and there is due plaintiff from the said defendant the sum of dollars, with interest at uer cent, from the day of , 18—.] [rrat/er.] Sec. 164. Petition to correct account stated and for judg- ment on account as corrected. — [Cajption.'] Plaintiff says that on the day of , 18 — , an account was stated between the plaintiff and defendant, upon which there was found to be due from the defendant to the plaintiff the sum of dollars, which sum the defendant agreed to pay the plaintiff. That after the adjustment and settlement of said account plaintiff discovered that it was erroneously stated in this, to wit: [Specif (/ e/Tor claimed.] Plaintiff did not discover said error until the day of , IS — , when he immediately demanded a restatement of said account and requested defend- ant to correct the same, which he refused to do. That the account should be corrected as follows: [state how'], and the balance due thereon to plaintiff should be the sum of $ instead of $ , as shown by said account as it is now adjusted. Wherefore the plaintiff prays that the said error may be corrected as herein set forth, and that he may have judgment against the defendant for the sum of § with interest from . Sec. 165. Answer and cross-petition claiming set-off for services rendered. — [Cajptio7i.] The said defendant, for his defense and by way of set-off, says: That in , 18 — , the said plaintiff employed the defendant to act and serve as [state services] for plaintiff in and about said plaintiff's divers business places in the , and county of ; that for such services so to be rendered the plaintiiff agreed with the defendant to pay him [state §§ 166, 167.] ACCOUNT. 155 amount], that he should be so engaged in said service; that by the terras of said agreement between said plaintifif and de- fendant, said defendant was to devote to said service of said plaintiff [state time], and at the end of said service said plaint- iff was to settle with and pay the defendant for said services according to the terms of said agreement and employment; that in pursuance of said agreement and arrangement the de- fendant, on the day of , 18 — , entered on the per- formance of said service for said plaintiff, and duly performed all the terms of said agreement and engagement on his part, and served said plaintiff, as such [r'ej^eat service], from that day, to wit, , until and including the day of , 18 — , making in all [time employed] ; that at the end of said service the defendant requested the plaintiff to settle with and pay him for said services according to the terms of said contract, but said plaintiff refused and still refuses to pay him there- for, or for any part thereof; that by reason of the premises there is due and owing to said defendant, from said plaintiff, the sum of $ , with interest thereon from the day of , 18 — , which he asks may be set off against said claiiii of said plaintiff, and that he may have judgment against plaint- iff for balance. Sec. 1 66. Answer setting up statute of limitations. — [Caption,] The alleged cause of action set forth in said petition did not accrue within six years next preceding the date of filing said petition, and the action is therefore barred by lapse of time. Sec. 167. Answer of settlement by note. — [Caption.'] [Formal opening.] That before the bringing of this action the plaintiff and defendant had a full and final settlement of all their accounts, including the items of account sued on herein, and it was found that defendant was indebted to. the plaintiff in the sum of dollars, for Avhich sum defendant then and there executed to the plaintiff his promissory note, payable days after the day of , 18 — , in full satisfaction of the amount so found to be due him. [Prayer.] Note. — A note given by a member of a firm after dissolution in settle- meut of a balance on an account due from a partnership prior to dissolu- tion is not such a promise as the Code, section 4992, provides may take a demand on account out of the statute of limitations, as to the other members, unless there was an express authority to execute the note. Kerper v. Wood, 48 O. S. 613. A promise inferred from a payment cannot have greater ef- fect than an express promise. Shoemaker v. Benedict, 11 N. Y. 176, 18r). A partial payment by one of several makers of a note will not prevent the statute from running. Hance v. 1 lair, 25 O. S. 349. 156 ACCOUNT. [§§ 168, 169. Sec. 168. Answer setting up fraud or mistake in account stated.— \_Caption.'] Defendant says that he admits that he had an accounting with said plaintiff on the day of , 18 — , and that the sum of dollars was found to be due said plaintiff upon said account • but says that at the time of said accounting there were certain errors and false charges, of which this defendant was wholly ignorant, by mistake and oversight, made in said account in the following particulars : He is en- titled to the following credits, which were wholly omitted from said account : \_State them.'] That the following items of said account were wrongly and fraudulently charged against defendant by the plaintiff : [_State them, showing the errors and facts evidencing frau(hdent char- acter of charges.'] That on the day of , 18 — , defendant notified the plaintiff thereof, and requested that the same be corrected and the account restated, which plaintiff refused. Sec. 169. Judgment on account.— In an action upon an account, judgment may be entered at any time during the term after the defendant is in default for answer, unless the court gives further time to answer.* It is not reversible error to render judgment on default, in an action on account, with- out proof of plaintiff's claim.^ 1 R. S., sec. 5133. ' See ante, sec. 87 ; Dallas v. Fer- neau, 25 O. S. 635. CHAPTER 13. ACCOUNTING. Sec. 1-70. Accounting— When and by whom invoked. 171. Parties. 172. Some rules of pleading in accounting. Sec. 173. Petition against agent for accounting. 174. Petition for an accounting between partners. Sec. 170. Accounting — When and by whom invoked.— This is an equitable remedy which is resorted to where there have been mutual dealings between parties and a controversy has arisen between them in reference to accounts which are of such a complicated nature that courts of law cannot afford relief. Under the code, however, where a petition sets forth -an account containing numerous items and payments, which is controverted by answer, the parties may have both an equitable and legal remedy, according to the nature of the ■case, and the court may order a reference to a master to take and state the account without the consent of either party.^ A holder of stock in pledge as collateral security is never- theless required to account to the owner thereof, or to the ■cestui que trusty for any surplus remaining after the payment of the debt; 2 and this rule is applicable to other pledges.' Where complications or difficulties arise between parties sus- taining a fiduciary relation, an accounting may be compelled, as between factor and principal,* or administrators, executors and creditors, legatees or next of km of a deceased person,^ or between guardian and ward.'^ The commission of joint executors of an estate may be ad- • Stanley v. Cincinnati. 1 Ciu. S. C. < Roots v. Nye, supra. R 69 ; Roots v. Nye, 2 Handy. 229 ; 3 Cram v. Green, 6 O. 430 ; Wood Johnson v. Wallace, 7 O. S. 62. As v. Brown, 34 N. Y. 337 ; Petree v. to method of trial, see Black v. Boyd, Lansing, 66 Barb. 357. 50O. S. 46; Chapman v. Lee, 45 O. S. « Armstrong r. Miller, 6 O. 119; 356. Davies v. Lowrey, 15 0. 655 ; Hendry 2 Lee V. Bank, 2 Cin. S. C. R. 300. v. Clardy, B Fla. 77 » Kingsbury v. Phelps, W. 370. 158 ACCOUNTING. [§ 170. justed by a petition for an accounting where one has received all of it;* and if an administrator purchases land at his own sale he must account to the heirs for the property and its price, or a vendee to whom such administrator has sold it must also account to the heirs for its value at the time of its original purchase.^ A stockholder may, in a suit in equity against a corpora- tion, join other stockholders and compel an accounting to be taken of all stocks and funds ; ^ or an assignee of a mortgage debt, who has taken from the mortgagee a deed for part of the property as part payment of the mortgage debt, may be compelled to account to the assignor for its full value if nec- essary to the payment of the mortgage.* A mortgagee in possession of premises covered by the mort- gage is regarded as the steward or bailiff, as it were, of the mortgagor, and, as such, accountable to him or his assigns, or mortgagee, for the profits ; ^ but a mortgagee who has right- fully recovered possession of property by proper proceedings cannot be charged in an action against him for an accounting with the full value of the property at the time it was replevied by him ; and if he has sold it he should be charged only with what he received, if the sale was fair and reasonable." A grantee of a mortgage holding the right of redemption wha is not made a party to foreclosure proceedings may compel a purchaser of the premises who thereby claims possession to- account for rents and profits.' The state may authorize a suit to be brought against it, by an act of the legislature, for the adjustment of a claim which an individual has against it.^ Members of an association who have abandoned the enterprise without notice may be com- pelled to render an account to such association of their earn- ings and profits while working separately; ^ and where parties who have been engaged in a common enterprise, sharing profits upon a final adjustment or settlement at the close of their 1 Spiers v. Wisner, 88 Mich. 614 ; 50 5 Anderson v. Henry, 27 O. S. 104. N. W. Rep. 654. 6 Armstrong v. McAlpin, 18 O. S. 2 Glass V. Greathouse, 20 O. 503; 184. Barrington v. Alexander, 6 O. 189; ^Childs v. Childs, 10 O. S. 339; Mc- Devoue v. Fanning, 2 Johns. Ch. 252; Arthur v. Franklin, 16 O. S. 193. Mitchell V. Dunlap, 10 O. 120. SHampson v. State, 8 O. S. 315. 3 Taylor v. Exporting Co., 5 O. 163. 3 Eagle v. Butler, 6 O. S. 295. * Fithian v. Corwin, 17 O. S. 118. § 171.] ACCOUNTING. 15 'J business, the same must be made by a full and complete state- ment of the whole business, and not as if settlements had been made from time to time between them.^ An accounting cannot be had where a partnership is denied and its existence appears to be uncertain;'^ nor can a retired partner compel an accounting to be made by a new firm to the old firm, which assumed all liabilities and agreed to col- lect and account for all outstanding bills, in which they may have failed — his remedy is an action at law for damages in failing to render such account ; ^ nor can a legatee of a de- ceased partner compel a surviving partner to make an ac- counting, unless the legal representative of such deceased partner has refused to bring the suit.'* A cause of action of one partner against his copartner for an account accrues upon dissolution,^ and a suit for an accounting cannot be maintained by parties claiming to be an existing partnership, where it appears that they have become an incorporated body, which has not been dissolved.* Damages for false representations on the sale of property cannot be taken into consideration in a suit for an accounting, as a person cannot in equity be made a debtor by fraud.^ Sec. 171. Parties. — All persons interested in obtaining an accounting, or in the result, should be made parties,* even though not interested in the same right.^ A creditor, secured in a deed of trust, in an action for an account of the fund, should make all creditors in the same class with him parties.^' In an accounting between partners all the members should be joined." In an action against a guardian by one of several wards all the others should be joined.^^ y^^d in an accounting between joint owners of property judgment creditors should be made parties.'^ If the pleadings show others beside the 1 Gill V. Geyer, 15 O. S. 399. 7 Holt v. Daniels, 61 Vt. 89 ; 17 Atl. 2Walcott V. Watson, 53 Fed. Rep. Rep. 786 (1889). ^-9- 8 Petrie v. Petrie, 7 Lans. 90 ; Fer- 3 Stein V. Benedict, 83 Wis. 603 ; 53 rer v. Barrett, 4 Jones' Eq. 455 N. W. Rep. 891 (1892). 9 Little v. Sayre, 7 Hun, 485. * Lake v. Barnes, 18 N. Y. Supp. 471. i" Murphy v. Jackson, 5 Jones' Eq. * Gray v. Kerr, 46 O. S. 652. 11. 6 Benninger v. Gall, 1 Gin. S. C. R. " Derby v. Gage, 38 111. 27. 331. 1^ Hendry v. Clardy, 8 Fla. 77. 13 Berjson v. Stein, 34 O. S. 294. 160 ACCOITNTING. [§ 172. plaintiff interested, the defendant may require such persons to be made parties.^ Sec. 17ti. Some rules of pleading in accounting. — A plaintiff seeking an accounting must allege specifically that he has made a demand therefor, or that he is ignorant of the condition of the account and is unable to ascertain it.- If a defendant in an action desires to have an accounting he must clearly set forth his right thereto in order to avail himself of that privilege; * but in matters of a complicated nature, where the parties are numerous, it may be quite impossible, if not undesirable, that all the claims of the various parties as to the different items proposed for adjudication should be made a matter of distinct averment in the pleading;* nor is it essen- tial that a detailed history of the dealings of the parties be averred.* A person whose duty it is to keep an account who claims a balance due thereon upon accounting must by his pleading show how the same is produced, and cannot call oth- ers to an account until he himself has performed his duty and rendered an account.® Facts showing liability under certain conditions should be set forth in a petition by the creditors of an insolvent corporation for an accounting and to compel the stockholders to contribute upon their unpaid subscrip- tions when the same is made upon condition.^ The petition in an accounting should state that the plaintiff has had mutual dealings with the defendant, the time when their last settlement occurred, and that the plaintiff has ap- plied to the defendant for a settlement of their accounts. The petition may be in the manner following: Plaintiff and defendant have had mutual dealings for years, each keeping his own accounts, which are of a com- plicated nature. Plaintiff' states that on the day of -, 18 — , he of- fered to produce to the defendant his accounts and requested defendant to produce his in order that they might come to an adjustment and settlement of the same, which the defend- ant wholly failed and refused to do, and so said accounts therefore remain in an unsettled state. That there is due the 1 Southal V. Shields, 81 N. C. 28. 5 HoUaday v. Elliott, 3 Ore. 340. -Keunicott v. Leavitt. 37 III. App. 6 Wood v. Boney, 2\ Atl. Rep. 574 435; Claypoole v. Gish. 10^ Ind. 424; (N. J.. 1891). Dodds V. Vaunoy. 61 Ind. 81). "Ma'Jus v. Pridham, 20 S. W. Rep. 3 Bailey v. Bergen. 4 T. & C. 642. 1015 (Tex., 18J2). ^Babcock v. Camp. 12 O. S. 11. 36. §§ 173, 174.] ACCOUNTING. 161 plaintiff a balance on their said mutual accounts in the sum of dollars. Wherefore plaintiff prays that the defendant may be or- dered to render an account and that he may have judgment for any balance found diie him, etc. Sec. 173. Petition against agent for accounting. — Plaintiff says that on the day of , 18 — , he em- ployed the defendant as his agent to "[state nature of hnsiiiess and what was done']. Defendant has [state the vjorTc performed and completion of same], but neglects and refuses to make and render an account of his transactions as such agent. That on the day of . 18 — , plaintiff requested said defendant to account to him for the money by him received and pay over the same, but that he refused and still refuses to comply with said request. Plaintiff therefore prays that the said defendant may be required to render an account of his said dealings as such agent to plaintiff, and have judgment for the amount which may be found due with interest from the day of , 18—, besides the costs of this suit. Sec. 174. Petition for an accounting between partners. — [Caption.] 1. Plaintiff says that on the day of , 18 — , he en- tered into a partnership with the said defendant under the name and style of P. M. & Co., for the purpose of carrying on the business of [state nature of hvsiness] at , for the term of years next thereafter. 2. That plaintiff paid in as his share of capital in said business the sum of dollars, and said firm, at the date aforesaid, commenced business at , and continued the same. 3. [Here state the nature of the difficulties and what is de- sired to have an accounting upon.] 4. That plaintiff has requested and demanded of said defend- ant to make and render a statement and account of his said deal- ings as such partner, as hereinbefore set forth, but that said de- fendant has wholly failed and refused so to render an account or to pay over to this plaintiff the amount of money due him. 5. Wherefore the plaintiff prays that the defendant may be compelled to account with him as to his said dealings in the premises, and that he may be ordered to pay over to plaintiff any money found in his hands and due this plaintiff, and for such other equitable relief as is proper. Note. — This may serve as a general outline for such a petition. See form in particular case, used by Maxwell, p. 595. Plaintiff must aver an indebtedness or a probable indebtedness. Hunt v. Gordon, 52 Miss. 191. A partner who substitutes the partnership for his individual liability on an accommodation paper is accountable to his copartner for any consequent loss. Smith v. Loring, 2 O. 440. 11 CHAPTER 14. AGENTS. Sec. 175. Rights and liabilities of an agent. 176. Petition against agent for failure to account for goods sold. 177. Petition by agent for com- pensation for services. Sec. 178. Petition against agent for disobeying orders. 179. Petition against agent for not rendering account. Petition against del credere agent Petition against agent for selling goods on credit. 180. 181. Sec. 175. Rights and liabilities of an agent. — Either prin- cipal or agent may be held responsible for a fraud committed by the latter within the scope of his authority.^ In other cases an election must be made. Thus, where an agent makes a contract in his own name without disclosing his principal, suit cannot be brought against both agent and principal upon discovering the latter, but an election must be made. It may be true that the agent is primarily liable, but as the con- tract was made for the benefit of the principal he may be held responsible at the election of a third party.- Both prin- cipal and agent, however, cannot be held;^ and having, there- fore, elected to hold the latter, he cannot afterwards recover of the principal.* The mere commencement of an action ao-ainst the one or the other will not of itself be considered an election, but may only be considered as having been made when satisfaction has been obtained from the one or the other.^ To avoid personal liability an agent should disclose his agency and the name of his principal.^ If he acts vrithout V. Railroad Co., 40 O. S. 1 Maple 313. 2 Lee v. Insurance Co., 1 Handy, 217 ; Byington v. Simpson, 134 Mass. 169; 45 Am. Rep. 314; Coleman v. Bank, 53 N. Y. 393 ; Lancaster v. Ice Co., 153 Pa. St 427. 3 Silver v. Jordon, 136 Mass. 319; Schepflin v. Dessar, 20 Mo. A pp. 569. * Schepflin v. Dessar, supra; Clea- land V. Walker, 11 Ala. 1058 ; 46 Am. Dec. 238. 5 Maple V. Railroad Co., 40 O. S. 313; Cobb v. Knapp, 71 N. Y. 848; 27 Am. Rep. 51. 6 Wheeler v. Miller, 2 Handy, 149. § 176.] AGENTS. 163 authority, though in good faith, he is personally responsible to those ignorant of his want of authority.^ There is in fact an implication of warrant of authority on his part, so that he becomes personally liable for a breach therein,^ and he is liable for disobeying the orders of his principal.* An agent may sue in his own name when the contract is so made ; * or when he loans money, taking security therefor in his own name.* An attorney acting as agent may sue and be sued as other agents ; ^ or when a note is made payable to one as agent J Unless the contract shows who the principal is, suit must be brought thereon by the agent.^ And an agent having a con- tract upon which he may bring an action may sue for the use of his principal.^ An agent is personally responsible when signing his name as agent to an instrument in which the name of the principal does not appear.^"^ He cannot be held liable for false representations as to land when he states that his information is obtained from his principal." And if an agent pays money to his principal after having been notified not to do so he is liable therefor. ^- Sec. 176. Petition against agent for failure to account for goods sold. — That on the day of , 18—, the plaintiff delivered to the defendant, at his request, the following goods, viz. [de- scribe goods], belonging to the plaintiff, and of the value of $ , to be sold for cash by said defendant for compensation to be paid to him by plaintiff. That said defendant sold goods between the day of , 18—, and the day of , 18—, but has failed to account for the same to the plaintiff. J Trust Company v. Floyd, 47 O. S. 6 Gray v. Publishing Co., 21 N. Y. S. 525. 967. 2Noe V. Gregory, 7 Daly, 283; ^Cocke v. Dickson, 26 Am. Dec. White V. Madison, 26 N. Y. 117 ; Pat- 214. terson v. Lippencott, 47 N. Y. 457. 8 Manette v. Simpson, 15 N. Y. S. Cf. Cole T. O'Brien, 51 N. W. Rep. 448. 31^- 9 Burke v. Steel, 40 Ga. 217 ; Cross » Whitney v. Express Co., 104 Mass. v. Johnson, 65 Ga. 717. Contract as ^^^' to sale of real estate. Wightman v. ♦Arcade Hotel Co. v. Wiatt, 1 O. Bancroft, 22 O. & 172. ^- ^- ^S- 10 Collins V. Insurance Co., 17 O. S. 8 Barb Wire Co. v. Purcell, 48 Kan. 215 ; Anderton v. Shoup, 17 O. S. 12.5. 267. " Griffing v. Diller, 21 N. Y. S. 4< 12 Carter v. Stork, 18 N. Y. S. 470. 164 AGENTS [§§ 177-179. That oil tlie day of , 18 — , the plaintiff demanded of said defendant the amount due plaintiff for said goods, which he refused to pay- Tiiat no part thereof has been paid, and there is now due from the defendant to the plaintiff thereon the sum of $ . Sec. 177. Petition by agent for compensation for serv- ices. — {Caption?^ That on the day of , IS — , the plaintiff entered into the service of defendant at his request as agent {state nature of duties\ and continued in his employment for the period of months, for which the defendant promised to pay him the sum of % . That no part of said sum has been paid, and there is now due from the defendant to the plaintiff thereon the sum of $ , with interest from the day of , 13 — . \_Prayer.'\ Note. — An asent may sue for services in an ordinary action on account. See ante, sec. 152. If acting as agent of two persons he cannot recover from both principals unless both assented to his double agency. Bell v. McCon- nell. 37 O. S. 396 ; Capener v. Hogan, 40 O. S. 203. Where services are volun- tarilv rendereil tliere can be no recovery. Chadwick v. Knox. 31 N. H. 226 ; 64 Am. Rep. 329. Sec. 178. Petition against agent for disobeying orders. \Caption7\ That on the day of , IS — , the plaintiff, at the re- quest of the defendant, employed him for a certain reward to sell {state what\ belonging to the plaintiff, which were of the value of S • Defendant thereupon contracted with plaintiff to obey all instructions given him by plaintiff regarding the sale of said goods, and thereupon received the same for the purposes of said sale. That the plaintiff afterward directed said defendant to {state tiature of emjyloym.ent']. Plaintiff alleges that the defendant failed and neglected to comply with and carry out the instructions so given him by plaintiff in respect to the sale of said goods, by reason whereof said goods were injured {state how], to the damage of plaintiff in the sum of § . Note. — See ante, sec. 175. Sec, 179. Petition against agent for not rendering ac- count. — {Cajjiio?!.'] Plaintiff alleges that on the day of , 18 — , he em- ployed the defendant 0. D. as his agent to adjust, settle and §§ 180, 181.] AGENTS. 165 collect outstanding numerous accounts which plaintiff had against persons within the state of . That it was stipulated and agreed, in and by virtue of said contract of employment, that the said defendant was to report his collections monthly, after deducting per cent, of the amount of his collections as his compensation. That the defendant, on the day of , 18 — , under- took said employment, and continued therein until the day of , 18 — , when he quit said employment. That during the time defendant was so engaged in said serv- ice he collected of the accounts so as aforesaid due plaintiff the sum of | . That the compensation for making said collections due him is the sum of $ , leaving the sum of $ due plaintiff, which sum the defendant has wholly failed and refused to pay, although said sum has been duly de- manded of him. \_Prayer.'\ Note. — An agent receiving money from his principal, even though through an illegal transaction in which he acted as agent, is nevertheless liable therefor. Norton v. Blinn, 39 O. S. 145. Sec. 180. Petition against del credere agent. — [Caption.'] Plaintiff entered into a contract not in writing with the de- fendant on the day of , 18 — , by which it was agreed that the defendant, as agent for plaintiff, would receive and sell [state what]. That by virtue of said agreement plaintiff consigned said goods to defendant from to , 18 — , which were to be sold by him, as a del credere agent, upon commission, and for cash, defendant having no authority from plaintiff to sell the same upon credit. Defendant did on the day of , IS — , sell to one E. F. % worth of the goods so consigned to him upon months- credit. That the said E. F. at the time of said sale was, and now is, insolvent, and was not then, nor is he now, able to pay for said goods. There is therefore due plaintiff from the defendant for the foods so by him sold to said E. F. the sum of % , for which e asks judgment. I^'ec. 181. Petition against agent for selling goods on credit. — [^Caption.'] That on the day of , 18 — , the plaintiff, at the de- fendant's request, employed the defendant for a certain reward to sell for cash the toUowing goods, viz. [describe them], be- longing to the plaintiff, of the value of $ . That the defendant then promised the plaintiff to sell the same upon the terms aforesaid, and then received said goods 166 AGENTS. [§ 181. for that purpose. But on or about the day of , 18— said defendant, without plaintiff's consent, sold a part of said goods upon credit, and otherwise than for cash, to C. D., for the sum of $ , which sum is still unpaid, and said C. D. is ■wholly insolvent. That the plaintiff has sustained damages in the premises in the sum of $ IPrayer.] CHAPTER 15. ANIMALS. Sec. 182. Introductory. 183. Damages by trespassing an- imals. 184 Petition for damages from trespassing animals aris- ing from failure to keep partition fence in repair. 185. Petition for damages caused by trespassing stock. 186. Impounding strays and ac- tion for recovery. 187. Petition in replevin for the recovery of animals. 188. Answer in replevin for re- covery of animals im- pounded. 189. Liability of owners of dogs. 190. Petition for damages for sheep killed by dogs. 191. Petition for damages for in- jury to person by dog. 198. Petition for damages for killing dog. Sec. 193. Injury to animals by rail" road company prior to statute as to fencing. 194 Injury to animals by rail- roads — Under statute as to fencing. 195. Petition against railroad company for damages for injuring cattle. 196. Petition for damages where injury occurred by rea- son of failure of railway company to fence. 197. Allegation where injury oc- curs by reason of insuflS- ciency of fences. 198. Petition where company failed to whistle or ring bell — Cattle injured at crossing. 199. Answer claiming cattle were unlawfully at large. Sec. 182. Introductory. — It is not the purpose to enter into a full discussion of the law of Ohio relating to animals, common or statutory, but only so far as may be necessary to outline the rights and remedies of parties who may find it necessary to resort to courts for the redress of their griev- ances in reference to this subject. Sec. 183. Damages by trespassing animals.— This sub- ject shows the growth of the law as forcibly as any we may have occasion to examine. It illustrates the fact that the necessities of our citizens give rise to law, and that courts formulate and construe it, as occasion requires, for the best interest of the people, and consider and declare the law 168 AiNlMALS. [§ 183. in accordance with the circumstances, necessities, habits and understandings of the people. The common understanding prior to the year 1865 in Ohio was, that fences were made to keep animals in, and not to keep those belonging to others out. While it is true that the common law upon this subject had generall}^ been adopted, it was deemed not applicable to the state in its early history. In 1S54 there was no law re- quiring animals to be fenced unless they were of an unruly or vicious character,^ and the owner of uninclosed ground had to assume the risk of occasional intrusion by animals which happened to be roaming about, as they were at liberty to do ; and the owners of such wandering animals assumed the risk of their loss or injury arising from unavoidable accident.^ At that time it was considered that the common-law rule requir- ing owners to keep their animals inclosed at their peril, mak- ing them liable in damages when they escaped and caused injury to others, whether the latter's property was fenced or not, was not suited to the conditions of the state and was not therefore followed.^ As the state advanced in population, however, its necessities were different, and the common-law principles upon this subject were adopted. In addition to an- imals of a dangerous character, which were then required to be kept in an inclosure,* rooting swine were compelled to remain on their master's land ; ^ to which were added others from time to time, such as the horse, the mule, cattle, etc., which were apt to trouble the neighbor's garden.* The statute ' makes the owners of animals who are suffered to run at large in violation of law ^ liable for all damages done by them upon the premises of another, without reference to the fences which may inclose them. This provision is not intended to be in the nature of a penalty,* and the owners of animals running at large are not guilty of any breach of duty under the statute if they are at large without the omission 1 S. & C. Stat, p. 70. * 29 O. L. 467. 2Kerwhaker v. Railroad Co., 3 O. 5 56 O. L. 77; S. & C. Stat., p. 76. S. 172. 6 R. S., sec. 4202. 3 3 O. S. 172; Cincinnati, etc. Rail- ^Secs. 4206, 4251. road Co. v. Watterson, 4 O. S. 424 ; 8 Sec. 4202. Cranston v. Railroad Co., 1 Handy, » Railway v. Methven, 21 O. S. 586. 196. § 183.] ANIMALS. 169 of reasonable care upon their part.^ Part owners of a parti- tion fence failing to keep the portion assigned to them in repair, by reason whereof stock from an adjoining inclosur© breaks and enters upon the land, are without remedy; and if the stock are breachy or unruly, the party damaged must show that the defect in the fence was not the proximate causa of the daraage.- It is the rule in Ohio that persons who have joint posses- sion or ownership of animals may be sued jointly for damages committed by them, although the several animals are owned separately and individually,^ In suing for damages caused by trespassing cattle by failure to fence, it must be in assumpsit^ if relying on an express contract to fence; but if on custom or negligence it should be an action on the case/ Where a fence between adjacent owners of premises is good in some places and bad in others and cattle get over the good part, their owner is liable for damage done to the crop of his neighbor. The trespass is the sole wrong of the- defendant, as the neglect of the plaintiff to keep all parts of the fence in repair, even though a wrong, does not contribute to the injury.' Ordinarily the owners of animals are not liable for any damages done by them when they are not trespassing, unless they fall within the class of vicious animals, the character of which the owner is aware; when they are out of their place, however, and commit some injury, the owner is liable without respect to their habits.* To charge the owner for an injury done by an animal which is not of a vicious character, it must be alleged that it was in the habit of committing like injury, of which the owner had knowledge.'' A person may have the right to 1 Railroad Co. v. Stephenson. 24 O. v. Sutton, 24 O. S. 338, as to joint S. 48. owners of dogs. 2 Phelps V. Cousins, 29 O. S. 135; ^Mathis v. McCord, W. 647. Northcott V. Smith, 4 O. C. C. 568-9. SMcCiean v. McCarthey, 3 W. L. M. 8 Jack V. Hudnall, 25 O. S. 255. See 489 (1861). poHt sec 189; Brady v. Ball, 14 Ind. 6 Dickson v. McCoy, 39 N. Y. 401 ; 317. Ordinarily held that they can- Dolph v. Ferris, 42 Am. Dec. 246 ; not be jointly sued. Adams v. Hall, Goodman v. Gay, 53 Am. Dec. 589. 19 Am. Dec. 690; Van Steenburg v. ''Vrooman t. Lawyer, 13 Johns. Tobias. 31 Am. Dec. 310 ; Cogswell v. 339 ; Stumps v. Kelly, 22 111. 140. Murphy, 46 Iowa, 44 See McAdams 170 ANIMALS. [§ 184. expel animals which are trespassing, but in doing so he must not unnecessarily injure them, as he is liable to their owner for any injury to them, even though the owner of the animal would be liable for the damage caused by tliem.^ The act^ authorizing certain animals to be killed when they are dis- eased and past recovery does not prevent the owner from having his property rights in them determined in the proper tribunal.^ Sec. 184. Petition for damages from trespassing animals arising from failure to keep partition fence in repair. — {^Caption and formal opening?^ That on the day of , 18 — , previous thereto, the plaintiff and defendant owned in fee-simple and were in pos- session of adjoining farms in the township of , in said county, separated by a partition fence, of which the plaintiff and defendant had by mutual agreement assigned the half to the plaintiff and the naif to the defendant as his respective portion to keep in repair. That the plaintiff has kept the portion so assigned to him in good repair, but that the defendant has failed and neglected to keep the portion as- signed to him in repair, by reason whereof, on the day of , 18 — , or at divers other times, certain animals \naimng them, according to sees. Jf.W6, J^W2'] belonging to the said defendant broke down said portion of said fence so assigned to the said defendant to keep in repair, and entered upon, ate and destroyed the crop of the plaintiff growing on his said tract of land and otherwise injured his said premises; that on the day of , 18 — , said plaintiff filed his complaint with , a justice of the peace within and for the said township, who appomted , and , three judicious, disinterested men, residents of the count\% to assess the damages so sustained by the plaintiff. That said assessors so appointed, and upon due notice having been given to the defendant, met on the day of , 18 — , and upon their oaths assessed the said plaintiff's damage for the trespass so done by the defendant's animals [yiaming theni] to be paid by the said defendant at dollars. That on the day of , 18 — , said plaintiff demanded of said defendant payment of the amount of damages so assessed by said assessors, which the defendant refused and still refuses to pay. Where- fore plaintiff" prays judgment for the sum of dollars with interest from the day of , 18 — . 1 Kerwhaker v. Railroad Co., 3 0. ^ Brill v. Humane Society, 4 O. C, S. 172. C. 358. aR S., sec. 3725 A. §§ 185, 186.] ANIMALS. 171 Sec. 185. Petition for damages caused by trespassing stock. — \^Caption and formal 02)en{ng.'] That on the day of , 18 — , the cattle and stock of the defendant W. K. D. trespassed upon the lands of plaint- iff in said county, and in jured and destroyed growing corn belonging to plaintiff; and that by reason of the stock and cattle of the defendant so trespassing on and destroying the crops of plaintiff, he has sustained damages in the sura of $ , for which he asks judgment against the defendant. NOTK — Demurrer to this form overruled in Davis v. Wilson, 11 Kan. 74, Sec. 186. Impounding strays and action for recovery. — "We are not here concerned much about the provision of the statute in reference to taking up or impounding animals which may be treated as strays,^ unless the animals which happen to be unlawfully at large get into his master's neighbor's field and are there taken up and held until the owner pays the stat- utory fee.^ If the owner happens to be of a stubborn dispo- sition, instead of paying a dollar he may be compelled to pay considerable more, as instanced by some of the cases, in his attempt by the ordinary proceeding in replevin to gain pos- session of his animal, rather than pay the small fee stipu- lated by statute. The right of a land-owner to distrain and hold animals which may be found trespassing upon his land until the damages thereby sustained are paid does not pre- vail in Ohio as it did at common law.'' Moderation must be exercised in protecting the public from injuries by animals. There is always some reason for their being at large; it may be by some unavoidable accident, or even by the act of God, in which case the owner should be given an opportunit}'' to explain the circumstance; and a city cannot say that, when found in its streets, an officer shall seize and sell them to the hio-hest bidder because of their offense.* Animals are con- sidered at laro^e withm the meaning of the statute whether they are so with or without the consent of the owners;^ but where the animal passes through the owner's field through a line fence in an adjoining owner's field and from there into 1 R. S., sec. 4207. * Rosebaugh v. Saffin, 10 O. 32, 2 R. S., sec. 4208. • 5 Sloan v. Hubbard, 34 O. S. 583. -•5 N 10 O. S. 110 (1859j. 182 ANIMALS. [§§ 197, 198. of the defendant, to the damage of said plaintiff in the sum of dollars. "Wherefore plaintiff prays judgment against the said defend- ant railway company in the sum of dollars with interest from . Note. — Changed from Railway Co. v. Hoflf hines. 46 O. S. 643. Sec. 197. Allegation where injury occurs by reason of insufficiency of fences. — That the fence was constructed in a careless and negligent manner, and was defective and insufficient to turn stock on or to prevent domestic animals going upon the railroad track; that prior to and at the time of the accident, this fence was, through the negligence of the defendant, in bad repair, and insufficient to turn stock and to prevent domestic animals from going upon the railroad, of which the defendant knew ; that by reason of such negligence and the defective condi- tion of such fence, and without the fault of the plaintiff, his horse, on the day of , IS — , got across, through, and over the fence to and upon the track, where it was killed by the defendant's cars. Note.— From Railroad Co. v. Schultz, 43 O. S. 270. Sec. 198. Petition where company failed to whistle or ring bell — Cattle injured while crossing highway. — \_Averme7it of corporate cajMcity.'] At the time of the grievances hereinafter complained of, and for a long time prior thereto, the defendant was owning and operating a railroad running from A., in said county, to Y., Ohio, and were running several trains of cars over said road every day. Said railroad, near the depot at W., in said county, and a short distance north from said depot, crosses a public high- way, which is a main traveled road. The plaintiff has for several years owned and occupied land on both sides of said raih'oad, his house and barns being several rods west of said railroad and his pasture lying east of said railroad and adjoin- ing thereto. The plaintiff has for several years kept and owned several cows. In driving said cows from said barns to said pasture and from said pasture to said barns it was necessary to drive them across said railroad and along said highway. On or about the day of , IS — , said plaintiff was driving said cows from said pasture to said barns and across said railroad, and in driving them across the said rail- road the plaintiff used all necessary care and precaution to save said cows from all and any injury by any train which might be passing over said railroad. The defendant at the § 199.] ANIMALS. 183 time was running a train of cars over said i-ailroad and across said highway. The agents and employees of the defendant, in charge of said train and who were running the same, did, carelessly and negligently, fail to sound any crossing or other whistle at and for said crossing or to ring any bell as required by statute, and did carelessly and negligently run and manage said train of cars, and failed to stop its said train after dis- covering said stock upon its track. By reason of said care- lessness and negligence, and without any fault of the plaintiff, the engine attached to said train did hit, run into and against two of said cows and killed the same, to the damage of the plaintiff in the sum of one hundred dollars: for which sum he asks judgment against said defendant with interest from Note.— Changed from L. S. & M. S. Ry. Co. v. Slater, 24 W. L. B. 3. Sec. 199. Answer claiming cattle were uulawfiilly at large. — The defendant says that plaintiff did not live along the line of said road, nor was his said cow grazing in an unin- closed field adjacent thereto; that said plaintiff knowingly, wilfully and unlawfully permitted his said cow to run at large upon the highways and uninclosed land adjacent to defend- ant's said railroad track, whoi-oby said cow went upon said railroad and was accidentally kdled; and that by reason thereof plaintiff cannot maintain his said action against said defendant. Note.— From P., F. & C. Ry. Co. v. Methven, 31 O. S. 586. CHAPTER 16. ARBITRATION AND AWARD. Sec. 200. Parties to, and what may be submitted to arbitration. 201. Agreement to arbitrate. 202. Form of agreement for sub- mission of controversy, with special clauses, and recitals. 203. Bond may be entered into. 204. Form of arbitration bond. 205. Revocation of submission. 206. Petition against party re- vokmg submission. 207. Process, how obtained. 208. Oath of arbitrators and wit- nesses. Sec. 209. Form of oath of arbitrators. 210. Award to be in writing. 211. Form of award. 212. Enforcement of award. 213. Petition on bond given in a common-law arbitration. 214 Answer of invalidity of award — Common law. 215. Answer setting up award. 216. Award may be set aside. 217. Objections to award. 218. Confirmation of an award and judgment thereon. 219. Entry setting award aside^ Sec. 200. Parties to, and what may be submitted to ar- bitration. — Arbitration is the submission of matters of dif- ference between contending parties to the investigation and determination of one or more unofficial persons chosen by them. Persons have a right to settle their own controversies upon any terms they please, and as arbitration is designed for a speedy settlement, embracing within its scope every subject of dispute, except it be the possession and title to real estate, it at once becomes obvious that the law is almost boundless in its capabilities and usefulness. All persons who have any con- troversy, except when possession of or title to real estate may come in question, may submit such controversies to the arbit- rament or umpirage of any person or persons, to be mutualh'' agreed upon by the parties, and they may make such submis- sion a rule of any court of record in the state.^ The parties to a submission must of necessity have full qualifications tO' contract.' The provisions of the code are broad, and "all per- JO. Code. sees. 5601. 5602. 2 Morse on A. & W., p. 8, § 201.] ARBITRATION AND AWARD. 185 sons " will include corporations,* executors and administrators,' guardians.^ county commissioners,* municipal corporations,* contractors, subcontractors or material-men under tlie mechan- ics' lien law,* stockholders of railroads in case of sale, lease, or aid by subscription;' and it has been held that an attorney may submit a cause to arbitration on behalf of his client.* It seems that according to the weight of more recent authority, one partner has no implied power, by virtue of the partnership, to bind his copartner by a submission to arbitration.^ Where a pending suit is submitted, other matters in controversy may be joined in a general submission between the parties.''' A question of damages may be submitted and the judgment entered according to the amount found.'' In fact, all matters growing out of contracts as well as liabilities arising from torts committed may be submitted. Sec. 201. Agreement to arbitrate. — The authority of arbitrators must necessarily be derived from the contract of submission.'- AVhere parties undertake to submit a contro- versy under the statute they should strictly follow its re- quirements;'* yet the statutory arbitration does not take away the common- law right to settle disputed questions in this manner;'* so that where parties have in some manner failed to comply with the statute rendering it ineffective as a statu- tory submission, as the omission of the names of the arbitra- tors,'* it may nevertheless be held good as a common-law sub- 1 Tuscaloosa Bridge v. Jemison, 33 Everett v. Charlestown, 12 Allen, 93, Ala, 476 ; Alexandria Canal Co. v. 96 ; Moye v. Cogdell, 69 N. C. 93. Swan, 5 How, 83; Brady v. Mayor, »Tillinghast v. Gilmore, 17R 1. 413; 1 Barb. 584. 22 Atl. Rep. 942 (1891 ) ; Bates on Part, ^ Childs V. Updyke. 9 O. S. 333 : R sec. 336, and cases collected in note 4. S., sec. 6093. Claims against estate. Contra, Wilcox v. Singletary, W. 420 ; Bradstreet v. Pross, 11 W. L. B. 117; Morse on A. & W., p. 7, and cases Bennett v. Pierce, 28 Conn. 315 ; Ken- cited, dall V. Bates, 35 Me. 357. i<' Jones v. Welhvood, 71 N. Y. 208. SBean v. Faruam, 6 Pick. 209; ii Conner v, Drake, 1 O. S. 166. Strong Y. Beroujon, 18 Ala, 108; i-' Tullis v. Sewell, 3 O. 510. Hutcliins V. Johnson, 12 Conn. 376. 13 Moody v. Nelson, 60 111. 229 ; Fair- * Jenifer v. County, 2 Disn. 189. child v. Doleur, 42 Cal. 125. 6 Springfield v. Walker, 42 O. S. ^^Brown v. Kincaid, W. 37. 543. 15 N. W. Guaranty Loan Co. v. Chan- 6R S., sec. 3200. nell, 55 N. W. Rep. 121 (Minn., 1893); 7R S., sec. 3388. W. F. Seminary v. Blair, 1 Disney, s Morris v. Grier, 76 N. C. 410 ; 375. See sec. 205, post. 186 ARBITRATION AND AWARD. [§ 202. mission and award.^ No particular form of words is required, but it will be sufficient if there is an agreement to abide by the decision of certain persons upon a particular matter.^ To be operative, however, it must be mutual and binding upon both parties.'' A verbal submission between two parties, made simultaneously with or subsequent to a written submission, will be superseded by the latter.* A portion only of the mat- ters involved may be submitted.^ A mere agreement to sub- mit certain matters to arbitration does not amount to a sub- mission, nor can it be specifically enforced, but either party may demand that the case be tried in the regular way.' The statute of limitation is defeated in its operation by submission to arbitration,' and it works a continuance of a pending suit. Sec. 302. Form of agreement for submission of contro- Tersy. — Be it known that A. B., of county, state of , and C. D., of county, state of , do hereby mutually agree to submit all questions and matters of differences now exist- ing between us [or' any speciiiG qaestion or claim, desoribing it] to the arbitration, determination and award of E. F., G. H. and I. J. (or any two of them), as arbitrators to hear and de- termine the same at , in , county of , state of , and make their award in writing on or before the day of , A. D. 18 — , and when so made said award shall befinal, binding and conclusive upon us. [And shall be made a rule of the court of common pleas of county, state of .] Witness our hands this day of , A. D. 18 — . (a) Special clause in agreement. — Whereas certain differences and disputes have arisen 'and are still pending between the said parties [for i?isfance, as to whether the said A. B. is indebted to the said C. D. in any and in what sum of money, and as to the price said C. D. ought to pay for the stock and trade taken by him off the hands of the said A. B.], it is agreed by and between them that the same shall be referred, etc. 1 Tyler v. Dyer, 13 Me. 41 ; Moore Nashua & L, E. Corp. v. Boston, etc., V. Barnett, 17 Ind. 349; Childs v. 157 Mass. 268; 31 N. E. Rep. 1060 Updyke, 9 O. S. 333 ; Estes v. Phillips, (1892). 2 C. S. C. R. 3; Strum v. Cunning- 6 Jones v. Well wood, 71 N. Y. 208- ham, 3 O. 286. 6 King v. Howard, 27 Mo. 21 ; Con- 2Willson V. Getty, 57 Pa. St. 266; ner v. Drake, 1 O. S. 166. Parties Kimball v. Walker, 30 111. 482. cannot by agreement change the 3 Yearaans v. Yearaans, 99 Mass. 585. mode of procedure of courts. Con- 4Loriug V. Alden, 3 Met. 576; ner v. Drake, 1 O. S. 166. Symonds V. Mayo, 10 Cush. 39. See 7 Hunt v. Guilford, 4 O. 310. §§ 203, 204.] ARBITRATION AND AWARD. 187 (b) Recital of actiou pending. — Whereas an action is how pending in the court of county, state of ■, wherein the said A. B. is the plaint- iff and C. D. defendant, it is agreed [if it is not intended to refer the action, hut only the suhject of the action, add: that all proceedings in the action shall be stayed, but that in order to ascertain, settle and adjust all accounts, claims and amounts in dispute in said action] that the same [if the reference is to he general, add: and all matters in difference between the parties] shall be referred, etc. (c) Recital of action to be dismissed and matter in dis- pute referred. — Whereas the said A. B., on or about the day of , A. D. 18 — , commenced an action in the court of county, state of , against the said C. D. praying [here state the suhstance of the claim] ; and whereas the said parties have agreed that the said action in the said court shall be dismissed without costs, and that the several matters, ques- tions and differences herein specified, viz., whether [here enumei^ate the points to he decided^ shall be referred, etc. (d) Clause as to costs. — It is also further agreed that the costs of the reference and award shall abide the event of the award [or, that the costs of the references and award shall be in the discretion of the arbitrators, who may direct to and by whom and in what manner the same shall be paid]. Sec. 203. Bond may be entered into.— Parties to a sub- mission may enter into and exchange arbitration bonds for the faithful performance of the award.^ It should contain the matters agreed to in the submission and the names of the arbitrators,^ as well as the time and place for the hearing, and the time within which the award shall be made.^ Sec. 204. Form of arbitration bond.— Know all men by these presents that we, A. B. and C. D., our heirs, executors or administrators, are made and firmly bound by these ])resents each to the other in the sum of dollars. The conditions of the above obligation are such, that whereas the said A. B. and C. D. have agreed in writing to submit all claims and questions between them [or state the specific mutters set out in the agreement for arhitration] to the arbitration and determination of E. F., G. H. and I. J., the said award to be made in writing under the hands of the 1 R. S., sec. 5602. • Channell, 55 N. W. Rep. 121 (Miun., 2W. F. Seminary v. Blair, 1 Disn. 1893). 370 ; N. \V. Guaranty Loan Co. v. 3 r. s., sec. 5603. 188 AKBITKATION AND AWARD. [§ 205. said arbitrators (or any two of them) and ready to be deliv- ered to said parties on or before the day of . 18 — , and said arbitration to be held at the office of S. M. in the township of , county of , state of Ohio, on the day of , 18 — . The arbitrators having — — [and that said submission shall be made an order or rule of the court of common pleas of county of the state of ] : Now, therefore, if the said A. B. and C. D., their heirs, ex- ecutors or administrators, shall well and truly abide by and perform such an award as may be made by said arbitrators, or any two of them, in accordance with said submission, then this obligation shall be void; otherwise to be and remain in full force and effect. Witness our hands this day of , 18 — . A. B. CD. Note.— R S., sees. 5600-3. Sec. 205. Revocation of submission. — An arbitration pro ceeding at common law was revocable by either party thereto at any time before the a ward. ^ The rule now adopted is that after the arbitrators have been sworn,'- or after notice that an award is made,^ it cannot be revoked. As submissions made under statutes must follow statutory rules, whether or not they may be revoked must depend largely upon the statutes.* Hence it is held that where it has been made a rule of court by virtue of the statutes it cannot be revoked.^ The refusal of a person named as arbitrator, or the institution of a suit in reference to the same subject-matter," or the death of one of the referees, revokes the submission.'' No particular form of revocation is required. It must con- form to the submission. A written submission requires a written revocation.- It must, however, be express and posi- 1 Davis V. Maxwell, 27 Ga. 368; 6 Kimball v. Gillan, 60 N. H. 54 Leonard v. House, 15 Ga. 473 ; Marsh " Potter v. Sterrett, 24 Pa. St 411 ; V. Packer, 20 Vt. 198. & C, 39 Am. Dec. 50. 2 Commissioners v. Carey, 1 O. S. ^Xeyes v. Fulton, 42 Vt 159; 463; Carey T. Commissioners, 19 O. Shroyer v. Bash, 57 Ind. 349; Ant- 245. werp v. Stewart, 8 Johns. (X. Y.) 3 Coon V. Allen, 156 Mass. 113; 30 125; Wallis v. Carpenter, 13 Allen N. R Rep. 83. (Mass.), 19 ; Brown v. Leavitt, 26 Me. * Montgomery Co. v. Carey, 1 O. S. 251. 463 ; Bloomer v. Sherman, 5 Paige, Columbus, Ohio, Jan. 8, 1894. 575 ; Heath v. President etc., 38 How. To E. F., G. H, I. J., Arbitrators : Pr. 168. See ante, sec. 201. Gentlemen — You will take notice 5 Dexter v. Young. 40 N. H. 130 ; that I hereby revoke your powers as Ferrus v. Munn, 22 N. J. L. 161; arbitrators under the submission Haskell v. Whitney, 12 Mass. 47. made to you by A. B. and myself in § 206.] ARBITRATION AND AWARD. 189 tive and not coupled with conditions.^ It must be absolute.' It can be made through an agent. ^ Is'otice of the revocation must be given to the arbitrators.* Revocation may be im- plied by the act of one of the parties.' If one party revokes a submission without consent of the other he becomes liable in damages either upon his arbitration bond or for breach of contract;" but the fact must be shown that the party in some way revoked the submission.' The measure of damages for revocation is the actual damage proved and not the penalty named in the bond,^ and may include costs of the discontinued suit and expenses incurred by reason of the submission.^ Sec. 206. Petition against party revoking submission. — [ Caption.'] On the day of , 18 — , an agreement in writing duly executed by both plaintiff and defendant, in which it was, amongst otlier things, agreed by and between them that they would submit the matters in controversy then existing be- tween them, respecting certain money claimed by this plaint- iff to be due from said defendant [or, respecting certain unsettled accounts and matters between them, etc., according to the terms of the agre('riienf\, to the final award and deter- mination of E. F., G. H. and I. J., arbitrators chosen by them (or any two of them), so that said arbitrators should make an award in writing ready to be delivered to the said parties, or such of them as should require the same, on or before the day of ,18 — ; and thereupon, afterwards, to wit, on the day of , IS — , the said arbitrators were about to ])roceed upon the submission as aforesaid made, and the said parties then appeared before the said arbitrators and were about to ])roceed to trial of the matters so agreed to be submitted to the said arbitrators aforesaid, when said C. D. revoked the said submission by an instrument of revocation in writing duly signed by him and delivered to the arbitrators, whereby the powers of said arbitrators in the premises ceased and were annulled, and whereby also this plaintiff sustained -writing dated the day of , ^Call v. Hagar. 69 Me. 531 ; Dexter A. D. 18—. V. Young, 40 N. H. 130 ; Frets v. (Signed) C. D. Frets, 1 Cow. (N. Y.) 335 ; Brown v. 1 Goodwine v. Miller. 32 Ind. 419. Leavitt, 26 Me. 251. 2Steere v. Brownell, 113 III. 41o. ' Marshall v. Reed, 48 N. H. 36. 3 Madison Insurance Co. v. Gritiin, 8 Blaisdell v. Blaisdell, 14 N. H. 7b. 3 Ind. 277. 9 Rowley v. Young, 3 Day (Conn.), * Allen V. Watson, 16 Johns. (N. Y.) 118; Call v. Hagar, 69 Me. 521 ; Pond 205; Brown v. Ltion.] rlaintiff alleges that one C. D. was on the dav of 18—, and still is, in his employ as a servant. That defendant on said date did unlawfully make an assault upon his said serv- ant C. D., and did beat, wound and injure him, bv reason whereof said C. D. became sick, and has been unable*^for months to perform any work, plaintiff being thereby deprived of his services during said period, and has thereby sustained damages in the sum of $ , for which sum he asks judgment against said defendant. Sec. 224. Petition by female for assault with intent to have unlawful intercourse. — The said plaintiff for cause of action says that on or about t-he day of , IS — , at or near , in said county, 1 Kleia v. Thompson, 19 O. S. 569. meltz v. Kelley, 72 Ind. 442 ; White- See O'Leary v. Rowland, 31 Mo. 117. head v. Hathaway, 85 Ind. 85. 2Schlosser \-. Griffith, 125 Ind. 431; 5 Myers v. Myers, 3 Ind. App. 226. s. C, 25 N. E. Rep. 459. 6 Creasser v. Young, 310. S. 57 :* Myers v. Moore, 3 Ind. App. 226. (1856); Sturdevant v. Tuttle. 21 O. S. ••Ruter V. Fay, 46 la. 132; Sten- 111; Kirk v. Whittaker, 22 O. S. 115. 202 ASSAULT AMD BATTERY. [§g i;25-228, the said defendant, , unlawfully assaulted and beat the said plaintiff, with intent then and there to have unlawful intercourse with her against her will, to the damage of plaint- itf in the sum of dollars. ^Wherefore plaintiff asks judgment against said defendant in the sura of dollars. Sec. 225. Petition hy an infant by next friend. — Now comes , an infant, by his next friend, -, and for a cause of action says that on or about the day of , IS — , at , the defendant, , assaulted and beat the plaintiff. , to his damage in the sum of dollars, for which he asks damages. Note. — From Banks v. Thompson, unreported case, No. 1745. Sec. 226. Petition by husband for assault upon his wife. [ Caption.'] Plaintiff alleofes that he was married to C. D. on the •day of , IS — , with whom he has since been and is now- cohabiting as his wife. That the defendant did on the day of , 18 — , unlawfully assault his said wife C. D., and did beat, wound and injure her. thereby causing her to be- come sick and unable to perform her accustomed household duties for , whereby plaintiff was deprived of her said services, and has sustained damages in the sum of $ , for which he asks judgment against defendant. Note.— If husband has sustained any special damages they should be pleaded. Uertz v. Singer Mfg. Co., 35 Hun, 116. See chapter on Husband and Wife. Sec. 227. Answer — General denial.— \^Ca2)t{o7i.'] Now comes the said defendant, , and for answer to the plaintiff's petition filed herein says that he denies each and every allegation contamed therein. Note.— Under the plea of "not guilty " the defendant may introduce evidence of mitigating circumstances to reduce the damages. Jamison v. Moseley, 69 Miss. 484 (1891). Sec. 228. Answer pleading self-defense. — Defendant says that at the time mentioned in plaintiff's pe- tition, and just before the assault therem complained of, the said plaintiff made an assault upon the defendant, and that the defendant, in defending himself against the said assault so made upon him by said plaintiff, necessarily and unavoidably beat and bruised said plaintiff, but only so far as was neces- sary to repel the as.sault so made upon defendant. Note. — Self-defense must be sperially pleaded. Myers v. Moore, 28 N. E. Rep. 724; 3 Ind. App. 226. A defendant may be justified in acting on ap- |§ 229, 230.] ASSAULT and battery. 2t)3 pearances. Jamison v. Moseley. 69 Miss. 478. Abusive words will not justify an assault. Willey v. Carpenter, 64 Vc. 212; 23 AtL Rep. 630 ; Tat- nall V. Courtney. 6 Houst (Del.) 434. Sec. 229. Answer denying assault with intent to have un- lawful intercourse. — Xow comes the said defendant G. W. H., and for answer to the petition of the said . plaintiff, tiled herein, de- nies that at the time and place stated in the petition, or at any other time or place, he unlawfully assaulted the said plaintiff with the intent to have unlawful sexual intercourse with her against her will. And he denies that he ever had any intent or desire, unlawfully or otherwise, to have sexual intercourse with said plaintiff against her will or otherwise. And he denies each and everv. all and singular, the allegations of the petition. Sec. 230. Liability of railway companies for wilful and malicious conduct of and assaults hy its servants upon pas- sengers. — There is a class of cases arising from the wilful and malicious conduct of the servants of railway companies, and assaults committed by them upon passengers, which may properly fall and be treated in this chapter, being in the nature of actions for the recovery of damages arising by reason of assaults of the servants of such company. According to some text-writers, and judging from the manner in which they have arrayed the authorities on this subject, there would seem to be some conflict of authority upon the question of liability of the company for assaults committed by its servants. In one instance, a case in Ohio, and others in Xew York are classed as being against the doctrine that there is any liability on the part of the companies for assaults so committed by their serv- ants, upon the theory that such acts, being wilful, malicious and criminal, are on that account not committed while acting within the scope of authority of the company. The difficulty, however, arises by confusing the principles which govern the general subject of master and servant with those which con- trol the relations between railway companies and their servants, as well as in the application of the doctrine of the liability of the master for the acts of his servants while acting within the scope of authority, to particular cases. It is quite impossible that a decision of one case can always operate as a general rule applicable to others. There are also other considerations 204 ASSAULT AND BATTERY. [§ 230. to be weighed in defining duties of railway companies to their passengers, and their liability for the acts of their servants toward passengers, in contrast to the duties and liabilities of masters and servants in other lines of service. It is a uni- versal rule that carriers of passengers are liable for unlawful and wilful acts of their servants acting within the scope of their authority, and especially within their instructions and in the performance of a duty prescribed.^ It is equally well-settled law that railway companies must protect their passengers from violence, insult and injury from whatever source arising.^ This rule, however, is subject to the qualification that companies cannot be charged for in- juries which could not have been prevented by their servants,' or those arising from an unexpected assault by another pas- senger which was promptly interfered with by the conductor.* It being the duty of railway companies to exercise the highest degree of care towards their passengers, they are es- pecially required to prevent an unlawful assault from being made by their servants. It is said, however, that the rule which governs the relations between master and servant generally, namely, that no liability is imposed upon the mas- ter for an unlawful and wilful assault made by his servant when not acting within the scope of his employment, has no- application whatever to the relation of carriers of passen- gers ; '" that the railway company enters into a contract with its passenger to carry him safely, and to protect him from any ill treatment or violence by its servant or third person, and is therefore liable in damages for an assault and battery 1 Rounds V. Railroad Co., 64 N. Y. 2 Goddard v. Railroad Co., 2 Am. 129 ; Railroad Co. v. Dunn, 19 O. S. Rep. 89 ; Pittsburgh, etc. R. R Co. v. 162 ; Passenger Ry. Co. v. Young, 21 Heines, 53 Pa. St. 512 ; Flint v. Trans- O. S. 518 ; Pittsburgh, etc. Ry. Co. v. portation Co., 34 Conn. 554. Slusser, 19 O. S. 157 ; McKinley v. 3 Randall v. Railway Co., 139 Pa. Railroad Co., 24 Am. Rep. 748 ; Moore St 464. V. Railroad Co., 64 Am. Dec. 83 ; * Mullen v. Railroad Co., 46 Minn. Craker v. Railway Co., 36 Wis. 657; 474; 49 N. W. Rep. 249 (1891). 17 Am. Rep. 504 ; Chicago, etc. R R ^ Stewart v. Railroad Co., 90 N. Y.. Co. V. Flexman, 103 111. 546 ; Schultz 588 ; Carpenter v. Railroad Co., 97 N. V. Railroad Co., 89 N. Y. 247, and Y. 500; Evansville, etc. Ry. Co. v. cases cited ; Jackman v. Railroad McKee, 99 Ind. 521 ; Steamboat Co. Co., 7 Am. Rep. 448. v. Brockett, 121 U. S. 645. § 231.] ASSAULT AND BATTERY. 205 committed by one of its servants upon a passenger, whether it arises from negligence or wilful and malicious conduct.^ Sec. 231. Same continued — Adjudications of courts. — A railway company may make rules governing the manage- ment and control of its train, and prescribing the duties of its servants with reference thereto, which will not be interfered with unless unreasonable. For example, it may make a rule re- quiring a conductor to eject from his train a passenger who refuses to produce a ticket or pay his fare on demand.' Upon these rules the liability of the company for assault committed by its servants in many cases hinges. The master is responsi- ble for all acts of his servant done in the course of his em- ployment under express or implied authority, and the moment he steps beyond that line the servant is as much a stranger to his master as any third person ; but he is invested with au- thorit}^ to use the necessary means to the performance of the duties assigned him, the character of which will vary according to the nature of the duty to be performed and attending cir- cumstances.^ The conductor of a railway train, however, in admitting or excluding passengers from cars, or in assigning them to places after they have entered, acts within the scope of his employment, and the company is civilly responsible, even though they may be of positive malfeasance or miscon- duct,* and is liable for a wrongful ejection of a passenger by a third person under direction of the conductor,* So, if a driver of a street-car, having authority to collect fare and to put a person off for the non-payment thereof, ejects a passenger, the company will be liable for any injury which may result from excessive force in so doing, or if put off while the car is in mo- tion.^ Even though a passenger's ticket has been wrongfully 1 Passenger Ry. Co. v. Young, 31 s Railroad Co. v. Wetmore, 19 0. S. O. S. 518 ; Goddard v. Railroad Co., 57 131, 132. Me. 202 ; s. C, 2 Am. Rep. 200 ; Weed < Passenger R. R. Co. v. Young, 21 V. Railroad Co., 17 N. Y. 362 ; S. c, O. S. 524 ; Railroad Co. v. Wetmore, 72 Am. Dec. 474 Female passengers supra; Liiiipus v. Omnibus Co., 1 H. are entitled to be protected from & C. 541. rude, indecent or brutal behavior. » Railroad Co. v. Young, 21 O. S. Keene v. Lizardi, 26 Am. Dec. 478. 518. 2 Crawford v. Railroad Co., 26 O. S. 6Healy v. Railroad Co., 24 O. S. 23. 580; Shelton v. Railroad Co., 29 O. S. See State v. Kimber, 4 W. L. G. 359. 219; Townseud v. Railroad Co., 56 N. Y. 296. 206 ASSAULT AND BATTEET. [§ 231^ taken up by a conductor, he must still provide himself with another or pay his fare ; if he refuses and is ejected, his remedy is not for expulsion but for the wrongful taking up of the ticket.^ So a person boarding a crowded passenger train^ even though unable to procure a seat, must nevertheless give the conductor his ticket or pay his fare; if he fails to do so he may be ejected. If the conductor attempts to take the ticket by force he is guilty of assault and battery, for which the com- pany is liable.^ Such a passenger must not be ejected with un- reasonable violence, or at a place where he would be exposed to serious injury or danger.^ Nor is a passenger who has lost a commutation ticket justified in refusing to pay his fare, and if ejected cannot maintain an action of tort against the rail- road company in the absence of excessive force on the part of the company's servants.* A conductor is not justified in using^ any more force in ejecting a boisterous or unruly passenger than any other, but must reasonably exercise the right, avoid- ing unnecessary injury.^ The force used by a conductor in the removal of a passenger must in all cases be consistent with the safety of the passenger's life.* A regulation by a street railway company requiring a pas- senger who takes into a car a package too large to be carried on his lap to pay an additional fare therefor is a reasonable one, and the conductor is justified in using the requisite force to remove such a passenger, and if he uses no more than is necessary to eject him the company cannot be held liable for assault;^ but a company is liable for an assault and battery committed by a conductor who forcibly takes property from a passenger for payment of fare ; ^ or for an assault and bat- tery committed by a ticket agent upon a person purchasing a 1 Shelton v. Railroad Co., 29 O. S. 345 ; Harrold v. Railroad Co., 47 219. Minn. 17. ^ C. C. C. & I. Ry. T. McLean, 1 O. « Sandford v. Railroad Co., 23 N. Y. C. C. 117. 343; Klein v. Railroad Co., 39 CaL 3 Railroad Co. v. Skillman, 39 O. S. 587. 453; Cory v. Railroad Co., 3 W. L. G. 7 Morris v. Atl. Ave. R R Co., 116 90. N. Y. 552. 4 Crawford v. Railroad Co., 26 O. & SRamsden v. Railroad Co., 6 Am. 580. Rep. 200. 6 Railroad Co. v. Valleley, 32 O. S. § 232.] ASSAULT AND BATTERY. 207 ticket, caused by an altercation about it;' or for an assault by a conductor upon a passencrer who refuses to pay fare a second time, the conductor claiming that it had not been paid.^ Cases may arise where the conduct of a ])assenger will be such that his right to recover damages for an assault may be waived by his own misconduct, as the duty is devolved upon the party complaining to so demean himself toward the serv- ant as not, by misbehavior, to provoke a quarrel between them.^ So it has been held that where a person who has pur- chased a ticket as a passenger applies to a servant of a rail- way company to have his baggage checked, who by his im- pudent conduct and abusive language toward the plaintiff provoked a quarrel in which the servant, to gratify his per- sonal resentment, struck the plaintiff, he cannot recover dam- ages therefor.'' Sec. 232. Petition for Avrongful removal of passenger from street-car. — Plaintiff says that the defendant is a corporation duly in- corporated under the laws of Ohio; that it is a common' car- rier of passengers ; that it has a street railroad track on street, in the city of , between and streets in said city ; that it has street railroad cars running on its said track for the carrying of passengers therein; that it has one of its cars, number ; that it has in its employ on this car a conductor, and that all of these statements were equally true of and applicable to defendant on the day of -, 18 — ; that on the night of the day of , 18 — , plaint- iff boarded said car number , at the corner of and streets, the car, at his request, having stopped to let him get on; that he thus boarded said car to ride therein as a pas- senger a few squares; that he had in his hand, and was ready to ])ay when called upon, the charge for his transportation, but that he was not called upon to pay anything; that after he was upon the car, the conductor thereof J appointed by and in the employ of defendant, ordered him to go to the front of the car near the driver, and to stand on the platform in front of the car; that plaintiff refused to obey this order and took a seat within the car, claiming at the time that he had a right so to do; that the said conductor then, in a rude manner, or- 1 Fick V. Railroad Co., 60 Am. Rep. 414 ; Flinn v. Railroad Co., 49 N. Y. ^'^^' Super. Ct. 81 ; Harrison v. Fink, 42 - Goddard v. Railroad Co., 2 Am. Fed. Rep. 787. ^«"P- 39- i Little Miami R. R Co. v. Wet- 3 Scott V. Railroad Co., 53 Hun. more, 19 O. S. 110. 20S ASSAULT AND BATTERY. [§ 233. dered plaintiff to get out of the car, which he declined to do ; and thereupon the said conductor called to the driver to come and assist him (the conductor) to put plaintiff off the car, but the driver did not come; then the conductor ordered the car to move on; that, as the car passed street, the con- ductor stopped it and stated to plaintiff that he would go and get a policeman and would put him (plaintiff) out of the car, to which plaintiff replied that he would obey the order of an officer; that the conductor returned to the car without a policeman, and ordered it to move on; that when the car reached street the conductor stopped it and procured some rowdies, who, at the instigation and by the procurement of the conductor, entered the car and with force and violence assaulted plaintiff, seized him by the throat, dragged him from the car and struck him, wounding and cutting his face. Plaint- iff says that this was done by the procurement and direction of the said conductor, he being present, using and assisting the said rowdies, and he being, at the same time, in the employ of the defendant as their conductor, and as such having con- trol of the car; that plaintiff was thus by the defendant, through its conductor, assaulted, beaten and driven from the car as aforesaid. Plaintiff further says that during all this assault upon him, and during the time he was in tlie car, he was in an orderly and proper manner conducting himself, being seated upon the seat of the car ; that the car was not full, but that there was abundant room for many such passengers. Plaintiff therefore says he has been injured and damaged by the defendant by the above acts to the amount of dollars, for which sum he asks judgment. Note.— From Passenger Railroad Co. v. Young, 21 O, S. 518. This peti- tion sustained the attack of a demurrer. Sec. 233. Petition for ejection from railroad car and for assault. — That on the da}^ of , 18 — , the defendant was a corporation doing business within the state of Ohio, and was the owner- and proprietor of a certain railroad line running from , in the county of . to -, in the state of , and was then and there, at the date aforesaid, and for a long time prior thereto had been and still is, a common carrier for hire of passengers and their baggage over its line of railway. That at that date, at , he purchased of the defendant a passage on its train of cars from — ■ — to , and paid therefor the usual fare to defendant's agent, and boarded de- fendant's car at , about o'clock in the evening of the day of , 18 — , and rode on the train, as he was en- titled, to , till he reached a point near the city of , in the county of , Ohio, where the defendant's agent and conductor of the train, in the course of his collections of fares § 234.] ASSAULT AND BATTERY. 209 on the train, took from the plaintiff the ticket which he re- ceived from , the" defendant's agent, as the token of his right to a passage to , and thereafter when the train had reached a point about miles west of , the con- ductor of the train stopped it, and in an uninhabited part of the , about the hour of midnight, and refused to carry the plaintiff or permit him to ride any farther on the train towards , and without any just cause illegally and violently assaulted the plaintiff and put him off the train, and left him to take his way as best he might to . Wherefore plaintiff was damaged in the sum of dollars, for which he asks judgment. Note.— From A. & G. W. Ry. Co. v. Dunn, 19 O. S. 162. Sec. 234. Answer of railway company that plaintiff was ejected for non-payment of fare. — [CajJtion.'] That at the time mentioned in the petition the defendant was conductor and had charge of a certain passenger train on the railroad of the Eailway Company, running from to . That one of the regulations of said company was that no person should be permitted to be and remain on such train without having a ticket therefor duly obtained, or without paying his fare on request [or, and that, if a passenger had not so purchased a ticket, he is required to pay cents extra fare]. That at said time the plaintiff was on said train without having a ticket therefor, and then and there refused to pur- chase a ticket or pay his fare. That defendant thereupon requested the plaintiff to leave said train, which the plaintiff refused to do; whereupon de- fendant then and there gently laid his hands upon the plaintiff and removed him from said train, without unnecessary vio- lence, which is the same act complained of by the plaintiff. Note. — Companies may require passengers to purchase tickets before getting upon a train, and, if they have failed so to do, may be required to pay an extra fare, and may be ejected upon refusal ; and if no unnecessary force be used, they have no right of action. Sage v. Railway Co., 33 N. E. Rep. 771 (Ind., 1893); Falkner v. Railway Co., 55 Ind. 369; 57 Ind. 576; 28 Ind. 1 ; 46 Ind. 293. This defense must be specially pleaded. Pier v. Finch, 29 Barb. 170. As to force, see Sanford v. Railroad Co., 23 N. Y. 343; Kline v. Railroad Co., 39 Cal. 587 ; Law v. Railroad Co., 32 la, 534. 14 CHAPTER 18. ATTACHMENT. 3ec. 235. When attachment will lie. Sec. 254 What may be attached. 236. Jurisdiction. 255. Delivery of property to per- 237. Parties. son found in possession — 238. Some general rules of plead- Redelivery bond. ing. 256. Proceedings against gar- 239. Against non-resident debt- nishee. ors. 257. Service upon garnishee and 240. Against absconding debt- his liability. ors. 258. Answer of garnishee. 241. Left county of residence. 259. Form of answer of gar- 242. Concealment of defendant nishee. 243. Debtor removing property. 260. Answer of garnishee bank. 344. Converting propert}' into 261. Several attachments upon money. same property. 245. Concealing property. 262. Receiver for property at- 246. Fraudulent assignment tached. 247. Di'bt fraudulently or crim- 263. Discharge of attachment inally incurred. 264. Judgment for plaintiff and 248. Attachment before debt proceedings thereunder. d ue. 265. Proceedings not terminated 249. Requisites of afP37. 'VosR V. Murray, 29 W. L. B. 88, 5R S., sec. 5559. S. C, 50 O. S. 19; Sherman v. Fitch, 244 ATTACHMENT. [§ 263. time to take charge of the property attached upon good cause being shown ; and the receiver shall give a bond as is provided in other cases.' It shall be the duty of the receiver to take possession of all notes and other evidences of debt which have been seized by the sheriff or other officer as the property of the defendant in attachment and proceed to settle and collect the same, and to commence and maintain actions in his own name for that purpose; but in such actions no right of defense shall be impaired or affected.'- Such receiver may also take possession of evidences of indebtedness which may be taken under an order of attachment sent to another county, and proceed to collect them as in other cases.^ Notice shall be given of his appointment to the person indebted to the de- fendant in attachment, either by written or printed notice served personally upon the debtor, or by copy left at his resi- dence, and the debtor shall stand liable to the plaintiff in at- tachment for the amount of money and credits of the defendant in attachment in his hands from the date of service, and shall account therefor to the receiver.* The receiver shall re- port his proceedings and hold all money collected by him and any property which may come into his hands subject to the order of the court.^ "When a receiver is not appointed the officer who attaches the property shall have all the powers, and perform all the duties, of a receiver appointed by the court, and may, if necessary, commence and maintain actions in his own name as such officer; and he may be required to give security other than his official undertaking.^ Sec. 26;i. Discharge of attachment. — A defendant may have an attachment discharged in three ways : by executing a bond for restitution of the property,^ by making a motion for that purpose,^ or by a judgment rendered in his favor.*^ The giving of a bond by the defendant will also discharge a garnishee for any property which may be found in his hands;'" but the defendant cannot ask the discharge on the ground 98 Mass. 59; Joues on Chattel Mort- ^R. S., sec. 5542. gages, sec. 348. '' R. S., sec. 5543. 1 R S., sec. 5539. ' R. S., sec. 5545. 2R S., sec. 5540; Woodburne v. a r. s., sec. 5556. Scarborough, 20 O. S. 57. » R S., sec. 5554. 3 Finuel v. Burt. 2 Handy, 204. w R. s., sec 5545. •* R S., sec. 5541. Jl § 263.] ATTACHMENT. 246 that the answer of the garnishee fails to show any property in his hands.^ The undertaking may be executed during vacation and in the presence of the officer, while the writ is in his hands, or before the clerk after the return of the order, the same to be approved in either case by the oUicer before whom it is taken.^ If there be no ground for attachment, the fact that the de- fendant has given a bond will not operate to estop him from movincj to discharo^e the attachment.^ A motion to discharge an attachment may be as to the whole or to a part of the property, and may be heard by the court in vacation as well as durinor the regular session.* This right should be limited to cases where the defendant shows an interest in the motion, although where the ground is that the attachment is wrongfully obtained no question as to the interest of the defendant in the property attached will pre- vent an inquiry into the grounds thereof.' Such a motion may be made upon the ground that the affidavit is insuffi- cient,** in which case the court will not look into the petitions and exhibits,^ or into the question whether the property wa& fraudulently brought into the state for the purpose of attach- ing it.* A motion to discharge cannot be made upon the ground that the property does not belong to the defendant ;^ nor will an attachment be discharged on the ground that it appears from the answer of the garnishee that he is not in- debted or has no property in his possession belonging to the defendant;^" but where an answer of a garnishee shows that there was nothing due from him to the plaintiff, which is not objected to within a reasonable time, and is apparently drawn •Myers v. Smith, 29 O. S. 120; ^ Kizer v. George, 19 W. L. B. 257; Penn. R R Co. v. Peoples, 31 O. S. Timmons v. Garrison, 4 Humph. 148; 5:^7; anie. sec. 258. Powell v. McKee, 4 La. Ann. 108; - R S., sec. 5546 ; Hartwell v. Smith, Deyo v. Jenison, 4 Allen, 410 ; Drake 15 O. S. 200. on Attach., sees. 193-289 ; 1 Wade on 3 Eagan v. Lumsden, 2 Disn. 168 ; Attach. 130 ; Waples on Attach. 180. Williams v. Shipwith, 4 Ark. 529. » Langdon v. Conklin, 10 O. S. 430 : * R S., sec. 5562. See 10 O. a 439. Emerson t. Love, 2 W. L. B. 480. *Bank v. Nash, 1 Handy, 153. icPenn. R R Co. v. Peoples, siqjia; 6 Constable v. White, 1 Handy, 45. ante, sec. 258. 7 Gann v. White, 23 O. S. 192. 246 ATTACHMENT. [§§ 264, 265. with the concurrence of the plaintiff, a motion to discbarge the garnishee will be granted.* Motions to discharge attachments may be heard upon affi- davits or papers and evidence in the case, and opposed by the plaintiff in the same manner;- and the same should be filed so as to give the opposite party sufficient time to inspect the same before the hearing.' The court must consider the whole evidence, and, no matter how poorly the cause or grounds are set out, sustain the attachment if sufficient evidence appear.* The questions, however, to be considered are not the nature or justice of the claim, but does the evidence entitle the plaintiff to the process.^ xln order discharging an attachment is not such as will prevent the issuance of a subsequent attach- ment.^ Sec. 264. Judgment for plaintiff and proceedings there- under. — When judgment is rendered for the plaintiff it is satisfied in the same manner and under the same restrictions and regulations as if the property were levied on by execution ; ^ and the court may compel delivery of any attached property for which an undertaking has been given, or proceed sum- marily on such undertaking by rules of attachment as in con- tempt,^ or order an officer to repossess himself of the attached property for the purpose of selling it, and in such cases may take the property as under an order of attachment.' If prop- erty attached be claimed by any person other than the de- fendant, an officer may have the validity of such claim tried in the same manner as if it had been seized upon execution and claimed by a third person.^" Sec. 265. Proceedings not terminated by death of defend- ant. — The proceedings shall be carried on even though the defendant, being a person, die after the issue of the order, or, being a corporation, its charter expire or be forfeited ; in all such cases other than where the defendant was a foreign cor- 1 Buchanan v. Mitchell, 8 W. L. 5 Alexander v. Brown, 2 Disn. 395. B. 8. « Brooks v. Todd, 1 Handy, 169-76. 2 R S., sec. 5563 ; Alexander v. " R, S., sec. 5555. Brown, 2 Disn. 395. 8 R. s., sec. 5556. 3 Coaston v. Paige, 9 O. S. 397-9. » R. S., sec. 5557. * Sellew V. Chrisfteld, 1 Handy, 86, I'J R S., sec. 5558. 90. I §§ 266, 267.] ATTACHMENT. 24:7 poration, the legal representatives of the defendant shall be made parties to the actioYi.' Sec. tJGG. Error from attachment proceedings. — An order discharging an attachment upon a motion therefor is an order affecting a substantial right, although made in a special pro- ceeding called a provisional remedy, upon which proceedings in error may be predicated and the order reversed pending the action in which the order of attachment is made.^ In reversing an inferior court on a question of fact involved in the motion to discharge, a court of error should be clearly satisfied that it was error ; ^ but it is not necessary that a mo- tion for a new trial shall have been made in order that a review may be had of a judgment granting a motion to dis- charge an attachment.* A reversal may be had where a motion was made on the ground that the affidavit was insuffi- cient;* but an order of a justice of the peace cannot be re- viewed on the ground that it was against the weight of evi- dence,^ but may for other errors; ' and for that purpose a bill of exceptions may be taken embodying all of the evidence upon the hearing of the motion together with the rulings of the justice.^ Sec. 267. Motion to sell perishable property, or because of expense of keeping. — [Caption.'] The plaintiff represents to the court that upon the w^-it of attachment issued herein there was levied upon, with other l)roperty, the following described personal property, to wit: {describe it\ of the value of dollars. That said property is of perishable nature, and will soon decay and rot, so as to greatly, if not wholly, lose its market value, to the loss of both the plaintiff and the defendant. \_0r, That the keeping of said property is expensive, costing now about dollars per day {or, week), and to keep it until this cause is determined will inflict a loss upon both the plaintiff and the defendant.] Wherefore he moves that the court will order the sheriff of county, to whom said writ was issued, and who made 1 R. S., sec. 5560. < Burtraan v. McKenzie, 13 W. L. 2 Watson V. Sullivan, 5 O. S. 43 B. 321. (1855). Contra, Sutliff v. Bank, 1 W. SGanns v. Thompson, 11 O. S. 579. K M. 214. 6 Baer v. Otto, 34 O. S. 11. ■J Harrison V. King, 9 O. S. 388; 7 Young v. Gerdes, 42 O. S. 102. Saxton V. Plyuiire, 3 O. C. C. 209. 8 Seville v. Wagoner, 46 O. S. 52. 248 ATTACHMENT. [§ 268. said levy, and who still has possession of said property, to sell the same at public auction, upon reasonable notice first given^ either for cash or upon such terras of credit as the court may deem proper. [Of', Wherefore plaintiff, for good cause shown, moves the court for an order of sale of the aforesaid property at private sale.] Note. — Sec. 5554. This motion may be made during pendency of pro- ceedings in error to the court in which the action was brought and the property attached. It is collateral to and independent of the merits of the suit, and not within the jurisdiction of the reviewing court. Brundred v. Rice, 21 W. L. B. 413. See. 268. Answer of defendant. — [ Captioti.'] Defendant says that he denies each and every allegation contained in the complaint and each and every allegation con- tained in the affidavit filed herein for a writ of attachment. [0/\ That he denies each and every allegation of the affi- davit filed herein for a writ of attachment.] CHAPTER 19. ATTORNEYS AT LAW. Sec. 269. Petition against attorney for negligently conduct- ing a trial. 270. Petition for negligently de- fending an action. Sec. 371. Petition against attorney for negligently investi- gating title for the pur- pose of a loan. 873. Petition against attorney for negligence in examin- ing title for purchase. Sec. 269. Petition against attorney for negligently con- ducting a trial. — That before and at the time of the committing of the griev- ances by the said defendant as hereinafter mentioned, the said plaintiff, at the special instance and request of the said defendant, had retained and employed the said defendant as an attorney to prosecute and conduct a certain action for the conversion of personal property in the said court, by and at the suit of the said plaintiff, against one E. F., for taking away and converting to his use certain goods and chattels, claimed by him, for certain reasonable fees and reward, to be therefor paid by said plaintiff to said defendant; and the said defendant then and there accepted and entered upon such retainer and employment, to wit, at , and thereupon it then and there became and was the duty of the said de- fendant to prosecute and conduct the said action in a proper, skilful and diligent manner. That the said defendant, not regarding such his duty or re- tainer and employment [and intending ^o injure and aggrieve the said plaintiff'] in this behalf, did not prosecute or con- duct the said action in a proper, skilful or diligent manner, and, on the contrary thereof, prosecuted and conducted the same action to trial so improperly, unskilfully and negli- gently [state particular negligence] that the said plaintiff, by the neglect and default of the said defendant in that behalf, was hindered and prevented from [state result of negligence and injury caused], and by reason thereof was afterwards, to wit, on, etc. [day of nonsuit or about it], at, etc., compelled to suffer himself, the said plaintiff, to be nonsuited in the said action, whereby he, the said plaintiff, was not only hindered 250 ATTORNEYS AT LAW. [§ 270. and prevented from recovering his said damages from the said E. F. by reason of his taking away and converting the said goods and chattels as aforesaid, but has also been forced and obliged to pay and has paid to the said E. F. a large sum of money, to wit, the sum of dollars, for his costs and charges in and about the defense of the said action, and has also paid to said defendant another large sum of money, to wit, the sum of dollars, for his costs and charges for thejirosecution and conduct of the said action. Wherefore, etc. \_prayer for judgment]. Note. — An attornpy is not liable where the negligence complained of does not work any injury. Harter v. Morris. 18 O. S. 492. As to liability for negligence in conduct of cases, see Weeks on Att'ys, sec. 297. Sec. 270. Petition for negligently defending an action \_Caption.] At the time of the making of the promise and undertaking of said defendant, hereinafter mentioned, a certain action had been commenced and prosecuted and was then depending by and at the suit of one J. K. against the said plaintiff, in the court of , for the recovery of dollars claimed to be due and owing to said J. K. from said plaintiff upon a promissory note executed by the plaintiff to said J. K. on the day of , 18 — , for dollars, and thereupon he employed and retained the said defendant, he being then an attorney [of the said court], as such attorney to defend the said action for the said plaintiff, and in consideration of such 'employment the said defendant undertook and then and there faithfully promised the said plaintiff to defend the said action for him, the said plaintiff, in a proper and careful manner. Plaintiff informed the defendant that he had fully paid said note before suit was brought thereon, and although such pro- ceedings were thereupon had in the said action that after- wards, to wit, on the day of , 18 — , it became and was the duty of the said defendant, under and by virtue of his said retainer and his said promise and undertaking, to file a proper and sufficient answer to the petition therein, never- theless the said defendant, not regarding his said promise and undertaking [but contriving to injure the said })laintiff' in this behalf], did not nor would, when it was his duty so to do as aforesaid, file a proper or sufficient answer to the said peti- tion, but, on the contrary thereof, wholly omitted and neg- lected so to do, and by reason thereof, and by and through the default and neglect of the said defendant in that behalf, afterwards, to wit, on the day of , 18 — , judgment by default was obtained in the said action against him, the said plaintiff, by which it was adjudged, in and by the said court, in the said action, that the said J. K. should recover against the said plaintiff a large sum of money, to wit, the § 271.] ATTOENEYS AT LAW. 251 sum of dollars; and the said plaintiff was afterwards, to wit, on the day of -^ — , 18 — , forced and obliged to pay, and did pay, to the said J. K. the said sum of money so re- covered by him as aforesaid ; and also by means of the prem- ises he, the said plaintiff, was put to divers costs and charges in and about his endeavoring to defend the said action, amount- ing in the whole to a large sum of money, to wit, dollars, and has lost and been deprived of the means of recovering the same from the said J. K. Wherefore, etc. Note. — The judgment cannot be enjoined because the attorney neglects to defend a suit, but the remedy is against the attorney for damages. Bar- horst V. Armstrong, 43 Fed. Rep. 2. Sec. 271. Petition agaiust attorney for negligence in in- vestigating title for the purpose of a loan. — [ Caption.'] That heretofore, and on or about the day of , 18 — , one H. C. was desirous of obtaining from the said plaint- iff a loan of dollars, upon interest, at and after the rate of six per cent, per annum, and as a security for the repay- ment therefor, and interest thereupon as aforesaid, to the said plaintiff, proposed to incumber certain lands, tenements and premises situated in the county of and state of . That the plaintiff thereupon, to wit, on the day and year aforesaid, employed and retained the said defendant as an attor- ney, for fees and reward to him in that behalf, to ascertain the title of the said H. C. to the said lands and premises, and to take due and proper care that the same should be a sufficient security for the repayment of the said sum of money and in- terest, and the said defendant accepted and entered upon such retainer and em])loyment. That the said defendant, not regarding his duty or his said retainer and em[)loyment [but contriving and intending to in- jure and aggrieve the plaintiff in this behalf], did not take due and proper care to ascertain the title of the said II. C. to the said lands, tenements and premises, nor take due and proper care that the same should be a sufficient security for the repayment of the said sum and interest. And the said plaintiff further says that he, confiding in the said performance of the said duty of the said defendant, and relying upon the statement and assurance of the said defend- ant theretofore made to this plaintiff to the effect that the said H, C. had a valid title in fee-simple to and in said j)rem- ises, afterward, to wit, on the day of , IS — , did lend and advance to the said H. C. the sum of dollars, upon the security of certain lands, tenements and premises in the county of aforesaid, as and for a sufficient security in that behalf; and the said defendant, in pursuance of his said 252 ATTORNEYS AT LAW. [§ 272. retainer, caused to be prepared and executed a certain mort- gage and certain securities relating to the said supposed in- terest of the said H. C. in the said last-mentioned lands, tene- ments and premises, as and for such sufficient security for the repayment of the said sum of dollars, and interest as aforesaid, the same being then and there, by reason of the said defendant's negligence, carelessness, unskilfulness and improper conduct in the premises, a bad and insutficient se- curity for the repayment of the said sum of dollars and interest as aforesaid, whereby the plaintiff lost the amount so loaned to the said H. C, to his damage in the sum of dollars, for Avhich, etc. [prayer for judgment]. Sec. 271a. Petition against attorney for negligence in examining title for pnrchase. — [Caption.'] That at a time hereinafter mentioned the plaintiff entered into a contract with one L. M. for the purchase from him of certain real property [describing the premises] for the sum of dollars, which property said L. M. assumed to have power to convey in fee, and clear of all incumbrances. That the defendant was an attorney and was employed by the plaintiff as such at , in the month of , 18 — , to examine the title of L. M. to said property, and to ascertain if the title was good and if any incumbrances existed thereon, and to cause and procure an estate therein in fee-simple and clear of all incumbrances to be conveyed to the plaintiff, which the defendant for compensation agreed to do. That the defendant negligently and unskilfully conducted such examination, and did not use endeavors to cause or jiro- cure a good and sufficient title in fee, clear of mcumbrances, to be conveyed to the plaintiff, but wrongfully advised and in- duced the plaintiff to pay said L. M. the sum of dollars, being said purchase-money of the premises, when in fact said L. M. had no title thereto [o/', wheyi said property was subject to inc-umbrances^ specifying thepi and amount^ and the plaintiff, in order to release the premises from said incumbrances, was obliged to pay the holders thereof the sum of dollars], to the damage of the plaintiff dollars. Note.— As to liability for attorney for negligence in examining title, see Weeks on Att'ys, sees. 304, 312. CHAPTER 20. BAILMENTS. Sec. 272. General form of petition against bailee for negli- gence. 873. Petition for damages against bailee for negli- gence in special case. 274. Petition for damages against hirer of horse and buggy for careless- ness. 275. Petition for damages aris- ing from driving horse to different place tlian that agreed upon. Sec. 276. Duties and liabilities of pleiigee. 277. Petition for damages for loss of pledge. 278. Petition to foreclose and sell pledge. 279. Answer of loss by fire. 280. Pledge of commercial pa- per. 280tJ. Petition by pledgor of ne- • gotiable paper against pledgee. Sec. 272. General form of petition against bailee for negligence. — \_Ca2)tion.'] That the said plaintiff heretofore, and on or about the day of , 18 — , at , at the special instance and request ■of the said defendant, caused to be delivered to him. the said defendant, a certain [name ^yr ope Hy\ belonging to said plaintiff, •of the value of dollars, to be taken care of and safely and securely kept by the said defendant for the said plaintiff. Said defendant thereupon undertook and agreed with the said plaintiff to take due and proper care of the said \_property named] for said plaintiff, and to deliver the same to him, the said plaintiff, to wit, at : yet the said defendant, not re- garding his duty in that behalf, did not, nor would, take due and proper care of the said [propertij] for the said plaintiff; nor did he when requested as aforesaid, or at any time before •or afterwards, redeliver the same to the said plaintiff: but, on the contrary, said defendant so carelessly behaved and con- ducted himself with respect to the said [property\ and took so little and such bad care thereof, that by and through the care- lessness, negligence and improper conduct of the said defend- ant the said Iprojyerty'] became and was wholly lost to the said plaintiff, to the damage of the plaintiff of — — dollars. General Note. — A bailee without reward is liable only for losses arising from gross negligence, ami hence whether a banking house has been guilty 254 BAILMENTS. [§§ 273, 274. of negligence when bonds hare been deposited with it as a gratuitous bailee must be determined by the jury ; he should keep tiie goods intrusted to him as he wou'd ordinarily keep goods of his own of the same kind. Griffith v. Zippenwick. 28 O. S. 388. A bailee who as a guest has intrusted a trust fund in his pc ssession with a hotel may maintain an action in his own name for the recovery of the same when lost while in the custody of such hotel. Arcade Hotel Co. v. Wiatt, 1 O. C. C. 55. A bank receiving special deposits gratuitously is liable for any loss thereof occurrini;; througli the want of that degree of care which good business men would exercise in keeping property of such value. Bank v. Zent. 39 O. S. 105. A bailor has a remedy against a person who has converted his property to his own use. Thorne v. Bank. 37 O. S. 260; Roland v. Gundy. 5 O. 20:>: Knapp v. Hobbs, 50 N. H. 476. But where a bailee sells property of a bailor in violation of his trust, and applies the proceeds in paj-ment of the formers debts to a third person ignorant of the breach of trust, the latter cannot maintain an action for money had and received against such third person. Thorne v. Bank, 37 O. S. 260, 2iil : Kingsley v. Plimpton, 17 Pick. 159 ; Thatcher v. Pray, 113 Mass. 291 ; Culver V. Bigeiow, 43 Vt. 249. Sec. 273. Petition for damages against bailee for negli- gence in special case. — That on the day of . 18 — , the defendant, being a [desc/'ibe trade], and carrying on that trade, the plaintiff, at the defendant's request, delivered to defendant [describe prop- erty]^ the property of plaintiff, of the value of % , to be repaired by said defendant in the way of his trade, for a rea- sonable reward to be paid by the plaintiff. That the defendant thereupon promised the plaintiff to re- pair said in a skilful and workmanlike manner, and to take due and proper care thereof until the same should be returned by the defendant to the plaintiff. That the said defendant did not repair said in a good and workmanlike manner, and neglected to take proper care of said , whereby said property was greatly injured, and the value of the same diminished in the sum of % , to the damage of plaintiff in the sum of % . {Prayer:] Sec, 274. Petition for damages against hirer of horse and buggy for carelessness. — [Caption:^ That on the day of , 18 — , for a valuable consider- ation, the plaintiff, at defendant's request, let to defendant a certain horse, the property of plamtitf, of the value of % y for the purpose of going from to , and return. It thereby became the duty of defendant, and he promised at the time of hiring said horse, to take proper care thereof^ which was the condition upon which said defendant received said horse. Defendant failed and neglected to use said horse in a care- ful, prudent manner, but, on the contrary, rode \pr, drove] the same immoderately upon said journey, and failed and neglected properly to care for the same, whereby said horse- §§ 275, 276.] BAILMENTS. 255 [state the injury'], to the damage of plaintiff in the sum of 5* . [Prat/er.'] Note.— Liability for OTerdriving, see Bonfield v. "Whipple. 10 Allen, 27; Edwards v. Carr. 13 Gray, 234 ; Ray v. Tubbs, 50 Vt 688 ; Rowland v. Jones, 73 N. C. 52 : for overloading, NcNeil v. Brooks. 1 Yerg. 73 ; Harrington v. Snyder, 3 Barb. 380 ; for careless hitching. Jackson v. Robinson, 18 B. Mon. 1 ; for carelessness in feeding. Handford t. Palmer, 2 B. & B. 359 ; Eastman v. Sanborn, 3 Allen, 594 : Cross v. Brown, 41 N. H. 283. Sec. 275. Petition for damages arising from driving horse to a different place from that agreed upon. — [Captio7i and cjjening'j That on the day of , 18 — , the defendant hired from the plaintiff a horse and wagon, the property of the plaintiff, of the value of | , for the purpose of driving from to . Defendant, disregarding his said agreement, drove said horse and wagon to without authority from plaintiff. Defendant so negligently drove and fed said horse that the same, by reason of said defendant's negligence and violation of his said contract, became sick and died. That said horse was reasonably worth the sum of $ , and plaintiff has therefore, by reason of the premises, been dam- aged in the sum of $ . for which he asks judgment. Note. — Liability of person for driving horse to different place. Bucha- nan V. Smith, 10 Hun, 474 : Fisher v. Kyle. 27 Mich. 454 ; Wentworth v. Mc- Duffe. 48 N. H. 402 ; Lane v. Cameron, 38 Wis. 603 ; Ray v. Tubbs. 50 Vt 688; Lucas v. Trumbull, 15 Gray, 306. If infant Homer v. Thwing, 3 Pick. 492. Sec. 276. Duties and liabilities of pledgee. — It is the duty of a pledgee to safely keep the thing hypothecated that it may be returned when the pledgor has complied with all the requirements and conditions of the loan.^ So where property pledged has been disposed of in violation of the contract, or the pledgee refuses to deliver the same to the pleilgor upon the latter's compliance with all conditions, suit may be main- tained against the pledgee for conversion.- It does not amount to a conversion where the pledgee has sold the property by virtue of the power given him for that purpose.^ The pledgee is requirpd to use ordinary care with respect to the thing 1 Dodge V. :Meyer, 61 Cal. 405: Ro- worth v. Bowen, 9 Wis. 848; Dodge senzweig v. Frazer, 82 Ind. 342; v. Meyer, siipra; Rosenzweig "v. Luckey v. Gannon, 1 Sweeney, 12. Frazer, supra, 2Luckey v. Gannon, supra; Ains- " Cole v. Dalziel, 13 III App. 23. 256 BAILMENTS. [§§ 277, 278. pledged and is liable for ordinary negligence.^ And if the article pledged be lost the pledgee will only be liable when guilty of negligence.- The holder of stock in pledge as col- lateral for its owner's debt is an agent for the latter, or coupled with an interest, and must account to the owner for all sur- plus arising upon sale.' See. 277. Petition tor damages for loss of pledge. — [Caption and opening.] On the d.iy of , 18 — . the plaintiff delivered to the defendant, at his request, the following goods : [describe goods'], the property of the plaintiff, and of the value of S , by way of pledge to said defendant for the sum of $ , then and there advanced by the defendant to the plaintiff thereon. The defendant at the time of receiving said goods agreed to exercise proper care for the same until plaintiff was able to pay the amount loaned thereon, and redeem the same. Plaintiff wholly failed and neglected to take proper care of said goods, by reason whereof the same were entirely' destroyed and ruined and lost to plaintiff. Plaintiff tendered to the defendant, on the day of , 18 — , the sum of $ , the sum so by him advanced and loaned upon said goods, and demanded the return of the same, which was refused. That by reason of the non-delivery of said goods by the defendant, plaintiff has been damaged in the sum of 8 , etc. Sec. 278. Petition to foreclose and sell pledge. — [Captiofi.] Plaintiff alleges that on the day of , 18 — , he loaned to the defendant the sum of $ for months, with interest at the rate of per cent. At the time of making said loan, and in order to secure the payment of said sum of S , defendant delivered to plaintiff by way of pledge the following property : [Describe yroperty.] Said property was received by ])laintiff to be by him sold in case said defendant failed to repay said sum so loaned to him in accordance with the terms of said loan, and the proceeds thereof applied to the payment of said loan. That the defendant failed and neglected to pay said sum of 1 St. Losky V. Daridson, 6 Cal. 643 ; 3 Lee v. Bank. 2 C. S. C. R. 300. As Arent v. .Squires. 1 Dalj-, 3-t7 ; Baak to actiou bj- pledgee of stock upon V. Jackson, 67 Me. 570. . refusal to transfer the same for the 2 Abbett V. Frederick, 56 How. value thereof, see Bank v. Bank, 37 Pr. 68: Van Nostran v. Guaranty O. S. 208. Co., 7 J. & S. 73; Bank v. Zent. 30 O. S. 105. §,^ 279, 280.] BAILMENTS. 257 $ at the time the same became due, anrl there is now due plaintiff from defendant thereon the sura of $ . Wherefore plaintiff asks judgment against the defendant for the sum of $ , and that the said property so as afore- said pledged may be sold and the proceeds thereof applied in payment of the amount so found due plaintiff. Note. — The pledgee has the ri2;ht either to ohtain a decree for the sale of a pledgee, or may make a vaHd sale without. Briggs v. OHver, 68 N. Y. 336, Lucket V. Towuseud, 49 Am. Dec. 723; Robinson v. Hurly, 11 Iowa, 410; Boynton v. Payrovv, 67 Me. 587. See, also, Stearns v. Marsli, 4 Denio, 227 ; Strong V. National Bank Association, 45 N. Y. 718 ; Conynham's Appeal, 57 Pa. St. 474. Sec. 279. Answer of loss by fire. — [Capiiofi.] Defendant admits that he received from the plaintiff the goods described in the petition, to be kept for hira, and de- livered on demand, but alleges that he stored them in his warehouse at ^ and kept them until the day of , 18 — , when said warehouse, with its contents, including the property of the plaintiff, without the fault or neglect of de- fendant, was destroyed by lire. [Or, That plaintiff has not at any time demanded said prop- erty from defendant.] [Prai/er.] See. 280. Pledge of commercial paper. — A different rule prevails as to commercial paper pledged as collateral security.' Such a pledge, in the absence of special power to that effect, does not authorize the pledgee to sell the same either at public or private sale, but he must hold and collect the same as it becomes due and apply the proceeds to the payment of the debt. This exception is made because of the impracticability of selling commercial paper.^ An indorser and indorsee of commercial paper pledged as collateral security are regarded as sustaining the relation of pledgor and pledgee, and it be- comes the duty of the pledgee in such case to use ordinarj'^ care and diligence in the collection thereof if maturing before the date for which it is pledged.' A pledgee of commercial 1 Ante, sec. 276. N. J. Eq. 823 ; Iron and Steel Co. v. 2 Handy v. Sibley, 46 O. S. 15; Brick Co., 82 111. 548; Zimpleman v. Moore v. Hamaunn, 19 W. K B. 388 ; Veeder, 98 111. 618. The utmost good Wheeler v. Newbold, 16 N. Y. 392; faith is required of the pledgee in Fletcher v. Dickinson. 7 Allen, 28; such cases. 46 O. S. 15. Nelson v. Wellington, 5 Bosw. 178 ; ' Bridge Co. v. Saving Bank. 46 Morris Canal & B, Co. v. Lewis, 12 O. S. 224; Roberts v. Thompson, 14 17 258 BAILMENTS. [§ 280^. paper may bring suit thereon when it becomes due whether the indebtedness for which it was pledged be paid or not,^ and such suit may be brought even tl:ough the debt secured is not due.* It is not necessary in such suits to either make or allege a demand upon the pledgor.' The pledgor may collect the whole amount of a note h3^pothecated, even though the debt for which the note is given as security be less than the note it- self, and must return the surplus.* Collateral notes should be held until due, and if sold before due to a honafide purchaser their full value must be credited to the debt.' While it is the duty of the pledgee to collect collaterals whenever the same become due, still he is not allowed to apply the proceeds to the payment of the debt secured until after default in its pay- ment.^ A person receiving collateral security is bound to use ordinary care in collecting it. and is liable for any loss which may happen to the other for any want of care or diligence, the rights and duties of such parties being governed by the law of agency. But where demand and notice is waived by a debtor assigning collaterals to his creditors, the latter are not bound to demand and insist on payment of the security before maturity; the assignment being an absolute guaranty of payment, the plaintiff is thereby relieved of all obligation to demand payment when the note matured.' Sec. 280a. Petition by pledgor of negotiable paper against pledgee. — \_Caption?\ Plaintiff says that on the day of , 18—, he was in- debted to the said defendant in the sum of dollars, and in order to secure the said defendant upon such indebtedness he delivered to him as collateral security for the payment of said indebtedness a warrant promissory note made by one A. B. for the sum of dollars, said note bearing date of , 18 — , and payable within days after date; that upon O. S. 1 ; Reeves v. Plow, 41 Ind. 204 ; 7 Wis. 492. Attorney's fees cannot Nolan V. Clark. 10 B. Mon. 239 : Mil- be recovered. Bank v. Hemingray. ler V. Bank, 8 Watts, 192. 34 O. S. 381. 1 McCarty v. Clark, 10 Iowa, 588. sRoake v. Bonte, 9 Am. Law Rec. 2Joue6 V. Hawkins, 17 Ind. 550. 487; Springer v. Purcell, 5 W. L. B. 3 Paine v. Furnas, 117 Mass. 290; 889. •Nelson v. Edwards, 40 Barb. -279. " 15 J. & S. 409 : Farwell v. Bank, 90 < Atlas Bank v. Doyle, 9 R I. 76 ; ::. Y. 483 : 73 N. Y. 269 ; 29 Am. Rep. 142. 11 Am. Rep. 219 ; Hilton v. Warren, ^ Roberts v. Thompson, 14 O. S. 1. § 280a.] BAILMENTS. 259 maturity of said note the same was duly collected by the said defendant, and the proceeds therefrom were by him duly ap- plied upon the said indebtedness due him from this plaintiff, whereby the same was wholly paid and extinguished; and that after payment thereof there remained in the hands of said defendant, arising from the proceeds of the said note so pledged as collateral, a balance of dollars belonging to this plaintiff. Said plaintiff demanded payment of said sum of dollars from the defendant, which was refused, and no part thereof has been paid. Wherefore he asks judgment against the said defendant for the sum of dollars. CHAPTER 21. BANKS AND BANK CHECKS. Sec. 281. Some powers of banks. 283. Relative rights of bank and depositor. Payments by .bank. Duties and liabilities of bank in making collec- tions. Right of set-oflE between bank and depositor. Petition against bank for damages for neglect in collecting note or bill. Petition by one bank against another for failure to pro- test note sent in for col- lection, loss occurring through insolvency of 283, 284. 285. 286. 287. makers and release of in- dorsee Sec. 288. Petition for recovery on lost certificate of deposit against bank before due. 289. Legal status of checks. 290. Petition of payee against drawer of check. 291. Petition by indorsee against drawer. 293. Petition of drawer against drawee. 293. Certified checks and form of petition. 294. Answer that certified check was a forgery. Sec. 281. Seme powers of banks. — The expression, "an association with banking powers," as used in the constitution, or " banking institutions or banks," means those authorized to issue bills or notes.^ Discounting paper by a bank is only a method of loaning money, and it is thus authorized to acquire notes and bills which are perfect and available in the hands of a borrower, as well as his own paper made directly to the bank;* and the rights and liabilities of parties growing out of their transactions with a national bank in loaning money and charging interest thereon, and actions between them, are prescribed by the national bank act and are not controlled by state legislation.' They are not permitted to take or charge 1 Dearborn v. Northwestern Sav. Bank, 42 O. S. 617; O. L. & T. Co. v. Debolt, 16 How. 438 ; Bank v. Hines, 3 O. S. 1-31 ; Corwin v. U. & C. M. L Co., 14 Ohio, 6; Bates v. S. & I* Ass'n, 42 0. S. 655. 2 Smith v. Bank, 26 0. S. 141; Nia- gara Bank v. Baker. 15 O. S. 69: Fletcher v. Bank, 8 Wheat. 333. 3 Higley V. Bank, 26 O. S. 75. § 282.] BANKS AND BANK CHECKS. 261 a rate of interest greater than is allowed by the laws of the state in which they are situated, and a bank so charging usu- rious interest forfeits all the interest due upon a note.* Al- though authorized to take mortgages on real estate to secure debts, yet where a bank grants an extension of the time of payment of such indebtedness at a usurious rate of interest, taking therefor notes and mortgages, the usury avoids only the interest; and the notes and mortgages a,re bona Jide se- curity to the extent that the debt is valid.- A bank may agree to collect commercial paper and take the proper steps to charge the indorsers gratuitously, and it will not be ultra vires so to do. If under such circumstances it neg- lects to protest a note, it is liable upon its contract, although there was no consideration, and the owner relied only on the voluntary undertaking.* A certificate of deposit given by a bank for a loan of money is not such a note as it is prohibited from issuing, as it is not intended to circulate as money, but represents only the indebtedness to the depositor for a loan.* The principles of agency are applicable to banks, they being liable for acts of oflBcers the same as other corporations and individuals, and cannot, therefore, show either abuse or disre- gard of authority by one of them, nor fraud or bad faith as a defense to an action against it by an innocent party.* Sec. 282. Relative rights of bank and depositor.— When a banker opens an account with his customer and receives a deposit, there is an implied agreement that the former will hold the fund subject to his order, and money so received on general deposit becomes the property of the bank, and the re- lation subsisting between the depositor and bank is that of creditor and debtor, not of bailee or trustee for the money.* It does not agree to pay checks out of any particular fund, 1 Shunk V. Bank, 22 0. S. 508; Hade 511 ; Frankfort Bank v, Johnson, 24 V. McVey, 31 O. S. 231. See 27 W. L. Me. 490 ; Farmere' & M Bank v. B. 65-6. Bank, 16 N. Y. 133. 2 Allen T. Bank, 23 O. S. 97. *> Bank v. Brewing Co., 50 O. S. 151 ; 3 White V. Bank, 4 W. L. B. 791. McGregor v. Loomis, 1 Disn. 247 ; * Logan Nat Bank v. Wilhamson, 2 Coverts v. Rhodes, 48 O. S. 71 ; Bolles O. C. C. 118. on Banks and Banking, sec. 34. 5 Bank v. Blakesley, 42 O. S. 645. Sometimes the relation is fiduciary. See Merchants' Bank v. Bank, 10 Id. Wall 604; Thayer v. Bussen, 19 Pick. 262 BA.NKS AND BANK CHE0K3. [§ 282. and does not retain any specific fund for that purpose, the funds of the depositor becoming merely a part of the general funds of the bank. The bank not only gives the right to the depositor to draw on the deposit, but promises that all drafts will be paid on presentation, and that all checks will be ac- cepted, thus agreeing in advance to honor drafts and checks, furnishing a strong analogy to the rule which binds the drawee of a bill as acceptor.^ A check, therefore, drawn upon the money of a depositor operates as an Sissignment pro tanto only when accepted by the bank, and if the former be indebted to the latter upon past-due paper at the time the check is drawn, the bank may refuse payment thereof and apply so much of the deposit as may be required for the payment of the notes.- A bank may apply money on general deposit on debt due from depositor.' A bank has a lien also on the proceeds of a draft deposited with it for collection, and may apply the same against any balance due it by a depositor, and may retain all proceeds collected as against an assignee for creditors of a depositor; but this rule will not be applicable to drafts which are not collected, or that may be collected subsequent to an assign- ment;* but if a depositor be only a surety for a debt, such an application cannot be made without the depositor's consent.* Considerable conflict prevails on the question as to the ef- fect of a check drawn for only a portion of a fund, many courts holding that it will operate as an equitable assignment of so much of the fund as may be stated in the check ;^ but in Ohio, where the idea that a fund of a depositor is held in trust is entirely repudiated, a check unaccepted by a bank for a part of the fund will not operate as an assignment of such fund ; and if the drawer thereof makes an assignment before 1 McGregor v. Loomis, supra; 9 Mass. 55 ; 2 Met 53. 2 Bank v. Brewing Co., 29 W. L. B. 294; 50 O. S. 151. 3 Second Nat. Bank v. Hill, 76 Ind. 223; Scott v. Shirk, 60 Ind. 160; Comb V. Morris, 118 Ind. 179 ; Com'l Nat. Bank v. Henniger. 105 Pa. St. 496: Nat. ^Mahaiwe Bank v. Peck, 127 Mass. 298. * Hackman v. Schaf, 5 W. L. B. 851. 5 Lamb v, Morris, 118 Ind. 179; Bedford Bank v. Acoam, 125 Ind. 584. eVoorhes v. Heskett, 1 O. C. C. 1 See McGregor v. Loomis, 1 Disn. 247 Bank v. Hemingray, 1 C. S. C. R 435 ; Stewart v. Smith, 17 O. S. 82 Andrew v. Blachly, 11 O.S. 89; Mor rison v. Bailey, 5 O. S. 13: 25 111. 35 68 111. 398; 80 III 212; 8 Bush, 357; 26 la. 315. § 282.] BANKS AND BANK CHECKS. 263 the same is presented for payment, and notice of such assign- ment reaches the bank, the fund deposited belongs to the as- signee A different rule applies when a check is drawn for the whole of a fund than when drawn for only a portion, in which case it will be considered a sufficient designation of the specific fund to operate as an assignment. This distinction is made by many well-considered cases.- Where a bank re- ceives a check drawn upon a depositor's account, and later on the same day receives a draft upon the same account, which is duly credited thereon, it operates as an acceptance of the draft, and the bank becomes liable on the check which is waiting payment as soon as the draft is credited upon the payor's account.' A bank is bound to pay the checks of a depositor who has an account in his own name as agent even though it receives notice from another person that the ac- count is his; and if it arbitrarily refuses to pay is liable in damages even though no special damages are shown.* Where paper is pledged as collateral with a bank for a sura larger than a loan made by it to the owner of such paper, the bank does not acquire a lien upon the residue thereof so as to ap- propriate the same to the payment of another note indorsed to such party by the bank before the pledge of the collateral.' If a bank discounts a draft and passes the same to the credit of a drawer, allowing him to check against it, it becomes a lona fide holder thereof for value, and is protected against any equities between the original parties.^ Money received 1 Covert V, Rhodes, 48 O. S. 66; McComber v. Dome, 2 Allen. 541; Bank v. Brewing Co., 50 O. S. 151. Gibson v. Clark. 20 Pick. 10; Lewis See Pomeroy's Equity, sec. 1284 ; v. Bank, 30 Minn. 134 ; Jones v. Wood Bank v. Millard, 10 Wall. 152 ; La- Co., 13 Nev. 359 : Rosenthal v. Bank, clede Bank v. Schuler, 120 U. S. 515; 17 Blatch. 318; Dolsiu v. Brown, 13 Grammel v, Garner, 55 Mich. 201 ; La. Ann. 351 ; Sands v. Matthews, 27 Dickinson v. Coates, 79 Mo. 250 ; Ala. 399. Billiard v. Bullard, 1 Gray, 605; 71 3 Northern Bank of Ky. v. Mer- N. Y. 325 ; 20 Mo. 577 : 46 Pa. St. 410 ; chants' Bank. 23 W. L. B. 120. 11 Paige, 612 ; 34 Md. 574. < Patterson v. Nat. Bank, 23 W. L. 2 Gardner v. Nat City Bank. 39 B. 269 (Pa.): 47 Ph. Leg. Int. 118. O. S. 600 ; Moore v. Davis, 57 Mich. 5 Stowe v. Bank, 1 O. C. C. 524. 251 ; Bank v. Railway. 52 Iowa. 378 ; 6 First Nat Bank v. Crawford, 2 C, Mandeville v. Welch, 5 Wheat 77 ; S. C. R. 125. Kingman v. Perkins, 105 Mass. Ill; 264 BANKS AND BANK CHECKS. [§ 283. by an official in his official capacity and deposited by him in his private account is personally liable therefor if the bank fails and the money is lost.^ The statute of limitations does not begin to run against a deposit or debt until demand has been made, or unless a bank stops payment, in which event the necessity for a demand no longer exists.^ A bank is liable in damages to its depositors if it refuses without just cause to honor a check drawn by the latter,^ but it is not bound to pay part of a check if it has not sufficient funds on deposit to pay the whole amount.'* A per- son depositing money in his name as agent, whose checks have been honored, may sue the bank in his own name for any balance due on account.' Sec. 283. Payments by bank. — It is the duty of a bank to identify all persons who present paper for payment, and it must see to it that the payee named in the check is the proper per- son, that it pays according to the order to the party named therein or to one holding it under a genuine indorsement. The rightful possession of a check payable to order confers no authority on the bank to pay it to such person, and its duty to pay on a genuine indorsement is not affected by any custom of bankers; hence if it relies on a false representation as to identity, for which neither drawer nor payee is respon- sible, the bank is liable,* and its liability cannot be affected by any act or omission of the drawer in issuing a check of which the bank has no notice.'' While money paid under a mistake of facts and without consideration may, as a general rule, be recovered, yet there is a well-settled exception to this rule where payment is made by a drawee of forged bills or iShaw y. Bauman, 34 O. S. 25; < In re Brown, 2 Story, 502. Wren v. Kirton, 11 Ves. 377; In re ^ McLaughlin v. National Bank, 43 Stafford, 11 Barb. 353: Brown v. N. W. Rep. 715. Ricketts. 4 Johns. Ch. 303 ; Utica Ins. ^ Dodge v. Bank, 30 O. S. 1. See Co. V. Lynch, 11 Paige, 520: Phillips cases in next note; Kuhn v. Frank, V. Lamar, 27 Ga. 228. 10 Am. L. Rec, 622; 7 W. L B. 134. ^ Armstrong v. Warner, 21 W. L. ^ Dodge v. Bank, 20 O. S. 234. Sc-e B. 136; Morse on Banking, sec. 322. Graves v. Bank, 17 N. Y. 205; Mor- a Whittaker v. Bank. 6 C. & P. 700 ; gan v. Bank, 1 Kern, 404 ; Shaffer v. Marzetti v. Williams, 1 B. A: A. 415; McKee. 19 O. S. 526; Vanb'ibber v. Watts V. Christi, 11 Beav. 546 ; Rolin Bank, 14 La. Ann. 481. V. Steward, 14 C. B. 594. I 284.] BANKS AND BAKTK CHECKS. 265 checks to a holder for value, in which event the money can- not be returned without prejudice ; ^ but where there is any negligence the loss will fall upon hira who is negligent; and in the absence of negligence the loss will remain where the course of business has placed it.- AVhere a check made pay- able to a drawee himself without the word "order" or " bearer," and indorsed in blank, is stolen, and is paid on pres- entation, the bank is protected.' Payment made by a savings bank to the wrong person on presentation of a deposit book, the person claiming to be the depositor and giving correct answers as to the mode of deposit, will not make the bank liable where its rules require the deposit book to be presented in order to draw the money.* A national bank cannot pro- vide for the cashing of checks drawn upon it at any other place than its banking house; hence where a bank in another city has funds in its possession belonging to another bank, and has cashed checks drawn upon the latter bank under an ar- rangement for that purpose, the bank so cashing the checks which happen to be worthless cannot retain the money in its possession as against t'he receiver of the bank upon which the checks were drawn.' A bank may refuse to cash a check when it has knowledge that it was given in payment of a bet made in violation of law ; and if a check is so cashed the drawee cannot recover the amount from the bank.® Sec. 284. Duties and liabilities of banks in making col- lections.— When commercial paper is indorsed to a bank for the purpose of collection, the relation of principal and agent exists between the owner of the paper and the banking com- pany, and the latter holds the proceeds arising therefrom in trust.' A correspondent selected by a bank is not a sub-agent of the owner of the note, but only the instrument through which the bank undertaking the collection assumes to perform 1 Ellis V. Insurance Co., 4 O. S. 628 ; only as directed. Shipman v. Bank, Bank of U. S. v. Bank, 10 Wheat 126 N. Y. 318 ; 22 Am. St Rep. 821. 333. * Fidelity Bank v. Cincinnati Na- - GloucesTpr Bank v. Bank, 17 Mass. tional Bank, 21 W. L. B. 361. 33. 6 McCord v. Bank. 28 W. L. B. 303 ; 3 Bowden v. Bank, 7 W. L. B. 283. Morse on Bank., sec. 311. *Gifford V. Bank, 11 L. R A. 794; 'Hamilton v. Cunninghano, 3 21 At!. Rep. 840. Bank must pay Brock. 350. ^6Q BANKS AND BANK CHECKS. [§ 284r. its duty;' and if the bank makes an assignment its trustee cannot apply the same as a credit to the payment of a debt of the bank.^ It is a well-settled ride that when a bank has made an as- signment or suspends, it cannot receive payment upon paper previously deposited for collection in such a way that it will pass into its general assets, and the ow^ner thereof thereby placed among its general creditors and entitled only to divi- dends. The bank acting only as an agent, there is no reason why its general creditors should receive the benefit of such paper, if the owner can trace or ascertain his property in its substituted form.' It is only necessary that the owner of the paper show that the bills or notes were impressed with a trust, and the latter will be required to respond either in the article taken or its value.* A bank to which paper is sent by another bank for collec- tion, in the absence of any special contract or controlling usage, is regarded as the agent of the primary agent, the first bank, and not of the owner of the paper, and is therefore liable for any neglect of duty in taking the necessary steps to charge the drawer and indorser.' But where a bank in one state receives a draft for collection in another state, and forwards the same to its correspondent in the latter state, it is responsible to the owner for the conduct of its correspond- ent, who is regarded as its agent, and not the sub-agent of the owner of the draft, and payment to the agent is payment to the bank.^ This question is not free from difficulty, and must be very largely governed by the circumstances in each case. It quite frequently occurs that there is an agreement entered into by the owner of the paper and the bank that it shall be sent to a particular correspondent. In such cases the owner 1 Reeves v. State Bank, 8 O. S. 465 ; Story's Equity, sec. 1228 ; Bank v. Bank v. Moore, 4 W. L. B. 291 ; S. C, Bank, 2 McCrary, 438. 8 Am. K Rec. 97. * Thompson v. Savings Institution, 2 Jones V. Kilbreth, 49 O. S. 401; 8 Atl. Rep. 97 (N. J., 1887). Gilbert v. Sutliff, 3 O. S. 129 ; Carter •' Allen v. Merchants' Bank, 22 V. Lepsey, 70 Ga. 417; Commercial Wend. 215. Bank v. Armstrong. 39 Fed. Rep. 684? 8 Reeves v. State Bank. 8 O. S. 465 Levi V. Bank. 5 Dill. 109. (1858); Hermann v. Bank, 10 O. S. 8 Jones V. Kilbretli, 49 O. S. 412; 446. Morse on Banking, sec. 248a. See § 284.] BANKS AND BANK CHECKS. 267 of paper has as much to do with the selection of the agent as does the bank. On the other hand, there are l)anks who hold themselves out as collecting agencies and who have their spe- cial correspondents in various localities, and in sending paper for collection indorse the same to correspondents of their own selection, in which case it is perfectly clear that the cor- res))ondents are the agents of the bank, who must be held re- sponsible for their acts.^ It is the duty of a bank holding commercial paper as agent for collection, when dishonored at maturity, to take the usual and proper action required to charge indorsers, and, if the latter be discharged by any neg- lect in this respect, the bank is liable as agent to the owner as principal for resulting damages.- A notary in protest- ing a note, when the owner of paper directs or dictates the mode of fixing an indorser's liability, is the agent, not of the bank, but of the owner of the paper.^ The measure of damages in such cases is the face of the bill or note with in- terest.^ It is the duty of a bank receiving paper as collateral, which is made payable at a place designated by the parties thereto, to transmit it upon maturity to such place for collec- tion ; if the place of payment be a bank, it is the agent of the owner of the paper, and not of the bank holding it as collat- eral; hence the latter is not liable to the owner for any loss occurring by reason of failure on the part of the bank to which the paper is sent for collection. A bank receiving paper as collateral is bound only to ordinary care and diligence in col- lecting it.' Paper indorsed merely "for collection " passes only so far as to enable the indorsee bank to demand, receive and sue for 1 Commercial Bank v. Union Bank, v. Bank, 20 Johns. 372. See, also, 11 N. Y. 203 ; Thaber v. Perrot, 2 cases cited in next note. Gall. 565 ; East Haddam Bank v. Sco- 3 Bank v. Butler, 41 O. S. 519-25. vill, 12 Conn. 303 ; Fabens v. Com- * American Express Co. v, Haire, mercial Bank, 23 Pick. 330 : Mont- 21 Ind. 4 ; 83 Am. Dec. 334 ; Chapman gomery County Bank v. Albany City v. McCrea. 63 Ind. 360 ; Montgomery Bank, 7 N. Y. 459. County Bank v. Albany City Bank. 2 Bank V. Bank, 49 O. S. 351. See 7 N. Y. 459. Huff V. Hatch. 2 Disn. 63 : Bank v. 5 Bridge Co. v. Savings Bank, 46 Triplet, 1 Pet. 36 ; Mechanics' Bank V. O. S. 224; Reeves v. Plow. 41 Ind. Merchants' Bank, 6 Met. 27 ; Smeads 204 ; Lawrence v. McCalmont, 2 How. 426. 268 BANKS AND BANK CHECKS. [§ 285. the money, and the owner may control his paper until it is paid. An indorsement of a bank directing payment "for ac- count of itself" does not imply that it is the owner of the paper and cannot dispute the right of the owner to stop pay- ment thereof.^ Where a draft is drawn in one state and is made payable in a foreign country, under whose laws the bank is not bound to inquire into the genuineness of an indorse- ment, and therefore pays the draft to a wrong person, such payment on a forged indorsement is good in the hands of the drawers, who are discharged from further responsibility if payment can be made in such country on a forged indorse- ment, as the question of default is governed by the law of the foreign country.- A person who undertakes gratuitously to collect paper, and sends it to a bank for that purpose, where the same is paid, and is lost by reason of failure of the bank, the party so undertaking the collection, though gratuitously, is liable for the loss, as the bank was his agent. It is a con- tract the consideration for which is not of benefit but of harm on the one hand and trust and confidence reposed in the person making the collection.^ In an action against a bank for non-presentment of paper for payment, it is not necessary to allege that the parties were insolvent at the time, if it is averred that there were funds in the bank where the paper was due and payable, as the question of solvency was immaterial so long as it appeared that the money was in the bank;* though it must be alleged that the plaintiff was damaged by failure to collect.* Sec. 285. Right of set-off between bank and depositor. — "Where a bank has on deposit money belonging to a person who becomes insolvent, and is indebted to the bank upon notes by it declined, the proceeds of which constitute a portion of such deposit account, enough of the account can be withheld by the bank to protect and pay such notes, as against the in- solvent or his assignee, but not as against honafide holders of checks drawn upon such fund.^ So where a bank holding 1 Freeman's Nat Bank t. Tube 3 Young v. Noble, 2 Disn. 485: Works, 8 L. R A. 42 ; 34 N. E. Rep. White v. Bank, 4 \V. L. B. 791. 779; 151 Mass. 413. * Laughlin v. Greene, 14 la 92. 2 Dreyf UBS v. Adae, 4 W. L. B. ^ Perry v. Muzzer, 68 Mo. 477. 671-7a e Skunk v. Bank, 16 W. L. B. 353 j. Ford V. Thornton, 3 Leigh, 695. § 286.] BANKS AND BANK CHECKS. 269 notes against a depositor who has a deposit account therein makes an assignment, the depositor has the right to have the fund ^yhich he has in the bank applied on tiie debt due from him to the bank ; ^ and the liability of a stockholder of a na- tional bank may be set off as against a dividend due on the deposit account of such stockholder by a receiv^er winding up its affairs.^ The rule is not changed although the claim to dividend has been assigned to others.' But a stockholder's indebtedness as'ainst a national bank cannot be set off against the claims of the pledgee of the stock of the former, who re- ceived it in pledge to secure the payment of a loan made on the faith of such pledge, without knowledge of the claims of the bank or that it was insolvent.* "Where stock of a bank has been increased, and the stock- holder has paid his share of such increased stock before it had been properly authorized, and the bank goes into the hands of a receiver in the meantime, such stockholder may have the payment made by him upon the increase of stock set off against anv indebtedness due from him to the bank.^ Where a party who has made an assignment for the benefit of cred- itors gives a check upon a bank upon funds which he has deposited there, but prior to the date of assignment, which is paid by the bank without knowledge of the assignment, such payment cannot be raised as a defense by the bank in an action by the assignee against it for the recovery of the money.^ Sec. 286. Petition for damages against bank for neglect in collecting note or bill. — [Cajjtion.'] Plaintiff says that the defendant is a corporation duly in- corporated under the national banking laws of the United States and doing business at , Ohio. On tbe day of , 18 — , the plaintiff delivered to tlie defendant a ]^rom- issory note [or, bill], the property of the plaintiff, calling for dollars, dated , 18 — , due in months after date, 1 Bank v. Hemingray, 34 O. S. 381 ; 3 id, ; Brown v. Hitchcock, 36 O. S. & a, 31 O. S. 168. See Waterman 667. on Set-ofiF, sec. 131 ; Smith v. Felton, * McConville v. Means, 21 W. L. B. 43 N. Y. 419; Pomeroy's R, & R, 193. sec. 163. 8 Armstrong v. Law, 27 W. L. B. ■ 2BrowneU v. Armsti'ong, 20 W. 100. L. B. 465. 6 Chaffee v. Bank, 40 O. S. 1. 270 BANKS AND BANK CHECKS. [§ 287. made by E. F., payable to E. A., in the First National Bank of , Ohio, and indorsed by said E. F. and L. A, That the defendant, in consideration of the plaintiff's leav- ing said note with it for collection, and of plaintiff's trust and confidence in th*^ defendant [and of per cent, of the amount collected thereon], accepted the same for collection, and agreed to use due diligence in demanding payment. That said E. F., maker of said note, was ready and willing to pay the same on the day of maturity, and Avould have paid the same, but the defendant negligently omitted to present the same for payment, and shortly thereafter said maker be- came and still is wholly insolvent, whereby plaintiff has wholly lost dollars, the amount due on said note, for which he demands judgment. Note.— Thornton's Forms. See form in Chapman v. McCrea, 63 Ind. 360. Damages for failure to collect must be alleged. Perry v. Musser, 68 Mo. 477. Insolvency of maker should be shown, otherwise damages will be limited to expenses incurred. Hough v. Young, 1 O. 504 ; Borup v. Nininger, 5 Minn. 523. As to solvency of indorser, see Steele v. Russell, 5 Neb. 211. Sec. 287. Petition by one bank against another for fail- ure to protest note sent it for collection, loss occurring through insolTency of the makers, and release of indorser. \_Caj)f Ion.'] The said plaintiff, for this its cause of action against the said defendant, says that the said plaintiff and defendant are each banking corporations under the laws of the United States; that they are each doing and carrying on a general banking business, the said plaintiff at , Ohio, and the defendant at , Ohio. The said plaintiff says that in the due course of its business it purchased from the payee and became, before due, the owner and holder of a note of one F. & P., residing and doing business at , Ohio, a true copy of which note is as follows : \_Set out note.'] That at the time of the purchase by plaintiff of said note, the said S. J. P. indorsed said note and delivered the same to plaintiff, a true copy of said indorsement being as follows: " S. S. P." The said plaintiff further says that some time before said note became due, it sent the same to the defendant for collection and to make returns; and avers that said defendant received said note and undertook the collection thereof, and that in the event of non-payment it likewise undertook to protest said note and fix the liability of the indorser, and it held the same from date of receipt until some weeks after it was past due; that said note was not paid when due, and that said defendant failed and neglected to protest or have said note protested. I § 288.] BANKS AND BANK CHECKS. 271 Plaintiff avers that the said makers ( F. c*e P.) of said note made an assignment within a day or two after said note be- came due, and are w^holly insolvent; that the said indorser (S. J. P.) has been released and discharged as an indorser from any and all liability on said note; that by reason of the failure and neglect of said defendant to cause said note to be protested when it became due and was not paid, it has been damaged and injured to the extent of and in the sum of dollars, together with interest from . Wherefore the plaintiff prays judgment against the said de- fendant for the sum of dollars, with interest from . Note. — Tt is the duty of a bank acting as agent to take the usual steps to charge the indorsers, and in this respect is liable in damages for negligence. Ante, sec. 384; Bank v. Bank. 49 O. S. 351: Huff v. Hatch, 2 Disn. 63; Blatn V. Bank, 26 Am, Rep. 120. The duty of a bank in sncli cases is plain. Lavvson v. Bank, 1 O. S. 206 ; Bank v. McGuire. 33 O. S. 295-304 ; Daniel's Neg. Inst., sec. 1039. An indorser in blank binds himself to pay the note if the maker does not, and should be duly notified of non-pavuient. Farr V. Ricker, 46 O. S. 265. See Titus v. Kyle, 10 O. S. 444; CollinsV. Insurance Co., 17 O. S. 215; Cummins v. Kent, 44 O. S. 92; Robinson v. Kanawha Bank, 44 O. S. 441 : Morris v. Faurot, 21 O. S. 155. Protest is the formal declaration of the notary, but includes all steps necessarj* to charge the in- dorser, and the sufficiency of a notice in writing is a question of law ; a simple statement, however, that the paper is unpaid does not show present- ment and demand. Townsend v. Bank, 2 O. S. 315. The notary is the sub- agent for the owner of domestic paper left with a bank for collection, and not of the bank, and the latter is not liable for the default of the notary. Bank v. Butler. 41 O. S. 519; Britton v. Niccolls, 104 U. S. 757. The bank is held liable where it employs a notary by the year and takes a bond from him. Gearhart v. Boatman's Savings lust., 38 Mo. 60. Sec. 28S. Petition for recovery on lost certificate of de- posit against bank before due. — [Caption and formal opening^ That on the day of , 18 — , he deposited in the de- fendant bank the sum of dollars and received from said bank a certificate of deposit of which the following is a true copy \copy\ which certificate was signed by the proper officer of the bank; that on the day of , IS — , at C, Ohio, he lost the certificate of deposit and his pocket- book containing the same, and has not since that time seen or heard of either, and does not know where the certifi- cate of deposit is; that he immediately notified the bank of the loss, and not to pay the certificate, and that said cer- tificate had not been indorsed by him; that he had not, in fact, at any time indorsed the certificate of deposit; that it was in the same condition when lost as when received by him; that he had not in any manner sold or transferred the same to any person, and that the certificate had not been presented for payment to the bank by any one; that he immediately de- manded payment from the bank of the amount of the deposit, which was by the bank refused, although he offered to receipt 272 BANKS AND BANK CHECKS. [§ 289. in full for the amount of money and against the certificate of -deposit. Note. — A certificate of deposit issued by a national bank is in fact a promissory note. Citizens' Nat. Bank v. Bro%vn. 45 O. S. 39 ; Howe v. Hark- ness, 11 O. S. U9; Hunt v. Devine, 37 IIL 137; Bellows Falls Bank v. Rut- land County Bank. 40 Vt. 377. And where it has been lost without having been indorsed, suit may be maintained thereon without the tender of indem- nity. Citizens' Nat. Bank v. Brown. siq)''a. See Daniel's Neg. Inst., sec. 1481; SOreenL Ev.. sec. 156; Storv's Promissory Notes, sec. 451; Thayer v. King, 15 Ohio, 242 ; Lazell v. Lazelf. 12 Vt 143 ; Aborn v. Bosworth, 1 R L 401 ; Moore t. Fall, 42 Me. 450 ; Depew v. Wheelau. 6 Blackf. 485. Recovery can- not be had where the paper had been indorsed before it was lost. Piutard v. Packington, 10 John. 104. Shute v. Pacific Nat. Bank. 136 Mass. 487, holds cer- tificates of deposit not promissory notes. Demand should be made tliereon before suit according to some cases. Downes v. PlKjenix Bank, 6 Hill, 297 ; Hunger v. Albanv Citv Nat. Bank. 85 N. Y. 580 ; Paviie v. Gardner, 29 N. Y. 167 ; Bellows Falls Bank v. Rutland Couutv Bank. 40 Vt. 377. See, also, 18 Md. 330 ; 44 Iowa, 152 ; 41 N. Y. 581 ; 8 Met."217. No right of action accrues until demand, and the statute of limitation would not begin to run until so made. Howell v. Adams, 68 N. Y. 314; Boughton v. Flint, 74 N. Y. 476; Bank v. Bank, 5 Hun. 605 ; Girard Bank v. Bank, 39 Pa. St. 92 ; Patterson V, Poindexter, 6 W. & S. 227. Indemnity required. Lamson v. Pfaff, 1 Handy. 449. See Price v. Dunlap. 5 Cal. 483; Randolph v. Harris, 28 Cal. 561, Sec. 289. Legal status of checks. — Bank checks have be- come so engrafted into commercial law as to have become a very potent instrument. They are taken and given with such mutual confidence as to constitute almost a cash medium — passing through many hands answering the purpose of pay- ment. It is highly important, therefore, that the rights and liabilities of parties thereto should be clearly defined. In ad- dition to what has been before stated, a little further inv^esti- gation will be made preceding the forms on this particular subject. Checks are subject to many rules which regulate the rights and liabilities of parties to bills of exchange, many authorities regarding them as bills of exchange.' While this may be true to a certain extent, there are some points of difference. For instance, the rights and obligations of par- ties to a check differ from those to a bill of exchange, in that the drawer of a check is the principal debtor, and is not dis- charged by any default of the holder in making presentment unless he suffers some substantial injury .^ This rule has its 1 Morrison v. Bailey, 5 O. S. 13 ; art v. Smith, 17 O. S. 82. See Min- Harker v. Anderson, 21 Wend. 373; turn v. Fisher, 4 CaJ. 35; In re Brown, Andrew v. Blachly, 11 O. S. 89; 2 Story, 503; Murray v. Judah, 6 Chapman v. White, 2 Seld. 412. See Cowen, 484 distinctions made in 5 O. S. 18; 2 Stewart v. Smith, 17 0. S. 86; Mor- Voorhes v. Hesket, 1 G. C. C. 7 ; Stew- rison v. Bailey, 5 O. a 18 ; MuUick «h § 289.] BANKS AND BANK CHECKS, 273 qualifications, however. To charge the drawer of a check the holder must present it within a reasonable time.^ Unlike commercial paper generally, checks are not entitled to grace, but are payable on demand.^ Where a person giv- ing an antedated check subsequently makes an assignment for the benefit of creditors, and the check is paid by the bank with knowledge of the assignment but without knowledge that the check has been antedated, the fact that the bank knew that the drawee of the check had made an assignment is sufficient to put it upon inquiry as to whether or not the check had been antedated. Payment under such circum- stances cannot be set up as a defense by the bank.'^ A bank check, being simply a written order of a depositor to his banker to make a certain payment, is revocable by the drawee before its presentation for payment unless accepted or certi- fied to by the bank, for the latter has otherwise become com- V. Raclkisson. 28 Eng. L. & Eq. 94 ; Smith V. Jones, 2 Bush, 103 ; Woodin V. Frazee, 6 J. & S. 190; Bank v. Alexander, 84 N. C. 30. Contra. Daniels v. Kyle. 5 Ga 245 ; Marker V. Anderson. 21 Wend. 370. 1 Brauu v. Kimberlin, 9 Am. L. Rec. 405; Work v. Bnnk. 8 O. S. 301. What is a reasonable time must de- pend on circumstances. Id. See, also, Davis v. Benton, 2 W. L. ]VL 434. 2R. S., sec. 3175; Morrison v. Bai- ley, 5 O. S. 13; Stewart v. Smith, 17 O. S. 82; 8 O. S. 301; 11 O. S. 89. Payment should be demanded on the day subsequent to its date (13 Wend. 133; 20 Wend. 192; 4 B. & A. 752); and the holder has the whole of the banking hours of the next day within which to present it. 2 Taunt. 388 ; 2 Camp. 537; 4 B. & A 753; Story on Notes, sec. 493. Checks made payable on a certain day, or which are post- dated, are not to be regarded as bills of exchange or subject to the formal- ity of presentment or notice required in commercial bills generally. The 18 rule as given is not varied as to such bill, the holder being entitled to hold it until the close of banking hours on the day next after its data Blachly v. Andrew, 1 Disn. 78. A draft for money in the usual form of a check, but payable on a future specified day. and designed to be an absolute transfer or appropriation to the holder of so much money, will be regarded as a check and not a bill of exchange and therefore not entitled todays of grace. Andrew v. Blachly, 11 O. S. 89; 1 East. 435; 10 Wend. 304; 20 Wend. 205. A holder of a check is entitled to wait uutil the day following its date before pre- senting it to the drawee without dis- charging the drawer from liability. So a warrant taken from a clearing- house in lieu of a check which is after%vards dishonored will not be considered payment of the check, and the drawer of the check will be liable thereon. Merchants" Bank v. Proctor, 1 C. S. C. R. 1. 3 Chaffee v. Bank, 40 O. S. 1. 274 BANKS AND BANK CHECKS.' [§289, mitted to its payment. A mere giving out of information by a bank that a person has on deposit a certain amount of money will not constitute an acceptance or certification of the check, or otherwise create an obligation on the bank to pay checks which an inquirer may then hold.^ Checks being placed substantialh'' in the same category with bills and notes, the same rules apply where they are signed by a person as agent without in any way indicating the name of the principal, the party signing as agent being himself liable.'^ Nor can a drawer of a check make a defense, as in the case of bills, that no presentment or notice was given. Delay in pre- senting checks cannot be pleaded as a defense unless the fund is in some way lost in the meantime.'' There is no liability on memorandum checks exchanged by parties for their mutual accommodation until paid;^ but where parties have exchanged checks upon the same bank for the same amount, one of whom tranferred his check to a creditor as collateral, it will not be considered accommodation paper, and the person to whom it was pledged may recover the amount.* In such cases the paper is founded on a valuable consideration, being a mutual promise for the benefit of each other.^ A check operates as an assignment j?/'(? tanto of the fund on which it is drawn, and binds the bank to its payment out of the fund when presented. It is not payment of a debt for which it is drawn unless it be so agreed between the parties, and the debt will not be extinguished unless the check is paid or the holder guilty of neglect which may operate as a dis- charge of the drawee." Where a check is given in payment of taxes but is not presented on the next day after its receipt by the treasurer, and the bank upon which it is drawn fails, such check will not be considered payment. The ordinary 1 Kahn t. Walton, 46 O. S. 195. 5 Rankin v. Knight, 1 C. S. C. R. 2 Anderson v. Sharp. 17 O. S. 126; 515. 5 Gray, 561 ; 11 Mass. 27 : 8 Met. 443 ; « Id. ; Cowley v. Dunlop, 7 T. R. 10 Wend- 276. 565; Buckler v. Brettivant, 3 East, 3 McGregor v. Loomis, 2 Disn. 251 ; 72 ; Eaton v. Carey, 10 Pick. 214 ; Dowe 2 Hill. 425. If the drawer have no v. Schutt, 2 Denio, 623 ; Whittier v. funds in the bank he cannot com- Eager, 1 Allen, 499; Higginaon v. plain. Fletcher v, Pierson. 69 Ind. Gray, 6 Met 218; Trustees v. Hill, 281 ; Culver v. Marks, 122 Ind. 554. 12 Met. 462. *Burdsall v. Chrisfield, 1 Disn. 51. 'Kahn v. Walton, 46 O. & 195. § 290.] BANKS AND BANK CHECKS. 275 rule will not apply as against the state, and on account of the crowded state of business such non-presentment will not con- stitute a defense.^ It may serve as a good tender of pay- ment where the parties waive all objections.- A check given in payment of money lost at gaming being void, an indorsee cannot recover the same from the drawee.^ It will not operate as a gift unless accepted or paid.^ A check being considered a mere chose in action and not a transfer of the fund unless accepted,^ a third person may therefore, before the same is pre- sented, attach the funds of the bank, as the bank is only a debtor.' Sec. 290. Petition of payee against drawer of check. — \_Caption and formal opening^ There is due the plaintiff from the defendant company, as drawer, the sum of dollars, which he claims with inter- est from the day of , 18—, on a bank check, of which the following is a copy of all credits and indorsements thereon, to wit: [6<9j92/.] Payment of said check was duly demanded at said bank at maturity, but defendant had no funds at said bank, and the same was not paid ; but on the day of , 18 — , said bank paid the sum of dollars only, and the balance was not paid for the reason that the defendant had no funds at said bank, and was not paid, of all of which defendant had due notice \or^ that on the day of , 18 — , said check was duly presented to said bank for pay- ment, but was not paid, and thereupon plaintiff demanded of the defendant that he pay the same, which was refused]. There is now due on said check a balance of dollars with interest from ,for which amount demand was duly made [or, that no part thereof has been paid, and there is now due from the defendant to the plaintiff thereon the sum of dollars]. Wherefore plaintiff asks judgment against the said defend- ant in the sum of dollars with interest from the day of , 18—. ^ Note.— From Frey v. Gragg, unreported case, S. C, No. 1646. It is held that in an action against a drawer of a check it should be averred that de- mand and notice of non-payment to the drawer has been made. Insurance Co. V. Coons, 35 Iowa, 364; Shultz v. Dupuy, 3 Abb. Pr, 252; Judd v. Smith, 3 Hun, 190. But see ante, sec. 289, If the drawee is insolvent, as against the drawer it is immaterial or not necessary to make presentment and give notice. Lovett v. Cornwell, 6 Wend. 369. Consideration.— It is not necessary to aver consideration, as the check imports it. McClain v. Lowther, 35 W. Va. 397. 1 Mauck V. Fratz, 4 W. L. B. 1044. < Simmons v. Savings Society, 41 2 Jennings v. Meudenhall, 7 O. S. O. S. 457. 2^^- 5 Cain V. Bank. 107 Mass. 45; Bank 3 Bank v. Portner, 46 O. S. 381 ; v. Bank, 46 N. Y. 82. P. S., sec. 4269. « Imboden v. Perrie, 13 Lea, 504. 276 BA.NK3 AND BA.N"K CSE0K3. [§§ 291-293. Sec. 291. Petition by indorsee aa:ainst drawer. — Plaintiff savs that on the dav^ of , 18 — , the de- fendant drew his check in writing upon the First National Bank of C, Ohio, thereby directing said bank to pay to the order of the sum of dollars, of which the following is a copy, to wit: [Copy.'] That the said J. S. indorsed said check to Ihis plaintiff as follows : [Copy.'] Plaint- iff presented said check to said bank for payment, which was refused, due notice of which was given said defendant. Plaint- iff thereupon demanded payment of said defendant, but he has wholly failed and refused to pay the same. Wherefore plaintiff asks judgment against said defendant for the sum of $ , etc. Note.— See note in ante. sec. 287. As to rig^ht of recovery by indorsee against drawer when delay has been made in presenting check and bank has failed in meantime, see Hamilton v. Salt & Lumber Co.. 54 N. W. Rep. 903 (Mich., 1893). Sec. 292. Petition of drawer against drawee. — [Caption and formal opening.] That on the day of , IS— , the plaintiff had on de- posit in the defendant's bank dollars, subject to any check he might draw thereon. That on said day he drew his check on said defendant re- questing him to pay C. or order dollars. That said C. indorsed the said check to K., who indorsed the same to L. That rn the day of , 18 — , and while said sum of monev was still on deposit in said bank, said L. presented said check during banking hours to the defendant for payment, which was refused, whereby plaintiff was compelled to pay the same, to his damage in the sum of dollars, for which he demands judgment. Note.— A bona fide holder of a check has a right of action against the drawee in case pavment is refused when the drawer has sufficient funds on deposit. McGregor v. Loomis. 1 Disn. 247, 248. See sec. 2. ante. Sec. 293. Certified cliecks and form of petition.— The certification of a check does not completely change its char- acter. It produces a different relation between the original parties ; the drawee ceases to be the debtor of the drawer, but it remains an order for payment, and operates in favor of third parties merely as an assurance that it is genuine and will be paid. It makes a difference, however, upon whose re- quest the same is certified. If a holder instead of presenting a check for payment procures the bank upon which it is drawn to certify it as a claim or demand upon the bank, or I 293.] BANKS AND BANK CHECKS. 277 puts it into circulation, the drawer will be released.^ But if a drawer causes his check to be certified before it leaves his hands, it does not discharge him from liability to the holder thereon if the same is duly presented for payment and notice given of its non-payment.- It becomes substantially a certificate of deposit in the holder's hands, and the fund ceases to be under the control of the depositor. The party accepting the check does not take the risk of the solvency of the bank, as acceptance of a certified check does not constitute payment any more than does an ordinary check,^ the person receiving it simply as an additional security for payment, and if it is presented within due time, payment refused and due notice given to the drawer, he cannot complain,^ A certifi- cate that a check " is good " is equal to an acceptance thereof.' A bank certifying a check certifies the genuineness of the drawer's signature and that it has funds with which to meet it, but does not warrant the genuineness of the body of the check as to the payee or the amount secured.^ A petition against a bank upon a certified check may be in the following- form: [Captio/'i.'] Plaintiff says that defendant is a corporation duly organized as a national bank under the laws of the United States and located at C, Ohio; that on the day of , 18 — , Jno. Doe made delivery to the plaintiff of a check of which the iBorn V. Bank, 123 Ind 78; Cin- N. Y. 211. See 14 Am. Rep. 232; ciunati Oyster Co. V. Bank, 4 O. C. C. 56 Mo. 503; 89 N. Y. 418. It 135; affd, 51 O. S. — ; Bank v. amounts to an acceptance by the Leach, 52 N. Y. 350; Bank v. Jones, bank (Barnes v. Bank, 19 N. Y. 159; 12 L. R A. 492 : 27 N. E. Rep. 533 ; Simpson v. Insurance Co., 44 Cal. Bank v. Cornhauser, 37 111. App. 475. 139; Bank v. Leach, 52 N. Y. 350; - Cincinnati Oyster Co. v. Bank, Meads v. Bank, 25 N. Y. 146 ; 82 Am. supra. Dec. 331), thereby binding itself to 3 Barr v. National Bank, 24 W. L. B. hold the necessary funds for its pay- 260 (Ind.). ment. Bank v. Butchers, 16 N. Y. 4 Morse on Banking, sees. 414-416 : 125: 65 Am. Dec. 678; Rounds v. 52 N. Y. 350; 42 111. 238; 43 111. 497; Smith. 42 111. 245. The bank becomes 82 N. Y. 1. in fact the principal debtor and the s Nolan V. Bank, 67 Barb. 24 ; Bank drawer is discharged. Bank v. Leach, V. Leach, 52 N. Y. 350; Simpson v. 52 N. Y. 350; Bank v. Whitman, 94 Insurance Co., 34 Cal. 139. N. Y. 343. A certificate of deposit is 6 Bank v. Bank, 67 N. Y. 458 ; Ma- regarded as a negotiable promissory rine Bank v. Bank, 59 N. Y. 67 ; Na- note. Citizens" Bank v. Brown, 45 tional Bank v. National Bank, 55 O. S. 39. 278 BANKS AND BANK CHECKS. [§ 294:. following is a copy with all the indorsements thereon, to wit: [Copy.] That on the day of , 18 — , the plaintiff presented said check to the said defendant, who by its duly authorized agent accepted the same in writing and certified the same to be good, which certification is in the following words, to wit : [ Copy of a ccep ta 1 1 ce . ] That plaintiff presented said check to the said defendant bank and demanded payment thereof, which was refused, and there is now due thereon from the said defendant to the plaintiff the sum of dollars. Wherefore plaintiff asks judgment against the defendant, etc. Sec. 291. Answer tliat certified check was a forgery. — [Caption.'] That it admits that it certified the check sued on in this action, but alleges that said check was a forgery in this : That it was drawn by R F. for the sum of dollars, but it was altered and changed by some one unknown to defendant by raising said sum of dollars to dollars. That defendant had no knowledge, at the time it certified said check, that the same had been altered, but discovered the same afterward. I CHAPTER 22. BILLS AND NOTES. Sec. 295. Parties to actions on notes and bills. 296. Petition on notes and bills- General rules. 297. Consideration — Rules of pleading. 298. Bona fide holders — Eights of. 299. Indorsement. 300. Pleading demand and no- tice. 801. Action by indorsee or holder against maker, drawer or indorser. BILLS OF EXCHANGE — FORMS OF PE- TITIONS. Sec. 303. Petition by indorsee against acceptor, drawer and in- dorser. 303. Petition by acceptor against drawer. 304 Petition against maker for non-acceptance. 305. Petition showing excuse for non-presentment of bill to drawee. 306. Petition when demand and notice are waived. 307. Allegation where drawee could not be found. 308. Petition by drawer against drawee on promise to ac- cept. 309. Petition on a stolen draft. NOTES — FORMS OF PETITIONS. Sec. 310. Petition against maker only. 311. Petition on note against maker and indorser. Sec. 312. Petition against maker and indorsers —Averring pre- sentment, etc. 313. Petition against maker, in- dorser and guarantor. 314. Simple form of petition by indorsee of note for value. 315. Petition by indorsee against indorser in case of failure to give notice for want of funds. 316. Petition by purchaser for value against administra- tor of deceased maker and indorsers of note. 317. Petition by payee of note against executor. 318. Petition by indorsee against indorser without recourse who warranted a forged instrument 319. Petition by bank as assignee for value on note of cor- poration. 320. Petition on note wrongly dated. 331. Petition for instalment due on note. 332. Petition for interest due on note. 333. Petition on notes, and to correct error in account- ing thereon. 324. Petition by partnership against partners as mak- ers and indorsers. 325. Petition by surviving part- ner against a firm on note. 326. Petition by payee against surviving partneron nota 280 BILLS AND NOTES. [§ 295. Sec. 327, Actions on lost, destroyed or stolen instruments, with form of petition. DEFENSES. Sec. 328. Answers to actions on notes and bills — General rules. 329. Defense when indorsed or delivered before maturity. 830. Defense when indorsed or delivered after due. 331. Defenses — Failure of con- sideration. ANSWERS — FORMS — BILLS. Sec. 332. Answer of unauthorized ac- ceptance. 333. Answer of payment before indorsement. 334. Answer of acceptance for ac- commodation of plaintiff. ANSWERS — FORMS — NOTES. Sea 335. Answer denying obligation as maker, claiming that of accommodation indorser. 836. Answer of indorser setting up verbal agreement as to indorsement Sec 337. Answer denying execution, and setting up want of consideration — A mere gift, 338. Answer that note was pur- chased with notice that it was accommodation paper. 339. Answer of want of con- sideration by reason of failure of title to property. 340. Answer that note vvas given for gambling. 341. Answer that consideration was for a patent-right. 342. Alteration of notes. 343. Answer denying execution of note; that it was al- tered after execution by payee. 344. Answer that note was al- tered by the addition of a name. 345. Reply that note was pur- chased in usual course of business. Sec. 295. Parties to actions o:i notes and bills. — The code requires that actions should be brought in the name of the real owner or party in interest, whether his title be legal or equitable, and that ownership should fully appear in the petition.^ Makers and indorsers may be joined in one action, but the facts showing their liability must be stated,^ In an action, however, by an indorsee of a note or bill, it is not generally considered necessary to make a specific allega- tion showing the relationship of parties, as that appears fully from the copy incorporated in the petition, although it is largely a matter of taste. The holder of a note as collateral ^ security is the real party in interest and may bring an action ^ in his own name ; ' and where a note has been assigned to ' R S,, sec. 4993 ; ante, sec, 8 ; Max- well on Code Pldg. 95 ; Bliss on Code Pldg,, sec. 233. See post, sec. 296. 2 Maxwell on Code Pldg. 128-9. SHerron v. Cole, 25 Neb. 692; Williams v. Norton, 8 Kan. 295; § 295.] BILLS AND NOTES. 281 another for collection merely, suit may be brought by such party as the real party it interest, although the only interest which he may have is his compensation for collection.' An agent to whom paper is indorsed for collection may bring suit if his indorser could have maintained an action thereon, al- though he is bound to account to the payee for the proceeds.- And an indorsee of a promissory note may sue the indorser before suing the makers, the latter not being necessary parties to the suit : ^ or an agent may bring an action in his own name, if he has possession and the legal title at the time, although the note be indorsed to another.^ Where a note is made by consent of all parties to one in trust for others, such person may sue without joining the remainder, even though he be a trustee, and if the note is made to him in his individual name he need not sue in his representative capacity;^ or a note payable to the president of a bank may be sued on by him alone as trustee of an express trust.^ Where the payee of a note has possession of it, he may strike out an indorsement thereon by him and maintain an action in his own name without a re-assignment." The payee of a note who trans- fers it by writing his name on the back, guarantying its pay- ment, may be sued jointly with the maker.'' The holder or payee of a check cannot maintain an action in his own name against the drawee when the same has not been accepted.' Under the provision of the code that an action must be brought in the name of the real party in interest, a defense Van Eman v. Stanchfield, 13 Minn. v. Norton, 3 Kan. 295 ; Beattie v. 75 ; Wetmore v. San Francisco, 44 Lett, 28 Mo. 596. Cal. 294. 3 McGhee v. Bank. 93 Ala. 192 ; 1 See aiite, sec. 8 : White v. Stan- Corbin v. Bank, 87 Va. 661. ley, 29 O. S. 423; Allen v. Brown, 44 ^Smead v. Fay, 1 Disn. 531. N. Y. 228; Meeker v. Claghorn, 44 f" Scantlin v. Allison. 12 Kan. 85; N. Y. 349 : Eaton v. Alger, 47 N. Y. Nicolay v. Fritschel, 40 Mo. 67. See 345; Hays v. Hathorn, 74 N. Y. 486: ante, sec. 9. Curtis V. Sprague,51 Cal. 239; Smead 6 Wolcott v. Standley. 62 Ind. 19a V. Fay, 1 Disn. 531 ; Hardin v. Helton, ^ Spencer v. Carstarphen, 15 Colo. 50 Ind. 319. 445; 24 Fac. Rep. 882 (1890). 2 Wintermute v. Torrent, 83 Mich. ^ Kautzman v. Weirick, 26 O. S. 555; Moore v. Hall, 48 Mich. 143; 330. Eaton V. Alger, 47 N. Y. 345 ; Webb '•> Boettcher v. Bank, 15 Colo. 16 ; 24 V. Morgan. 14 Mo. 428: Wetmore v. Fac. Rep. 582 (1890). San Francisco, 44 Cal. 294 ; Williams 282 BILLS AND NOTES. [§ 296. that one of the parties has assigned his interest is available only by an answer denying such interest.^ An action cannot be maintained against both principal and agent where it is claimed that the maker of a note acted as agent in its exe- cution.'^ See. 396. Petition on notes and bills — Oeneral rules. — In framing a petition under the code in an action on a prom- issory note or bill of exchange, a copy of the note with all the credits and indorsements thereon should be incorporated in the petition or attached thereto.' It is considered unnec- •essary, when there are no indorsements, to so aver, although it is the better practice to do so ; * nor is an omission to state that all the credits are given in the copy fatal.^ If the short form prescribed by section 5086 of the code be adopted, it is only necessary to state that there is due upon the note a specified sura.* When others than the makers of a note or acceptors of a bill are parties, the facts which fix their liability should be stated."^ Thus, under this statute, in an action by an indorsee of a note, it is sufficient merely to frame the pe- tition in the usual form, giving a copy of the note, as title or ownership is implied from an allegation that there is due a specified sum.^ A petition which merely avers the execu- tion of a note and gives a copy thereof shows a promise to pay.^ And so, if a note is made part of a petition, it is im- material whether it be averred that the same is payable to plaintiff." Merely averring ownership in the plaintiff without iHauna v. Ingram, 93 Ala. 482; L. M. 420; Swan's P. & P. 184-6. 9 S. Rep. 621 (1891). This is the construction given to 2 Bank v. Turner, 24 N. Y. S. 794. similar provisions in the codes of 3 See ante, sees. 57, 58, where this other states. Prindell v. Carruthers, is fully discussed. 1 H N. Y. 425 ; Bank v. Jacobson, 15 4 Ives V. Strickland, 4 W. L. B, 852. Abb. Pr. 218. It is held in California 6 Ingersoll v. Craw, 1 Clev. Rep. 1. that an averment that there is a cer- 6 R. S., sec. 5086 ; ante, sec. 57. tain amount due upon a note is a Plaintiff must show what sum there mere conclusion of law. Frisch v. is due before a defendant can be Caler, 21 Cal. 71 ; Davanay v. Eggen- called upon to deny. Villers v. Lewis, hoff, 43 Cal. 395. Title may be stated 1 Handy, 39. by alleging that plaintiff owns the f R. S., sec. 5086 ; ante, sec. 57. note. Insurance Co. v. Goodin, 1 8 Sargent v. Railroad Co., 32 O. S. Handy, 31. 449; Bank v. Jacobson, 15 Abb. Pr. » Reynolds v. Baldwin, 93 Ind. 57. 218. See Ohio Life Ins. Co. V. Goodin, w Jaqua v. Woodbury, 3 Ind. App. 1 Handy, 31 ; Meyers v. Miller, 2 W. 289 ; 29 N. E. Rep. 673 (1892> § 296.] BILLS AND NOTES. 2S3 setting forth indorsements or otherwise showing title will not be sufficient.* An allegation that a note was made to the plaintiff is a sufficient averment of ownership without alleg- ing delivery;' and so with an averment that a payee of a note sued on indorsed it to plaintiff hy writing his name on the back.^ A defendant may prove that the plaintiffs are not the owners of a note, even where there is no such issue made by the plaintiffs in the case.* A failure to allege that an indorsement and delivery of a note was for value and be- fore maturity is not ground for a demurrer.*^ Where a note or bill has been dishonored it is necessary to state that fact in the petition; and in an action against the maker and indorser of a note, an allegation that the same was presented at maturity to the maker for payment but was un- paid, due notice of which was given to the indorser, is a suffi- cient allegation of presentment, refusal and notice,^ Or in an action by an indorsee against an indorser of a bill, an allega- tion that the same was presented to the drawee " for accept- ance and was then and there by him declined and refused acceptance, and not accepted," is a sufficient averment of de- mand of acceptance;'' but an averment that a note was pro- tested is not equal to an averment that it had been duly presented to the maker for payment and that payment was refused.^ And so where it is claimed that demand and notice have been waived it is equally essential that the facts con- stituting such waiver be fully set forth, as proof of waiver cannot be admitted under a general allegation of presentment and notice of dishonor.^ Where it is necessary that an accept- ance of a bill or guaranty should be in writing, a mere aver- ment that the bill was accepted," or that the guaranty was 1 Gould V. Insurance Co., 8 W. K B. 5 Rubelman v. McNichol, 13 Mo. 281. App. 584. '■i Keteltas v, Meyers, 19 N. Y. 233 ; 6 Young v. Miller, 68 Cal. 803 ; Fisk 24 N. Y. 547 ; 12 How. Pr. 452, 460. v. Miller, 63 CaL 367 ; Spencer v. 3 Rubelman v. McNichol, 13 Mo. Locouiotive Works, 17 Abb. Pr. 110. App. 584 7 Bank v. Hatch, 78 Mo. 13. * Russell V. Gregg, 49 Kan. 89 ; 8 Pi-jce v. McClare, 3 Abb. Pr. 253. 80 Pac. Rep. 185 (1892). It is not « Pier v. Heinrichoffen, 52 Mo. 333- necessary to allege that a note was 336. delivered. Keesling v. Watson, 91 'O Bank v. Edwards, 11 How. Pr. Ind. 578; Doane v. Duulap, Tap. llo. 216. 284 BILLS AND NOTES. [§ 297. made,^ without stating that it was accepted or made in writ- ing, will be sufficient, as it will be implied from the mere allegation that it was in writing. It should not only appear that there was a promise made but that it was broken,^ though an averment that there is due and owing a certain sum of money is generally conceded to be a sufficient allega- tion as to non-payment;^ and so with an allegation that no part of a note, principal or interest, has been paid.'* But a petition will not be held insufficient if it fails to aver that a note is due at the commencement of the action if the copy embodied in the petition by its terms shows that it fell due before the same was filed.' An allegation which states that only part of the principal sum demanded still remains due and unpaid is insufficient to sustain a judgment.® But failure to allege that some part is due and unpaid is a defect which will vitiate a judgment by default.' See. 297. Consideration — Rules of pleading. — It is well understood that a promissory note imports consideration, and hence it is unnecessary in an action thereon to aver that the same is founded on a valuable consideration.® And so a description of a note in a pleading is sufficient without an averment of consideration.^ Consideration is likewise pre- sumed from indorsement and delivery, rendering it unneces- sary in an action by the holder against an indorser to state that the note was transferred for a valuable consideration, as that would be matter of defense to be set up in the answer.^^ An averment that a guarantor is liable both as an indorser and guarantor implies a transfer of the note of the guarantor to the guarantee, and imports consideration for the contract of guaranty." A note made on condition that 1 Miles V. Jones, 28 Mo. 87. 91 Ind. 578; Leach v. Rhodes, 49 Ind, 2 Villers v. Lewis, 1 Handy, 39. 291 ; Winters v. Rush, 34 Cal. 136 ; SKeteltas v. Meyers, 19 N. Y. 231. Duiland v. Pitcairn. 51 Ind. 456; 4 Jones V. Frost, 28 Cal. 245. Peets v. Bratt, 6 Barb. 662 ; Keteltas s Postel V. Oard, 1 Ind. App. 252 ; v. Meyers, 19 N. Y. 231 ; Lindell v. 27 N. E. Rep. 584 (1891). Roakes, 60 Mo. 249; Search v. Miller, 6 Notman v. Green. 90 Cal. 172 ; 27 9 Neb. 26. Pac. Rep. 157 (1891). » Underhill v. Phillips, 10 Hun, 591. 7 Barney v. Vigoreaux, 92 Cal. 631. ^^ Dumont v. Williamson, 18 O. S. fcDugan V. Campbell, 1 O. 115; 2 515. Bates' Pldg. 830 ; Keesling v, Watson, " Clay t. Edgerton, 19 O. S. 549. § 298.] BILLS AND NOTES. 285 the payee shall, during a certain specified time, abstain from intoxicating liquor, is a sufiicient consideration to sustain an action.^ Where the defense is interposed in an action by an indorser upon a note that he is not an innocent holder for value, the amount paid by him for the note is only important so far as it affects the good faith of the purchaser, and he is a honajide holder even though he has paid a sum less than its fair and reasonable value.- Sec. 298. Bona fide holders — Rights of. — A person who takes paper before maturity for a valuable consideration in the usual course of trade, without knowledge of any facts that would impeach its validity in the hands of the original parties, holds it by a good title. ^ But the maker is not liable as against the holder if the former was induced by fraud to believe that he was signing an instrument other than a promissory note.* A person taking a note given for a patent-right with knowl- edge of its consideration takes it subject to such defenses only as would have existed against it if such words had been legibly written or printed thereon.'^ The title oisuhonafde holder of a " red line wheat " note cannot be impeached by showing that he took it under circumstances which ought to have excited the susi)icion of a prudent man." To become a hona fide holder it is not necessary to pay the full face value of a note.' A person possessed of ordinary faculties and ability to read, who signs a note without knowledge of what he is signing, without read- ing it, but relying solely on the representations of the payee that it was a paper other than a note, cannot be permit- ted, as against a hona fide holder before maturity for value, to deny its execution;^ nor can a person who negligently signs and delivers a printed note without knowledge of what it is deny the authority of a person to whom it was delivered to till the blanks therein as against a ho7ia fide iLindell v. Rokes, 60 Mo. 249. 5 Tod v. Wick, 36 O. S. 370. See 2 Tod V. Wick, 36 O. S. 370 ; Rooker sec. 297. V. Rooker, 29 O. S. 1 ; Kitchen v. ^Kitchen v. Laudenbach, 3 O. C. C. Laudenbach, 3 O. C. C. 228 : Bailey 228 ; aflE'd in 48 O. S. 177. See 4 O. T. Smith. 14 O. S. 396. C. C. 65 ; Johnson v. Way, 27 O. S. 3 Johnson v. Way. 27 O. S. 374. 374. «De Camp v. Hanima, 29 O. S. " Baily v. Smith. 14 O. S. 396. 467. See Kingslaud v. Piyor, 33 O. 8 Winchel v. Crider. 29 O. S. 480. S. 19. 286 BILLS AND NOTES. [§ 299. holder.^ If it be admitted that a note has been obtained by fraud, a lona fide indorsee before due, in an action by him, must prove that he received it without notice, for value and in due course of trade.- An answer to an action on a bill not indorsed by the payee, denying that the plaintiff is the owner, and alleging that he did not receive it in due course of trade, is a good defense.' The holder of negotiable paper will be protected against defenses arising after the maker has notice of the transfer.* Sec. 299. Indorsement. — There are many difficult ques- tions connected with the subject of indorsement. The con- tract is largely implied from circumstances; but an indorse- ment of a note made to transfer title to a purchaser, though in blank, is an absolute contract in writing, by which the in- dorsee binds himself to pay the note, if on presentment the maker does not, provided due notice has been given of non- payment.^ Parol evidence is oftentimes permitted to show the relationship of parties or the nature of the contract. A party indorsing a note without recourse nevertheless im- pliedly warrants that the signatures of prior parties whose names appear thereon are genuine.^ An indorser transfer- ring a note upon condition that the same is to be collected at the risk of the indorsee is still responsible for the note if it proves to be forged.^ Where a debtor of a bank has transferred paper to the latter as payment of indebtedness owing it, indorsing it to the cashier, the latter may main- tain an action thereon; and a defense cannot be made thereto of which neither the bank nor the cashier had no- tice at the date of indorsement, if made before maturity.* The mere allegation in a petition that a defendant is lia- ble as indorser and guarantor implies consideration.^ A blank indorsement may be reformed by way of defense; but this should be by cross-petition with a prayer therefor. 1 Ross V. Doland, 29 O. S. 473. -' White V. Francis, 4 Am. Law Rec, 501. 3 Louisville Banking Co. v. Mc- Donald, 1 Clev. Rep. 1. < Beard v. Dedolph, 29 Wis. 142. 5 Farr v. Ricker, 46 O. S. 265, and Heaton v. Hulbert, 3 Scam. 489. cases cited. 6 Dumont v. Williamson, 18 O. S.515. ' Shave v. Ehle, 16 Johns. 201 ; 20 N. Y. 226. nVhite V. Stanley, 29 O. S. 423. 9 Clay V. Edgerton, 19 O. S. 553 ; Hovpe V. Kimball, 2 McLean, 103 j § 300.] BILLS AND NOTES. 287 and should be supported by clear and convincing proof.' While a person who is in possession of negotiable paper under a blank indorsement is prima facie the owner thereof and entitled to sue thereon, yet this presumption may be re- butted and the rights of the real owner established.'' The mere indorsement upon a note of a stranger's name is prima facie evidence of guaranty in the absence of proof that it was made at the time of execution.' So, where a stranger in- dorses a note before maturity and before its transfer to a third party, the owner and holder thereof may recover against him as an unconditional guarantor without proof of demand and notice.* Where, before delivery of a note to the payee, a person becomes responsible thereon only as an indorser for accommodation, of which the payees had notice, such payees only hold an equitable title subject to all equities between the original parties;* but where a person who writes his name on the back at the time of the execution refuses to become a general maker, intending to become only an indorser, he will be regarded as a conditional guarantor.^ The contract of an accommodation indorser is entire, and the note cannot be made payable part to one person and part to another without the consent of the parties thereto.'' An answer stating that the defendant placed his name on a note as an accommodation merely, and that there was no agreement that he was to be liable to a greater extent than as an accommodation indorser, is a sufficient general denial of an allegation in a petition charging him as a general maker, and the burden of proof is on the defendant.^ Sec. 300. Pleading demand and notice. — It is an element- ary rule that, in order to charge an indorser of a note, the petition should allege presentment at maturity and due notice to the indorser of non-payment. The law on this subject is strict atid well defined. There are exceptions, however, to 1 Farr v. Ricker, 46 O. S. 265. 4 Castle v. Rickley, 44 O. S. 490. 2 Osborn v. McClelland, 43 0. S. » Seymour v. Leyman, 10 O. S. 283. 384 6 Seymour t. Micky, 15 O. S. 515. »Champiuu v. Griffith, 13 O. 228; ' Erwin v. Lynn, IG O. S. 539. RobinsoD v. Abell, 17 O. 36; Oklliam 8 Parrish v. Mears, 1 Handy, 4931 V. Broom, 38 O. S. 52; 18 O. 441 ; 9 O. 139. 288 BILLS AND NOTES. [§ J500. this rule. It is also a familiar rule that presentment, protest and notice may be waived verbally, by writing, or implied from acts which are of sufficient character to convince the mind that a waiver was intended;^ or it may be necessary where an indorser has taken an assignment of the maker's property ; ^ or there may be other circumstances which excuse notice. It is quite essential that the petition should contain a clear statement of the fact of presentment and notice, and if it has been waived it is equally necessary to allege the facts which dispense with it,^ as facts dispensing with or waiving demand and notice to charge an indorser cannot be proved under an averment of demand and notice.* As the rules of pleading require the pleader to state the substantive facts constituting his cause of action, and not the evidential facts,^ a complaint alleging demand and notice upon a note in a case where an indorser has made a promise to pay, with full knowledge of the failure on the part of the holder thereof to make presentment and give notice, need not allege those facts, but the usual allegations of demand, non-payment and notice of dishonor will be sufficient when sustained by proof of such facts.^ An allegation that a note was presented at maturity to the maker for payment but that it was not paid, of which the indorser had due notice,' or an averment that a bill was presented on a day before or after the expiration of the days of grace, with an additional allegation that the bill was due;^ or that a bill was presented to a drawee for payment without stating when, and that payment was re- fused;' or a general allegation, in an action on a bill against a drawer, that the same was not paid though duly presented 1 Glaze V. Ferguson, 48 Kan. 159; Markland v. McDaniel, 51 Kan. 350 ; 32 Pac. Rep. 1114; Goves v. Vining, 7 Mete. 212; Singerson v. Mathews, 20 How. 496. 2 Bank v. McGuire, 33 O. S. 295; Kyle V. Green, 14 O. 495 ; Delveling V. Ferris, 18 O. 170 ; Baird v. West- erman. 32 O. S. 29. 3 Clark V. Tryoti, 23 N. Y. S. 780. 4 Hudson V. Wolcott. 2 Clev. Rep. 194. 5 Ante, sec. 50. 6 Clark V. Tryon, 23 N. Y. S. 780. See also 2 Daniel's Neg. Inst, sec. 1157; Tubbetts v. Dodd, 23 Wend. 379 ; Meyer v. Hibsher, 47 N. Y. 265 ; Ross V. Hurd, 71 N. Y. 145 : Bank v. Moffat, 15 N. Y. S. 389; Camp v. Bates, 11 Conn. 487. 7 Young V. Miller, 63 Cal. 302; Fisk V. :Miller. 63 Cal. 367. ^ Peabody v. Fisher. 8 O. 535. 9 Heaver v. Beatty, 2 W. KG. 388. ■^ 300.] BILLS AND NOTES. 289 for payment, of which the drawer had notice/ — have all been held sufficient allegations. Where demand and notice are unnecessary because of the fact that an indorser has sufficient property in his possession to indemnify himself, the foUowino;' averment may be made in the petition: "The said plaintiff also avers that he was ex- cused from making a demand upon said W. H. P., or from notifying the said defendant that said notes were unpaid on the day of , 18 — , because he says that said J. B, (indorser) then had sufficient effects in his possession, by vir- tue of a chattel mortgage (or whatever the security is), to fully and completely indemnify him against the payment of said promissory note." In an action against a guarantor, where the contract of guaranty is absolute and unconditional, it is not necessary to aver or prove demand or notice ; but where the contract is dependent upon a condition, a compliance with the contract must be fully alleged and proved in order to warrant a re- covery thereon.2 To charge guarantors, demand and notice must be given.^ An allegation that a note was protested after due notice has been held not equivalent to an allegation that it was presented for payment.* Demand and notice is essential where a note is made pay- able in instalments in order to charge an indorsee in case of default in the payment of any instalment.* If the maker of a note be dead, demand should be made upon his admin- istrator.8 Demand on one of several joint makers is sufficient to charge an indorser.'^ Demand need not be made by a partv whose name is on the note in the position of a promisor iWood V. Dillingham, 1 Handy, allegation in this case was: "Where- 29 ; Gay v. Paine, 15 How. Pr. 107 ; upon the said note is then and there Radway v. Mather, 5 Sand. (S. C.) 654. duly protested for non-payment, all 2 Clay V. Edgerton, 19 O. S. 553 ; of which the said H. had notice." Bashford v. Shaw, 4 O. S. 266 ; Brown Protest is one thing and notice is an- V. Curtis, 2 N. Y. 225 ; Reed v. Hill- other ; the former may be made and house, 7 Conn. 523. the latter omitted. 3 Greene v. Dodge, 2 O. 431, the « Mallon v. Stevens, 6 W. L. B. 69. court saying that a contract of guar- 6 Huff v. Ashcraft, 1 Disn. 277. anty is in its very nature couditional. 7 Remington v. Harrington, 8 O. 4 Price V. MeClae, 5 Duer, 670; 507. Cook V. Warren, 88 N. Y. 37. The 19 290 BILLS AND NOTES. [§ 300. who is in fact an indorser, as the indorsers, having no recourse on him as a maker, cannot lose anything by the want of it.* If a maker informs a bank on the day a note falls due that he cannot pay it, it is sufficient to warrant a finding that a demand was made,- The presentation of a note at a bank where it is payable on the day of maturity, there being no funds at the bank to meet it, is sufficient evidence of demand and refusal.^ A demand may be made after business hours at the place where a note is payable if there is any one there to answer.^ Demand on a principal debtor and notice to a guarantor is necessary only when the fact of the liability of the latter is within the knowledge of the guarantee; but if the facts upon which his liability rests are known to the guarantor, or each party has equal information, he must take notice at his peril.^ Demand and notice is not necessary upon a guarantor where the promise becomes an original one,^ nor where the guarantor has indemnity.^ ]N"o averment of demand and no- tice is necessary where a guarantor writes upon a note, "I guaranty the payment of the within note to C. E. or order." ® Demand and notice may sometimes be unnecessary, as when a holder has been thrown off his guard by the conduct of an indorser.^ Questions of the sufficiency of demand and notice and of the proper parties upon whom it shall be made are frequently important in making defenses to actions upon notes. It is essential that notice either expressly or by implication in- form an indorser of the dishonor of a bill,^^ and containing a sufficient description of the instrument, inaccuracy not mis- leading being immaterial," and must show, by implication at least, that the note was duly presented to the maker and dis- 1 Greenhough v. Smead, 3 O. S. 415. 2 Heman v. French, 2 C. S. C. R 561. 3 Lafayette Bank v. McLaughlin, 4 W. L. b' 70. * Fox V. Newell, 8 W. L. J. 421. »Bashford v. Shaw, 4 O. S. 263; Wolfe V. Brown, 5 O. S. 306 ; Forest T. Stewart, 14 O. S. 249. 6 Reed v. Evans. 17 0. 128. ■J Kyle V. Green, 14 O. 495; Mc- Coy V. Bank, 5 O. 548 ; Delveling v. Ferris, 18 O. 170. 8 Clay v. Edgerton, 19 O. S. 249. 9 Boyd V. Bank, 32 O. S. 526 ; Dan- iel's Negotiable Instruments, sec 1103; Gove v. Willing, 7 Mete. 212. 10 Bank v. McLaughlin, 4 W. L. J. 70. n Powell v. Bank, 1 Disn. 26a § 3* Lawson v. Bank, 1 O. S. 206. » R. S., sec. 5086. See mite, sees. 58, * Powell V, Bank, 1 Disn. 269. 296. 5 Lawson r. Bank, 1 O. S. 206. lo Jaccard v. Anderson, 82 Mo. 188 ; Ordinary and reasonable diligence Rousch v. Dufif, 35 Mo. 312; Bliss only being required. Lawson v. on Code Pldg., sec. 232. Bank, supra; Bank v. Townsend, 2 O. S. 343. 2'J2 BILLS AND NOTES. [§ 301. form of pleading title being to state that the note or bill was made and delivered to the plaintiff, or indorsed or as- signed to him,^ although it is quite immaterial what ex- pression be used, as an allegation that the plaintiff is a hona fide holder and owner,^ or that he is the lawful owner and holder,' or that the note was delivered for value received, or that he lawfully came into possession of it,* or that he pur- chased the same,' have been held sufficient averments as to title. In Ohio, however, it is held that an allegation of title is implied by force of the statute from the statement that there is due the plaintiff a certain amount, and that it is not therefore essential that an indorsee of a note aver extrin- sic facts showing his right or title to the paper.^ This allegation by an assignee cannot be true unless the party alleging it owns the claim.^ While this may be considered a well-settled rule of practice, nevertheless it seems that the better way would be to state all of the facts in the first in- stance, as shown in the form given.^ A petition by an in- dorsee of a note need not aver the date of transfer, and is not subject to a motion to make definite and certain on that account.' In an action by indorsee against indorser the pe- tition should allege the making and delivery of the note by the maker to the payee and the indorsement of the same by the payee.^" A person other than a payee who does not give a copy of the indorsement in his petition cannot claim the protection given to a hona fide indorsee for value before maturity although the note shows the indorsement thereon by the payee." It is not necessary that an indorsee allege that the indorsement was made under the statute ; '- nor is it essential that it be averred that the same was transferred for a valuable consideration, as that is presumed, and any objec- 1 Mitchell V. Hyde, 12 How. Pr. " Id. 453 ; Swan's P. & P. 184 460; Appleby v. Elkins, 2 Sand. 673 ; 3 See iwst, sec. 814. Bliss on Code Pldg., sec. 233. 9 Engeld v. Canfield, 1 Clev. Rep. 2 Holstein v. Rice, 15 How. Pr. 1. 196. An averment that the payee 3 Reeve v. Fraker, 82 Wis. 243. assigned the note to plaintiff by in- *Lee V. Ainslee, 1 Hilt 277. dorsement is suflScient. Simpkins v. sPrindle v. Carruthers, 15 N. Y. Smith, 94 Ind. 470. 435. 1" Maxwell on Code Pldg. 129. « Sargent v. Railroad Co., 32 O. S. " Tisen v. Hanford, 31 O, S. 193. 449, 453. " Snedker v. Test, Tap. 113. § 301.] BILLS AND NOTES. 293 tion in that respect is matter of defense.* A vendor of a note transferring it by indorsement warrants the signatures of the prior parties even though without recourse.- ]!!^or is it necessary, in actions against persons other than the makers or acceptors, to allege the kind of liability upon which they are sought to be held, but only the facts which create the same.^ In an action by an indorsee of a note secured by mortgage, an allegation th-at the same has been duly assigned is sufficient, as ownership of the debt necessarily carries with it the security.^ In an action by an indorsee against his in- dorser, the question as to whether or not a blank indorsement was made in the usual course of trade for the purpose of transferring title, and as evidence of a contract, is an issuable fact and may be contradicted ; and a parol agreement as to the liability intended to be assumed may be shown.^ Recov- ery may be had against an indorser without recourse even though some of the prior signatures be forged;^ so if the in- dorser had no title, and in some instances if the note be in- validated between the original parties.'' In order to hold a remote indorser it is not necessary to show diligence to col- lect from an immediate indorser.^ An indorsee is entitled to recover the full amount of a note from his indorser even though the former paid a sum less than the face of the note.^ A maker is not liable on a note in the hands of a hona, jlde holder if he was induced by fraud to sign the same under the belief that it was not a note ; ^'^ and if it be ad- mitted by the pleadings that it was so obtained, a hona fide indorsee must show that he received it without notice and in due course of trade." If an indorsee has practiced fraud by using an assumed name, a drawer in a suit against i Dumont v. Williamson, 18 O. S. speumngton t. Hamilton, 50 Ind. 515. 397. And the question of the dili- * Dumont v. AVilliamsou, 18 O. S. gence of the indorsee is one of law, 515 ; 29 Me. 434 ; 16 John. 201 ; 20 N. when the facts are not disputed, and Y, 226. when contested one of mixed law 3 Levy V. Trennell, 5 W. L. B. 793. and fact. Davis v. Herrick, 6 O. 55; * Barthol v. Blakin, 34 la. 452. AValker v. Stetson, 14 O. S. 89. 6 Hudson V. Wolcott, 39 O. S. 618 ; '' See ante, sec. 301. Morris v. Faurot, 21 O. S. 155. lo De Camp v. Hamma, 29 O. S. 467. * Dumont v. Williamson, 18 O. S. ^^ White v. Francis, 4 Am. Law 515. Rec. 501. " Blethen v. Lovering, 58 Me. 437. 294: BILLS AND NOTES. [§ 302. him by a party to whom such indorsee has transferred the bill will be estopped from denying that the legal title thereto is in the plaintiff, or from setting up as a defense fraud prac- ticed by the indorsee/ as it is a well-settled rule that a note or bill knowingly made, drawn or indorsed to a fictitious per- son is regarded as made, drawn or indorsed to bearer and transferable by delivery.- Iso maker or acceptor, or, if a bill is not accepted, no drawer, of an instrument for the payment of money only, shall be liable in an action thereon, except on a warrant of attorney, in any county other than in the one which he, or one of the joint makers, acceptors or drawers resides or is summoned.'' If in an action on a note against the makers, payee and prior holder, service is made upon the latter in the county where the action is brought, and on the other defendants in a different county, a defense that the plaintiff is not the real owner of the note, but that the note was transferred to the prior holder mereh' to enable him to bring suit in the county of his non-residence, cannot be raised and determined on a motion to avoid the service or to dismiss the action, as it involves the question of the ownership of the notes, and hence goes to the merits of the action.* BILLS or EXCHANGE FORMS. Sec. 302. Petitiou by indorsee against acceptor, drawer and iudorser. — Plaintiff says that the defendants are indebted to him upon a certain bill of exchange, the said A. B. as acceptor, the said C. D. as drawer, and the said E. F. as indorser thereof [omit- ting if one sued alone'], a copy of which with all credits and in- dorsements thereon is as follows:' [Copy of hill.'] That on the day of , 18 — , when said bill became due and payable, the same was duly presented to said A. B. and payment thereof demanded, which was refused, and notice thereof was duly and legally given to the said C. D. and E. F., drawer and indorser thereof respectively. 1 Forbes v. Espy, 31 O. S. 474 3 R. S., sec. 5038. 2 Id. 483 ; BoUes v. Stearns, 11 * Linney v. Thompson, 44 Kan. Cusli. 320 ; Story on Bills, sees. 56. 765 ; Drea v, Carrington, 33 0. S. 200; 3 Hill, 112; 4 E. D. Smith, 83; 595. 6 La. Ann. 624; 3 N. H. 446; 3 Gil- 5 See ante, sees. 57, 58. man, 637. §§ 303-305.] BILLS AND NOTES. 295 Plaintiff therefore demands judgment against said defend- ants for the sum of dollars, with interest at percent. from , with $ , costs of protest and damages. Note.— Where a bill of exchange is made payable to one person and at the time of its execution another signs his name on the back, the latter be- comes a party to the request upon the drawee to pay the bill. Church v. Swope, 38 O. S. 493. A drawee who pays a bill without funds is entitled to be reimbursed. Id. ; Dickerson v. Turner, 15 Ind. 4 ; Swilley v. Lyon, 18 Ala. 532. Sec. 303. Petition l).v acceptor against drawer. — There is due plaintiff as acceptor, from the defendant as drawer, of a bill of exchange, the sum of $ , which amount said plaintiff advanced and paid in accepting said draft, with- out funds to meet the same, a copy of which draft \yith all indorsements thereon is as follows: [Copy.] [or as in ante, sees, 57, 58.1 Wherefore plaintiff asks judgment against said defendant for the said sum of | , with interest at per cent, from Note. — Acceptor for accommodation may recover amount paid. Con- nell V. Finnell, 11 Ind. .527. This form mayanswer in almost any action, as it may be varied according to circumstances ; the copy incorporated in the petition shows the relation of the parties. Sec. 304. Petition against maker for non-acceptance. — [Gajjtio7i.] Defendant, on the day of , 18—, at . for value received, made his draft or bill of exchange in writino-, dated on that day, and directed the same to A. B., requiring the said A. B. to pay to the defendant, days from the date thereof, the sum of dollars and interest from the date thereof, and for value the said defendant indorsed the same to the plaintiff [or, to one L. M., who then and there indorsed the same to the plaintiff]. A copy of said draft or bill is as follows: [o)' as in sees. 57, 58']. That the same was duly and in due time presented to the said A. B. for acceptance^ and the said A. B. refused to accept the same, and the same was duly protested for non-accept- ance thereof, and notice of such presentation and non-accept- ance was duly given to the said defendant, and the expense of such protest was the sum of . That said defendant has not paid said draft or any part thereof. Wherefore plaintiff demands judgment, etc. Sec. 305. Petition showing excuse for non-presentment of bill to drawee. — \_Caption.] Plaintiff alleges that the defendant K. B., on the day of , 18—, drew a bill of exchange upon one C. D., whereby 296 BILLS AND NOTES. [§§ 306-308. said A. B. requested C. D. to pay this plaintiff or order the sum of doUars within days from the date thereof, a copy of which bill is as follows: [Copy.'] That at the date of drawing said bill of exchange, and ever since said date, the said C. D, was wholly insolvent and en- tirely unable to pay said bill, and plaintiff did not present the same to him for acceptance, which would not have been ac- cepted had it been so presented, of all which the defendant had knowledge. There is therefore due plaintiff from said defendant on said bill the sum of $ . which he claims with interest from , for which he asks judgment. Sec. 306. Petition when demand and notice are waived. — XCaptioji.] That on the day of , 18 — , L. drew his certain bill of exchange of that date, and delivered the same to P., and thereby then and there requested N., days from the date thereof, to pay P., or order, the sum of dollars. That said bill of exchange was duly accepted b}^ said N. O. on the day of , 18 — . That at the time of the delivery of said bill of exchange to plaintiff the said defendant waived the presentation thereof to , for payment and notice of non-payment thereof, a copy of which bill with the indorsements thereon is as fol- lows : [Copy of hill and tridorsements.'] That said bill has not been paid, and there is now due thereon from the defendant the sum of | , which he claims with interest from , 18 — . Wherefore plaintiff asks judgment against said defendant for the said sum of % , with interest at per cent, from , 18-. [^Prayer.'] Sec. 307. Allegation where drawee could not he found. — \^Captio7i.''^ Qn the -^— day of , 18—, on which said bill of exchange became due, plaintiff endeavored to find the said E. F., drawee, at , where said bill was due and payable, that the same might be presented to him for payment, but that said E. F. could not after diligent search and inquiry be found, and said bill was not accepted, but was duly protested, of all which defendant had due and legal notice. Sec. 308. Petition hy drawer against drawee on promise to accept. — [^Caption.'] That on the day of • , 18—, in consideration of [state consideration'], the defendant promised the plaintiff to M § 309.] EILLS AND NOTES. 297 accept and pay at si^ht a draft thereafter to be drawn by him in favor of E. F.. calling for the sum of dollars. That on the day of , 18 — , the plaintiff drew said draft and delivered the same to said E. F., who presented the same on the day of , IS — , to said E. F. for accept- ance and payment; but said defendant refused to accept or pay the same, in consequence whereof the plaintiff was com- pelled to pay said draft, with costs of protest, dollars, and charges in the sum of dollars, of all which said de- fendant at the time had notice, and though often requested has failed- to pay plaintiff, to his damage in the sum of • dollars. Note. — Where a letter has been written by one party to another, stating that bills to a certain amount would be accepted if accompanied by bills of lading for shipments, an action may be maintained for a breach of promise to accept, by a third person, who has taken such bills upon the faith of the letter. Lonsdale v. Bank, 18 O. 126 (1849). In order to hold a drawee on a promise to accept it must be shown that the bills are drawn in accordance with authority. Sherwin v. Brigham, 39 O. S. 137-9. As to sucli agree- ments, see Sherwin t. Brigham, 2 Clev. Rep. 228. Sec. 309. Petition on a stolen draft. — Plaintiff says that on or about the day of , 18 — , at S., in the state of , one J. B., being"^ then indebted to the plaintiff, at his request procured from the bank of ^. a draft, of which the following is a copy : \co]py\ ; ^ and then and there inclosed the same in a letter and transmitted the same, properly directed, to the plaintiff, at U., in the said county of W. Plaintiff further says that said letter, and the draft inclosed therein, never came to the plaintiff's possession, but was wrongfully taken from the postoffice by some person to the plaintiff unknown, and without his knowledge or con- sent; and the person so taking the same, on or about the day of , 18 — , falsely and knowingly, and without authority from the plaintiff, and without his knowledge or consent, forged and counterfeited an indorsement of the plaintiff's name upon the said draft, and by means of such forged and counterfeited indorsement then and there pre- sented said draft to the defendant, and collected the same, and now holds the money received thereon. Plaintiff has demanded of the defendant the money so received by him to his use as aforesaid, but he refused and still refuses to pay over the same or any part thereof. Wherefore plaintiff asks judgment against the said de- fendant. Note.— From Shaffer v. McKee, 19 O. S. 526. A maker of a note cannot safely pay it to one who has stolen it from the payee and falsely pretends to hold it for collection. Nolte v. Hulbert, 37 O. S. 445 ; 19 O. S. 526. 1 See ante, sees. 57, 58. 2i98 Biixs AND NOTES. [j:§ 310-312. NOTES — FORMS OF PETITIONS. Sec. 310. Petition against maker ouly. — [^Caption.'] The plaintiff says this his action is founded on a promis- sory note of which the following is a cop\', with all the credits and indorsements thereon: {Copy of note], [or as pointed out in ante^ sees. 57, ■58.'] \_0j' if no credits:] There are no credits on said note. There is due from the defendant to the plaintiff on said note the sum of dollars, which he claims, with interest from the day of , IS — , and for which he prays judg- ment against the defendant. Note.— See Sargent v. Railroad Co.. 32 O. S. 449 : Tyaen v. Hanford, 31 O. S. 193. Where there are two notes embraced in tlie same petition they should be separately stated as two causes of action. Van Namee v. People, 9 How. Pr. 198 : Dorman v. Kellam, 4 Abb. Pr. 202. A note cannot be brought to im- mediate maturity through a clause in a mortgage to secure the same au- thorizing the mortgagee to declare the debt due upon default in any of the provisions of the mortgage. White v. Miller, 54 ]S. W. Rep. 736 (Minn., 1893). Sec. 311. Petition on note against maker and indorser. — There is due plaintiff from the defendants. as maker, and as indorser, the sum of dollars, which he claims with interest payable annually from , 18 — , on a promissory note, of which the following is a copy with all credits and indorsements: [Cop)}/.] Said note was not paid when due, and due notice of such non-payment was given said indorser, . Wherefore plaintiff asks judgment against defendants in the sum of dollars, with interest thereon at per cent. from the day of , IS — , and with interest at per cent, upon the annual instalments of interest from the times at which they respectively became payable and due, and for costs in this action. Note.— From Mills v, Vollrath, 27 W. L. B. 36, unreported case. Sec. 312. Petition against maker and indorsers, averring presentment, etc, — [Caption.] Plaintiff savs that there is due from the defendants, as maker, and and , indorsers, the sum of dollars, which he claims on a promissory note of which the following is a copy, with all credits thereon, to wit [or, on which there are no credits] : [Copy of note.] On the day of , 18 — , the said defendant A. B. in- dorsed said note as follows: [Copy of i^idorsements.] On the day said note matured the same was presented to the said defendant, , maker thereof as aforesaid, and payment thereof demanded, which was refused, and it was ^§ 313-315.] BILLS AND NOTES. 299 thereupon )3rotestecl for non-payment, of all of which the said , indorser thereof, had due notice. [Or, if diligence vjas not used against maker:'] That when said note became due said C. D. was and continuously since has been notoriously insolvent, so that an execution against him would have been and is now unavailing. Plaintiff therefore prays judgment against said defendants for the sum of $ with interest from . Sec. 318. Petition a2:ainst maker, indorser and guarantor. [CajHion.'] The plaintiff says that his action is founded on a promissory note of which the following is a copy: [6'o/^y.] On the back of said note are the following indorsements: *' Without recourse, D. L. J. ; " "I guaranty the payment of the within note, C. Edgerton, or order. Isaac Clay." The defendant J. H. is liable on said note as maker, and the defendant Isaac Clay as indorser and guarantor. The plaintiff, C. E., is the holder and owner of said note. There is due from the defendants to the plaintiff on said promissory note the sum of dollars, which he claims with interest from the day of , IS — , and for which he asks judg- ment. Note. — Appi-oved in Clay v. Edgerton, 19 O. S. 549. Sec. 314. Simple form of petition by indorsee of note for yalne. — The plaintiff says this his action is founded on a promissory note of which the following is a copy, with all credits and in- dorsements thereon : [6<9/;y.] The following are all the credits an€ indorsements thereon : \_Credits and indoi'seinents.] The above note was duly assigned and transferred to said plaintiff for a valuable consideration before due. There is due from said defendants to plaintiff on said note dollars, which he claims, with interest from the •day of , IS — , and for which he asks judgment and costs of this suit. Note. — From Sbafer v. Krause, Supreme Court, unreported. Where a party relies on tlie rights of a bona fide indorsee, an allegation merely that there is a certain sum due the plaintiff is not sufKcient; it is necessary that he give a copy of the indorsements relied on. Tysen v, Hanford, 31 O. S. 193. Sec. 315. Petition by indorsee against indorser in case of failure to give notice for want of funds. — [CajHion.] There is due plaintiff from the defendant as indorser the sum of dollars, which he claims with interest from at per cent., on a promissory note made and executed by 300 BILLS AND NOTES. [§ 316. C. D., of which the following is a copy with all of the credits and indorsements thereon, to wit: \_Copy of note ?\ That on the day of , IS — , the said E. F. indorsed said promissory note in the words following: "Pay to the order of A. B. E. F.,"* and delivered the same to the plaintiff. That at the time said C. D. made said promissory note, and from that time until it was presented to him for payment, the said C. D. did not have any funds or effects of E. F. in his hands belonging to E. F., nor had he received any consid- eration for said note, but made said note at the request of and for the accommodation of said E. F., who is the principal debtor thereon. The said E. F. therefore has not sustained any damage by reason of want of notice of the non-payment of said note by said C. D. That said E. F. is liable as indorser on said note, no part of which has been paid. See. 316. Petition by purchaser for value against admin- istrator of deceased maker and indorsers of note. — The plaintiff, A. D. S., for cause of action against the de- fendants states : That the defendant, A. B. J., was on the day of , 18 — , duly appointed and qualified as administrator of the es- tate of J. A. J., deceased, who died , by the probate court of county, Ohio, and that he is still acting as such adminis- trator. That there is due him from the said A. B. J. as ad- ministrator of the estate of J. A. J., deceased, who in his life-time was the maker, and from the defendants, A. P. and J. C. S., who were each indorsers of the promissory note, a copy of which hereinafter follows, with all the credits and in- dorsements thereon, the sum of dollars, which he claims with interest at six per cent, from : {Copy of note.] The following indorsements appear on said note: [Copy of indorsements.] "The within note has been duly presented to me for allow- ance as a claim and debt against the estate of J. A. J., de- ceased. The same is herebv disallowed and rejected. " , 18—. " A. B. J., Adm'r." Your petitioner further avers that there are no other or further indorsements on said note and that no payments have been made thereon. That on the day of , IS — , plaintiff presented said note to the defendant A. B. J., as such administrator, with a sworn written statement attached thereto of his claim, and demanded an indorsement of allowance thereon, but defend- ant A. B. J., as such administrator, refused to make such in- dorsement and disallowed and rejected the same. Your ))etitioner further avers that he became the owner and holder of said note before the same became due in the §§ 317, 318.] BILLS AND NOTES. 301 usual course of business, and that he paid a valuable consider- ation therefor. "Wherefore plaintiff prays judgment against A. B. J. as ad- ministrator of the estate of J. A. J., deceased, and the defend- ants A. P. and J. C. S., the indorsers of said note, for the sum of dollars, with interest at per cent, from . Note. — From Seward v. Jones, 27 W. L. B. 247. Where the maker of a note dies before maturity the presentment and demand must be made to his executor or administrator. Huff v. Ashcraft, 1 Disn. 277. A purchaser for value before maturity, without knowledge of anything to impeach its validity, may recover the amount of note, though obtained by payee of maker by fraudulent means. Kitchen v. Loudenback. 48 O. S. 177. To constitute a defense, proof must show that he acted in bad faith- Id. ; Johnson v. Way, 27 O. S. 374. Sec. 317. Petition by payee of note against executor. — [C'^'ption.] On the day of , 18 — , said J. L. died, leaving a will, whereby he appointed said defendant J. L., Jr., sole executor thereof, which will was, on the day of , 18 — , duly admitted to probate in the probate court of county, Ohio, and letters testamentary were, on the day of — —, 18 — , by said court, duly issued thereon to the defend- ant, who thereupon qualified and entered on the duties of sucli office. Tiie defendant as such executor is indebted to the plaintiff on a promissory note of which the following is a copy, with all the indorsements thereon: [6(9/>y.] Said note is indorsed as follows: \_Cqpy of indo7'sement8.'\ There are no credits on said note ; and there is due to the plaintiff thereon from the defendant, as executor, the sum of dollars, which he claims with interest thereon at per centum per annum from the day of , 18 — . On the day of , 18 — , the plaintiff duly presented to the defendant as such executor a written statement of his said claim, and demanded an indorsement of its allowance thereon, but the defendant refused said allowance and in- dorsement, and wholly rejected said claim. "Wherefore the plaintiff asks judgment against the defendant for the sum of dollars, with interest on dollars at the rate of per centum per annum from the day of , 18-. Note.— Frcmi Lillie v. Bates, 3 O. C. C. 94. As to objections to consider- ation of a note by heirs, see Nye v. Lathrop, 94 Mich. 411. Sec. 318. Petition by indorsee against indorser withont recourse who warranted a forged indorsement.— [Cajytioii.'] Plaintiff says that H. E., on the day of , 18 — , at C, Ohio, made his promissory note in writing of that date 302 BILLS AND NOTES. [§ 319. and thereby promised to pay to the order of W. W. dol- lars, for value received, in four months after the date thereof, and which said promissory note purports to be indorsed on the back thereof by AV. W., which said note afterwards came into the hands of the defendant, who then and there indorsed and delivered the same to plaintiff, but without recourse on him, a copy of which note with all the credits and indorse- ments thereon is as follows: [Copi/.'] Plaintiff avers that the defendant did thereby warrant that the indorsement on the back thereof was the genuine signa- ture of W. W. and was made by him, whereas in truth and in fact said signature on the back of said note was not made by said W. W., but was and is forged, and by reason thereof said note was wholly worthless and of no value, the said H. E., the maker thereof, being w^hollj^ insolvent. Plaintiff further says that w^hen said note matured the same was pre- sented to the said defendant, , maker thereof, and payment thereof demanded, which was refused, and due no- tice thereof given to the said defendant. There is due from said defendant upon said note the sum of dollars. Wherefore plaintiff prays judgment for the sum of dollars, etc. Note. — Approved in Dumont v, Williams, 18 O. S. 515. § 319. Petition by bank as assignee for value on note of corporation. — The plaintiff for its petition herein says: That it is a national banking association duly organized under the laws of the United States of America ; that the said defendant, the Himrod Furnace Company, a corporation duly organized under the laws of the state of New York, did, on the day of , IS — , execute and deliver to one R. A. W. its certain promissory note in writing of that date, a copy of which, with the indorsements thereon, is in the words and figures following, to wit: \_Copy of 7iote.'] That said R. A. W. did then and there indorse and deliver said promissory note to this plaintiff, who is now the owner and holder thereof. That there was paid on said note, on the day of , 18 — , the sum of dollars. That afterwards, on the day of , 18 — , said plaint- iff did request said defendant to pay to it the sum of money then remaining due upon said note, yet the said defendant did not pay, nor has it since paid, the same nor any part thereof. Plaintiff says that there is now due it on said note from said defendant the sum of dollars. Note. — From Iron City Nat Bank v. Himrod Furnace Co., Supreme Court, unreported. 11 §§ 320, 321.] BILLS AND NOTES. 303 Sec. 320. Petition on note wrongly dated. — Plaintiff says that on th« day of , 18 — , the defend- ant made his promissory note in writing bearing date by mis- take on the day of , 18 — , when in fact said promis- sory note was, at the time of making the same, intended by the plaintiff and defendant to be dated on the day of -^ 18 — , and delivered said note to plaintiff, a copy of which, with all credits and indorsements thereon, is as follows: [Copr/.'\ There is due plaintiff from said defendant on said note the sum of dollars, which he claims with interest at per cent, from the day of , IS — . Note. — A note by mistake wrongly dated, received by holder when ap- parently overdue, though not in fact, the title otherwise being perfect, i& not, on account of the date, subject to the equities between the original parties. Dennison v. Jessup, 1 Disn. .580. Where a bill is post-dated or ante-dated, the date of its issue determines its maturity, and parol evidence is inadmissible to fix day of issue. 4 Lawson's R. & R, sec. 1467, and cases. It is immaterial on what part of the note the date is placed. Sheppard v. Graves, 14 How. 505. See. 321. Petition for instalment due on note. — [CajiHion.'] Plaintiff says that the defendant made and delivered to him a promissory note of w^hich the following is a copy with all credits and indorsements thereon, to wit [or, upon which there are no credits or indorsements] : [Coj)^.] That there is due plaintiff from defendant the sum of dollars, being the — — instalment on said note, which became due and payable on the day of , 18 — , which he claims with interest from the day of , 18 — . [Or, The provisions of said note w^ere such that, if default be made in the payment of any one instalment when the same became due, then the whole amount thereof should become due and payable. That on the day of , 18 — , the instalment on said note became due and payable, which the defendant has wholly failed to pay, whereby the whole amount of said instalment has become clue and payable.] Wherefore he asks judgment against said defendant for said sum of dollars with interest from the day of , 18-. Note. — Where a note is payable in a series of instalments, and it is pro- vided that a less sum would be accepted in full payment if each instalment is punctually paid, the larger sum is in the nature of a penalty, and payment of the lesser sum discharges the obligation even though there be default in paying the instalment. Longsworth v. Askrne, 15 O. S. 370. If interest on a note be payable in instalments, and there is a provision that upon default of any instalment it shall become due and payable, it matures on the first de- fault, and indorsers thereon are discharged *if demand and notice of non- payment is not given. Mallon v. Stevens. 6 W. L. B. 69. A person purchasing a note payable in instalments after default as to one instalment takes it sub- ject to the equities between the original parties. Vinton v. King, 4 Allen, ■304 BILLS AifD NOTES. [§§ 322, 323. Sec. 322. Petitiou for interest due ou uote. — \ Caption.'] That the defendant is indebted to the plaintiff in the sura of % for the instalment of interest now due on a cer- tain promissory note executed and delivered by the defend- ant to the plaintiff on the day of , 18-^, for the sum of $ , with interest at per cent., payable annually, a copy of which note, with all the credits and indorsements thereon, is as follows : \_Copy.'\ That no part of said interest has been paid, and there is now due thereon from the defendant to the plaintiff the sum of $ , which he claims with interest from , 18 — . Wherefore plaintiff asks judgment for said sum of $ . Note, — An action maybe maintained to recover interest. Robbins v. Cheeii, 32 Ind. 328 ; Marks v. Trustees, 56 Ind. 288. Sec. 323. Petitiou on notes and to correct error in an ac- counting thereon. — The plaintiff says : 1st. This his first cause of action is founded upon a promis- sory uote of which the following is a true copy: \Copy^ 2d. There are no credits on said note. od. There is now due the plaintiff from said defendant the sura of $ , which he claims with interest from , 18 — , for which plaintiff prays judgment against defendant. Second cause of action : 1st. Plaintiff avers that his second cause of action is also founded upon a promissory note of which the following is a true copy. \Co])iji\ 2d. There are no credits on said note. 3d. The plaintiff further says that on the day of , 18 — , the plaintiff and defendant had a mutual accounting on two certain promissory notes, one of said notes bearing date , IS — , for % , with per cent, interest, and upon which note last named there were numerous credits, and during the progress of said calculation there arose a dispute as to whether the note sued upon in this second cause of action should also be credited on said -■> note of said date above set forth, in addition to the cash credits made thereon, and thereupon plaintiff and defendant agreed that said note of $ herein sued upon should be credited on said % above named, but said agreement was made with the distinct under- standing and mutual consent of both plaintiff and defendant that should it turn out that said defendant was not entitled to be credited with said amount of said note of % , the said accounting was to be opened up and a new accounting made and the mistake corrected, and that the defendant execute to the plaintiff his promissory note for whatever the amount of §§ 324, 325.] BILLS AND NOTES. 305 the mistake should aggregate: and thereupon on said day of , 18 — , the said plaintiff handed over to said de- fendant said note of $ herein sued upon, with some other papers. Plaintiff avers that there was a mistake in said mutual calculation in the sum of $ , with per cent, interest on the same from , 18 — , and that said mistake was discovered within one week after said calculation was made, and thnt he then and there notified the defendant of said mis- take and requested him to correct the same, in pursuance of their said arrangement and agreement, but the defendant then and there neglected and refused to comply with his part of said mutual agreement, and has ever since refused and still refuses to correct said mistake or pay to the plaintiff said sum of $ , with the interest thereon. 4th. There is now due the plaintiff from said defendant the sum of 8 , with per cent, interest on same from , 18—. 5th. Wherefore plaintiff prays judgment against said de- fendant on amounts set forth in the first and second causes of action herein in the sum of $- , with interest, etc. Note.— From Edwards v. Griffiths, 48 O. S. 664. Sec. 324. Petition by partnership against partners as makers and indorsers. — Plaintiff is a partnership formed for the purpose of carrying on business in the state of Ohio. Defendants are each a partnership formed for the purpose of carrying on business m the state of Ohio. There is due plaintiff on a promissory note from the said J. K. and W. I., partners as Pt. I. & Co.,' as makers, and said H. C. B. and H. H. K as indorsers, defendants, the sum of dollars, which he claims with interest from , a copy of which note with all credits and indorsements is as follows: \_Copy.'\ Said plaintiff further says that said note was duly presented for payment to the makers at maturity, which was refused, and notice of non-payment was duly given to said indorsers. Wherefore said plaintiff prays judgment against said de- fendants in the sum of dollars, with interest from . IJoTE.— From Slevin v. Reynolds. 1 Handy. 378. See, also, Ohio Ins. Co. V. Goodin. 1 Handy, 31. Sec. 325. Petition by surviving partner against a firm on note. — \^Captwn.'] Plaintiff says that he is the surviving partner of the firm of A. B. & Co., late a partnership formed for the purpose of doing business in the state of Ohio. That the defendants are a partnership formed for the pur- 20 306 BILLS AND NOTES. [§§ 326, 327. pose of carrying on business in the state of Ohio ; that on the day of , IS — , said defendants, in their firm name, made and delivered to the plaintiff and one C. D., then a part- nership formed for the purpose of doing business in the state of Ohio, a promissory note of which the following is a copy with all credits and indorsements thereon, to wit: [Coj^y.'] There is due thereon from the said defendants to the plaint- iff as such surviving partner the sum of dollars, with in- terest from the — — day of , 18 — . Wherefore plaintiff asks judgment. Note. — The existence of a partnership must be specifically averred, Bisch- off V. Blease, 20 S. C. 460. Sec. 326. Petition by payee against surviving partner on note. — Plaintiff says that defendant is the surviving partner of A. B. & Co., late a partnership formed for the purpose of car- rying on business in the state of Ohio. That there is due plaintiff from defendant, as such surviving partner, the sum of dollars, on a promissory note, which he claims with in- terest from the day of , 18-^, of which the following is a copy, with all the credits and indorsements thereon, to wit : {Copy.'] Wherefore plaintiff prays judgment against the said defend- ant as such surviving partner for said sum of dollars, with interest from . Sec. 327. Actions on lost, destroyed or stolen instru- ments, with form of petition. — Before the adoption of the code it was held that an action at law could be maintained by the owner of negotiable paper which had been lost after it fell due, without requiring indemnity, w^hen the circum- stances were such that it could not be produced for payment a second time ; but if lost before due, recovery cannot be had until complete indemnity is furnished against a possibility that the note would be presented for payment. The reason of the rule is apparent, because if lost after due it will be charged with all the equities against the original holder, but if lost before due there is a possibility that it ma}'' be outstanding in the hands of an innocent holder. Hence, if suit be brought on a note lost before due, the remedy is in equity, where indem- nity may be required.' It Avould seem, therefore, that as the iMowry v. Mast, 14 Neb. 510; Thayer v. King, 15 O. 242; Story's Eq., sec. 86. { g 327.] BILLS AND NOTES. 307 code affects only forms and not rights, this question would be settled upon the same principles as before the adoption of the code.' It has been held that, where a note has been acci- dentall}^ destroyed, suit may be maintained thereon without indemnity.- It is considered unnecessary, in framing a petition on a de- stroyed note, to aver the destruction thereof when a copy is incorporated in the petition, and that an ordinary form of petition will be sufficient. At common law a petition which did not aver title was clearly defective; but under the code such a defect may be supplied by implication from the ordi- nary averments.^ It is not usual or regarded as necessary to declare specially in an action on a lost note that the same has been lost.* The better course, however, would seem to be to frame a petition so that a court will not be compelled to supply any necessary facts by implication. A note partly destroyed may be declared on as entire, and it is not necessary that the fact be set out in the petition.^ Riecovery may be had upon a draft drawn upon a bank by the payee thereof against the one who procured the same, although it is stolen from the mails and transferred by a forged indorsement to an innocent person who drew the money.* The giving of a bond of in- demnity in an action against the maker of a note is said to be essential only when negotiable." It has been suggested, however, that the better practice in such cases is to tender indemnity before suit and allege the same in the petition, al- though such a course is not absolutely necessary.^ While it has been generally considered that the ordinary form 1 Lamson v. Pfaflf, 1 Handy, 450, 8 Randolph v. Harris, 28 Cal. 561. • Arts V. Leggett, 16 N. Y. 582 ; The court may stay execution until Blandon v. Wade, 20 Kan. 251. indemnity is furnished (Bissbing v. 3 Sargent v. Railroad Co., 32 O. S. Graham, 14 Pa. St. 14), as the parties 449. liable are entitled to the surrender « Viles V. Moulton, 11 Vt. 470. of the note before payment It is *Duckvvall V. Weaver, 2 0.13-16. unnecessary to furnish indemnity * Shaffer v. McKee, 19 O. S. 526. when the note is clearly shown to See form of petition in this case. have been destroyed, or when it ap- ■ Wright V. Wright, 54 N. Y. 437 ; pears that the defendant is protected Frank v. Wessels, 64 N. Y. 155. See, by the statute of limitations. Dan- also, Randolph v. Harris, 28 Cal. iel's Neg. Inst, sec. 1481. 561. 803 BILLS AND NOTES. [§ 328. of petition on a note is sufficient for an action on a lost note/ the following form is given as a special declaration upon a lost note by an indorsee against the maker : Plaintiff says that on the day of , 18 — , the defend- ant A, B. made and delivered to E. F. a proraissor}'- note for the sum of dollars, a copy of which, with all credits and indorsements thereon, is as follows: [Copt/.] That thereafter and before the same became due the said E. F. indorsed said note to this plaintiff, and that before the same became due, and without any neglect on the part of this plaintiff, it was lost and cannot be found, although diligent search has been made therefor. That said note was not in- dorsed by this plaintiff, and that at the maturity thereof plaintiff tendered to defendants a good and sufficient bond, payable to them, and signed by plaintiff as principal and C. D. as surety, with a penalty of dollars, conditioned that plaintiff would save and keep defendant harmless against all suits or claims made by any person who might have obtained possession thereof, and has thereupon demanded payiilent, which was refused, and said note is now due and unpaid. Plaintiff therefore brings said bond into court for the use and benefit of the said defendants. Wherefore plaintiff prays judgment against said defend- ants, etc. DEFENSES. Sec. 328. Answers to actions on notes and bills — General rules. — Where a defendant relies upon fraud as a defense, the facts constituting the same must be fully set forth.- An an- swer alleging that a note was obtained by fraud, misrepresen- tation and connivance, specifically setting forth the facts, pre- sents an issue to which a reply must be made ; and so when an answer states that a note was executed without considera- tion.^ The alleged fraud must extend to the whole note.* The rule is otherwise where usury is claimed as a defense.^ A de- fendant may claim that he did not execute a note, or that if his signature thereto be genuine, it was obtained by fraud, or that it was without consideration.^ An answer alleging a spe- 1 Bates' Pldg., sec. 317. 3 Evans v. Stone. 80 Ky. 78. 2Lefler v. Field. 53 N. Y. 621 ; Gif- * Harland v. Read. 3 O. 285. ford V. Carville,29 Cal. 589 : McComas 5 Selser v. Brock. 3 O. S. 302. V. Haas. 93 Ind. 280 ; Wilder v. De 6 Citizens" Bank v, Clossou, 29 O. S. Cou, 18 Minn. 470. See sec. 607, post 78. § 328.] BILLS AND NOTES. 309 cific sum due upon a note, claiming payment in full, is an allega- tion of new matter, which Will be taken as true in the absence of a reply ;^ and an answer which states that a note was never protested states a good defense as to the cost of protest.^ A denial that the plaintiff is the owner of a note or bill, and that it was not received in due course of trade, is a good defense.' In an action against makers and indorsee, one of the defendant makers cannot urge in support of a demurrer to the petition that there are other defendants joined with him as to whom the facts stated in the petition are not sufficient;^ nor can a de- fendant show that a note is forged under an answer which merely avers that " the defendant denies the allegation of the petition." He must set out in his answer, in a substan- tial manner, his whole defense.^ Nor is an allegation that a note is " not outstanding against the maker," and that there is nothing due, proper,*' as it is a mere conclusion^ embodying no matter of fact, and as a pleading has no legal effect.^ If it be alleged as a defense that a note is wholly without consideration and void, and the plaintiff joins issue without requiring a statement of facts, evidence tending to im- peach or sustain the consideration may be admitted.^ The maker of a note may, as a defense to an action on the note, show that it was founded on an illegal agreement, even though he is in pari delicto.^ An answer relying on the illegality of the contract between the original parties should ordinarily contain a statement affecting the title of plaintiff, but may be aided by a petition which contains facts from which it may be inferred that plaintiff was not a 'bona fide holder, as against a demurrer.^^ An answer merel}^ alleging that the defendant has compromised a note sued upon, without stat- ing the facts constituting the alleged compromise, is insuffi- cient ; " and a person capable of reading, who signs a note with- out reading it or knowing what he is signing, cannot be heard 1 Fewster v. Goddard, 25 O. S. 276. ' Bank v. Lloyd, 18 O. S. 353. 2 Bartlett v. Jones, 1 Clev. Rep. 219. » Chamberlain v. Railroad Co., 15 3 Louisville Banking Co. v. McDon- O. S. 225. aid, 1 Clev. Rep. 173. 9 Jacobs v. Mitchell, 46 O. S. 603. 4 Slevin v. Reynolds, 1 Handy, 37. i<» Gebhardt v. Sorrels, 9 O. S. 461. SHouser v. Metzger, 1 C. S. C. R ^^ Mitchell v. Freedly. 126 Ind. 546. 164. See anU, sec. 146, form. « Larrimore v. Wells, 29 O. S. 13. 310 BILLS AND N0TE3. [§ 328. to deny its execution as against a purchaser.' An accommoda- tion drawer of a bill made payable at a particular bank can- not be held liable thereon to a third person after discount has been refused by the bank for value; nor can he be h ''1 liable if the bank subsequently discounts it for a third party: such facts, to be available by the drawer, must be pleaded by him.2 In an action brought by an agent holding a note for collection merely, a defendant may make such defense thereto as he might have made in an action by the owner.' "While a person cannot set up his own neglect to defeat an in- nocent person,* yet, where the parties to a note founded on fraud are i?art{ceiys (yinminis, the defendant may prove the fraud and defeat recovery.' As against a hona fide holder it is no defense that a note has been fraudulently diverted from the purpose for which it was given.^ An answer by an indorsee alleging that the indorsement was for the accommodation of the plaintiff and prior indorsee, without consideration, and that the prior indorser received the only consideration which passed, which was the taking up of a prior note between the same parties, indorsed by the plaintiff, sufficiently sets forth an accommodation indorsement.^ It has been held to be a good defense that a note was given for furniture which was to be used in a house of prostitution.^ It is provided by statute in some states that corporations of a sister state must file a statement of their capital stock, the kind of business transacted, and appoint a general agent upon whom service of process can be made, if they have no general office within the state, and also file a sworn copy of their articles of corporation with the secretary of state or other officer, and procure a certificate authorizing them to do business, before they can maintain an action.^ In an action by an indorsee of a note before maturity against the maker, an answer which alleges that the payee is an agent of a foreign corporation Avhich has not complied with a statute requiring 1 Winchell v. Crider, 29 O. S. 480. » Bradford v. Beyer, 17 O. S. 389. 2 Knox Co. Bank v. Lloyd, 18 O. S. 6 Bank v. Hall, 44 N. Y. 395 ; Bank 353. V. Watson, 42 K Y. 490. s Saulsbury v. Corwin, 40 Mo. App. < Sims v. Frill, 1 Clev. Rep. 337. 373. 8 Burns v. Seep, 4 W. L. B. 1067. < Goudy V. Gebhardt, 1 O. S. 262. 9 See sec. 990. §§ 329, 330.] BILLS AND NOTES. 311 such agent to file their authority with the proper officer as a condition precedent to tlieir doing business within the state, which does not allege that the assignment was merely color- able and to avoid the statute, is insufficient and subject to demurrer.^ Sec. 329. Defense wheu indorsed or delivered before maturity. — In an action by an indorsee on a note or bill in- dorsed or delivered on or before the day of maturity, a de- fendant may prove payment thereof before such indorsement, if the plaintiff had notice of such payment before he received the paper.2 While a hona fide holder is protected against de- fenses which might be made by the maker against the original payee, j^et he must use ordinary care to prevent the transac- tion from operating to the prejudice of others. It is incum- bent on a person claiming under one who has been guilty of positive fraud to show that he has acted honestly and without knowledge of the fraud. ^ Paper which has been transferred before due to a creditor in payment of a debt cannot be im- peached in his hands on the ground that the maker of the note procured an accommodation indorsement on it, unless the creditor had knowledge of the fraud.* One who has ob- tained notes before maturity for value, with notice that they have been obtained by fraud, cannot be estopped from show- ing that the maker had before purchase informed him that the notes were all right, and would be paid at maturity, if at the time of the making of such statements the maker was ignorant of the fraud.' Sec. 330. Defense when indorsed or delivered after due. As against an indorsee of notes and bills which have been in- dorsed after maturity, a defendant may set up any defense which he might have made as against the original holder;^ and as against such indorsee a maker may show that he is not the real party in interest.^ iZink V.Dick, 27 N. E. Rep. 633 . has not complied with the same by [state lohat was required of him'], and the conditions of said bond are thereby broken, [Prayer.] ■ Note.— Appeal to circuit court. R. S., sec. 5227. When appeal may be taken. R. S., sec. 5226 : Wliittakers Code, pp. 184-6. Parties in trust capacity need not give bond. R. S., sec. 5228. See R. S., sees. 5229-39. A bank check cannot be given in lieu of appeal bond. Allen v. Turnpike Co., 12 W. L. B. 168. Surety need not be resident of county. Bushong v. Graham, 4 O. C. C. 140. Assignee need not give an apjjeal bond (Kennedy v. Thompson, 3 O. C. C. 446), but must as to his personal claim. Biddle v. Phipps, 2 O. C. C. 61. Sec. 361, Petition on appeal bond where one of sureties is deceased. — [Caption.] [Formal part as in ante., sec. 360^ to *.] And the said plaintiffs say that afterw^ard such proceedings were had on said appeal in said court that at its term, 18 — , the said B. H. recovered a judgment against the said M. M. for the sum of S and costs taxed in said action ; and the said plaintiff further states that afterward, to wit, on the day of , 18, he caused an execution to be issued on said judgment, directed to the sheriff of said county, for the collection of said sum of money, and that on the day 1 Bank v. Bartlett, W. 741. 2 Reddish v. Harrison, W. 221. 336 BONDS. [§§ 362, 363. of , 18 — , said sheriff returned said execution indorsed "No goods or chattels, lands or tenements of said M. M. found in my county whereon to lev\' to satisfy this execution or any part thereof.'- The plaintiffs say that the said S. W. M. is dead, and that M. E. M. is his duly appointed, qualified and acting executrix. Plaintiffs sa}^ that they presented the claim set out in this petition to the said M. E. M. as a claim against the estate of S. W. M., and that she, on the day of , 18 — , rejected the same. Plaintiffs say that neither of said defendants has paid said sum of money so awarded against the said M. M., or any part thereof, and the same is now due and unpaid, whereby an action has accrued to the plaintiff to have and demand the said sum of $ with interest thereon from the day of , 18 — , from the said defendants. The plaintiffs therefore, by reason of the premises herein- before set forth, pray judgment against the said defendants for said sum of $ . with interest thereon from the day of , 18—. Note. — From Moore v. Helbush, Supreme Court, unreported, No. 1538. Sec. 362. Petition on appeal bond from justice. — [Caption.] That on the day of , IS — , the plaintiff recovered a judgment before J. P., a justice of the peace in and for the township of , of the county of , and state of Ohio, against the defendant C. D. for $ and costs, from which judgment the said C. D. duly appealed to the common pleas court of said state, and executed his appeal bond in the sum of $ with the defendants E. F. and G. H. as sureties, a copy of which bond is hereto attached, marked " Exhibit A," which bond was duly approved by said justice by indorse- ment thereon, and was conditioned that said C. D. would prosecute his appeal without unnecessary delay, and, if judg- ment were rendered against him on appeal, would satisfy the same together with the costs. That such proceedings were had in said common pleas court in said cause, that on the day of , 18 — , the plaintiff recovered a judgment against said 0. D. for $ and costs. That said judgment, interest and costs thereon has not been paid and the same remains unsatisfied. [Prayer.'] Note. — R S., sec. 6584. Failure to prosecute appeal successfully is a breach of bond Murphy v. Steele, 51 InA 81. Sec. 363. Actions on attachment bonds. — "Where an at- tachment has been maliciously or even wrongfully sued out au action may be maintained upon the undertaking for the § 363.] BONDS. 337 recovery of such damages as may be sustained by reason thereof, and it is not necessary that the same be liquidated in another action against the principal.^ Such an action may be prosecuted by those obligees who have an interest in the damages, without making others having no interest therein, by reason of having been discharged, parties thereto; and it is not necessary to aver that the attachment has been dis- charged as to those obligors who are not necessary parties.^ Nor need it be alleged that an affidavit was filed, or that a writ was delivered to the proper officer, or that the goods were sold by any person having authority; ^ nor the grounds on which the writ was issued;* nor a return of the same;' nor want of probable cause or malice.® Under a statute re- quiring an attachment bond to be signed by the plaintiff, the same is annulled if signed only by a stranger, and an action cannot be maintained thereon; nor can it be contended in such an action that the bond is valid at common law unless an allegation be made in the })etition to that effect.'' The relation existing between sureties on an attachment bond and those on an error bond in the same action is that of principal and surety respectively ; and hence the sureties on the attachment bond, being the principals who have paid the damages, cannot compel contribution by the sureties on the error bond.^ The payees and subsequent attaching credit- ors may join as plaintiffs in an action on an attachment un- dertaking although the latter are not named as payees therein.' The fact that a defendant has given a redelivery bond cannot be set up as a bar to an action on the attachment undertaking.^" If the petition be defective by reason of not alleging that the attachment was wrongfully issued, it may be cured by the de- 1 Bruce v. Coleman, 1 Handy, 515 ; * Berry v. Hart. 1 Colo. 246. Tallant v. Burlington Co., 36 Iowa, » Berry v. Hart, supra. 262 ; Seay v. Greenwood, 21 Ala. 491. « Bruce v. Coleman, 1 Handy. 515. The action must be brought in the " Booker v. Smith, 16 S. E. Rep. court in which it was given. King v. 774 (N. C, 1893). Henry, 2 Disn. 73. s Bradford v. Mooney, 2 C. S. C. R. 2 Alexander v. Jacoby, 23 O. S. 468 (1872) ; Hartwell v. Smith. 15 O. 858. See Boyd v. Martin, 10 Ala. S. 200. 700 ; Gayle v. Martin, 3 Ala. 593 ; » Rutledge v. Corbin, 10 O. S. 478. - Hill V. Wood. 4 Ala. 214. i» Alexander v. Jacoby, 23 O. S. 358. 3Trentman v. Wiley, 85 Ind. 33. 22 338 BONDS. [§ 364 fendant answering.^ It has been held that a petition alleging that the principals made, executed and filed a bond, a copy of which is set forth showing the signatures attached, is not a sufficient allegation as to the execution by the sureties, where the answer merely admits the fact stated to be true.'' Sec. 364. Petition on attachment bond — For the writ.— Plaintiff says that the defendant A. B. commenced in the- court of attachment jiroceedings against this plaintiff for the recovery of money, alleging as a ground for said proceed- ings, as disclosed in hfs affidavit, the following: [Here state the ground of attachment.'] That at the time of instituting said proceedings and in order to procure said writ of attachment, the said defendants duly executed and filed in the office of the clerk of said — — county, Ohio, their certain bond, in the sum of $ , with the defendants C. D. and E. F. as sureties, a coi)y of which is hereto attached, marked '' Exhibit A,*' the conditions of which bond are in substance that [here state the suhstance or copy of conditions'], which said bond was duly approved by said clerk; that thereupon a writ of attachment was issued out of said court which was levied upon the following goods and chattels of plaintiff which were taken -into custody of the sheriff of said county, and by him retained for the space of days, to wit : \_IIere describe the goods.] Plaintiff further says that the said writ of attachment was wrongfully sued out, and that there was no just cause for is- suing the same, and the statement in said affidavit was false; that°this plaintiff was not about to convert his property and credits or any part thereof into money for the purpose of placing the same beyond the reach of his creditors; and that on the day of , 18 — , upon a motion duly made in said court, said attachment was discharged and the proceedings dis- missed at the cost of the said defendants. Plaintiff has sustained damages by reason of the said wrong- ful suing out of said writ of attachment, to wit: \_IIere state the special ground of damages.] Wherefore plaintiff asks judgment against the defendants in the sum of dollars with interest. Note.— When undertaking required. R. S., sec. 5523. See ch. 18, sec. 252. Abandonment of attachment proceedings, merely, will not give rise to an action on the bond. Smith v. Story, 4 Humph. 169 ; Petitt v. Mercer, 8 B. Mon. 51. But see Cox v. Robinson,"2 Rob. (La.) 313. If the proceedings are wrongful and oppressive, even though there be a good cause for tlie main actiou, the defendant mav have a cause of action on the bond. Harper v. Keys, 43 Ind. 220. 1 Drake v. Sworts. 33 Pac. Rep. 563 -' Seattle Crockery Co. v. Haley, 33 (Oreg., 1893). Pac. Rep. 650 (Wash., 1893). ^§ 365, 366.] EONDS. 339 Sec. 365. Petition on redelivery bond — Attachment. — \_Caption.'] That on the day of . 18 — . he commenced an ac- tion in the court of count3% Ohio, against said C. D. for the recovery of money, and filed in said cause his affidavit and undertaking with the clerk of said court, and procured an order of attachment which was duly levied on the property belonging to the said C. D., to wit: [State the property.'] On the day of , 18 — , said C. D. applied for a de- livery of said property to him, and, together with said V. as his surety, executed his bond to this plaintiff, conditioned that said property should be |)roperly kept and taken care of and delivered to said sheriff' on demand, or so much thereof as might be required, to be sold on execution to satisfy any judgment which might be recovered against him in the action, or that he would pay the appraised value thereof, not exceed- ing the amount of judgment and costs, a copy of which bond is hereto attached, marked ''Exhibit A." Said property was, on the day of , IS — , duly ap- jiraised at dollars. Said written undertaking was delivered to the sheriff of said county and approved by him, and said property delivered to said C. D. That such proceedings were thereafter had in said cause that this plaintiff recovered a judgment for dollars, and his costs taxed at dollars, and a judgment in the attach- ment proceedings for the sale of said property, and an order of sale and execution was duly issued thereon." That the sheriff of said county, after receiving said order of sale and execution, demanded the delivery of said property to him [or, enough of said property to satisfy said judgment, if there is more than enough for that purpose'], but said 0. D. re- fused to deliver the same, or any part of it. That thereupon said sheriff demanded the payment by said C. D. of the appraised value thereof [or, fthe appraised value exceeds the amount of the judyrnenU said sheriff demanded the payment of said judgment and costs], which was refused. That no part of said judgment and costs has been paid. Wherefore the plaintiff asks judgment for dollars and all other proper relief. [Copy of undertaking^ Note.— R S., sec. 5529. See ante, sec. 255. Sec. 366. Petition on buildinitj-eontract bond. — On the day of , lb—, the plaintiff and the defend- ant C. D. entered into a contract for the construction of a [name luilding] on the plaintiff's land, defendant to furnish all the material therefor at his own expense, for which the 340 BONDS. [§ 367. plaintiff agreed to pay said C. D. dollars. [Give as much ofhuilding contract as seems necessary.'] That at the same time, and as part of said contract, said C. D. with his co-defendants executed to the plaintiff a bond (a copy of which is hereto attached marked "Exhibit A"), binding themselves in the sum of dollars, which said bond was conditioned that \state conditions]. That the plaintiff paid said C. D. the sum of dollars at the time said contract was made, and the further sum of dollars on the day of , IS — , when said was completed. That said C. D. constructed said in accordance with said contract, and procured the material, but did not pay for the same, and the persons from whom said material was pur- chased demanded payment from plaintiff, which he refused, and they filed mechanics' liens therefor in the recorder's office of the county wherein said was situated against said building, and the plaintiff was compelled to pay the same, amounting to — — dollars; whereby plaintiff has been dam- aged in the sum of dollars, for which he demands judg- ment. ACTIONS ON COUNTY OFFICIAL BONDS, ETC. Sec. 367. Petition by the state through tlie prosecuting attorney against county officer and his bondsmen, to re- cover money illegally received. — The plaintiff', hx , prosecuting attorney in and for county, Ohio, for a first cause of action against said de- fendant says : 1. That on the day of , 18 — , the said J, M. K., "W. K. and O. H., at the county of aforesaid, by their certain writing obligatory of that date, acknowledged them- selves to be held and firmly bound unto the state of Ohio in the penal sum of dollars, which said writing obligatory was and is subject to a condition thereunder written, and which condition is in the words and figures following, to wit: {_Give condition as appears in bond.] 2. That the said J. M. K. diid thereupon take upon himself the duties of the said office of county treasurer of said county of , and was such treasurer at the times of committing the wrongs hereinafter stated, 3. That on the day of , 18 — , said J. M. K., as such treasurer, did present to the county commissioners of said county the following account for services as such county treasurer, to wit: [Statement of services rendered for which compensation was iUegally received.] 4. That on the — "— day of , 18 — , said J. M. Iv., as such treasurer as aforesaid, unlawfull}' received out of the § 368.] BONDS. 341 county funds in the treasury of said county, as compensation for services, as stated in liis said account, the said sum of $ , on account of which the plaintiff, by , prosecuting attorney, says that the said J. M. K., together with said other defendants, have become and now are indebted unto the state of Ohio, for the use of said county of , upon the official bond of said J. M. K., a certified copy of which is hereto at- tached, marked Exhibit " A," in the sum of dollars. Note.— From State v. Kelley, 3:2 O. S. 421. Sec. 368. Petition on bond of clerk of courts. — Plaintiff says that on the day of , IS — , the de- fendant C. D., at a general election, was elected clerk of the court of common pleas in and for the county of , state of Ohio. That on the day of , IS — , he, with his co-defend- ants as his sureties, executed to the state of Ohio his bond (a cop3^ of which is hereto attached, marked " Exhibit A "), in the penal sum of dollars, to secure the faithful per- formance of his duties as such clerk, which bond the board of county commissioners of said county duly approved.* yFor failure to issue summons and attacJiment:'] That there- after and on the day of , 18 — , during the term of office of said C. D., the plaintiff filed in his office a petition in said court against one L. O., for the recovery of the sum of dollars, which was then due from said L. O. to the plaint- iff, and filed his affidavit and undertaking, which said C. D. duly approved, for an attachment against said L. O., and re- quested said C. D. to issue a summons and order of attach- ment [and tendered him his fees therefor]. That said C. D. wholly neglected and refused to issue said summons and order of attachment. That at the time said petition, affidavit and undertaking were so filed, the said L. O. had personal and real property of the value of dollars in said county subject to attach- ment and execution, and which might and could have been seized under an order of attachment had the same been issued. That by reason of the failure and refusal of said C. D. to issue said summons and writ of attachment, said L. O. was given an opportunity to and did sell and convey said real es- tate for a valuable consideration, and to remove from the state of Ohio taking said personal property and the proceeds of the sale of said real estate with him and disposing of the same (and the said L. O. has since become and is now totally insolvent), whereby the plaintiff has lost his entire debt. \_Oi\fo7' a failure to issue execution.'] {^Commencement., as at *.] That on the day of , 18 — , the plaintiff recovered a judgment in said court against 342 BONDS. [§ 369. I^, 0. for dollars and dollars costs, which remains in full force and unsatisfied. That on the day of , 18—, during the term of office of said C. D.. said L. 0. was the owner of personal property, then in said county, subject to execution, of the value of dollars, and on said day the plaintiff requested said C. D. to issue an execution on said judgment to the sheriff of said county, and filed in his office a written precipe directing him to issue the same [and tendered him his fee therefor , but he whoUv failed and refused to issue said execution. That bv reason of said C. D.'s failure and refusal to issue said execution as directed, the said L. O. was enabled to, and did, dispose of said property, and he became wholly insolvent [or, one O. K. afterward recovered a judgment in said court against said L. O., caused an execution to issue thereon, levied upon and sold said personal property to satisfy his said judg- ment, and said L. O. became and still is wholly insolvent]. [Or, for failure to 2)(iy over money collected j\ \_Cornmencement, as at *.] That on the day of , IS—, the plaintiff recovered a judgment in said court of com- mon pleas of county, Ohio, agamst L. O. for dollars. That on the day of , IS—, said C. D., during his term of office, and as such clerk, collected and recovered from said L. O. — — dollars on said judgment. That on the day of , IS—, the plaintiff demanded of said C. D. payment of said sum, less his costs and charges, but he failed and refused, and still fails and refuses, to pay the same or any part thereof, and has converted the same to his own use. \_PTayer?^ Note.— R. S.. sees. 1241, 1326. A clerk cannot issue process until a writ- ten precipe is filed. State v. Coffee, 6 O. 150. County commissioners may sue on clerk's bond to recover fines, etc. State v. Sloane, 20 O. 337. As to suits on bonds for collateral matters in faror of third persons, see State v. Nichol, 8 Heisk. 657 ; Crews v. Taylor, 56 Tex. 461. Sec. 369. Petition ou bond of county recorder for negli- gence in performance of duty. — {Caption?^ That on the day of , 18—, the defendant C. D., at a general election, was duly elected recorder of the county of , state of Ohio, and on the day of , IS—, duly executed his bond with the defendants E. B. and D. E. as sure- ties, which said bond was duly approved by the county com- missioners of said county, and deposited in the office of the county treasurer of said county, and said defendant entered upon 'the discharge of the duties of said office; a copy of which bond is attached as " Exhibit A.*' That on the day of , IS—, E. O. duly executed and delivered to plaintilff a mortgage on certain real estate §§370,371.] BONDS. 343 situated in said county to secure the payment of dollars, which mortgage was a first lien on said real estate and was filed with said C. D. in his said otRce by plaintiff for record on the day of , 18 — , with a request that the same be recorded, and the same was by him recorded ; but by rea- son of the neo'liorence of said C. D. the amount stated therein, and for which said mortgage was given, was recorded as dollars, instead of dollars, as it was in said mortgage. Thereafter said real estate was purchased by L. A., who relied upon the record of said mortgage as recorded by said C. D., having no knowledge of the amount in the deed differ- ent from that shown by the record. Tliat plaintiff, b}^ reason of the negligence of said C. D. in recording said deed, was able to collect of said R. O. the sum of only dollars, and could not recover the balance, to wit, dollars, as against said real estate in the hands of said L. A., and said li. O. had in the meantime become totally in- solvent, and no part of said balance could or can be collected of and from him, and the entire amount thereof, with interest, is now due and unpaid. [P/'tti/er.] Note. — An action may be brought on recorder's bond for his failure to record mortgage. Fox v. Thibult, 3.3 La. Ann. 33. Sec. 370. Actions on sheriff's bonds. — It is not only the duty of a sheriff who has received money in his official capac- ity to hold and dispose of the same properly while in his office, but such duty continues beyond his term.^ Sureties upon a second bond of a sheriff are liable for a default of the latter for mone}'' in his hands when he executes a bond for his second term which he fails to pay over.- And failure by a sheriff to pay over money to persons entitled thereto, which he has collected from the state on a cost-bill for the conviction of a person who has been sent to the penitentiary, is a breach of his bond, as the money was received by him in his official ca|)acity, even though not in strict accordance with his statu- tory duties, and an action will lie on his bond for such de- fault.' See. 371. Petition on sheriff's bond,^ [Caption.] First cause of action: The said plaintiff avers that the defendant H. H. S. was, on the day of . 18 — , duly elected to the office of sheriff « King V, Nichols, 16 O. S. 80 ; bard t. Elder, 43 O. S. 380-85. See Brobst V. Skillen, 16 O. S. 382; Grif- form of petition in this case. fith V. Underwood, 16 O. S. 389; Sni- 2 Snider v. Alexander, 31 O. S. 37a der V. Alexander, 31 O. S. 378; Hub- 3 state v. Newell, 2 O. C. C. 203. 344 BONDS. [§ 371. of county, Ohio, for the term of two years from the first Monday in January. IS — , gave bond, was duly qualified, and acted as sheriff of said count}'', from said last-named date until the day of , 18 — . That defendants [nam- ing them] are the sureties on the official bond of said H. H. S. as sheriff of said county for said terra, which bond is in the sum of S , and was approved by the board of county com- missioners of said county, and filed with the auditor thereof with the oath of said H. H. S. as such sheriff, and approval of said board indorsed thereon, and which bond was condi- tioned that the said H. H. S., as such sheriff of said county [state conditions], a true copy of which bond is hereto an- nexed, marked '' A," and filed herewith. That on the day of , 18 — , an action for the parti- tion of certain real estate situate in said county was begun in said court of common pleas, and is numbered on the docket, wherein one was plaintiff and , said plaintiffs and others were defendants, and such proceed- ings w^ere had in respect thereto that at the term, 18 — , of said court, said court ordered and decreed a partition of said real estate, and the writ of partition was issued and di- rected by said court to said H. H. S., as sheriff of said county, on the day of , IS — ; and such further proceedings were had in said action that an order of sale of said real estate was made by said court at said term, and on the day of , 18 — , said real estate was sold at public auction, at the door of the court-house in . Ohio, by said H. H. S., as such sheriff, for % to one , and the hand payment or one- third ])art of said sura, to wit, the sura of S , was received from the purchaser thereof on said day of sale by H. H. S., in his official capacity as sheriff of said county; and at the term. 18 — , of said court, the said sale of said real estate was approved and confirmed by said court, and said H. H. S., as such sheriff, ordered to execute a deed conveying said real estate to said purchaser in fee; and said court also made at said last-named term thereof, and entered on its journal, an order of distribution of said sum of 8 , and therein decreed and adjudged, directed and ordered said H. H. S., as such sheriff, to pay to said plaintiff, out of said $ , the sum of That said plaintiff, shortly thereafter and long before the commencement of this action, made demand of said H. H. S., sheriff as aforesaid, to pay to him said sum of $ , which he refused and neglected, and still refuses and neglects, to do, and has unlawfully and fraudulenth' converted the same to his own use and benefit ; and there is due plaintiff from de- fendants on the cause of action herein set forth $ , with interest thereon from . Said H. H. S., sheriff as afore- said, at the expiration of his term of office, did not pay or § 372.] BONUS. 345 turn over to his successor in office said sum of $ , or any part thereof. Second cause of action: [Make the usual averment.'] And avers that in the said order of distribution of the proceeds of the sale of said real estate, it was decreed by the court, and the said H. H. S., sheriff as aforesaid, was ordered and directed by said court, which judgment, decree and order was entered on the journal thereof, to pay to said plaintiff out of the second payment of the purchase price of said real estate, whqji said payment named be received by said sheriff, the part thereof, to wit, I ; that on the day of — — , 18 — , the purchaser at such sale paid to said H. H. S., sheriff aforesaid, the said second payment, amounting to | , which said last-named sum was received by said H. H. S. in his official capacity as sheriff of said county; that plaintiff, long before the commencement of this action, made demand on said H. H. S., sheriff, to pay to him said sum of $ -, the part of said second payment, which he refused and neglected, and still refuses and neglects, to do, and has unlawfully and fraudulently converted the same to his own use and benefit; and he did not, as he was bound in law, at the expiration of his said term of office, pay and turn over to his successor said last-named sum or any part thereof, although demand was made of him by said successor so to do; and there is due plaintiff from said defendants on this second cause of action, $ , with interest thereon from , 18 — . Wherefore plaintiff prays judgment against said defendants for $ , with interest on % thereof from , IS — , and $ thereof from , IS — . Note. — Bond, when to be given. R. S. sees. 1203-1205. In an action by transferee of land for surplus arising from a sale by the sheriff, his return reciting receipt of the money is conclusive against him and his sureties. State V. Ruflf, 38 N. E. Rep. 124 (Ind., 1893). Suit may be maintained against a sheriff and his sureties for a wrongful seizure of property. Van Pelt v. Littler, 14 Cal. 194; People v. Schuyler, 4 N. Y. 173; Forsyth v. Ellis, 20 Am. Dec. 218; Skinner v. Phillips, 4 Mass. 69. Sec. 372. Petition on city marshal's bond. — [Caption.'] That at an election held in the incorporated village of H., in the county of D., in the state of Ohio, on the day of , IS — , the said defendant S. H. was duly elected mar- shal of the incorporated village of H. aforesaid, and there- after, on the day of , 18 — , at said county, the aforesaid defendants, S. H. as principal, and M. W. and J. B. as sureties, duly executed a bond in the form prescribed by law, and jointly and severally acknowledged themselves to be held and firmly bound to the state of Ohio in the sum of dollars, for the payment of Avhich well and truly to be made, thereby jointly and severally bound themselves, their heirs, 346 BONDS. [§ 373. executors and administrators, which said writing obligatory was and is subject to a certain condition thereunder written (a copy of which is hereto attached as an exhibit). \_Copy condition or substance.] And the said plaintiiff herein further avers that said writing obligatory was then and there signed by said defendants M. W. and J. B. as sureties. Said plaintiff further avers that said writing obligatory was accepted and approved by the mayor and council of said incorporated village of H., according' to law, on the said day of aforesaid, and that afterwards on said (Jay of aforesaid, the said defendant S. H. took upon himself the duties of said marshal of said incorporated village of H., and assumed to act and did act as such marshal from thence forward, up to, and at the time of, the committing of the Avrongs and grievances hereinafter set forth and men- tioned. Plaintiff, further complaining of said defendant, says that in fact said defendant S. H. did not faithfully perform the duties of the office of said marshal aforesaid, for that the said defendant S. H., on the day of in the year 18— in said incorporated village of H. aforesaid, and while said writing obligatory was in full force and effect according to the provisions thereof, as said marshall illegally and with force arrested this plamtiff, and then and there, without any reasonable or probable cause therefor, unlawfully imprisoned this plaintiff and unlawfully kept and detained plaintiff in prison there, without any reasonable or probable cause there- for, for the space of — — hours next following, and other wrongs then and there did to the said plaintiff, to his damage in the sum of dollars. Wherefore plaintiff demands judgment against said defend- ants for the sum of dollars. Note.— From Hart v. Hughes, Supreme Court, No. 1035, Defiance county. This may be used as a form ou bond of policeman. A statutory bond must be conditioned and executed according to all statutory requirements. How- ard V. Brown, 21 Me. 385. If not good as a statutory bond it may be good as a common-law bond. Goodrum v. Carroll, 37 Am. Dec. 564, 566, and note. Imperfect official bonds, see 2 Am. & Eng. Enc. of Law, 4662. If the condition be contrary to the statute it is void. Id., p. 467, and cases cited. The bond of an officer is valid as a common-law bond when regular in all respects, but payable to obligee other than as required by statute. 7 Jones (N. C), 258 ; 3 Dev. L. 297 ; 9 Iredell L. 250 ; 3 Brock. C. C. 115. But it is pro- vided by statute in Ohio that bonds of municipal officers shall be good if conditioned that the person appointed or elected shall faithfully perform his duties. R, S., sec. 1738. Sec. 373. Petition on constable's bond. — l^J^or failure to account for money.'] \_Caption.'\ That on the day of , 18—, at a general township election, the defendant C. D. was duly elected a constable in § 373.] BONDS. 347 and for the township of , of the county of , and state of ; and on the daj of , 18 — , duly exe- cuted, with his co-defendants as his sureties, his bond for the faithful performance of his duties as such constable, in the penal sum of $ [as in ante, seo. 372'], which bond was duly approved and deposited in the office of the clerk of said township. That on the day of , 18 — , the plaintiff recovered before J. P., a justice of the peace of said township, a judg- ment for dollars against R. O., which judgment is still in force and unsatisfied.* That on the day of , 18 — , said justice duly issued an execution on said judgment to said C. D. as such constable, to be executed, upon which he, as such constable, collected dollars. That on the day of , 18 — , the plaintiff demanded of said C. D., less his costs and charges, the payment of said dollars, which he failed and refused to pay, and con- verted to his own use. [Or, for failure to levy,'] \_Fro7n *.] That on the day of , 18 — , said jus- tice issued to said C. D., who was then and there acting as such constable, on said judgment an execution, and delivered the same to him. That at the time said execution came to the hands of the said C. D. said O. R. owned personal property, subject to exe- cution, in said county, upon which the same could have been levied, sufficient to satisfy the whole of said judgment and costs. That said C. D. failed and neglected to levy said execution, and on the day of , 18 — , returned the same wholly unsatisfied [or, so returned the same indorsed as follows: "No property within mv bailiwick whereon to levy. 0. D., Con- stable"]. Wherefore plaintiff has been damaged in the sum of dollars. [For accepting irisujjicient delivery bond.'] [From *.] That on the day of , 18 — , said J. P. issued an execution on said judgment to said C D., who was then and there acting as such constable, and delivered the same to him. That said C. D. on the day of , 18 — , levied said execution upon personal property of the said R. O. of suffi- cient value to satisfy said judgment, contract, costs and ac- cruing costs; and on the day of , 18 — , said R. O. tendered to said C. D, a delivery bond with L. A. as surety thereon, conditioned to deliver to said C. D. said property whenever demand was made therefor, and demanded a re- delivery of said property to him, which said bond said C. D. 348 BONDS. [^ 374* accepted and approved and returned said property to said R. O. That on the day of , 18 — , said personal property was destroyed by fire, and said E. O. then had and now has no other property upon which said execution could then or now be levied, and he is wholly insolvent. That said L. A., at the time of execution of said delivery bond, was and still is wholly insolvent. That said judgment, interest and costs are wholly unpaid. {Prayer^ etc.'] Note. — R. S.. sec. 1516. Justice of the peace has no jurisdiction in ac- tions on bonds. Hornbuckle t. State, 37 O. S. 361. The seizure of wrong goods is a breach of bond for which action lies. State, etc. v. Jennings, 4 O. S. 418, in which a form of petition is gi .en. Receiving and filing a con- stable's bond and the officer's acceptance estops the trustees from denying acceptance. Barret v. Reed, 2 O. 409 ; Royer v. Pugh, 1 Disn. 443. Sec. 374. Petition on bond of justice of peace. — [Captiofi.'] Plaintiff says that on the day of , 18 — , at a general election for the township of , county of , Ohio, the defendant A. B. was duly elected a justice of the peace in and for said township ; and thereafter on the day of , 18 — , entered into a bond as required by law in the sum of $ , with C. D. and E, F., defendants herein, as his sureties, which said bond was approved by the trustees of said township, and filed with the township clerk. [Set forth conditions after manner in ante, sec. 372.] [For failure to issue execution.'] That on the day of , 18 — , and during his term of office, the plaintiff recovered a judgment before said C. D. against It. O. for dollars and costs taxed at dollars, which now remains of record on the docket of said C. D. un- satisfied and unappealed from. That on the day of , 18 — , the plaintiff requested said C. D. to issue an execution on said judgment, but he failed and refused, and still fails and refuses, to do so. That at the time the relator requested said C. D. to issue an execution [or, at the time said C. I), was recpiired by law to issue an execution] on said judgment the said R. O. owned in said county personal property of the value of dollars sub- ject to execution, and if an execution had been issued on said judgment the amount due thereon, with interest, costs and accruing costs, could have been made, but said R. O. has since become totally insolvent, and said judgment, interest, costs and accruing costs are now unpaid. [Or, for failure to pay over money collected^ [Commencement as at *.] That afterward, to wit, on the day of , 18 — , said R. O. paid said C. D., as such jus- tice, the amount of said judgment, to wit, dollars. § 375.] BONDS. 34:9 That on the day of , 13 — , the plaintiff demanded of said C. D. the payment thereof to him, but he has failed and refused to pay the same, or any part thereof, and has converted the same to his own use. Note. — Requirement as to bond. R. S., sees. 579-80. There need not be an express approval of a justice's bond to bind the parties. Place v. Taylor, 22 O. S. 317-20. As to failure to enter judgment see Stallcup v. Baker, 18 O. S. 544. Neglect to issue execution is a breach of his bond. Gaylor v. Hunt. 23 O. S. 255. It must be a joint suit against all the obligors in the bond. Aucker v. Adams, 23 O. S. 543. Sec. 375. Actions on guardian's bonds — Pleading. — A guardian's bond is not invalidated by any informality in the bond itself, or in the appointment of the guardian;^ nor is it necessary that a previous liquidation of the amount due from the principal be made before an action can be maintained against the sureties ; - but a right of action on a bond against the sureties will not accrue until the amount due from the guard- ian has been first ascertained by a settlement of his accounts.' A suit in equity on a guardian's bond to compel an account cannot be maintained unless the jurisdiction of the probate court was ineffectual, which fact must be set forth in the peti- tion, otherwise it will be assumed that it does not exist;* and the rule is not different as to a delinquent guardian who is absent from the state and his residence unknown.^ It cannot be urged as a defense by the sureties that the minor neglected to bring suit to compel his guardian to settle his accounts, and that one of the sureties has in the meantime become in- solvent.'' The refusal of a guardian to pay over money in his hands to a minor or his attorney after the guardianship has ceased does not constitute a breach which will give a right to the minor by next friend to bring suit against the surety on the bond;''' nor is a guardian who himself uses his ward's money guilty of a breach if he has the money to pay over on a legal demand.^ The failure, however, of a guardian to settle his accounts within the time prescribed by law, or to pay 1 R. S., sec. 6263. < Gorman v. Taylor, 43 O. S. 86. 2 State V. Humphrey. 7 O. 223, 224. 5 Schwab v. Rappold, 12 W. L. B. 3 Newton v. Hammond, 38 O. S. 197. 430 ; Critchett v. Hall. 56 N. H. 324 ; « Newton v. Hammond, 38 O. S. Connelly v. Weatherly. 33 Ark. 658 ; 430. Chapman v. Chapman, 32 Ala. 106 ; ' Favorite v. Booher, 17 O. S. 548. •O'Brien v. Strang, 42 la. 043. ^Case v. State, 10 W. L. J. 163. 350 BONDS. [§ 375. over to the ward after arriving at age the amount due him,^ are clear breaches of his bond. Where a guardian has given two bonds and sureties upon the first have been released, the liability of both sets of sureties for a conversion of funds by the guardian will depend upon when they were received and when embezzled, the rule being that the sureties on the bond which was in full force and effect when the guardian received the money and converted it to his own use are liable there- for.2 But where money has been received by a guardian from the sale of real estate, and a special bond is given to cover the money so arising, from which one of the sureties is released and a new bond executed, and default arises upon resignation of the guardian by his failure to pay over the amount due his ward, the sureties on the second bond are lia- ble without regard to the source from which the money came into his hands.' Sureties will not be exonerated from a default of a guard- ian by reason of the fact that he resigns and removes to another state, where he is reappointed, files an account and settles upon a different basis than in the state of his original appointment.^ Although an allegation that there has been a settlement of a guardian's account be necessary,^ yet an omis- sion thereof will, in the absence of objection, be disregarded if the evidence disclosed shows that such was the fact.^ In a petition on a guardian's bond containing a recital of the ap- pointment by the proper authority, the obligors are estopped from denying the fact thus recited, or from questioning the validity of the appointment.^ Where conversion of a ward's money is charged, payment in whole or in part may be shown under a general denial,^ and it may also be shown that an ap- 1 Meier v. Harancourt, 8 W. L. sets of sureties, see Corrigan v. Fos- B. 29. ter, 51 O. S. — ; 31 W. L. B. 275. 2 Eichelberger v. Gross, 42 O. S. ^Tuttle v. Northup, 44 O. S. 178. 549. In such cases parol evidence is See Moody v. State, 84 Ind. 432. admissible to show when the money ^ Penn v. McBride, 1 O. S. 285. was received and when embezzled. ^ State v. Humphreys, 7 O. 224. It has been held that sureties on an * Meier v. Harancourt, 8 W. L. B. additional or second bond are liable 29. for failure to pay over money ■? Shroyer v. Richmond, 16 O. S. whether received prior or subsequent 455; Douglass v. Scott, 5 O. 198; to the bond. Case v. State, 10 W. L. Hudson v. Winslow, 35 N. J. L. 437; J. 163. As to liability of different Bates' Pldg. 360, and cases cited. f State V. Roche, 94 Ind. 372. § 376.] BONDS. 351 plication of the funds has been made pursuant to orders of the court ;^ and where it is alleged that a guardian's bond has been mislaid or lost, it may be shown under a general denial that the defendants never executed the alleged bond.^ Sec. 376. Petition on guardian's bond.— [Copt! 071.'] Plaintiff says that on the day of , 18 — , the defend- ant C. D. was duly appointed by the probate court of county, Ohio, guardian of A. B., the plaintiff, then years of age. That said C. D. as such guardian entered into a bond, as required by law, in the sum of $ , with W. Iv. C. and R. M. as sureties, which said bond was duly approved by said court, and was upon the condition that the said C. D., as such guardian, should discharge with fidelity the trust reposed in him and render an accurate statement of his transactions, with a just account of the profits arising and accruing from the real and ])ersonal estate of his said ward and deliver up the same to the- court when thereunto required, a cojiy of which bond is hereunto attached marked "Exhibit A." [2. For failure to pay money to vxird.'] That thereafter there came into the hands of said C. D. as such guardian the sum of dollars, which belonged to this plaintiff. That plaintiff has arrived at the age of maturity and has demanded an accounting with said defendant and the payment to him of the amount in his hands as such guardian, but he has failed to pay over to him said sum of dollars or any part thereof, or to account for the same in any way, and has con- verted the same to his own use. \_s. 359 good defense by sureties upon the bond of an agent to show that at the time the sureties executed the bond the pledgee or person to whom the bond is payable, in order to induce them to sign the bond, withheld information in his possession to the effect that the agent was then in default.^ Under the plea of non est factum it cannot be shown that the bond was delivered to the principal obligor upon condition that it was not to be in force until another surety signed it, and that the bond was delivered without the procurement of such ad- ditional surety. Such a defense must be specially pleaded.^ But where a bond is regular on its face, apparently executed by all whose names appear therein, and was actually delivered to the principal without any stipulation, reservation or con- dition, it cannot be avoided upon the ground that it was signed upon the condition that it should not be delivered until he had procured the signature of another. The question of the execution of the bond may be put in issue by pleading non est factum generally; but in order to separate the law from the facts, and to show any special ground why it is not the deed of the defendant, such facts must be specially pleaded.3 A defense to an action on a bond that the plaintiff had accepted certain notes in full settlement of all claims is not inconsistent with the plea of non est factum, and is there- fore good.* But a defense that the sureties are relieved by reason of wilful concealment by the plaintiff of certain facts is inconsistent with the plea of non est factum.^ Sec. 385. Answer of surety to suit on administration bond claiming equitable set-off against claim of distributee. First defense: This defendant says he denies that at the set- tlement of the accounts of A. P., as administrator of the es- tate of A. K. C, deceased, by the probate court of said county, on the — — day of , 18— the said court found the sum of $- in his hands, and adjudged that the same should be by him distributed according to law, as stated in the petition 1 Dinsmore v. Tidball, 34 O. S. 411 ; 2 Am. Button Hole, etc. Co. v. Bur- Bank V. Owen, 101 Mo, 558; Fire Ins. black, 35 W. Va. 647. Co. V. Thompson, 68 Cal. 208 ; ,Sooy 3 Am. Button Hole, etc. Co. v. Bur- V. State, 39 N. J. L. 142; Frauklin black, sw^jra. Bank V. Stevens, 39 Me. 532; Wayne < Accident Ins. Co. v. Baker, 34 V. Bank, 52 Pa. St 343. W. Va. 667. 5 Accident Ins. Co. v. Baker, supra. 360 uoNDS. [§ 386. of the plaintiff, but says that on said • day of , 18 — , the said court made an order of which the followingis a copy: "A. P., administrator of the estate f iV. R. C, deceased, having filed herein his third and final account, duly verified by his oath, and it having been duly advertised and now come on for hearing, upon careful examination the same is found correct and balanced ; said account is now approved, confirmed and ordered to be recorded;" which said order was duly en- tered on the journal of said court, and was not then, nor within eight months thereafter, excepted to or appealed from by plaintiff or other person. Second defense: For a second defense defendant says that N. C, now deceased, was a co-obligor in the bond, a copy of which IS contained in the ])etition of plaintiff, and that said A. P. was administrator on her estate, as well as upon the estate of said A. P. C, deceased; that the said plaintiff is a son of said A. P. C. and N. C. ; that said P., ostensibly as ad- ministrator of jST. C, deceased, paid to said plaintiff, through G. D. M., Esq., his attorney, the sura of $ , of moneys col- lected by said M. in the case of A. P., administrator of the estate of A, P. C, deceased, against W. M. S., lately pending in the court of common pleas of said county, which said sum was part of the assets of the estate of said A. ii. C, which came into the hands of said P. as administrator of his estate; that the said sum was paid to said plaintiff some time in the year 18 — , and he denies that there is due to the plaintiff the said sura of $ , with interest, as claimed in the petition of plaintiff. Note. — From Fisher v. Cassidy, 49 O. S. 421. A surety against whom suit is brought on an administrator's bond may have an equitable right of set-off, as against the heirs of a co-surety wliose estate has been settled and the money distributed to such heirs, of the amount wliich such heirs received from the estate of such co-surety. Fisher v. Cassidv, supra; Camp v. Bost- wick, 20 O. S. 337. See Case v. Cassidy, 72 N. Y. 133; McConnell v. Scott, 15 O. 401. Sec. 386. Answer to action on appeal bond. — Defendants S. B., M. E. M., executor of the estate of S. W. M., and H. G. M., now come, and for answer say that they admit the execution of the bond in the petition stated, the recovery of judgment by H. and wife for costs in the action named in said bond, the issuing of execution to collect the costs, and the return thereof " no money made ; " but they deny expressly that the amount of costs recovered is truly stated in the petition, and deny that the judgment for costs in favor of said plaint- iffs H. and wife, in said action, exceeded the sum of $ -, and they deny each and every other fact stated in said peti- tion except such as are hereinafter expressly admitted. CHAPTER 24. BREACH OF PROMISE OF MARRIAGE. Sec. 387. Petition in actions for breach of promise. 388. Petition for breac!i of prom- ise. 389. Petition for not marrying in a reasonable time. 390. Petition where defendant has married another. 391. Breach of promise — The answer. Sec. 392. Answer of refusal to marry. 393. Answer of bad character of plaintiff. 394. Answer claiming miscon- duct of plaintiff. 895. Answer setting up condi- tions imposed by plaintiff not a part of origmal promise. Sec. 387. Petition in actions for breach of promise. — A breach of promise of marriage is regarded as a tort/ but, un- like other cases of tort, it does not survive the promisor unless there has been some special damage.^ A mutual contract of marriage need not be in writing nor in any particular form.' There are some courts which have held that an oral contract of marriage not to be performed in one year is void,* but this rule seems hardly applicable to such contracts; and, especially where parties understand that the promise is not to, be per- formed in one year, it is not within the statute of frauds.* Where no time is fixed for the performance of the marriage ceremony, the law presumes that it will be in a reasonable time ; ^ and there can be no default in such case until an offer is made to fix a time and place to consummate the agreement ; nor can an action be maintained unless the plaintiff pleads 1 Glasscock v. Shell, 57 Tex. 215. 2 Grubb V. Suit, 32 Gratt 208 ; Shu- ler V. Millsap, 71 N. C. 297; Wade v. Kalbfleisch, 58 N. Y. 282: Lattimore V. Simons, 12 S. & R. 188; Hayden V. Vreeland, 18 Am. Rep. 123. » Kelley v. Riley, 106 Mass. 339 ; Lin- scott V. Mclntire, 15 Me. 201 ; Homan V. Earl, 58 N. Y. 267; Cole v. HoUi- day, 4 Mo. A pp. 94. 4 Nichols V. Weaver, 7 Kan, 373; Parris v. Strong, 51 Ind, 339 ; Derby V. Phelps, 2N. H. 515. 5 Lawrence v. Cook, 56 Me. 187; Wiggins V. Kiezer, 6 Ind. 252. 6 Carver v. Smith, 15 M. & W. 189; Adams v. Byerly, 123 Ind. 368; Black- burn V. Mann, 85 111. 222; Cole v. Holliday, 4 Mo. App. 94. 362 BKEACH OF PKOMISE OF MARRIAGE. [§ 387. and proves an offer, and failure of the defendant to comply- therewith.* It is not consistent with public policy to compel a contract of marriage to be specifically perforraed,^ so the wounded party is confined to a remedy in damages.' Such an action will lie on a promise of marriage against one who was married at the time of making it,* and will accrue at once when there is any conduct on the part of the de- fendant amounting to a repudiation," although the time set for the marriage is still in the future.® As the law presumes that all contracts are made by persons competent to contract, it is not necessary to aver the age of either party.^ The same rule is applicable to marriage contracts as to others where one of the parties is of full age and the other an infant — the former being bound, and the latter having the right to rescind it.^ Where a defendant pleads infancy, the plaintiff may be allowed to amend by stating other promises, and a ratifica- tion of the first one, after the defendant becomes of age.'' Where the petition alleges that the defendant has married another person, or where there is a mutual promise to marry on a certain day, it need not contain an averment that a de- mand or request was made upon the defendant to fulfill his promise ; " an allegation of readiness on the part of the plaint- iff to fulfill the marriage promise is, however, material." Alle- gations that a promise was made, that it was brolien, that an advantageous matrimonial connection was lost, that affections have be'en disregarded and blighted, feelings lacerated, and spirits wounded, are sufficient to authorize a recovery.*^ Where iFible V. Coplinger, 13 B. Mon. 464; 7 Glasscock v. Shpll, 57 Tex. 215; Wagenseller v. Simmons, 97 Pa. St. Jones v. Layman, 123 lad. 569 ; 24 465. N. E. Rep. 363. 2 Cheney v. Arnold, 15 N. Y. 345, SHunt v. Peake, 5 Cow. 475; Cau- 3 Wightman v. Coates, 15 Mass. 1. non v. Alsbury, 1 A. K. Marsh. 76 ; 4 Stevenson v, Pettis. 12 Phila. 468; Willard v. Stone, 7 Cow. 22. Wild V. Harris, 17 C. B. 99; Kelley v. sSchreckengast v. Ealy, 16 Neb. Riley, 106 Mass. 339 ; S. G, 80 Am. 510. Rep. 336 ; Prescott v. Guyler, 32 III. i" Hunter v. Hatfield. 68 Ind. 416 ; 312. Graham v. Martin. 64 Ind. 567 ; Ste- 6 Adams v. Byerly. 123 Ind. 368; vens v. Pettis, 12 Phila. 468; Short S. c. 24 N. E. Rep. 130. v. Stone, 55 E. C, L. 358; Caines v. 6 Burtis V. Thompson, 42 N. Y. 246. Smith, 16 K & W. 189. As to other contracts see 60 N. Y. n Graham v. Martin, supra. 448; 82 N. Y. 436; 29 Mich. 478. 12 Daggett v, Wallace. 75 Tex. 352. §§ 388, 389.] BREACH OF PROMISE OF MARRIAGE. 303 a promise of marriage has been made to be fulfilled in the future, and a new one is made u|)on illicit intercourse that if pregnane}' results the contract shall be performed at once, the latter promise does not supersede the original one.^ It is es- sential that the facts relied upon as causing damages be fully set forth in the pleading,^ and damages for loss of health can- not be allowed unless specially pleaded.^ Where false repre- sentations are relied upon by the plaintiff, it is necessary to aver that the defendant knew the same to be faise.^ Sec. 388. Petition for breach of promise. — The plaintiff complains of the defendant and says that said defendant entered into a contract with her, in the month of , 18 — , by which it was agreed by and between them that they would get married in the month of followino-; and she avers that she made all the necessary arrangemen'ts and preparations to consummate said contract, and was ready and willing at the time fixed aforesaid to fulfill the same; but she avers that said defendant wholly failed to fulfill his con- tract, to the great distress, mortification and disgrace of plaint- iff; wherefore she demands judgment for dollars. Note.— See Gates v. McKinney, 17 Am. Rep. 768. Punitive damages may be allowed. Johnson v. Jenkins. 24 N. Y. 2.52; Thorn v. Knapp. 42 N. Y. 474; s. c, 1 Am. Rep. 561; Simpson v. Black, 27 Wis. 206; Dryden v. Knowles, 33 Ind. 148. See. 389, Petition for not marrying in a reasonable time. [Formal parts.'] Plaintiff alleges that at the request of the defendant, she and said defendant did, on the day of , 18—, enter into a mutual promise and agreement to marry each other, but that no definite time was fixed for the consummation of said marriage contract. Plaintiff has since remained unmarried, relying upon the promise so made by the defendant, and has always since said date been ready to marry defendant, and on the day of , 18 — , requested said defendant to carry out his contract, which he has wholly failed to do, although a reasonable time has elapsed since the request was made b}'' plaintiff. \_Praye)'.'\ NoTK — Plaintiff is entitled to such damages as will place her in as jcood pecuniary condition as she would have been had the contract been fulfilled. Cooper V. West, 3 W. L. B. 430. Evidence as to preparation by procuring 1 Kurtz V. Frank, 40 Am. Rep. 278; 3 Bedell v. Powell, 13 Barb. 183. Clark V. Pendleton, 20 Conn. 495. * Blattmacher v. Sail, 7 Abb. Pr. 409. 2 Glasscock v. Shell, 57 Tex. 215. 364 BREACH OF PROMISE OF MARRIAGE. [§§ 390, 391, beddinjj and declarations explanatory thereof shows acceptance of promise. Wetmore v. Mell. 1 O. S. 26. Evidence of seduction may be received on the question of damap:es. Matthews v. Cribbett 11 O. S. 330; Raymond v. Saucer, 84 Ind. 3; Kelley v. Riley, 106 Mass. 339, Giese v. Schultz. 53 Wis. 462; Daggett v. Wallace, 75 Tex, 355; Sherman v. Rowson, 102 Mass. 399. To enhance damages of plaintiff, evidence is admissible that she announced her engagement to her friends and invited them to her wedding. 47 Cal. 194 Sec. 390. Petition where defendant has married another. The plaintiff states that on the day of , 18—, she being then unmarried, at the request of the defendant, prom- ised to marry him, and the said defendant at the same time promised to marry her. That the plaintiff, relying upon said promise of the defendant, has remained sole and un- married ; and on the day of , 18—, the said defend- ant postponed the time of the marriage ceremony until , at which time the said defendant, under some pretext, post- poned the performance of the marriage ceremony from time to time, until some time in the month of ; and when the time came the said defemhmt refused to marry the said plaintiff at thtit time; and afterwards, the said defendant, not regarding his said promise and undertaking, but contriv- ing and intending to deceive and injure the said plaintiff in this behalf, after the making of his said promise, to wit, at the several times aforesaid, at the county aforesaid, wrong- fully and in violation of his said promise to this plaintiff, said defendant on the day of , 18 — , married one M. B., by which the said plaintiff has sustained damage to the amount of dollars, for which she asks judgment. See. 391. Breach of promise — The answer.— The defend- ant may plead infancy ,i or that the plaintiff failed to carry out some condition of the promise,'^ or that the plaintiff has expressly released him;^ and lewd and improper conduct on the part of the plaintiff may be shown under a general denial.^ An at- tempt by a defendant to prove unchaste character before the breach, unless made with reasonable hope of establishing the same, may be taken into consideration on the question of damages to the plaintiff.* The fact that a plaintiff before the 1 Rush V. Wick, 31 O. S. 521 ; Can- 285 ; Thorn v. Mack, 42 N. Y. 484 ; non v, Alsbury, 1 A. K. Marsh. 56 ; Southard v. Rexford, 6 Cow. 254. Wiilard v. Cooper, 5 Sneed, 659; •'^Duvali v. Fuhrman, 3 O. C. C. Hunt V, Peake, 15 Am. Dec. 475, 305; White v, Thomas, 12 O. S. 312; 2Gring V, Lerch, 112 Pa. St. 244. Denslow v. Van Horn, 16 la, 476- 3Shellenbarger v. Blake, 67 Ind. Haymond v. Saucer. 84 Ind. 39; Jones 75; Grant V, Willy, 101 Mmss. 353. v. Layman, 123 Ind. 569; Powers v. *Kniflfer v. McCoimJI, 30 N. Y. Wh.^atly, 45 Cal. 113; Fidler v. Mc- § 392.] BKKACH OF PROMISE OF MARKIAGE. 365 promise gave birth to a cbild will not bar the action if the de- fendant had knowledge thereof, but it may be considered in mitigation of damages ; ^ nor can a defendant urge as a de- fense that the plaintiff had previously contracted to marry another person j^ or that he discovered that he could not be happy with her ; ^ or after a refusal that he renewed his offer ; * or that he did not make the promise in good faith ; ^ or that he was married at the time of the promise, if the plaintiff was ignorant of the fact.* And if his repudiation of the contract be based upon the fact of his having a venereal disease, he will nevertheless be answerable in damages if the same be con- tracted subsequently to his promise of marriage.'^ A man is not excused from fulfilling his marriage contract, even though unable to comply with all obligations of marriage by reason of ill health, as he may nevertheless secure to his wife a social position and endow her with a wife's interest in his estate." Mitigating circumstances may be proved even though not pleaded ; ^ and under a general denial, evidence as to habits of intoxication on the part of the plaintiff may be shown by way of mitigation, but not as a defense;'" and so with evi- dence as to the ill health of plaintiff." An action will not lie in Ohio for a breach of promise of a contract of marriage where the parties are related as first cousins.*^ Sec. 392. Answer of refusal to marry. — The defendant for his answer to plaintiff's petition denies Kinley, 21 111. 308; Thorn v. Knapp, SKelley v. Riley, 106 Mass. 339; 42 N. Y. 474; Reed v. Clark, 47 Cal. S. C, 80 Am. Rep. 336. 194 ; Leavitt v. Cutler, 37 Wis, 46. 7 Allen v. Baker, 86 N. C. 91 ; S. G, Contra, Hunter v. Hatfield, 68 Ind. 41 Am. Rep. 444; Sprigg v. Craig, 51 416. III. 288. iDenslow v. Van Horn, 16 la. 476; 8 Hall v. Wright. 96 E. C. L. 746; Irving V. Greenwood, 1 C. & P. 350 ; Boast v. Firth, L. R. 4 C. P. 8. Woodward v. Bellamy, 2 Root, 354 ; » Tompkins v. Wadley, 3 T. & G Sprigg V. Craig, 51 111. 288. 424. 2 Roper V. Clay, 18 Mo. 358. lOButtman v McAuley, 5 Abb. Pr. sCoolidge v. Neat, 129 Mass. 146; (N. S.) 29; s. C, 1 Abb. Pr. 288. See Sheehan v. Barry, 27 Mich. 217. Palmer v. Andrews, 7 Wend. 142; < Kurtz V. Frank, 76 Ind. 594 ; s. c, Willard v. Stone, 7 Cow. 22 ; Espy v. 40 Am. Rep. 275; HoUiday v. Grif- Jones, 37 Ala. 379; Denslow v. Van fith, 32 la. 409; Southard v. R-x- Horn, 16 la. 476. ford, 6 Cow. 254; Kelly v. Renfro, "Walker v. Johnson, 33 N. E. Rep. 9 Ala. 328. 267 (Ind., 1893). 5 Prescott V. Geyle, 82 111. 312. 12 Reed v. Reed, 49 O. S. 654. 366 BREACH OF PROMISE OF MARRIAGE. [§§ 393-395. that he has refused to marry said plaintifif, but on the contrary avers and alleges that on "the day of , 18 — , and at all times since, he has been and is now ready and willing to marry said plaintiff, etc. Sec. 393. Answer of bad character of plaintiff. — Defendant says that at the time he made the agreement to marry the plaintiff she was known by her acquaintances gen- erally to be unchaste, of all which 'defendant was entirely ignorant. That as soon as he learned of her character and reputation he refused to marry her. Note. — Under an answer denj-ing the promise the defendant may show in mitigation of damages that plaintiff was delivered of a bastard child. White V. Thomas, 12 O. S. 312. Sec. 394. Answer claiming misconduct of plaintiff. — Defendant says that since the date of the promise of mar- riage set forth in plaintiff's petition, the plaintiff did on the day of , IS — , have sexual intercourse with one A. B. That when defendant learned of the fact he refused to marry plaintiff. Sec. 395. Answer setting up conditions imposed by plaint- iff not a part of original promise. — Defendant for answer to the petition says that he does not deny, but admits that he did promise to marry the plaintiff about the month of , IS — ; that he did not refuse to marry the plaintiff, but was ready and willing and before said action was commenced offered to fulfill said promise and tendered the performance thereof, but the plamtiff unreason- ably refused to fulfill said promise on her part; that the plaintiff" refused to fulfill and consummate said promise on her part except on terms and conditions which were unreasonable and no part of the original agreement, and which could not fairly be required of or complied with by the defendant; that the defendant provided-a suitable house and place of residence and the plaintiff refused to go there to reside [or other condi- tions], and that the plaintiff was otherwise unreasonable in the interposition of claims and demands which were not a part of the original promise, and required that the defendant should comply with them as conditions of her fulfillment of her promise or agreement; and so the defendant says that he was alwavs ready and willing to fulfill the promise made by him but the plaintiff was unwilling to fulfill the promise made by her. Note.— From Hook v. George. 108 Mass. 324. This answer really amounts to a denial and does not shift the burden of proof. CHAPTEK 25. BUILDING AND LOAN ASSOCIATIONS. Sec. 396. Action 3 to f orecl ose buil d i u g association mortgages — Pleading. Sec. 397. Petition to foreclose build- ing association mortgage. Sec. 396. Actions to forclose building association mort- gages — Pleading. — It is necessary, in actions by or against building associations, to allege their corporate character as in the case of other corporations. Kothing further than a state- ment of the corporate name need be alleged. A contract is not void because the corporation with which it is made is mis" named ; and where a corporation sues by a wrong name the pleading may be amended.' So where a bond has been exe- cuted to a corporation by a name varying from its true one, the corporation may nevertheless sue by its corporate name.^ Where, in foreclosing a building and loan association mort- gage, a judgment is desired for money paid by it for taxes, the fact of payment of the taxes by the association should be fully set forth, and judgment prayed therefor, although if judgment ■be rendered without such averment it will not be prejudicial error.^ In an action to foreclose a mortgage to a building as- sociation to secure a bond, an averment that " said sum of dollars with interest thereon remains unpaid" is a sufficient allegation to obtain a judgment;* and where there is a pro- vision in a mortgage to the eflfect that if default be made in the monthly payments for a space of ^ix months after they become due, a petition to foreclose, which does not allege or show that there has been default in any one monthly pay- ment for that period, is fatally defective.* If a bond and mortgage specifies a certain rate of interest, together with a iHoboken BuildingAss'n v. Martin, * Swift v. B. & L. Ass'n, 83 Pa. St 2 Beas. (N. J.) 427. 142. 2McMinn v. Reneau, 2 Swan, 94. » Building Ass'n v. Piatt, 5 Duer, ■* Bates V. People's, etc. Ass'n, 42 675. (). S. 655. I 368 BUILDING AND LOAN ASSOCIATIONS. [§ 397. mouthly instalment on each share, recovery may be had for the amount in arrears without deductions for a monthly in- stalment.^ In computing or determining the amount due on a building association mortgage, interest will not be allowed on dues, as members are entitled to dividends and not inter- est;^ and after breach of a condition in the mortgage the de- cree to foreclose should be limited to the amount of dues, in- terest and fines then due and unpaid.' It is held that the rule for ascertaining the proper amount to be recovered in an action to foreclose a building association mortgage is to ascertain by proof the probable duration of the association, then to esti- mate the aggregate amount of the bi-weekly instalments payable during that time, and from that sum rebate the just amount for interest, and add thereto the arrearages due, after allowing for payments made to the association ; the sum thus ascertained would be the amount to which plaintiff would be entitled to recover, with interest until paid.* Sec. 397. Petition to foreclose a building association mortgage. — 1. Plaintifif says it is a corporation duly incorporated under the laws of Ohio, and doing business in the city of , county of an'l state of Ohio. That defendant C. G., on or about the day of , 18 — , borrowed from this plaintiff the sum of $ , and exe- cuted his bond therefor to this plaintiff, a copy of which bond is as follows : [set forth a copy^ or say: the conditions of which hond were in stihstance, etc.] That said defendant C. G., from and after the execution and delivery of the aforesaid bond, paid the monthly dues, in- terest and premiums as therein specified until and including the month of , 18 — , and that since said month of said defendant has wholly failed to comply with the provis- ions and conditions in said bond contained. By virtue of the constitution and by-laws of the said association said defendant C. G., on his aforesaid default in the payment of said monthly dues, interest and premiums, has been fined in the sum of cents for each share so borrowed, for every month in which he was and is in default; and that there is due and un- paid from this defendant C. G. to this plaintiff, on the above- 1 People's Building & Loan Ass'n v. O. S. 186 ; Risk v. D. B. & L. S. Ass'n, Fuiey, 47 N. J. Eq. 410. 31 O. S. 517. 2 AUemania, etc. Building Ass'n v. * McCahan v. Columbian Building Mueller, 8 W. L. B. 97. Ass'n, 40 Md. 226, See 36 Md. 38a 'Hagerman v. M. & L. Ass'n, 25 § ?)97.] BUILDING AND LOAN ASSOCIATIONS. 369 recited bond, the sum of $ , with interest thereon at from , and a total monthly premium of $ , together with cents tine for each of said shares per month, for every month default is made in said payments from said day of , 18 — . 2. [ Usual averments.'] That to secure the payment of the bond aforesaid in all its terms, conditions and covenants, the said C. G. and M. G., his wife, and who released her right of dower in the premises hereinafter described, executed and de- livered unto this plaintiff their certain mortgage deed, bearing date , 18 — , and thereby conveyed to the plaintiff in fee simple the following described property, situate, etc. [descrip- tion of jproperty.] Said mortgage deed was delivered to the recorder of county, Ohio, for record, according to law, on the day of , 18 — , at o'clock — M., and was duly recorded in Mortgage Record, vol. . Said mortgage deed had a condition therein written that if \here state the substance of the conditions as in other foreclos- ures, or give a copy\ That the said C. G. has wholly failed to pay the dues, in- terest, premium and fines upon said loan of dollars, ac- cording to the conditions contained in said mortgage deed, hereinbefore set forth, since the month of , by reason whereof this mortgage deed has become absolute. There is due plaintiff from defendant the sum of % , with interest monthly on % thereof, at per cent. from , and a total monthly premium of $ , together with cents fine on each of said shares per month, for every month default is made in said payments from said da3^ of , 18 — . Plaintiff therefore prays that in default of payment of the amount now payable, or that may become payable before judgment herein, said mortgage may be foreclosed, that said premises be sold as upon execution to satisfy this plaintiff's mortgage indebtedness from said defendant, and that out of the proceeds arising from such sale plaintiff's claim be paid, and for other proper relief. Note. — 88 O. L., p. 469. A person wlio has deposited even a small amount of money with an association, when sued for money loaned him is estopped from denying that he is the depositor. Bates v. People's Ass'n, 43 O. S. 655. 24 i CHAPTER 26. COMMON CARRIERS. Sec. 414. Petition for failure to re- ceive and carry goods. 415. Petition against railroad company for recovery of illegal freight charges. 416. Actions against carriers with respect to carriage of passengers — The peti- tion. 417. Petition for failure to re- ceive and carry passen- ger. 418. Petition against railroad company for wrongful ejection of passenger. 419. Petition for carrying pas- senger past station. 420. Defenses to actions against common carrier. 421. Answer that goods were lost by land - slide — Flood — Act of God. 423. Answer that liability was limited by special con- tract. 423. Answer that property was stolen without defend- ant's fault 424 Answer that goods were improperly packed. Sec. 398. Common carrier defined. — A common carrier is defined as one that undertakes for reward to carry, or cause to be carried, goods for all persons indifferently, from one place to another.^ An express company, although not the owner of the means of conveyance, is a common carrier.' A 1 U. S. Express Co. V. Backman, 28 -Id. An express company is de- O. S. 144; Story on Bailments, sec. fined by recent statute : "That any 443; 2 Redf. on Railways, 3, 4, person or persons, joint-stock associ- Sec. 398. Common carrier defined. 399. Liability of carrier — Con- sidered generally. 400. The bill of lading. 401. Delivery by carrier. 403. Limiting liability. 403. Connecting carriers. 404 Actions against carriers relative to carriage of goods — The petition. 405. Petition for loss of goods. 406. Petition for failure to safely carry goods. 407. Petition for failure to de- liver within time agreed^ 408. Petition for failure to de- liver within a reasonable time. 409. Petition for recovery of overcharge. 410. Petition for damages for loss of baggage. 411. Petition where notice to keep dry is disregarded. 412. Petition for damages for negligent breakage. 413. Petition for wrongfully de- livering goods shipped "G 0. D." § 399.] COMMON CARRIERS. 371 stage-coach engaged in carrying parcels not belonging to its passengers,' and a ferryman occupying a position on a line of public travel, holding himself out for general employment, are also common carriers; - but a person occasionally carrying goods for hire, not holding himself out as such, will not be re- garded as a common carrier, and is therefore bound only to ordinary care as a bailee.^ Sec. 399. Liability of carrier — Considered generally. — The liability of a carrier attaches immediately upon receipt of goods bv it, and it is therefore liable for their loss while in its warehouse awaiting transportation.'* The common-law rule that the liability of the carrier continues not only until the goods have reached the place of destination, but until the person to whom they are consigned has had notice and a reasonable time to take charge of ihe same, prevails in Ohio and elsewhere.^ But if the consignee fails to call for them within a reasonable time after notice, the liability of the car- rier is changed to that of warehouseman.® In obedience to the inflexible maxim of lex loei Gontractas^ as applicable to the carriage of goods, the law of the place where the same are to be delivered governs the liability of the carrier." A common ation or corporation, engaged in the business of conveying to, from or through this state, or any part there- of, money, packages, gold, silver, plate or other articles, by express, not including the ordinary lines for transportation of merchandise and property in tliis state, shall be deemed an express company." 91 O. L. 237. iDvvight V. Brewster, 1 Pick. 50- Contra, Sheldon v. Robinson, 7 N, H^ 157. 2 Wilson V. Hamilton, 4 O. S. 722. 3 Sams V. Stewart, 20 O. 59. 4 Railroad Co. v. Barrett, 30 O. S. 148. 5 Railroad Co. v. Hatch, 6 O. C. C. 630 (Hancock Co., 1893); Gaines v. Union Transfer Co., 28 O. S. 445; Hirsch v. Steamboat Quaker City. 2 Disn. 144; 4 \V. L. M. 99; Swan's Treatise, 371 ; Railroad Co. v. MclMil- lan, 16 Mich. 79 ; Buckley v. Railroad Co., 18 Mich. 121 ; Feige v. Railroad Co., 62 Mich. 1 ; Moses v. Railroad Co., 32 N. H. 523 ; 16 Kan. 333 ; Mills V. Railroad Co., 45 N. Y. 622 ; Hedges V. Railroad Co., 49 N. Y. 223 ; Sher- man v. Railroad Co., 64 N. Y. 254 ; Redfield on Carriers, sec. 108 ; 79 Ala. 395 ; 38 Vt. 402. •> Railroad Co. v. Hatch, supni: Fenner v. Railroad Co., 44 N. Y. 505 ; Hirsch v. Steamboat Quaker City, supra. ^Curtiss V. Railroad Co., 74 N. Y. 116; Dyke v. Railroad Co., 45 N. Y. 113; s. c, 6 Am. Rep. 43; Jacobson V. Adams Exp. Co., 1 O. C. C. 381 (Pickaway Co., 1885). affirmed by supreme court; Gaultv. Adams Exp. Co., 48 Am. Rep. 746. 372 COMMON CARRIERS. [§399, carrier is not only responsible for negligence, but is an insurer against loss not occasioned by the act of God, the public enemy, or the fault of the party suffering loss.^ But the un- dertaking of a carrier as an insurer cannot be extended to merchandise carried by a traveling salesman in order to facil- itate his business.^ Nor is a common carrier an insurer as to time, being bound only to transport goods within a reason- able time, and if delay is caused by unavoidable accident the loss ensuins is not chargeable to it.* In such cases a carrier is bound to use good judgment and due diligence. If the prop- erty is of a perishable nature and the loss occurs by reason thereof, it cannot be held responsible, and if it becomes im- possible to reach its destination before it becomes a total loss, the carrier may sell the same for the best price obtainable,* If, however, a carrier has knowledge that an article is intended for a certain market, and unreasonably delays the transporta- tion thereof, during which delay the market value depreciates, it will be liable for damages caused thereby.^ A carrier may refuse to transport goods which are improperly packed, and if injury occurs by reason thereof the owner cannot recover, although he ma}"" for injuries occurring independently of de- fective packing;" and m the absence of knowledge on the part of the carrier of such improper packing, it will not be liable for breakage if it handles the goods in the usual man- ner.' A carrier by water is responsible in the same manner as are carriers by land,^ except that they cannot be held liable for loss of goods which become wortliless on account of delay caused bv a low stage of water.* If a carrier undertakes to iBohannan v. Hammond, 43 Cal. 227. zPenn. Co. v. Miller, 35 O. S. 541; Richards v. Westcott, 2 Bos\r. 589. 3 American Exp. Co. v. Saiith, 33 O. S. 511 ; Waring v. Railroad Co., 3 W. L. B. 893. * American Exp. Co. v. Smith. 33 O. S. 511. 5 Devereux v. Buckley, 31 O. S. 16 ; Texas Pac. Ry. Co. v. Nicholson, 61 Tex. 491 ; Penn. Co. v. Clark, 2 Ind. App. 146; Cincinnati, etc. Railroad Co. V. Case. 122 Ind. 310. fiSchriver v. Railway Co., 24 Minn. 506. 7Rixford v. Smith, 52 N. H. 355; Ross V. Railroad Co., 49 Vt. 364; Bohannan v. Hammond, 42 Cal. 227 ; Miltimore v. Railroad Co., 37 Wis. 190; American Exp. Co. v. Perkins, 42 111. 458. 8 Steamer Niagara v. Cordes, 21 How. (U. S.) 7. 9 Starbick v. Railroad Co., 1 W. L. B. 110. § 400.] COMMON CAKUIEKS. 373 transport goods to theiv destination without change of cars and fails so to do, it cannot avail itself of any restriction upon its common-law liability contained in the contract in the event of loss.^ A carrier is responsible for all losses arising from its neglect of any duties incident to its employment,^ Sec. 400. The bill of lading.— The bill of lading is the contract between shipper and carrier and is a symbol of the property therein described ; the ownership may be transferred by means of such bill, delivery of which is equivalent to delivery of the property ; and where the right to control the same is reserved by the shipper the carrier is his agent.' If the suit be upon contract it must be based upon the bill of lading.^ If a parol contract be made before the bill of lad- ing is issued the shipper may prove the parol contract under which the goods were received and shipped.* A carrier is liable for goods lost by reason of its negligence, even though the bill of lading provides that it shall not be liable beyond an amount named therein, when it is understood by the parties that the amount is less than the actual value of the goods.® It is not essential that a bill of lading be signed by the consignor, as it is binding if accepted and acquiesced in by him.' The right of stoppage in transitu may be defeated by a bona fide sale to a third person made by a transfer of the bill of lading.^ It is made the duty of railroad companies by statute to count or check packages comprising each lot or car- load of goods or merchandise presented for shipment, and to furnish the shipper a bill of lading specifying the number of packages shipped in each car, which shall bind the company to deliver the same number of packages at the place of desti- nation named in the bill of lading. Upon refusal to give such l)ill of lading the company becomes liable to a penalty of fifty 1 Stewart v. M. D. T. Co., 47 la, 229 ; 5 Guillaume v. Transportation Co., Robinson v. M. D. T, Co., 45 la, 470. 100 N, Y. 491 ; Gerniania Fire Ins. 2 Welsli V. Railway Co., 10 O. S. 65 ; Co. v. Railroad Co., 72 N, Y. 90 ; a C, Davidson v, Graham, 2 O. S. 139. 28 Am. Rep. 113. 3 Emery v. Bank, 25 O. S. 360. 8 U, S. Express Co. v, Bachman, 28 §§ 417, 418.J COMMON CARRIERS. 3S7 the passenger desired to stop, or that by sj^ecial contract the company had agreed to carry him to that station upon that train.i An allegation that the plaintiff was ready, willing and offered to pay such sum as the carrier was legally entitled to charge is sufficient in an action for a breach by the carrier in not conveying a passenger.^ Sec. 417. Petition for failure to receive and carry pas- senger. — [Caption.'] [Formal averments as in sec. ^.Oo.] Plaintiff alleges that on the day of , 18—, he ap- plied to the agents of the defendant company at its depot at for a passage on train number , which said train, according to the schedules of said defendant corapan}^, was announced to stop at said station; that plaintiff was in a proper condition to be received and carried as a passenger on said train of the defendant company, and it had sufficient means and facilities for carrying him^ but said defendant un- lawfully and wrongfully refused to receive and carry plaintiff on said train as a passenger to said station , by reason whereof plaintiff was damaged in the sum of § . Sec. 418. Petition against railroad company for wrong- ful ejection of passenger. — Defendant is a corporation duly organized under and by virtue of the laws of the state of Ohio, for the purpose of con- structing, operating and running a railroad from the citv of B.,_ in the state of New York, to the city of C, in the state of Illinois, and that before and at the time of committing the wrongs and injuries hereinafter stated, owned, controllecfaiid used said railroad running from and between said dities of B. and C, with its locomotives and cars, as a common carrier of freight and passengers over and upon said line of railroad ; and that said M. M. T., plaintiff, on the night of the day of , 18— at about the hour of o'clock, at S., in the state of Ohio, one of the stations on said road, bought a ticket from the agent of said defendant authorizing her, as a pas- senger, to pass over said road, in the cars of the defendant, from said S. station to the city of C, in said state of Ohio, and that, as such passenger, said plaintiff then and there en- tered the cars of said defendant, which were then standing upon said railroad and about to depart for said city of C, and was about to take her seat therein for the purpose of being 1 0. & M. Ry. Co. V. Hatton, 60 2 Tarbell v. Railway Co., 34 CaL. Ind. 12. 616. 388 COMMON CAKRIEKS. [§ 419. conveyed to said city of C. ; yet the said defendant, by its agents and servants, disregarding its duty as such common carrier of passengers, did before said cars of said defendant had reached the end of said journey, to wit, at the said S. station, wrongfully, forcibly, maliciously and unlawfully force, expel and drag the said ])laintiff from the cars of said defend- ant, and refused the said plaintiff permission to ride in said cars of said defendant, and left said plaintiff there in the night time, where she was an entire stranger, with the temperature at about zero, without having completed her said journey; at which place she was compelled to remain until the next morn- ing at eight o'clock, before she could continue her journey, whereby she was greatly delayed in her business, and other wrongs then and there'wrongfuUy, forcibly, maliciously and unlawfully did to said plaintiff, to the damage of said j)laint- iff dollars. "Wherefore the plaintiff prays judgment against said de- fendant for the sum of dollars, as damages sustained. Note.— From L. S. & M. S. Ry. Co. v. Tattle, Supreme Court, unreported. No. 1187. Damages.— Injury to feelings, indignity, mental suffering and wounded pride may be considered in estimating damages where no personal iniury is inflicted. Gormon v. Southern Pac. Co., 81 Pac. Rep. 1112. Rate of fare. see R. S., sec. 3374. This action is of a different nature from one for an assault. See ante, sees. 230-33. Compensatory damages only can be allowed where the passenger ejected became a passenger expecting to be ejected, to enable him to bring suit against the company. Railroad Co. v. Cole, 29 O. S. 126. Sec. 419. Petition for carry iug passenger past station.— \_Captio7%.'] \Fonnal averments.'] On said day plaintiff purchased from the defendant a ticket at , entitling him to passage on said road from to , a station on said railroad, and took passage on defend- ant's car for said station. That said station at was, by the rules and regulations of the defendant, a regular stopping place for its trains, and the train on which the plaintiff' took passage was accustomed to stop thereat. [Or, In consideration of plaintiff's buying said ticket, de- fendant at the time promised and agreed to stop its train and put him off at said station.] Defendant wholly neglected, failed and refused to stop at said station, and did not let plaintiff off said train until its arrival at ^, a station ■ miles beyond. That by rea- son of said defendant's conduct in this behalf plaintiff was put to an expense of • dollars to return to said sta- tion, and sustained damages in the sum of dollars. Note.— R. S., sec. 3320. As to negligence in carrying beyond platform, see Railway Co. v. Doane, 115 Ind. 435 ; 17 N. E. Rep. 913. A passenger must inform himself of rules as to time-tables and stoppage of trains. § -i'iO.J OOMMON OAKKIERS. 380 Sec. 420. Defenses to actions ag:ainst common carriers. — A carrier cannot be held liable for a delay caused by an in- evitable accident over which it had no control.^ A defense that loss of baggage was caused by spontaneous combustion of an article in the baggage of another passenger cannot be made upon the theory that it was the act of God.^ It seems to be generally conceded that where a carrier desires to inter- pose an act of God as a defense to an action for loss of goods, such as an extraordinary flood, it may do so under a general denial.^ When intervening such a defense the burden is upon the plaintiff to show that loss was caused by the negligence of the carrier/ But when goods are found injured in charge of a carrier the burden is upon it to show that the same oc- curred from a cause such as will constitute a legal defense.* Though an action sounds in tort the carrier may set up in its answer a special contract of shipment, if it be one which the law permits it to make;" but where a carrier sets up a con- tract of shipment different from that claimed by plaintiff, it is incumbent on it to prove that the same had been performed on its part, and sanctioned and assented to by plaintiff, in order that it may be available as a valid defense/ Nor can a carrier by a special contract of shipment defeat an action in tort for non-delivery, based upon the common-law^ obligation to use due diligence in transportation/ A judgment against one of two carriers for breach of a joint contract for the car- riage of goods is a bar to a subsequent action against both carriers upon the same contract/ And so a judgment in favor of a carrier, in an action for the recovery of freight, is a bar to an action by the owner of the goods for the recovery of damages for their destruction, caused by failure on the part of the carrier to perform its contract of transportation/'^ Un- 1 L. S. & M. S. Ry. Co. v. Bennett, ^ Id. S9 lud. 457; Hill v. Penu. Co., 90 5 Hall v. Cheney, 36 N. H. 26. Ind. 459. 6 Oxley v. Railway Co.. 65 Mo. 629- •^ K(nth V. Railroad Co., 1 W. L. M. 633. 451. 7 Railroad Co. v. Black. nore, 1 O. 3Ellett V. Railroad Co., 76 Mo. 518 ; C. C. 42 (Ham. Co., 1885). Davis V. Railway Co., 16 W. L. B. 8 Clark v. Railway Co., 64 Mo. 440. 427 (Mo., 1886). See Hutchinson on « Reynolds v. Railroad Co., 29 O. S. Carriers, sees. 766, 767; Lawsou on 602. Carriers, sec. 248. lO Dunham v. Bower. 77 N. Y. 76. 390 COMMON OAKRIERS. [§ ^'^^' less a carrier actually receives goods into its possession, there is no liability imposed upon it, even to an innocent consignee or indorsee for value; and the carrier may show that the goods were not in fact received.^ Where a shipper intrusts goods to a carrier, requiring a particular degree of care in their transportation, but does not give the actual contents or precise nature of the same, the carrier may, in an action for their loss, set up a defense that it did not receive or agree to transport the particular kind of goods. And it may be shown under a general denial that it did not enter into a contract to receive the particular kind of goods because of the deception of the shipper.2 ^ carrier of passengers in Ohio is required bv statute to cause a certain number of reguhir trains for pas- sengers to stop daily, at stations where there are three thou- sand inhabitants, a sufficient length of time to receive and let off passengers, and prescribes a penalty for failing so to do.' Hence it follows that in an action by a passenger who has been ejected because he holds a ticket for a station at which the train does not stop, in view of the statute a defense can- not be urged that by the regulations of the carrier the train does not stop at the station for which the ticket calls, if there be a population of three thousand inhabitants at such place." Sec. 421. Answer that goods were lost by land-slide — Flood — Act of God.— [Special contract of shijjment may first le set up, as in sec. J^'B'B, post.'] Defendant says that while said merchandise was bemg transported, pursuant to the above special contract, and with- out any carelessness or misconduct of the defendant or its servants, or any defect of the car in which said goods were being transported, the train of cars of which the car in which plaintiff's goods were being transported formed a part was stopped without fault of defendant or its servants in the nar- rows between B., W. Ya., and M., W. Va., by a "land-slide," and detained for the space of hours, and when said track was cleared so that said train of cars could and did proceed to M., W. Ya., where, without any fault of defendant or its serv- 1 Bank v. Railroad Co., 24 AV. L. B. < Penn. Co. v. Wentz, 37 O. S. 333. 835 (Minn., 1890). Such regulations are subject to legis- 2 Despatch Line v. Glenny, 41 O. S. lative control. Commonwealth v. 166. See Angell on Carriers, sec. 265 Railroad Co., 103 Mass. 254; Shields (5th ed.). V. State, 26 O. S. 86 ; S. C, 95 U. S. 3 R. S., sec. 3320. 319. §§ 422, 423.] COMMON carriers. 391 ants, said train of cars, ,of which the car in which plaintiff's goods were being transported formed a part, was caught in an unusual flood of water, and said goods were so badly dam- aged as to render them worthless by unavoidable accident by said unusual flood, and not by any default, negligence or mis- conduct of the defendant. AV hereupon defendant, having fully answered, asks to be dismissed. Sec. 422. Answer that liability was limited by special contract. — \^Caption.'] Defendant admits that the goods described in the petition were shipped on its cars, and were damaged, as alleged, but says that the same were shipped under special contract, which ])rovided in substance: [here plead substance.'] That the defendant fully complied on his part with the con- ditions of said contract to be performed, and said injury and damage resulted without the fault or negligence of defendant. That the plaintiff did not comply with the conditions of said contract in this : [state wherein carrier failed.'] That by reason of the plaintiff's failure to comply with said contract and of his acts above stated said injury resulted. [Or, That while defendant was transporting said goods under said contract, using ordinary care and all proper dili- gence, the same were, without any fault or negligence on de- fendant's part, destroyed by {state hoio destroyed)] Note. — A carrier may by special agreement limit its liability, but not by a general notice unknown to the jiarty engaging tlie service of the carrier. Gaines v. Trans. Co., 28 O. S. 437 ; Davidson v. Graham, 2 O. S. 131 : Graham V. Davis, 4 O. S. 862 ; Welsh v. Raihoad Co., 10 O. S. Co ; Raihoad Co. v. Pontius, 19 O. S. 221. The burden is on tlie carrier to prove the special con- tract, and that the loss falls within the terms thereof. Graham v. Davis, supra; Union Exp. Co. v. Graham, 26 O. S. 595; United States Exp. Co. v. Bachmau, 28 O. S. 144. In the absence of fraud, evidence cannot be admit- ted to show that the consignor did not know the contents of a bill of lading. Grace v, Adams, 100 Mass. 505 ; Kirkland v. Dmsmore, 16 N. Y. 171. Sec. 423. Answer that property was stolen withont de- fendant's fault. — Defendant admits that the goods described in the petition were directed and shipped as therein stated, but says that it safely carried said goods to said city of , and to the ad- dress of said K. F. at said city, as niarked on said packages and contained in the bill of lading. That defendant thereu]:)on made diligent search for said R. F., but found that he did not reside or do business at said city, and was not ther^. That defendant made inquiry of various i>ersons in said city as to the whereabouts of said II. F., and found that he form- erly resided at the place to which said goods were addressed, but could not, after diligent and careful search in said neicrh- 392 COMMON CAKRIERS. [§ 424. borhood and throughout said city, learn where he resided, or had gone, or his present residence. That defendant immediately notified the plaintiff, who shipped said goods, that said R. F. could not be found, and placed said goods {state the place and showing it to he a safe jAaoe for storing or keeping the 'kind of goods lost], and kept and cared for the same in a proj)er and careful manner, but on the day of , 18 — , without the fault or negligence of the defendant, said [the place tohere the goods were stored] was broken into by some unknown ])ersons, and said goods were, without the fault or negligence of defendant, stolen therefrom, and have not been recovered. Sec. 424. Answer that goods were improperly packed. — Defendant says that the goods mentioned in plaintiff's peti- tion were of such a nature as to be easily broken, from a very slight cause, and great care should have been exercised by said plaintiff in preparing the same for shipment, all of which said plaintiff w^ell knew, but that this defendant could not rea- sonably be expected to know the nature thereof. That said goods were delivered by plaintiff to this defendant packed in an improper and careless manner [ha^e state particu- lars], when they should have been packed [hei'e state how they should have heen pacl'ed], and that by reason of said defective packing, and without any fault or negligence on the part of this defendant, said goods were injured. Wherefore, etc. Note. — A carrier may refuse to receive articles improperly packed, but if received must use due care, and if lost must show that it was caused by the defective packing. Union Exp. Co. v. Graham, 26 O. S. 595. CHAPTEE 27. CONTEMPT. Sec. 425. What are contempts of court 426. What contempts may be punished summarily. 427. Cliai'ge in proceedmgs for contempt — How made. 428. Charge of contempt for as- saulting officer. Sec. 429. Information charging con- tempt in writing scurri- lous articles in newpaper. Proceeding upon filing of charge. The hearing. 430. 431. Sec. 425. What are contempts of court. — The code pro- vides that disobedience, or resistance to a hxwful writ, process, order, judgment or demand of a court or an officer, or mis- behavior of an officer in court or in his official transactions, or a failure to obey a subpoena, or a refusal to be sworn or to answer as a witness, or the rescue or attempted rescue of a person or of property in the custody of an officer, or the fail- ure of a person to appear as a witness in compliance with a recognizance, constitute contempts of court.^ In addition to this provision there are other acts which are made con- tempts by adjudication and statutory enactment. Where a person summoned as a juror refuses to serve without reason- able excuse;- or a garnishee who has been regularly served with process fails to appear and answer;^ or a person refuses to be sworn or to answer as a witness, except in cases where fees are not paid ;* or the non-performance of an act ordered to be done b}'" an award ; * or disobedience of an order of a referee ;•* or an interference with an officer appointed by 1 O. Code, sec. 5640. 2 R. S., sec. 5178. 3 R. S., sec. 5549. 4 R. S., sees. 5253, 5605. See 15 W. L. B. 192 ; Id. 267 ; 10 O. 836. Con- tra, 3 O. C. C. 264 ; 4 W. L. B. 457 ; R. S., sees. 5254-5257; 15 W. L. B. 192. A notary public in taking depositions has power to punish for contempt a witness who refuses to answer. De Camp v. Archibald, 31 W. L. B. 39 ; 50 O. S. 618 ; Doggo v. State, 21 Neb. 273-8; In re Aboles, 12 Kan. 451 ; Ex parte McKee, 18 Mo. 599 ; Burnside v. Dewstoe, 15 W. L. B. 197. 5 R. S., sec. 5610. fi R. S., sec. 5481. 394 CONTEMPT. [§ -^25. court;' or disobedience by a witness of an order requiring a separation of witnesses;^ or a refusal to pay alimony;^ or disobedience of an order to abate a public nuisance;* or re- fusing to make a return of a writ of habeas corpus;^ or a purchaser at a sheriff's sale failing to pay the purchase- money,'^ are all declared or held to be contempts of court. A Avitnessis guilt}^ of contempt if he refuses to testify as an expert without being paid extra compensation.' The delivery to the sheriff of property attached for which an undertaking has been given, ot the payment of money due upon such undertaking,^ or the deposit or delivery of monef or other thing, may be enforced by proceedings in contempt.^ And so may disobedience of an injunction or restraining order be punished as a contempt.'" But the payment of a debt where there has been no fraud practiced cannot be enforced as for contempt." Nor can a person who abstracts a paper from the files of a court be punished as for contempt.'- As a receiver is an officer of court, and the property placed in his hands is in fact in the custody of the court, it follows that any interference with the same in any manner is in con- tempt of court. An}'^ one who attempts to levy an execution or an attachment upon the property, or who interferes there- with in any manner, is guilty of contempt.^' The title to prop- erty passes the moment the order aj-tpointing the receiver is made, whether reduced to possession or not, and even before the appointment is in all respects perfected ; " so that a second receiver, subsequently appointed, if only an hour or more in- 1 Spinning v. Oil and T. Co., 3 Disn. .361 ; Eiselman v. Thill, 1 C. S. C. R. 188. 2 Dickson v. State. 39 O. S. 75. ^Kaderabek v. Kaderabek, 3 O. C. C. 419 ; Rapalje on Contempt, sec. 36. t Schultz V. State, 33 O. S. 376. •^Newman's Case, 1 W. L. J. 168. 6 R. S., sec. 5397. ' State V. Darby, 17 W. L. B. 63 ; Ex parte Dement, 53 Ala. 389 : Peo- ple V. Montgomery, 13 Abb. Pr. (N. S.) 207 ; Buchanan v. State, 25 Am. Rep. 620. 8 R. S., sec. 5556. 9 R. S., sec. 5593. 10 R. S., sec. 5581. 11 Union Bank v. Bank, 6 O. S. 255 : See Edgarton v. Hanna, 11 O. S. 333; McClelland v. Bishop, 42 O. S. 113. 12 Baldwin v. State, 11 O. S. 681. 13 Richards v. People, 81 111. 551; Read v. Brayton, 35 TST. Y. S. 186 ; Noe V. Gibson, 7 Paige, 513. 1* Steele v. Sturges, 5 Abb. Pr. 443; In re Berry, 36 Barb. 55 ; Hazelrigg V. Bronbaugh, 78 Ky. 63 ; Storm v. Waddell, 2 Sandf. 494; Wilson v. Allen, 6 Barb. 542 ; Maynard v. Bond, 67 Mo. 315. §,§ •l-e perfects his appointment first, and any interference by him will be in contempt.^ In fact, all parties implicated in a pro- ceeding for the appointment of another receiver under such circumstances are amenable to the court. There is no im- munity for counsel who advise or through whose instrumen- tality and professional aid the same is prosecuted.^ It is not considered essential that a person be officially apprised of a receiver's appointment to render him liable for contempt, but actual knowledge of the granting of an order is sufficient to fix the responsibility." It will be adequate notice to fix the liability if a person in court informs another of the order made;* and it is immaterial whether the order has actually been drawn or not, so long as parties have knowledge that it is made.^ These principles are applicable to all orders, such as injunction and the like. Sec. 426. What contempts may be punished summarily. A court or judge at chambers may punish summarily a per- son guilty of misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice." Constitutional courts, however, are possessed of an inherent power to punish summarily persons guilty of direct or con- structive contempts of court, independently of statute. The statute is declaratory of the common law on the subject of contempts, and hence a court may punish one who assaults an officer of court, as the prosecuting attorney, during the prog- ress of a trial, even though it occurs during a recess and out- side the court room.^ Sec. 427. Charge in proceedings lor contempt — How made. — Strictly speaking there are no pleadings in pro- ceedings for contempt, and hence it is immaterial whether 1 Spinning v. Insurance Co., 2 Disn, * Hull v. Heed, 3 Edvv. Ch. 236. 336; People v. Bank, 53 Barb. 412; 5 High on Receivers, sec. 166. S. C, 35 How. Pr. 428. See Pugli v. e r. s., sec. 5639. Brown. 19 O. 202. "State v. Steube, 19 W. L. B. 181; - Spinning v. Insurance Co., 2 Disn. State v. Myers, 19 W. L. B. 302. See, 336, Gholson, J., on page 345, etc.; also, article in 23 W. L. B. 143; High on Receivers, sec. 51 ; Mahoney United States v. Patterson, 26 Fed. V. Behnont, G2 N. Y. 133. Rep. 511; In re Dandridge, 2 Va. 3 Allen V. State, 61 Ga. 166 ; Lewis Cases, 408. V. Singleton, 01 Ga. 104. 396 C(1NTEMPT. [g 428.. the charge be sworn to or not, although the practice in some jurisdictions may require affidavits.^ The proceeding must be conducted in the name of the state and partakes of the nature of a prosecution.^ The charge must be reduced to writing and the accused given an opportunity to be heard in his defense,^ although it has been considered doubtful whether any complaint is in fact necessary,* which,' however, has special reference to a formal pleading, as it is essential that a. written charge be made and filed with the clerk. The course pursued to institute proceedings in contempt is to verbally call the attention of the court to the alleged con- tempt, and ask that an order be made appointing counsel to file charges, which may be as follows : State of Ohio ) vs. V. Philip Koe. ) Information having been brought to the court of an alleged violation of an order made on the day of , 18— [state nature of order] [or, if contempt he one other than a lilo- lation of an order it may he 'varied to suit] ; it is therefore ordered that A. B., an attorney of this court, be and he is hereby appointed and instructed to prepare and prefer, in writing, a])pro|)riate charges of contempt of this court, chiimed to have been committed "by the said Philip Eoe, and file the same in this court on or before . Illustrations of charges are given in the next sections, fol- lowed by subsequent proceedings. Sec. 428. Charge of contempt for assaulting officer. — This day came J. T. II., one of the attorneys of said court, specially appointed by the court herein to tile and prosecute a charge of contempt against the defendant F. S., and com- plains to the court that on the day of ,18 — , said defendant F. S., one of the witnesses for the defendant in the case of against , then pending and still on trial in this court, during a recess in said trial at , within said county of , and state of Ohio, unlawfully and wrong- fully assaulted, struck, wounded and thereby disabled from proceeding wi:h the trial of said cause of against — ^ — , one C. H., the duly elected, qualified and acting prosecuting attorney within and for said county and one of the officers of this court, theretofore and then engaged in conducting the trial of said cause on behalf of the state of Ohio, said assault, 1 Steube v. State. 3 O. C. C. 384. » Lowe v. State, 9 O. S. 338. 2 State V. Cleaieus, 6 W. L. J. 538. * Stoube v. State, 3 O. C. C. 384 §429.] CONTEMPT. 397 striking, woundins' and disabling of said C. 11. being so made and done by said F. S. in the presence of the coifrt, with the intent and thereby to obstruct the administration of justice in said cause. Said F. S. was then and thereby guilty of ob- structing the administration of justice and of contempt of this court, contrary to the statute in such case made and provided. Sec. 429. Information cliargina: contempt iu writing scnrrilons articles in newspaper. — The State of Ohio ) vs. [ A. B. i In obedience to the order of this court, the state of Ohio, by J. T. II., T. P. L. and J. H. C, members of the bar ap- pointed by the court for that purpose, charges and states that on the day of , 18 — , in the presence of the said court of common pleas of said county, and state of Ohio, A. O. M. was guilt}^ of misbehavior and contempt of court, in this, to wit: That said court was on said day and had been from on or about the day of , 18 — , next preceding, engaged in the trial of the case of v. ujion an indictment for , which said indictment was duly found and returned at a former term of said court by a grand jury, duly drawn, sum- moned, impaneled and sworn to inquire into said offense and others within the body of said county [o?' if civil case^ state the oiature]. That at the time said special grand jury was ordered, drawn, summoned, im])aueled and sworn, the Hon. D. F. P. was one of the judges of said court; that one C. II. was the prosecut- ing attorney of said county, and that one J. J. J. was the clerk of said court. That the said Hon. D. F. P. was, on the day of , 18 — , the judge of said court sitting in the trial of said case of the State of Ohio against ; that said C. H. was on said day the prosecuting attorney of said county engaged in the trial of said case in behalf of the state of Ohio; and one G. X. ]^. was on said day a duly admitted and practicing member of the bar of said state, and as an officer of said court was engaged for the state in the trial of said case. That on the said day of , 18 — , said A. O. M., to vilify, degrade and defame said court and its said several offi- cers,' to wit, D. F. P., C. IL, G. K. X. and J. J. J., and the grand jurors who found and presented said indictment, and to bring the said court and its said officers into contempt, and to obstruct the administration of justice in said cause thereto- fore, then and still pending and on trial in said court, did write and publish, and cause to be published in the 0. E., a newspaper printed at the city of C, in the county of , 39S CONTEMPT. [§ 430. and state of Ohio, and caused to be published and circulated throughout said state and in the said county of F., in the presence of the said court, a certain libelous, false and mali- cious article, a copy of which is as follows, to wit: \_Insert copy of article.'] That said Hon. D. F. P., the judge of said court, on said dav of , 18 — , is the person referred to in said arti- cle as " D. P." That the said C. H., the said prosecuting attorney on said day, is the person referred to in said article as " C. W. H." That the said J. J. J., clerk of said court at the time said grand jury was drawn and impaneled, is the person referred to in said article as " the clerk." That said G. K. X. was on the said day of , 18 — , an officer of said court, as aforesaid. "Wherefore said A. O. M. is guilty of contempt of said court, contrary to the laws of the land. Note.— From Myers v. State, 46 O. S. 473. Sec. 430. Proceedings upon filing of charge. — Upon the filing of the charge by counsel appointed for that purpose, the following entry should be made: State of Ohio ) vs. V Philip Koe. ) This day came A. B., heretofore appointed by this court to prepare and prefer a charge of contempt against the said Philip Roe, and on behalf of the state of Ohio, and in pursu- ance of said order of court, filed written charges of contempt of this court against the said Philip Roe for a violation of [state whatever order may he']. It is therefore ordered by the court, that a copy of said charge of contempt be forthwith served upon the said Philip Roe, together with a copy of this order, and that he be re- quired to file his written answer to said charge of contempt on or before the day of , 18 — , and that he appear before this court on the day of , 18 — , at o'clock — M., ready to answer said charge so made against him. As clerks are not usually supplied with blanks covering this proceeding, counsel should assist in the preparation of the order to be served on the defendant, which may be as follows : Proceedings in contempt. SUMMONS IN CONTEMPT. To Sheriff: Whereas on the day of 18 — , A. B., an attorney of this court, under an order of this court, in the name of the state of Ohio, filed a written charge of contempt of court. § 431.J COiNTEMl'T. 899 alleged to have been coramitted by the said Philip Roe, which is as follows: \The written charye may lyroperlij he inserted here.'] And whereas said court of common pleas did on the day of , IS — , make an order, of which the following is a copy: {Copy of order^ You are therefore commanded to forthwith serve a copy of this writ on the said Philip Roe, and the said Philip Roe is hereby required to file his written answer to said charge as required by said order, on or before the da}^ of , IS — , and that he be and appear before this court on the day of , 18 — , at o'clock — M., ready to answer said charge. You will make due return of this writ forthwith upon its execution. In witness whereof, etc. A day or time should be fixed for filing an answer by the person charged before the day fixed for the hearing, as it will thus necessarily save delay, It may also be necessary for counsel appointed b}'" the court to file a reply to the an- swer of the accused, which may be done by the time fixed for the hearing. While the proceedings are in their nature crim- inal, the pleadings are sabstantially as in civil cases, and it may be necessary to raise an issue — at least it is best to do so in the manner indicated. If the nature of the contempt is such that it may seem neces- sary to arrest the person charged, the foregoing forms may be varied.^ Sec. 431. Tlie hearing. — The person accused must be given an opportunity to be heard by himself or counsel,^ and a day shall be fixed for his presence to answer the charge,' at which time the court shall proceed to investigate the charge, and to hear any answer or testimony which the accused may make or offer.* The hearing is conducted as an ordinary case, ex- cept that it is before the court whose order it is claimed has been violated. The person charged does not have the right to a trial by jury.'^ It must be before the court in regular session, and not before a judge or judges sitting at chambers." 1 See Yaple's Pldg., pp. 1158-59. * R. S., sec. 5644. 2R S., sec. 5641. 5 Amnion v. Johnson, 3 O. C. C. 263. » R. S., sec. 5642. 6 Davis v. State ex rel., 50 O. S. li>4. CHAPTER 28. CONTRACTS. Sec. 433. Actions on contracts — The petition. 433. Consideration. 434 Conditions in contracts. 435. Assigning breaches. 436. Judgment where several lia- ble. 437. Entire contract 438. General rules. 439. Actions on building con- tract. 440. Petition for breach of build- ing contract. 441. Petition for recovery of con- tract price. 442. Petition against contractor for failure to complete. 443. Petition on building con- tract bj' assignee. 444. Answer setting up failure to procure architect's cer- tificate. 445. Illegal contracts. 446. Petition upon contract — Skeleton form. 447. Petition on contract for sale of goods, the proceeds of which are to be aiDplied by vendee in liquidation of indebtedness of insolvent vendor ; and for recovery of balance after payment of debts. Sec. 448. Petition for breach of verbal contract of sale. 449. Petition for breach of con- tract for sale of patent- right 450. Petition on contract for as- signment of letters patent, for recovery of profits de- rived from manufacture aud sale of commodities. 451. Petition for breach of con- tract for delivery of goods. 452. Petition for faihire to de- liver goods as per contract 453. Defenses to actions on con- tract — The answer. 454. Tender aud offer in actions on contracts. 455. Answer that good^ were not delivered becnuse of in- solvency of vendee after making contract. Sec. 43-2. Actions on contracts — The petition.— A peti- tion which alleges the execution of a contract, and specifically sets forth the conditions and covenants to be kept and per- formed, and avers that the same have been violated, stating the amount of damages sustained, with a prayer for judgment, contains the essential elements of an action upon a contract. • It may not always be necessary to give the full details, but it 1 Wolfe V. Scliofield, 38 Ind. 175 ; Westbrook v. Schmaus, 33 Pac. Rep. 306 ; 51 Kan. 214 (1893). §432.] CONTKACTS. 401 will be sufficient to substantially allege the terms of a con- tract ; ^ in any event, it is only essential to allege such facts as are material to plaintiff's cause of action.^ And where a con- tract consists of an agreement to do several things, the con- ditions, stipulations and consideration as to all should be set forth.^ An allegation that the defendant agreed to do a cer- tain thing should be taken to mean that he agreed in a valid and legal manner.'* The character of contracts discussed in this chapter are not those for the unconditional payment of money only, which are generally negotiable instruments, but may include those falling under section 5085 of the code as evidences of indebtedness, a copy of which must be attached to the petition. It is not neces- sary to here repeat what has been before stated that the copy attached cannot be made to supply the necessary aver- ments in the petition.* But the substance of such contracts, or even a copy when the same relates solely to the case, and contains all the facts which seem necessary to state the cause of action, must be given in the pleading. As to all other classes of contracts which are not " evidence of indebtedness," this rule is inapplicable, as it would burden the record and increase the costs. Hence, it is not generally considered good pleading to incorporate a copy of such contracts in the plead- ing. It may often become necessary, however, in assign- ing breaches, to substantially set out the whole contract, in which case it may be convenient to copy the same into the pleading." The better course to be adopted must necessarily depend upon the extent and nature of the contract, and the matters complained of, which rest largely in the discretion and good judgment of the pleader. Either a copy or the substance of the provisions should be inserted.' In Indiana it is con- sidered sufficient to annex a copy to the petition and aver that a contract was dul}'" executed.^ Some other states adopt 1 Logan V. Apartment House, 3 6 Swan's Pklg., pp. 198-9 ; Craw- Misc. Rep. 296 (N. Y. Com. PI., 1893). ford v. Satterfield, 27 O. S. 425; Mc- 2 Rollins V. Lumber Co., 21 Minn. 5. Campbell v. Vastiue, 10 la. 538. •Detroit, etc. R. R v. Forbes, 30 7 slack v. Heatli, 1 Abb. Pr. 381? Mich. 165. Stoddard v. Treadwell, 26 Cal. 294; * Jenkinson v. Vermillion, 52 N. W. Fairbanks v. Bloomfield. 2 Duei-, 349. Rep. 1066 (S. D., 1892). sstraughan v. Fairchild, 80 Ind. 5 Ante, sees. 57, 347. 598 ; Whitworth v. Malcom, 82 Ind. 26 402 CONTKACTS. L§§ 433, 434. the same practice, but this does not apply to Ohio. In plead- ing a contract partly oral and partly written it will be suffi- cient to plead the general effect thereof without giving a copy.' Sec. 433. Consideration. — It is a general rule that a con- tract in writing is supjiorted by a valid consideration, and therefore it is not necessary to allege the fact that it was made upon a consideration.^ A different rule, however, pre- vails as to a verbal contract, in which case it is held to be essential to plead the consideration on which it is based.' The practice, however, in all cases is to aver consideration, which is commendable. The law does not look into the question of adequacy of consideration but will leave that to the parties.* Sec. 434. Conditions in contract. — The rule of pleading conditions has been fully discussed elsewhere in a general way.^ Before a person can recover on a contract he must show that he has complied with all its terms and conditions on his part to be performed.^ The rules of common-law plead- ing required that the facts showing the performance of condi- tions precedent be set out in detail, and was a subject attended with much difficulty which the code was intended to obviate;'' AVhen, therefore, a demand of performance is necessary to fix the liabilit}^ of a party to a contract, it will be sufficient to aver generally that the plaintiff has performed all the condi- tions on his part.^ An allegation, however, that a contract " has been a valid and subsisting one ever since the date of its execution, and is still valid and subsisting and binding on said plaintiff," is not a sufficient averment of performance.^ If the facts pleaded show a repudiation of a contract by the 454; Insurance Co. v. Hazelett, 105 Ind. 212. A verbal contract does not of course fall within the rule requir- ing a copy to be made part of the petition. Hydraulic Co. v. Wilson, 33 N. E. Rep. 113 (Ind., 1893). 1 Board, etc. v. :Miller, 87 Ind. 257 ; Board v. Shipley, 77 Ind. 553 ; Rail- way V. Wray, 52 Ind. 578. 2 See cases cited po«f, sec. 453 ; Williams v. Hall, 79 Cal. 606. i Acheson v. Telegraph Co., 96 Cal. 641 ; 31 Pac. Rep. 583 (1892). Where the coiinnon-lau- rule has not bpen abrogated by statute, consideration must be brief!}' alleged. 1 Parsons on Contracts (5th ed.), 427, 428. ■^ Judy V. Louderaian, 48 O. S. 562 ; Pilkington v. Scott, 15 M. & W. 657. ^Ante, sec. 59. 6 lasigi V. Rosenstein, 20 N. Y. S. 491. ' R. S., sec. 5091. 8 Humphreys v. Staley, 3 W. L. M. 628. 9 Lowe V. Phillips, 14 O. S. 308; Crawford v. Satterfield, 27 O. S. 424 1 § 435.] CONTRACTS, 4o3 defendant, it will be necessary to aver performance or readi- ness to ))erforin.^ An averment that plaintiff is ready and willing to accept property and make payment therefor can- not be construed to be an allegation of payment or of an offer to pay.- x\.n allegation of readiness to perform is not neces- sary where the pleading shows that a defendant has, without sufficient cause, announced that he will no longer perform his part of a contract.'^ § 435. Assisj;iiiu!^ breaches. — A pleading which fails to allege a breach of contract is bad upon demurrer,'' and in as- signing the same it is essential that all facts constituting the breach be alleged,^ which should be in unequivocal language and not left to inference.^ The practice generally followed is to assign the breach in the w^ords of the contract.'^ "Where a contract is made to do a certain thing and the party pre- sents himself in readiness to perform the same, and is di- rected to do another and different thing, he may consider it a breach and maintain an action at once.^ If a contract has been repudiated by one of the parties before the time for its performance has arrived, the other party must show full com- pliance with conditions precedent before he can maintain an action thereon,** as one who has not complied with his part of the contract cannot call upon the other to respond in dara- ages.^'^ Xor will a breach by one party give the other a right to go on and perform so much of tlie conti'act as he may see fit, and recover therefor, without regard to tlie price paid ; ^^ 1 Riley V. Walker, 34 N. E. Rep. 100 v. Champlin, 66 N. Y. 214. It will (Ind. App., 1893). be sufficient to aver the contract, the 2 Bailey v. Lay, 33 Pac. Rep. 407 breach complaioed of, and general (Colo., 1893). damages. Bearber v. Cozalis. 30 Cal. 3 Riley V. Walker. 34 N. E. Rep. 100 93. (Tnd. App., 1893\ " Jones v. Sales, 25 la. 25 ; Brown ■iRich V. Calhoun, 12 So. Rep. 707 v. Stebbins, 4 Hill, 154; Gutridge v. (Miss., 1893) ; Phipps v. Hope, 17 O. S. Vanatta, 27 O. S. 366. 58G. 8 Campbell v. Jimeues, 23 N. Y. 5 Branbani v. Johnson, 63 Ind. 259 ; Supp. 313. Moore v. Besse, 30 Cal. 570; Ward v. 9 ^^Isas v. Meyer, 21 W. L. B. 346; Hogan. 11 Abb. N. C. 478; Marie v. Neale v. Ratliff, 15 Q. B. 916; Hick- Garrison, 13 J. & S. 157. A breach man v. Royle, 55 lud. 551. See 9 W. may sometimes be set forth in a gen- L. B. 131. eral way. Rowland v. Phalen, 1 '^ Tufts v. Saus, 47 Mo. App. 487. Bosw. 43. 11 JIcGregor v. Ross, 96 Mich. 103 ; fi Moore v Besse, 30 Cal. 560 ; Brown 55 N. W. Rep. 658 (Mich., 1893). 404 CONTKAOTS. [^g 430, 437. but where one party to a contract, without fault on the part of the other, fails to perform his part so as to enable him to sue, he may nevertheless recover for the benefit derived by the other party, less any damages sustained by partial non- performance.^ Sec. 436. Judgment where several liable.— The common- law rule that recovery must be had against any or all parties to a joint contract was modified by the code so as to allow judgment to be entered for or against one or more of several defendants who are liable in a joint action, without subjecting the plaintiff to the necessity of bringing a new action ; and a judgment rendered for those who are found not liable and ao-ainst those liable.- If there be doubt as to the face of such judgment, it would be proper to make an amendment.' Judg- ment ma}'-, in the discretion of the court, be taken against one or more, leaving the action to proceed against others, which will operate as a severance of the cause of action as to the re- mainder, which may be heard and determined as if they were sued alone, and judgment rendered against them for the whole or part of the cause of action as may be proved against them.* Sec. 437. Entire contract.— Where a contract is entire and is abandoned after part performance without cause, there can be no recovery even yro tcmto unless the assent of the other party to the abandonment be shown.' Accommodation indorsement is an entire contract and cannot be tilled up so as to make the note payable part to one person and part to another.^ A judgment on an entire contract which has been severed merges the whole,^ and the right is exhausted by a single suit.^ Where there has been a part delivery of goods 1 Lyon Co. v. Lund, 33 Pac. Rep. 595 (Kan., 1893). See, also, Branham V. Johnson, 62 Ind. 259-68. 2 Lampkin v. Chisom, 10 O. S. 450 ; Brumskill v. James, 1 Kern. 294; Marquat v. Marquat, 2 Kern. 336. 3 Lampkin v. Chisom, .supra. 4 O. Code, sees. 5311-12; Hempy v. Ranson, 33 O. S. 319; Aucker v. Adams, 23 O. S. 543; Roby v. Raius- berger, 26 O. S. 676 ; Stafford v. Nutt. 51 Ind. 535 ; Hnbbell v. Wolfe, 15 Ind. 204; Carr v. Beckett, 1 O. C. C. 72, 5 Allen T. Carles, 6 O. S. 505; Gold- smith V. Hand, 26 O. S. 101-4. sErwin v. Lynn, 16 O, S, 539. 7 Erwiu V, Lynn, supra. 8 Stein V. Steamboat, 17 O. S. 471-5 ; Benderuagle v. Cocks, 19 Wend. 207 : Fish V, Tolley, 6 Hill, 54; Secor v. Sturges, 6 N. Y, 548; Logan v. Cof- frey. 30 Pa. St. 196. § 438.] CONTKACTS. 405 sold, recovery cannot be had for their value without delivery of all.^ The giving of a note will sometimes amount to a severance of an entire contract ;- and where a tripartite has been.entered into, and two of the three parties fail to per- form their respective portion, they may be compelled to per- form or pay damages at the suit of a third party who performs or tenders performance.^ Sec. 438. General rules. — Although recovery cannot be had on a verbal contract not to be performed within one year, it is otherwise if the same has been partially performed.* Proof of alteration or interlineation in a contract cannot be introduced unless the same be alleged in the pleading; '" and so with an oral modification of a written contract.^ Where a contract sued upon depends upon the terms of another, the provisions of the latter must be set forth in the pleading; ' and in framing a pleading upon an implied contract, it is necessary only to allege the facts showing the data from which the law implies a promise.^ If one person for a good consideration makes a j)romise to another for the benefit of a third, such third person may maintain an action thereon.^ An allegation of a contract in the petition, not controverted by answer, will be taken as true ; and an averment of a different contract in the answer will not amount to a denial.^" Where the facts set forth clearly constitute a cause of action upon contract, an allegation giving it the aspect of a tort will be treated as surplusage and will not change the nature of the action." So where a commission merchant retains the proceeds of goods 1 Witherow V. Witherow, 16 O. 238. 9 Thompson v. Thompson, 4 O. S. 2 See Loomis v. Eagle Bank, 10 O. 333 ; Crumbaugh v. Kugler, 3 O. S. S. 327. 544 ; Emmett v. Brophy, 42 O. S. 82 ; 3 Wade V. Pollock, 1 C. S. C. R 453. Riordan v. Church, 23 N. Y. Supp. 4 Tovvsly V. Moore, 30 O. S. 184. 323. aShelton v. Reynolds, 111 N. C. lO Marx v. Gross, 22 N. Y. Supp. 505; 16 S. K Rep. 272 (1892). 393; Fleischman v. Stearn, 90 N. Y. « Henry v. Clelland, 14 Johns. 400; 110. Sansford v. Halsey, 2 Disn. 253. See " Greentree v. Rosentock, 61 N. Y. Building Contract, sec. 439, post. 583 ; Segelken v. Meyer, 94 N. Y. » Toole V. Baer, 16 S. R Rep. 378 484 ; Conaughty v. Nichols, 42 N. Y. (Ga., 1892). 83 ; Led wick v. McKim, 53 N. Y. 307- 8 Maxwell on Code Pldg. 85, and 316; Whereatt v. Ellis, 58 Wis. 837.. cases cited: Farron v. Sherwood, 17 N. Y. 227. 40tt CONTRACTS. [§ 439. sold by him, the action for its recovery should be upon con- tract, and not for commission.' Where work done under a contract, though not in strict accordance with its terms, is accepted by or has benefited the other party, a recovery may be had for what it is really worth. And so with one which has been waived, or where the plaintiff has been prevented from doing the work.- In a suit for work, labor and materials, it is not necessary to declare upon contract, but a declaration may be made generally for the value of the work and refer- ence made to the contract to determine the value.' Where money is claimed upon contract the petition must show that the same is due and unpaid.* An allegation, however, that a sum sued for is now due is a mere conclusion of law.* Where the action is for the recovery of something more than money, as for damages, it is not necessary to aver that the damages are due and unpaid.^ Sec. 439. Actions on building contract. — The general rule applicable to all kinds of contracts which requires only a substantial compliance therewith, and excuses technical, inad- vertent and unimportant omissions and defects, is equally ap- plicable to building contracts. This rule allows a recoupment in damages for any material deficiency.'' Slight defects in the performance of a building contract will not prevent recovery of the price therefor,^ If the specifications have been disre- garded, recovery may nevertheless be had for the contract price, less the cost of making the building conform to the plans.^ Where work is done under a contract which is at vari- ance with the strict terms of the agreement, and payments 1 Greentree v. Rosentock, 61 N. Y. ' Doyle v. Insurance Co., 44 Cal. 583; Walter V. Bennett, 16 N. Y. 250; 364; Roberts v. Treadwell, 50 Cal. Weymouth v. Boyer, 1 Ves. Jr. 416 ; 520 ; Frisch v. C^uler, 21 Cal. 71. See Harris v. Schultz. 40 Barb. 315. ante, sec. 51. -' Newman v. McGregor, 5 O. 352 ; 6 Riiey v. Walker, 34 N. E. Rep. 100 Edgertou v. Coates, W. 84 ; Ames v. (Ind., 1893). Sioat, W. 577 ; Bagley v. Bates, W. ^ Elsas v. Meyer, 21 W. L. B. 348 : 705; Sperry v. Johnson, 11 O. 452. Mehurin v. Stone, 37 O. S. 49; Gold- 3 Higgins V. Railroad Co., 66 N. Y. smith v. Hand, 26 O. S. 101. 604 ; Farron v. Sherwood, 17 N. Y. » Horgan v. McKenzie, 17 N. Y. S. 227 ; Fells v. Vestvali, 2 Keyes, 152 ; 174 ; Crouch v. Gutman, 31 N. E. Larson v. Schmaus, 31 Minn. 413. Rep. 271 (N. Y., 1892), and cases cited. 1 Goodman v. Gordon, 87 Ind. 126; sScheible v. Klein, 89 Mich. 376; Boone's Pldg., sees. 26, 135, 150, 104. 50 N. W. Rep. 857. I ^ 4:39.] CONTRACTS. -407 have been made thereon during the progress of the work without objection, recovery may be had for an unpaid bal- ance without showing that the contract has been strictly per- formed.^ Formerly, where a contract provided that work was to be subject to the approval of an architect, there could be no recovery unless it was so approved ; but the rigor of this rule has been so far relaxed as to allow recovery when there has been a substantial compliance in good faith.^ In bringing an action upon a contract it must be averred that the work was approved by the architect, or a reason given for failure so to do.' Such an allegation is unnecessary, however, where it is alleged that the plaintiff " performed each and every requirement by him contracted, as set forth in the con- tract," or where a general averment of performance of condi- tions precedent is made.* All of the facts relating to the performance and deviation from the contract should be fully set forth and not alleged in a general way. This cannot be done in the reply if inconsistent with the allegations of the petition.^ Where a certificate has been demanded of an architect and the same unjustly refused, the condition of the contract as to the certificate of the architect ceases to be a condition precedent to recovery.^ A provision that an archi- tect's certificate for extra work shall be final is binding^ on the parties.' A contractor may recover for extra work rendered necessary by a violation of an agreement by the owner.^ And where an action is brouijht for defects in the work of constructing a building, the same must be fully set 1 Goldsmith v. Hand. 26 O. S. 101; 5 O'Connor v. Diugley. 26 Cal. 11: Woodward v. Fuller, 80 N. Y. 312; Evarts v. Smucker, 19 Neb. 41; 26 N. Noland V. Whitney, 88 N. Y. 648. See, W. Rep. 596 (1886); Durbin v. Fisk, also, Loeffler v. Froelich, 35 Hun, 16 O. S. 534. 368 ; Coon v. Water Co., 25 Atl. Rep. 6 Highton v. Dessau, 19 N. Y, S. 505 (Pa., 1893); Arnold v. Bournique, 395; Thomas v. Stewart, 132 N. Y. 33 N. E. Rep. 530 (III., 1893). 580; 30 N. E. Rep. 577. Unless it is 2 Kane V. Stone, 39 O. S. 1-11 ; Me- provided in the contract that the liurin V. Stone, 37 O. S. 49. But see estimate of an architect is not bind- Aruold V. Bournique, 29 W. L. B. 156. ing on the owner. Schuler v. Eckert, i Butler V. Tucker, 24 Wend. 447. 51 N. W. Rep. 198 (Mich., 1892). The architect is the sole arbiter. " Anderson v. Inihoflf, 34 Neb. 335 ; Mercer v, Harris, 4 Neb. 73. 51 N. W. Rep. 854 (1892). 'Wilcox V. Stephenson, 1 So. Rep. ** Becker v. National, etc. Park Co., G.-.;} (Fla., 1892). 69 Hun, 55. 408 CONTRACTS. [§§ 4-10, 441. forth in the pleading.^ Delay on the part of the contractors will not afford ground for refusal to pay an instalment due.* A request to stop work, if acquiesced in by both parties, will not operate as a breach, unless by way of a direction, and objec- tion is made thereto.^ Where an owner completes a building after failure or delay by the contractor, it is not essential that the plans and specifications be strictly adhered to merely for the purpose of having correct accounts of the cost of complet- ing the work.* Sec. 440. Petition for breach of buildiug contract. — Plaintiff states that on the day of , 18 — , in con- sideration of S to be paid [state the jpayments if desired'], he entered into a contract in writing with said defendant, by virtue of which contract said defendant prom- ised and agreed to erect and construct a certain dwelling- house on the property of plaintiff situate in the city of C., which said contract contained a provision that [state the sub- stance of the provision claimed to he hrohen]. That the plaintiff has fully performed his part of said con- tract and complied with all the provisions thereof so far as he is concerned, but that the defendant wholly failed and neg- lected to carry out and complete his said contract, in that he [state hreaches]. That by reason of the failure and neglect of said defendant to so fully carry out and perform his said contract plaintiff has been damaged in the sum of % , for which sum with interest from , 18 — , he asks judgment. Note. — A copy of the contract should not be attached in this case. It would be otherwise if a suit were for the contract price. Sec. 441. Petition for recovery of contract price, inclnd- ing extra work. — On the day of , 18 — , plaintiff entered into a con- tract in writing with the defendant, by virtue of which con- tract, and in consideration of the sum of $ to be by de- fendant paid to plaintiff as hereinafter set forth, he agreed to erect and construct a certain building for said defendant upon his premises in the city of C, being lot ISTo. , etc., which said building was to be constructed in the following manner: [Here state substance of contract.'] It was provided by said contract that said defendant should pay said plaintiff for the construction of said building as pro- 1 Turnbridge v. Read, 3 N. Y. S. » McGregor v. Ross, 55 N. W. Rep. 908; Darrah v. Gow, 77 Mich. 16; 658 (Mich., 1893). 43 N. W. Rep. 851 (1889). ■* Zimmerman v. Gourgensen, 24 ^ Smith V. Corn, 3 Misc. 545. N. Y. S. 170. § ■i-A2.j CONTRACTS. 409 vided by said contract and as hereinbefore set forth, said sura of 8 in the following manner: {State payments!] But plaintiff avers that on the day of , 18 — , it became necessar}^ to make certain material changes in said contract, and it was thereupon, uj)on said day of , 18 — , mutually and orally agreed between plaintiff and de- fendant, that said plaintiff should do and perform the follow- ing additional work not provided for in said original contract : {State the nature and extent of additional work.] And for said changes and additional work so mutually agreed upon as aforesaid by and between said plaintiff and defendant, said defendant agreed and promised to pay said plaintiff therefor the sum of $ . Plaintiff has fully and completely carried out his portion of the contract as originally made and as modified as aforesaid and duly performed all re- quired of him by virtue thereof. A copy of said original written contract plaintiff attaches to his petition marked as an exhibit. There is due and owing plaintiff from said defendant upon said contract a balance upon said original contract of the sum of $ , being the instalment so agreed to be paid by said defendant, and the further sum of $ , the amount so agreed to be paid for said extra work, aggregating the sum of $ , for which, with interest, plaintiff prays judgment. Note. — Recovery may be had for double plumbing where the contract provides that there shall be extra paj' for alterations or additions. JlcSorley V. Prague, 33 N. E. Rep. 158 (N. Y., 1893). Recovery may be had for extra labor caused by neglect of the owner. Becker v. Park Co., 23 N. Y. Supp. 380. Sec, 442. Petition against contractor for failure to com- plete. — {Formal j^cii't cis in ante^ sec. Jt-Ji-O.] That the plaintiff has performed all the conditions of said contract on his part to be performed. That by the terms of said agreement said building was to be finished and delivered to the plaintiff on the day of , 18 — , whereas in fact said defendant wholly failed to comply with his said contract in this respect and did not have said building completed until . That relying on the contract with said defendant to so com- plete said building, plaintiff did on the day of , 18 — , lease said building to one E. F, for the term of ; years, at a yearly rent of dollars, of which the defendant was duly notified. That by reason of the defendant's failure to finish said building the i)laintiff has been unable to give said E. F. pos- session of the same, and the ))laintiff" has tiiereby lost the benefit of the lease. That the i)laintiff has sustained damages in the sum of % . {Prayer.] 410 CONTRACTS. [§§443-41:5. Sec. 443. Petition on bnilding contract by assignee. — The plaintiff, complaining of defendant, says that on or about the day of , 18 — , one A. S. made and entered into a certain contract with the defendant, who had a contract with the owner, for the erection and construction of a certain store or block on [naming location]^ in the city of D., by which said S. agreed to furnish, dress and lay in the whole of the stone needed for the said block, and for the sura of dollars each. Defendant agreed to pay to said S. and the last payment upon the last contract for said stone work, amounting to dollars, was agreed to be paid to the said S. when the said building was to be finished. That said S. went on and furnished and laid all of said stone work accord- ing to said contract, and completed his said contract in every particular. That said building was finished on the day of , 18 — ; that defendant has paid to said S. all his said con- tract price, except the sum of dollars, being a part of the last payment which fell due . That on the day of , 18 — , said S. assigned to said plaintiff for a valuable con- sideration all his right, title and interest in and to his claim against defendant for the balance due him under said contract. That the plaintiff is now the owner of the same, and that there is due and owing to the plaintiff from the defendant thereon, the sum of dollars with interest thereon from Wherefore plaintiff prays for judgment against the defend- ant for said sum of dollars with interest thereon from Note.— From Kaine v. Stone Co., 39 O. S. 1. Sec. 444. Answer of owner setting np failure to procure architect's certificate. — \Forinal parts.'] Defendant states that by the contract set forth in plaintiff's petition the building therein contracted for was to be com- pleted by , 18 — ; and that it was specially provided in said contract that said building was not to be accepted by de- fendant until the plaintiff had first obtained the certificate of A. B., the architect, that said building was properly con- structed. Plaintiff has not obtained the certificate of the said A. B. in accordance with the terms of said contract. Note. — Tlie certificate of the architect is conclusive and cannot be con- tradicted. Kennedy v. Poor, 25 Atl. Rep. 119 (Pa., 1892). Sec. 445. Illegal contracts. — It is a well-understood prin- ciple of law that where parties to a transaction have woven a web of wrong or fraud around it, a court will not unravel the threads and separate the good from the bad. But where there. § ^io.] C0NTKACT8. 411 are two considerations supporting a contract, one of which is lawful, the other lawful, and the one cannot be separated from the other, the contract will be sustained so far as possible. This cannot be done, however, where one of two considera- tions is unlawful, as the whole consideration is the basis for the whole promise, and the parts are inseparable.^ Nor will a court enforce an illegal contract while it remains executory or rescind it when executed,'- but will leave the parties to their strict legal rights.^ And where one of two distinct considera- tions is void by statute, and the other good, the contract will be held valid to the extent of the good consideration,^ espe- cially where the good may be separated from the bad.* While it is true that an illegal consideration vitiates a contract, yet a vendee of goods with knowledge of the illegality cannot set up his own legal intent in bar of an action for the recovery of purchase-money.^ A contract not to employ one's talent, in- dustry or capital in business cannot be enforced, as it is in restraint of trade ; ' though a contract jiartially in restraint of trade, founded upon a valuable consideration, may be enforced. The pleading in such cases must allege that the restraint is partial, and that it is supported by a valuable consideration, that it is reasonable and not oppressive, in order to rebut the presumption against its validity ,8 as parties to a contract which is contrary to public policy can receive no aid from a court of justice.^ A contract is made where it is delivered, and the law of the place of the delivery controls its validity. '» Thus, a con- tract the consideration of which is in whole or in part the sup- pression of a criminal prosecution, is without any legal efficacy whatever." But where a contract is made in one state and completed in another, the cause of action accrues in the latter 1 Widoe V. Webb, 20 O. S. 435, and 8 Lauge v. Werk, 3 O. S. 520. authority cited ; Hooker v. De Palos, 9 Emery v, Ohio Candle Co., 47 O. 28 O. S. 251. See 2 C. S. C. R. 369. S. 320 ; 11 W. L. B. 258 ; 12 w! L. B.* - Hooker v. De Palos, supra; 2 Par- 169 ; 9 W. L,B. 86. sons on Contracts, p. 247. lO Baldwin v. Harrison, 24 W. L. B. 3Kahn v. Walton. 46 O. S. 195. 27; s. c, 5 O C. C. 310; Smith v. * Doty V. Bank. 16 O. S. 133. Frame, 3 O. C. C. 587; 3 N. Y. 266; 5 Thomas v. Miles, 3 O. S. 274. 34 Miss. 181 ; 9 Handy, 42; 7 0. S.' e Kittle v. De Lamater, 3 Neb. 334 ; 249 ; 25 O. S. 621-5 : 2 Disn. 9 ; 89 111. Smith V. Bank. 9 Neb. 31. 225; 4 Allen, 364. 'Mitchell V. Reynolds, 1 Smith's L. u Insurance Co v. Hull, 31 W. L. B. Cas. 641 : Lauge v. Werk, 2 O. S. 529. 235 ; 51 O. S. . 412 co.NTKAcTS. [§§ 440, 447. state; ^ and if it is valid where made, it will be enforced in an- other state, although it is such a contract as would be prohib- ited by the laws of the latter state, if it does not contravene good morals and is not prejudicial to public or individual rights.^ Under the law of comity between states, the lex loci contractus governs the validity of contracts, but not the rem- edy or rules of evidence. If the law of the contracting state contravenes the policy of the state where the remedy is pur- sued, or infringes upon the rights of citizens, there is then na rule of comity requiring the latter state to enforce the con- tract.' In Ohio it has been held that a contract compounding a crime, valid by the laws of the state where made, will be carried into effect.* Sec. 44:6. Petition upon contract — Skeleton form. — The plaintiff states that on the day of -, 18 — ^, the defendant entered into a contract in writing with , by the terms of which it was agreed: {Owe substance of con- tract.'] The plaintiff further says that he has in all respects fulfilled and performed all things in the said contract to be by him fulfilled and performed. The plaintiff further says that alwa,ys since the day of , 18 — , and at the present time, the defendant, in violation of his said agreement \Jiere state breaches of contract\ by reason whereof the plaintiff is- entitled to recover from the defendant the sum of dol- lars, for which he accordingly demands judgment. Note.— See Grasselli v. Lowden, 11 O. S. 349. If there be a stipulation, for liquidated damages which are uncertain and conjectural, it will be dis- regarded. Id. If an evidence of indebtedness, attach a copy ; otherwise not. Ante, sees. 57, 433. Sec. 447. Petition on contract for sale of goods, the pro- ceeds of which are to be applied by vendee towards liquida- tion of indebtedness of insolvent vendor, for recovery of balance after payment of debts. — {Caption^ etcl That on the day of , 18 — , plaintiff was in failing^ circumstances and unable to meet his debts then due and to become due, and tl:iat in order to effect a compromise with 1 Correll v. Construction, etc. Co., Goudy v. Gebhart, 1 O. S. 266 ; 1 16 S. E. Rep. 156 (S. C., 1892). Daniel's Neg. Inst, aec. 865 ; Hill v. 2 Harrison v. Baldwin, 5 O. C. C. Spear. 59 N. H. 253 ; Greenwood v, 310 ; Delayhe v. Heitkemper, 16 Neb. Curtis, 6 Mass. 358. 478 ; Herrick v. Railway Co., 31 Minn. < Baldwin v. Harrison, 24 W. L. 11 ; 16 N. W. Rep. 413. B. 27 ; afif'd, 5 O. C. C. 310, but pend- ^ Kanaga v. Taylor, 7 O. S. 134, 14;i ; ing in supreme court § 447.] CONTRACTS, 413 his creditors, and to prevent a sacrifice of his said stock of goods, he entered into a contract with the defendant, J. 0. S., by the terms of which contract plaintiff sold and ti-ansf erred ail his stock of goods then invoiced, together with the fixtures about and in his business house, and accounts due said plaint- ifi', amounting to the sum of $ . Said J. C. S., bv the terms of said contract, Avas to use the amount of pro]5erty and accounts above sold and transferred to him in payment of the debts of said plaintiff by way of compromise as he should be able to obtain said claims against said plaintiff, said J. C. S. not to pay out on the said claims against said plaintiff a sum exceeding the sum of S , and the said J. C. S. was to pay balance, after paying debts of plaintiff, to this plaintiff. Plaintiff herewith files a copy of said contract with all in- dorsements. Plaintiff further says that the said J. C. S. took possession of said stock of goods, fixtures and accounts sold to him by the plaintiff, and entered upon and executed the trust created by said contract, and settled and compromised and paid off the debts of said plaintiff. The debts of said ])laintiff amounted, at the time of said sale and transfer to said J. 0. S. of said stock of goods, to the sum of $ , and were to the following persons, to wit: [JVames of debtors.'] And that the said J. C. S. paid off and settled the above- mentioned claims as follows : [^N'ames of debtors j)ciid.'\ The whole amount paid by said defendant J. C. S. in payment and satisfaction of all the claims against the plaintiff being $ and no more, and leaving a balance in the hands of said J. C. S., after paying all the debts of said plaintiff, to the amount of S . Plaintiff avers that all said claims against him were compro- mised and paid off on the day of , IS — , and plaintiff avers that he repeatedly requested J. C. S. to account to him for the balance in his hands after the payment of his debts aforesaid, but the defendant, J. C. S., has neglected hitherto and still neglects and refuses to pay over or to account to l)laintiff for said balance. Plaintiff avers that there is due him from the defendant, J. C. S., on the claim set up in the petition, the sum of $ with interest thereon since , IS — , and for which sum, -with interest, he asks judgment against the said J. C. S., and for other relief. Plaintiff also asks that the defendant, J. C. S., may make true answers to the interrogatories attached to the petition by ])laintiff touching the subject-matter of this suit. Note.— Taken from Bryant v. Swetland, 48 O. S. 194. 41-i- CONTKACTS. [§,§ 448, 449. Sec. 448. Petition for breach of verbal contract of sale.— That on or about, the day of , IS—, the said plaintiff entered into a verbal agreement with said defendant, whereby the said defendant promised and agreed with said plaintiff that in consideration of the said ])laintiff purchasing from said defendant a certain newspaper, known as the Gazette, together with the good will of the same and all type, fixtures and appliances of said newspaper, and paying there- for the sum of dollars, that he, the said defendant, would furnish .and provide the said newspaper, for the consideration aforesaid, with a new dress. Plaintiff avers that he did so purchase said newspaper and has duly performed all the conditions of said contract on his part to be performed, but said defendant has failed to fulfill his part of said contract in this, to wit: He has failed and re- fuses to provide and furnish said newspaper with a new dress. Plaintiff further says that at the time of entering into said contract a new dress for said newspaper was reasonably worth the sum of — — dollars ; that said defendant has paid thereon the sum of dollars ; that no other payments have been made thereon, and that there is due and unpaid to said plaint- iff from said defendant the sum of dollars. Wherefore the plaintiff prays judgment against the said de- fendant for the sum of dollars, damages so as aforesaid sustained. Note. — From Gaunier v. Riley, Supreme Court, unreported, No. 1627. Sec. 449. Petition for breach of contract for sale of patent-right. — The plaintiff says that on or about the day of -, 18 — , he entered into a contract with the defendants, whereby said defendants, under the firm name as aforesaid, agreed and bound themselves to sell and convey unto this plaintiff, for the consideration of dollars in hand paid by this plaint- iff, the undivided interest in the states of and , in certain letters patent granted by the United States of Amer- ica, for a certain invention known as . That at the date of said contract plaintiff paid to said defend- ants said sum of dollars, and said defendants agreed that within a I'easonable time thereafter they woukl convey to said plaintiff' said interest in said letters patent for said states, which time has long since elapsed; yet said defendants have not conveyed said interest and are unable to do so, for the reason that they have not title to the same ; that said de- fendants, neither at the time of said meeting nor at any other time, have owned any valid patent as Avarranted by them ; that in fact said defenchinls never had any valid patent for any such improvement, for the reason that said pretended patent was § 450.] CONTKACTS. 415 at all times void and absolutely worthless, that the same had been invented and publicly used by parties long prior to said pretended invention and patent. Wherefore plaintiff says that there was a total failure of the consideration of dollars so paid by him, and a breach of said warranty in said contract. The plaintiff further says that on , IS — , he served notice upon said defendants to make said title to him within days or he should annul said contract and bring suit to recover back said money paid, which notice was disregarded by defendants, and on , 18—, said plaintiff "served written notice upon said defendant that he did cancel said contract. The plaintiff says that by reason of the failure aforesaid he has been damaged in the sum of dollars, with interest from , 18—, and for which sum with costs of suit he prays judgment. Note.— From Keruohan v. Clemmens, Supreme Court, unreported. No. 1860. Sec. 450. Petition on a contract for assignment of let- ters patent, for recovery of profits derived from manu- facture and sale of commodities. — \_Ca2)tion.'\ Plaintiff herein, complaining of the above-named defendant, shows to this court, and alleges : (1) On information and be- lief that, at all the times hereinafter mentioned, the defend- ant was and still is a corporation dulv created, organized and existing under the laws of the state of . That heretofore there was issued, in due form of law, unto this plaintiff by the United States of America, five several letters patent, as follows, to wit : Xumber 329,284, granted, etc., and being the same letters patent mentioned in the contract duly made, executed and delivered interchangeably between the parties thereto, a copy of said agreement being hereunto an- nexed. That thereafter, and under and bv virtue of said annexed contract in that behalf; this plaintiff'" did, on or about — , 1*^—, duly assign, transfer and set over unto the de- fendant, for its use and at its request, the letters jiatent afore- said. That thereafter, and ever smce, the defendant, as plaintiff is informed, verily believes and alleges, has manufactured and sold untler said letters patent and contract upwards of of the commodities thereby covered and referred to, and that, after all the deductions authorized by said agreement fi'oni the proceeds of such sales, there remains received by defend- ant, and being net profits, the sum of dollars. That plaintiff has duly and fully done and performed all the mat- ters and things by him to 'be done and performed under said contract on his part, and from said defendant demanded his 416 CONTEACTS. [§§ -151, 452. said moiety of net profits thereunder accordingly, but the defendant has refused to pay over said moiety or account therefor, to plaintiff's damage dollars. Wherefore plaint- iff demands judgment against defendant for dollars, be- sides the costs and disbursements of this action. Note.— Approved in Dalzell v. Watch-case Co., 33 N. E. Rep. 1071 (N. Y., 1893). Sec. 451. Petition for breach of contract for delivery of goods. — [Captio7i.'] Plaintiff says that on or about the day of , 18 — , the defendants were the owners of and in possession of a cer- tain crop of grapes, to wit, at county, Ohio, on the premises of defendants, then in readiness to be harvested and for market. Plaintiff says that the defendants then and there, in consid- eration of the promises of plaintiff, hereinafter made, sold and agreed to gather and deliver to plaintiff at the wharf-boat of at N., Ohio, without delay, all of said crop of grapes in good order, estimated to contain bushels of grapes, at the agreed price and value of dollars per stand, each stand to contain bushels. Plaintiff further says that by the terms of said agreement he was to pay for said grapes as they were so delivered to him, and that under said agreement defendants did com- mence to gather and deliver said grapes to this plaintiff, and that he paid for the same as he agreed to do, and that the defendants continued to so deliver said grapes, until he de- livered abut twelve stands thereof and received from this plaintiff his pay therefor, but that defendants then and there- after failed and refused to deliver the remainder of said grapes, although the plaintiff was ready to receive the same and pay for them upon deliver}'^ as he had agreed to do, and that, on the contrary, defendants gatheretl and sold the same to an other, to the damage of this plaintiff in the sum of dol lars, for which he asks judgment. Note.— From Simmons v. Green, 85 O. S. 104. Sec. 452. Petition for failnre to deliver goods sold as per contract. — The plaintiffs, Bros., sa}^ that they are a copartnership, unincorporated, formed for the purpose of and doing busi- ness in the state of Ohio ; that the defendant F. J. D. was, at the times hereinafter mentioned, and has ever since been, doing business in C, Ohio, under the firm style of F. J. D. c\: Co.; that on or about, to wit, , 18 — , the defendant sold to the plaintiffs a large quantity of paper bags, in the quanti- § 453.] CONTRACTS. 417 ties and at the respective prices \set forth quantities and prices] ; that said sale amounted to dollars ; that said sale was made on the following terms of credit, to wit: [set for^th terms']', that the plaintiffs then were and ever since have been en- gaged in business in C, Ohio; and that said paper ba^s were bought by them for shipment to said city and for use in their said business there, and for that market, and that all of these facts and purposes were known to the defendant at the time of said sale, and of the acts herein alleged; that defendant set apart said goods, and caused a large quantity thereof to be delivered at the depot of a common carrier for transpor- tation to C. to the plaintiffs, and that on , 18 — , he, without plaintiffs' consent, canceled the sale and disposed of said goods wrongfully, and in a manner to plaintiffs unknown, but to and for his own use and benefit; that at the time of said cancellation plaintiffs had sold and contracted to sell a lar'ge quantity of said bags at an advance on the said princi- ])al sum of — "— per cent.; and plaintiffs further say that they were unable to replace said purchase, and were unable to ob- tain like goods to substitute those bought of the defendant, and that on the day of sale of said goods by the defendant to the plaintiffs, as well as on the day of said cancellation of sale, such goods were of such a character that they could not be replaced nor substituted by any other goods, and hence had no regular market price or value, and that defendant was well aware on the day of sale both of their peculiar charac- ter as aforesaid, and of their not possessing a regular market price or value; and the plaintiffs further say that on the day when the defendant canceled the sale as aforesaid, the said bags purchased by plaintiffs were worth the sum of dol- lars. Plaintiffs further say that they have been at all times and are now ready to do and perform everything to be done by them in the carrying out of the sale, but that defendant, al- though often requested so to do, has refused to ship and com- plete the shipment of said goods to said plaintiffs at C, Ohio, and that by reason of the facts set forth herein the plaintiffs have suffered a loss of tloUars, which defendant refuses to pay. Wlierefore the plaintiffs pray judgment against defendant in the sum of dollars, with interest from , and costs. Note.— Clianged from Diem v. Koblitz, 49 O. S. 41. The petition in the case from which tliis form was taken set forth a copy of the bill of goods sold as an exhibit and referred to it to supply averments, which was not correct pleading, but no objections were made on that account Ante, sec 57. Sec. 453. Defenses to actions on contracts — The answer. A contract is always presumed to be made upon a valuable consideration, and a want thereof must be shown by the party 418 CONTRACTS. [§ 453. attacking it,' as want of consideration cannot be shown under a general denial.- But the defendant may always allege want or failure of consideration.^ It is a sound principle and a well- settled rule of law that a contract contrary to morals or pub- lic policy or forbidden by law will not be enforced.^ But it is held that where the consideration -of a contract is partly legal and partly illegal and the same is capable of separation, the good may be separated and enforced.^ But where a contract is entire, and a part is illegal because it falls within the statute of frauds, the remainder cannot be enforced.® As illegal consideration in whole or in part defeats a contract when inseparable, a debt which has its inception in illegality cannot be made valid by a new promise.' A contract by which a voluntary association is formed for the purpose of controlling the manufacture and sale of an article of general use is against public policy and will not be upheld.^ While a party who has entered into a contract tainted with illegality may not seek affirmative relief, still he may plead the illegal- ity as a defense even though he may be in pari delicto.^ And so long as the contract remains unexecuted a party may be relieved therefrom.'^ So a verbal agreement to will property to another cannot be enforced unless something be done to take it out of the statute, as possession or part performance." But acts of part performance, to relieve the contract from the statute, must of themselves be clearly referable to some con- tract between the parties relating to the same parties.'- 1 Nelson v. White, 61 Ind. 139; « Central Ohio Salt Co. v. Guth- White V. Drake, 3 Abb. N. C. 134 ; rie, 35 O. S. 666. Smith V. Flack, 95 Ind. 131; Eldridge » Jacobs v. Mitchell, 46 O. S. 606; V. Mather, 2 N. Y. 157 ; Weaver v. Rowl v. Ragut, 4 O. 400 ; McQuaig v. Barden, 49 N. Y. 286; Dubois v. Rosecrans, 36 O. S. 442; Kahn v. Hermance, 56 N. Y. 673 ; Hammond Walton, 46 O. S. 195-209. V. Earle, 58 How. Pr. 426. ^0 Strait v. Hardware Co., 18 N. Y. 2 Bingham v. Kimball, 17 Ind. 396. S. 224. 3 Judy V. Louderman, 48*0. S. 562; " Hopple v. Hopple, 3 O. C. C. 102; O, Code, sec. 5071. Shahan v. Swan, 48 O. S. 25. See ^Spurgeon v. McElwaine, 6 O. 442. author's note, 32 C. L. J. 205-208; estate v. Williams, 29 O. S. 161. Lindsey v. Lynch, 2 Sch. & Lef roy, 1 ; See ante, sec. 445. Maddison v. Alderson, L. R. 8 App. 6 Howard v. Brower. 37 O. S, 402, Cas. 467 ; Dale t. Hamilton, 5 Hare, 407 ; Hopple v. Hopple, 3 O. C. C. 106. 369; Van Dyke v. Vreeland, 11 N. J. See ante, sec. 445. Eq. 370. ■^Bick V. Seal, 45 Mo. App. 475. i^ Shahan v. Swan, supra. J § 453.] CONTRACTS. 419 Where parties have partly performed an illegal contract, a court will not lend its aid to enforce or rescind it, but will leave them where it found them.^ The rule that relief will not be granted to one of the parties to an illegal contract is not applicable to a case where relief is sought against the act of an agent or trustee- of one party,- but relief may be had by one party to an illegal unexecuted contract when it will pre- vent its execution, upon the principle of locus penitentice:^ Re- covery may be had upon a contract for a breach thereof where the same was procured by fraud.^ An agreement not to make a defense to divorce proceedings cannot be enforced.^ Where illegality of a contract is relied upon as a defense, a statement of the facts upon Avhich such illegality is founded should be fully set forth as it cannot be shown under a general denial.® An objection that a contract is void because made on Sunday must be made by answer, not by demurrer." If a defendant desires to set up a counter-claim upon the ground that the plaintiff has not complied with the terras of the contract, the facts constituting such non-performance must be fully averred, and must be of such a nature as to warrant recovery against the plaintiff.^ A certain statement of facts may constitute a defense to an action on a contract and also a counter-claim, but in pleading the same they should be formally separated.^ An answer to an action for a breach of contract which sets up a contract different from that averred in the petition is immaterial, and will not controvert that set up by the plaint- iff, which in the absence of a specific denial will be taken as 1 Hooker v. De Palos, 28 O. S. 251 ; ^ Commissioners v. Noyes, 35 O. S. 16 O. 54; 6 O. 227; 4 O. 400. 207: 18 O. S. 353; 31 O. S. 555; 34 2 Hafer v. Railroad Co., 14 W. L. O. S. 467 ; 31 Cal. 271 ; Stafford Pav- B. 72; Tenant v. Elliott, 1 B. & P. 3. ing Co. v. Monheimer, 41 N. Y. Super. See, also, L. R 8 Ch. App. 149; Eler- 184; Mathews v. Leaman, 24 O. S. man v. Insurance Co., 35 O. S. 324; 621 ; Bliss on Code Pldg., sec. 320. Wharton on Contracts, sec. 357. "^ West. Union Tel. Co. v, Eskridge, 3 Hafer v. Railroad Co., 14 W. L. 33 N. E. Rep. 238 (Ind., 1893). B. 68, 72 ; Spring Co. v. Knowlton, ^ Brandham v. Johnson, 62 Ind. 103 U. S. 60 ; Hooker v. De Palos, 2 259. See Parsons v. Sutton, 66 N. Y. C. S. C. R 370. 92. See ante. sees. 80, 81. < Colbert v. Shepherd, 16 S. E. Rep. >* Lancaster, etc. v. Colgate, 12 0. S. 246 (Va., 1892). 844. See ante, sees. 20, 81. * Stouten burg v. Ly brand, 13 0. S. 228. 420 CONTRACTS. [§ 454. true.* If in such a case, however, the defendant denies the contract alleged by plaintiff, both instruments must be sub- mitted to the jury.- Where a contract has been modified and the answer admits non-performance thereunder, evidence can- not be admitted showing an extension of time or a change in the place of performance.^ In an action to recover a debt which a person agreed with a third party to pay, the defend- ant may set up any defense which he could have made as against the contracting party.* In an action upon a specialty by the payee, an answer by the maker setting up want of con- sideration constitutes a good defense.* If a person has not been guilty of negligence he may rescind a contract entered into by reason of a material mistake as soon as discovered.' Sec. 454. Teuder and offer in actions on contracts. — In an action on a contract for the payment of money, the de- fendant may answer that he did tender payment of money due thereon, at any time before the commencement of the action. Or he may, at any time before trial, pay to the clerk the money so tendered, in which case the plaintiff is not en- titled to judgment for more than the amount so tendered.^ A formal tender is not required where it is certain that it will not be received." If a contract calls for the payment of any article or thing other than money, or for the performance of any work or labor, the defendant may answer that he did tender payment or performance of the contract at the time and place provided ; in which case, if the finding be in his favor as to such tender, the plaintiff will not be entitled to recover interest or costs.^ "Where affirmative relief is sought against a usurious contract, either by original or cross peti- tion, a tender of the amount due, exclusive of usury, must be made.^** 1 Simmons v. Green, 35 O. S. 104 ; 257-^5 ; Railway v. Oswald, 18 Kans. Marx V. Gross, 22 N. Y. Supp, 393. 336. 2 Wagener v, Butler, 22 N. Y. 692. sByers v. Chapin, 28 0. S. 300. 3 Ryan v. Rogers, 93 CaL 349; 31 • O. Code, sec. 5137. Pac Rep. 344 (1892). 8 isham v. Greenham, 1 Handy, « Trimble v. Strother, 25 O. S. 378. 357. 5 Louderman v. Judy, 2 O. C. C. ^ O. Code, sec. 5138 ; Huntington v. 251-5 ; Richardson v. Bates, 8 O. S. Ziegler, 2 O. S. 10. w Bank v. Bell, 14 O. & 200. § 455.] CONTRACTS. 421 Sec. 455. Answer that goods were not delivered because of insolvency of vendee after making contract. — Defendant admits that he is doing business in the said city of under the firm name of F. J. D. 6z Co. He admits that on or about , 18 — , he made an agreement to sell plaintiffs a quantity of paper bags. He says that the terms of said sale were that plaintiffs were to deliver to him their negotiable paper for the purchase-price, payable in equal instalments to the order of defendant in thirty, sixty and ninety days from date. He says that he sent a part of said goods, in amount about two car-loads, called for by said agreement of sale, to the depot of the C, C, C. asses to the heir or assignee, who may maintain an action when ousted by paramount title. But if the grantor is not in possession the covenant is broken iKing V. Kerr, 5 O. 156; Wyraan v. Ballard, 12 Mass. 304; 6 Conn. 497; 5 Cowen, 187. 444 DEEDS. [§ 476. as soon as made and does not pass with the land, but becomes a mere chose in action, passing to the personal representative of the first grantee.^ An action on a covenant against incum- brances, broken during the life-time of an ancestor, should be brought in the name of the personal representative and not that of the heir.^ Where a covenant is divisible in its nature, as if the entire interest in separate parts of land passed to different individuals, a right of action accrues to each party.^ An assignee of a reversion to whom the benefits of a lease are assigned may bring an action in his own name for a breach of covenants therein.^ Where a deed made in trust for the benefit of another contains covenants of seizin, warranty, and against incumbrances, which are broken at the time of its execution, the party for whom the conveyance is made may bring an action in his own name, although such covenants did not pass to him by the mere conveyance and have not been assigned." The right of a covenantee, in an action for the recovery of purchase-money, to make any person claiming an adverse interest a party, exists only where there has been a breach of the covenants in the deed.* Sec. 476. Pleading in such actions. — In pleading breaches of a covenant in a deed, or in any action founded thereon, it is not good practice in Ohio to set out a copy of the deed, nor to attach a copy and make it part of the petition by refer- ence. Such a course unnecessarily incumbers the record, and is a gross violation of the provision of the code requiring the statement of the cause of action to be set forth in plain and concise languaije. as well as a violation of the rule as to at- taching copies which has so often been referred to in this work.' But if it is necessary, in setting out the breach, to substantially set forth the covenants, such practice is proper.® 1 Backus V. McCoy, 3 O. 211. 2 Frink v. Bellis, 33 Ind. 135 ; 8. c, Where covenants which run with 5 Am. Rep. 193. the laud are broken after the land 3 St. Clair t. Williams, 7 O. (Pt 2), has been assigned, the assignee can 111. alone bring an action thereon. If, *Masury v. Southworth, 90. S. 840* however, the grantor or assignor is ^ Hall v. Plaiue, 14 O. S. 417. bound to indemnify the assignee ^ Cincinnati v. Brachman, 35 O. S. against such breach, then the as- 289. signor must bring the action. 14 "^ Ante, sees. 57, 58, 152, 296, 847. Johns. 89. See 5 Cow, 137 ; 1 Conn. * Ante, sec. 57 ; Crawford v. Satter- 244; 2 Pa. St. 514. field, 27 O. S. 421; R S., sec. 5086; § 477.] DEEDS. 445 If more desirable, the covenants may be copied into the plead- ing- and their breach assigned generally by negativing the terms thereof.' See. 477. Pleading in actions upon covenants of seizin. — A covenant of seizin covenants that a grantor is possessed of the estate in quantity and quality which he assumes to con- vey.- It is not a contract in which the immediate parties alone are interested, but is intended for the security of all subsequent grantees, and is usually extended to the heirs, as- signee and executors.^ There is almost an equal division of authority upon the question as to when such a covenant is broken.* It is, however, a well-settled rule of property in Ohio that it is not broken until eviction, either actual or con- structive, where the grantor was in actual possession at the time of the conveyance.^ If the grantor be not in possession at the time of the conveyance, then the covenant is personal and is instantly broken, and becomes a chose in action en- titlmg the grantee to maintain an action thereon. A sub- sequent grantee cannot sustain an action thereon, and in case of death of the first grantee, the right of action passes to the personal representative.® It is therefore necessary, in bring- ing an action upon this class of covenants, that the petition aver that the grantor was not in fact seized at the time of the execution of the deed, as a breach is not sufficiently shown by merely negativing the legal seizin of the grantor at the time of making the covenant.' Before the adoption of McCaiupbell v. Vastine, 10 la. 538 ; ' Backus v. McCoy, supra; Great Gvvynae v. Jones, 5 O. C. C. 298. Western Stock Co. v. Saas, 24 O. S. The instrument attached to the 542-9; Robinson v, Neil. 3 O. 525; pleading forms no part of it Larri- Foote v. Burnett, 10 O. 317 : De Vore more v. Wells, 29 O. S. 13. v. Sunderland, 17 O. 52 ; Stambaugh 1 Bacon v. Lincoln, 4 Cush. 210; v. Smith, 33 O. 584; Dickinson v, a a, 50 Am. Dec. 765. Although Desire, 23 Mo. 152 ; Stills v. Hobbs, 2 this rule does not apply to covenants Disn. 571 ; Richard v. Bent, 59 IlL of seizin. See post, sec. 477. See, 38; s. a, 14 Am. Rep. 1. also, ante, sec. 435. e Devorc v. Sunderland, 17 O. 52 ; 2 Backus V. McCoy, 3 O. 211 ; s. C, Vail v. Railroad Co.. 1 C. S. C. R 571. 17 Am. Dec. 585 ; Pecarev. Chouteau. See ante, sec. 475 ; Chapman v. Kim- 13 Mo. 527 ; Greenby v, Wilcocks, 2 ball, 7 Neb. 399 ; Davidson v. Cox, 10 -Johns. 1 ; s. C, 3 Am. Dec. 379. Neb. 150 : Betz v. Bryan, 39 O. S. 322. ' Backus V. McCoy, supra. 7 Stambaugh v. Smith, supra, « 5 Lawson, R & R., sec. 2290. 446 DEEDS. [§ 478. the code it was proper, in an action for a breach of a cove- nant of seizin, to allege the same by simply negativing the words of the covenant ; but as the code made no exception in this respect, it is therefore necessary to set forth the facts constituting the breach in plain and concise language.^ A purchaser in an action for breach of a covenant, caused by want of title, for the recovery of the purchase-money, cannot be compelled to accept a title which his grantor may then have.- Sec. 478. Petition for breach of covenant of seizin. — On the day of , 18 — , plaintiff purchased from the defendant the following premises situate in the county of and state of Ohio, described as follows: [Desc?'iption.'] That plaintiff paid said defendant for said premises the sum of $ , and said defendant executed and delivered to plaintiff his certain warranty-deed executed by said defendant and C D., his wife, on the day of , 18 — , thereby con- veying said premises to this plaintiff in fee-simple. That among the covenants contained in said deed and en- tered into by said defendant was the following : [Copy covenant complained of.'j That at the time of the execution and delivery of said deed by said defendant to this plaintiff said defendant was not pos- sessed of nor was he the owner of a good and sufficient title to said premises above described, but, on the contrary, one E. E. was the true and lawful owner of a title paramount ta that of said defendant, and that by reason of said paramount title so owned by said E. F. this plaintiff was ousted and dis- possessed of said premises by due course of law by the said E. F., and that the covenant so made as hereinbefore stated has been wholly broken by the said defendant. That by reason of the premises and of the facts herein stated and of the breach of covenant by said defendant, plaintiff has sustained damages in the sum of $ , for which sum with interest from he prays judgment against said defendant. Note. — See formal parts in sec. 481. If the covenantor is in possession his covenant of seizin runs with the land. If not, and the title is defective, it does not attach to the land, but is personal and is broken as soon as made^ Backus V. McCoy, 3 O. 211 (1827); Gest v. Kenner, 2 Handy, 87; Betz v. Bryan, 39 O. S. 322. The consideration paid and interest is the rule of dam-^ ages in such a case. Id. It is the well-established law that a covenant of seizin in a deed is not broken, where the grantor is in actual possession of the land under color of title when the deed is executed, and the grantee enters under it, until such grantee is evicted. Betz v. Bryan, 39 O. S, 322; Lane v. Fury. 31 O. S. 574; Devore v. Sunderland, 17 O. 52; Foote v. Bur- nett, 10 O. 317 ; Robinson v. Neil, 3 O. 525; Backus v. McCoy, 3 O. 211. An 1 Woolley v. Newconobe, 58 How. 2 Resser v. Carney, 52 Minn. 397 ; Pr. 480. B. c, 54 N. W. Rep. 89 (1893). §§ 479, 480.] DEEDS. 447 allegation that a defendant is not lawfully seized casts upon him the burden of proof. Blackshire v. Homestead Co.. 89 Iowa, 624; Schofield v. Same, 33 Iowa, 317 ; Barker v. Kuhn, 38 Iowa, 892. See Mecklem v. Blake, 16 Wis. 103 ; s. c, 82 Am. Dec. 707. Necessary costs incurred in defending the title, including reasonable attorneys' fees, may be recovered. Mercantile Trust Co. V. a P. Residence Co., 22 S. W. Rep. 314 (Ky., 1893). If only a technical breach, nominal damages only can be recovered. Nozzlen v. Hunt, 18 Iowa, 212 (1865). Sec. 470. Petition for breach of corenant as to quantity of land. — On the day of , 18 — , said defendant, in considera- tion of the sum of $ then paid by this plaintiff to said defendant, conveyed to the plaintiff the following described lands situate, etc. : {Describe lands.'] That in his deed of con- veyance, executed and delivered to the plaintiff, among other things said defendant covenanted and warranted said [farm] to contain acres of land, a copy of which covenant is as follows : [ Copy coveyiant.'] That said farm contained but acres of land, and the defendant by said deed conveyed to the plaintiff, by said con- veyance, only acres, instead of acres, as by him covenanted and warranted that he did convey ; and that by reason thereof the plaintiff has been deprived of acres of land warranted in said deed, and has sustained damages in the sum of $ , etc. Note.— See ante, sec. 477 ; Maxwell on Code Pldg., p. 87. See, also, form of commencement in sec. 481. Sec. 480. Pleading in actions upon covenants against in- cumbrances. — In an action upon a covenant against incum- brances, it is not necessary to aver and prove eviction, as the same is broken as soon as an incumbrance in fact exists, upon which a right of action immediately accrues to the grantee, at least for nominal damages; and to recover actual damages it must be shown that the legal title to the outstanding estate has been extinguished.^ The action will lie whether the in- cumbrance is first paid or not.^ Incumbrances known to the parties at the time of the conveyance are not presumed to be excluded from the operation of such covenant. So taxes which are a lien fall within a covenant against incumbrances entitling a grantee to an action thereon.^ Where a covenant iStambaiuli v. Smith, 23 O. S. 588; Logan v. Moulder, 33 Am. Dec 38a Stow V. Gilbert, 1 Clev. Rep. 172. See See Stites v. Hobbs, 1 C. S. C. R 571 Foote V. Burnett, 10 O. 317 ; S. C, 36 (1859, Hoadley, J.). Am. Dec. 90; Andrews v. Dawson, ^Nesbitt v. Campbell, 5 Neb. 482, 17 N. H. 413; a C, 43 Am. Dec. 606; 3 Long v. Moller, 5 O. S. 37a 44:8 DEEDS. [§ 481. against incumbrances is broken by reason of a dower interest therein, the phiintiff must allege, in an action thereon, that the same has been assigned according to law.^ An action upon a covenant against incumbrances cannot be brought before a justice of the peace. And where an action has been so com- menced and appealed to the court of common pleas, another cause of action cannot be substituted by an amendment, even though it be within the jurisdiction of such court, unless con- sented to by the defendant, or objections thereto are waived. ^ Sec. 481. Petition by administrator for breach of war- ranty as to incumbrances, where owner has been ousted hy foreclosure, etc. — Plaintiff says that on the day of , 18 — , letters of administration on the estate of E,. M., late of said county, theretofore deceased, intestate, were by the probate court of county, Ohio, duly issued to plaintiff, who thereupon duly qualified and entered on the discharge of his duties as such administrator, and is now the legally appointed and duly qualified administrator of said estate; that heretofore in the life-time of said R. M., and his wife, C. M., to wit, on the day of , 18 — , the defendant J. M., for the consider- ation of $ received by said defendant to his full satisfac- tion of said R, M., by his deed of general warranty of that date, duly executed, sold and conveyed in fee-simple to C. M. during her natural life, with remainder to said R. M., his heirs and assigns, the following described premises situate in said county of , to wit: \^Desori2)tion.'] That said deed contained the following covenants on the part of the defendant, to wit : {Here give substance of cov- enants hrokeii.'] \_0r state: And the said defendant, by his deed, covenanted to and with plaintiff that said title so conveyed was free, clear and unincumbered; and that he, the said defendant, would warrant and defend the same against all claim or claims of all persons whomsoever.] That thereupon the said R. M. and C. M. entered into pos- session of said premises ; that at the time of the making and delivery of said deed the premises above described were not free or clear from all incumbrance, and defendant did not have a good title thereto, but, on the contrary, the defendant before that time, on the day of , 18 — , by deed in the nature of a mortgage duly executed, had mortgaged the said premises to one R. H, and L. H., to secure the payment » Nyce V. Obertz, 17 O. 71 (1848j. 2 Van Dyke v. Rule, 38 W. L. B. 193 ; 49 O. S. 530. See ante, sec. 127. § 481.] DEEDS. 449 of $ , each bearing said date of , 18—, which mort- gage deed was duly recorded in vokime at page of county records. That at the time of the execution and dehvery of said war- ranty deed to said M., as aforesaid, two of said promissory notes for $ each, which were secured by said mortgage, were outstanding and unpaid, with interest thereon, and that B. and C. were the lawful owners and holders of the same. That in a certain foreclosure proceeding, commenced on the day of , 18 — , in the court of common pleas of county, Ohio, in which defendant and said M. were defendants, the said B. and C. set up their aforesaid claim and lien on the said premises by reason of said notes and mortgages, and prayed the court that their mortgage be decreed the first lien on the premises and be foreclosed, and that the said ])remises be sold to satisfy their said claim; that the said court, after full hearing and having complete jurisdiction of the said par- ties, duly decreed that the claim of B. and C. by virtue of said notes was the first lien on said premises, and that the same amounted to dollars, and ordered that said premises be duly advertised and sold to satisfy the same. That there- upon, in pursuance of said order, said premises were duly ad- vertised, and on the day of , 18 — , said premises were sold by the sheriff of said county of to W. H. for dollars, and the proceeds of said sale were applied to satisfy the said claim of B. and C. Plaintiff further says that at the time said foreclosure pro- ceedings were instituted, and for a long time thereafter and ]:)rior thereto, by reason of said lien of B, and C. by virtue of said mortgage, the said R. and C. M. were unable to raise money by means of mortgage or otherwise ^on said lands, and by reason thereof said lands were sold at great sacrifice. And for a further breach the plaintiff alleges that at the time of the execution and delivery of said deed the said prem- ises were subject to a tax theretofore duly assessed, charged as a lien upon the said premises by the said township of and county of , and by the officers thereof, of the sum of $ , and which tax was then remaining due and unpaid. and was at the time of the delivery of said deed a lien and incumbrance by law upon the said premises; that without the knowledge or consent of said K. and C. M. acres of said land were duly sold by the officers of said county to satisfy said unpaid taxes; that said acres were well worth $ . That said C. M. died on the day of , 18—; that said K. ]\I. survived his said wife, C. M., and died on the day of , 18 — , intestate. That by reason of the aforesaid premises, on the day of , 18 — , the said R. M. was altogether evicted, ousted and dispossessed of said premises, and put to great expense 29 450 DEEDS. [§ 482. and trouble, to the damage of plaintiff in the sum of $ , and interest thereon from the day of , 18 — . Wherefore plaintiff prays judgment against defendant for $ and interest thereon from , 18 — , and for costs. Note. — From Marlow v. Thomas, Adm'r, Supreme Court, unreported. No. 1918. See, also, form in Smith v. Dixon, 27 O. S. 471. The rule of dam- ages where there has been an entire eviction is the amount of consideration money, with interest for such a time as will cover a claim for mesne profits. Wade V. Comstock, 11 O. S. 83; Lloyd v. Quimby, 5 O. S. 262 (1855); Clark V. Parr, 14 O. 118 ; Stow v. Gilbert, 2 Clev. Rep. 321. The court is not bound by the amount recited in the deed, but may find the real consideration by parol. Vails v. Railroad Co., 1 C. S. C. R. 571. In some cases, however, the measure will be the amount of the debt and the interest discharged by the foreclosure. Lloyd v. Quimby, supra. Substantial damages may be recov- ered. Comstock V. Son, 154 Mass. 389 ; Mather v. Corliss, 103 Mass. 568. This action is held to lie even if incumbrance is not paid. Nesbitt v. Camp- bell, 5 Neb. 432. Sec. 482. Short form of petition for breach of covenant against incumbrances. — That on the day of , 18 — , said defendant A. B., in consideration of the sum of $ , duly executed, acknowl- edged and delivered to plaintiff a warranty deed, and thereby sold and conveyed to him the following described premises: \_D escribe them]. Said defendant covenanted in said deed that said premises were free and clear from all incumbrances, etc. [copy cove- nant], (a). At the time the said A. B. executed and delivered said deed he did not have a good and sufficient title to said premises described in his said deed and in this petition, nor were the same free from all incumbrances at said time of the execution and delivery of said deed, but ^state what incwnhrances, a7id the amount required to he paid to remove the same] ; the plaint- iff was compelled to remove said incumbrances, and paid A. B. the sum of $ to discharge the same, of all which the defendant was duly notified. That no part thereof has been paid. Plaintiff has therefore sustained damages (J) in the sum of $ , with interest from the day of , 18 — . Note. — (a) A copy of the covenants may be substantially set out. See aide, sec. 476. (b) The measure of damages where the plaintiff has not entirely lost the premises, but has only been compelled to pay off incumbrances, is the amount paid in good faith to remove such incumbrances. J'oote v. Burnet, 10 O. 317-33; Delavergne v. Norris, 7 Johns. 458; Hall v. Dean, 13 Johns. 105; Leffinvvell v. Elliot, 10 Pick. 204; Brooks v. Moody, 20 Pick. 474. Nominal damages, however, can only be recovered until the incumbrance is extinguished. Gest v. Kenner, 2 Handy. 87. "Where there has been a partial eviction, recovery is limited to a proportionate amount of the dam- ages sustained. King v. Kerr, 5 O, 154; Foote v. Burnet, supra; Clark v. Parr, 14 O. 118; McAlpin v. Woodruff, 11 O. S. 129; Johnson v. Nyce, 17 O. 86. There can be no breach on account of a public lii<;liway wlien the premises were conveyed subject thereto. Cincinnati v. Brachmaii, 35 O. S. 289. g§ 483, 484. 1 DEEDS. 451 Sec. 483. Petition for breach of covenant against incum- brances on account of unpaid taxes, and to recover the amount paid. — Plaintiff says that on the day of , 18 — , defendant sold and conveyed to this plaintiff the following described ])remises: ^Description of property P\ That said deed contained the following covenants on the part of the defendant, to wit: \^Give copy or suhstance of cove- nants h7'oJcen.'\ Said premises were not free and clear of all incumbrances thereon, but on the contrary were subject to the taxes for the year 18 — , amounting to the sum of dollars, which were at the time of said deed a valid and subsisting lien thereon. Plaintiff was compelled to and did, on the day of , 18 — , pay to the treasurer of county, Ohio, the said sura of dollars, taxes as aforesaid which were a lien upon the premises. There is therefore due plaintiff from defendant the said sum of dollars with interest from the day of , 18 — , for so much money laid out and expended by plaintiff in the payment of said taxes so charged upon said ])remises for the year 18 — , for which he asks judgment. Note. — See ante, sec. 480 ; Long v. MoUer, 5 O. S. 272. The taxes should be first paid off. Mills v. Saunders, 4 Neb. 190. Sec. 484. Pleading in actions upon covenants of war- ranty. — The obligations of covenants of warranty cannot de- pend upon the knowledge or want of knowledge of parties. If such were the law they would amount to naught. Their purpose is to serve as a safeguard against possible ignorance of title on the part of a vendor.^ It has been held not essential, however, that there be an actual dispossession of the grantee. If a paramount title be asserted in such a way that he must yield to it or purchase the same, such purchase will amount to an eviction; nor is it necessary that such paramount title be established by decree.- Hence it is essential, to maintain 1 Lloyd V Quimby, o O. S. 265-6. son v. Nyce, 17 O. 66; Innis v. Ag- Tiie courts of Ohio have said that the new, 10 O. 386 ; Nice v Obertz. 17 O. rule is universal that there can be no 71; Gest v. Kenner, 2 Handy, 94; right of action upon a covenant of Hill v. Butler, 6 O. S. 207. But the warranty unless there has been an contrary doctrine is maintained by eviction. Tuite v. Miller, 10 O. 382 other courts. 5 Lawson, R & R, sec. (1841); King v. Kerr, ."> O. lo4; Day 2297, and cases cited. V. Brown, 2 O. 345; Great Western -Lane v. Furey, 31 O. S. 574; Betz St.^ck Go. V. Saas, 24 O. S. 542 ; John- v. Bryan, 39 O. S. 323. -t52 DEEDS. [§ 484. an action upon the covenant of general warranty, to aver an eviction under a superior or better title.^ A person injured by a breach of covenant of warranty may maintain an action against each intermediate warrantor, but is entitled to only one satisfaction.^ In an action by the covenantee for a breach of covenant of warranty, where he has been evicted by para- mount title, the facts showing eviction need not be set out, nor is it necessary to particularly describe the adverse title, as at common law it is sufficient to allege in general terms an eviction under a paramount title ; ' as " that the said A. B. had not a good and sufficient title to said tract of land, and b}'^ reason thereof the plaintiffs were ousted and dispossessed of the said premises by due course of law." * In actions for breach of covenant of warranty and for quiet enjoyment, it is not sufficient to merely negative the words of the covenant, as these covenants protect only against an ouster from a pos- session or enjoyment of the premises; and to aver a breach, therefore, an eviction must be substantially averred by title paramount.^ !Nor is it essential to allege that the vendor had notice of the suit by which the vendee was evicted.^ The rule has been adopted in Ohio that there can be no action upon a covenant of general warranty where there has been a failure of title after the transfer, provided the grantor had at the date of his deed a perfect legal and equitable title." A petition alleging " that when said conveyance was made the defendant was not seized of an indivisible title in fee-simple to said land, nor was he seized of any title whatever thereto ; nor had he any right to convey the same ; nor has he since said conveyance become seized of any indivisible title in fee- ilnnis V. Agnew, 1 O. 389; Eobin- Chism, 10 Wheat. 449; Mills v. Rice, son V. Neil, 3 O. 525 (1828). 3 Neb. 76 (1873). 2 King V. KeiT, 5 O. 154 (1831). * Day v. Chism, 10 Wheat. 449. ^Townsend v. Morris, 6 Cow. 123; ^Rawle on Covenants, 181 ; Paul v. Rickert v. Snyder, 9 Wend. 416 : Kel- Whitman, 3 W. & S. 410 ; Blanchard logg V. Piatt, 33 N. J. L. 328 ; Cheney v. Hoxie, 34 Me. 378 ; Wait v. Max- V. Straube, 53 N. W. Rej.. 479 (Neb,, well, 4 Pick. 87; Mills v. Rice, 3Nev. 1893); Maxwell's Code P'dg. 648; 85. Boone's Pldg., sec. 24j. >t is only 6 King v. Kerr. 5 0. 158; 5 Halst. necessary to substantially allege evic- 20. tion by paramount title. Day v. 'Wade v. Comstock, 11 O. S. 71. and cases cited on p. 79. §§ 485, 4S0.J DEEDS. -453 simple to said land, nor of any title thereto," has been held good as against a demurrer.^ In pleading a breach of a cove- nant of warranty the negation of the covenant should relate to the title at the time of the conveyance. The covenants which are claimed to have been broken should be set out in the pleadings.- Sec. 485. Petition by assignee of grantee against grantor on covenant of Avarranty. — On the day of , 18 — , for the consideration of the sura of $ received by said defendant to his full satisfac- tion, by his deed of general warranty of that date dulv ex- ecuted, he sold and conveyed to said Ei^the following desciribed premises, situate in the "^county of and state of , to wit : [Describe them.'] That said deed contained the following covenants on the part of the defendant, to wit: [Copy cove- nants ?[ That said E. went into possession of said premises under said deed, and on or about the day of , 18 — , for a valuable consideration, conveyed the same by deed of general warranty, duly executed, to one G., who went into possession thereof, and on the day of , 18—, conveyed said premises by deed, duly executed, to plaintiff, who now holds said premises under said conveyance. On the day of , 1*8 — , plaintiff was evicted and dispossessed of said premises by virtue of certain proceedings duly instituted in the court by one A. B. \fjive style and nature of case], wherein it was adjudged that the said defend- ant did not have a good and sufficient title to said premises at the time of the conveyance of said premises by him to said E. Plaintiff has therefore sustained damages by reason thereof in the sum of $ . Sec. 480. Petition by devisee of grantee against grantor on covenant of warranty. — On the day of , 18 — , said defendant, in considera- tion of the sum of $ , delivered to E. F. a deed of that date, duly executed, and thereby sold and conveyed to said E. E. tlui following described real estate: [description], which deed contained a covenant as follows: \ijopy or siihstance of covenants. \ That the said E. F. entered into possession of said premises under said deed, and on or about the day of , 18 — , made his last will and testament in writing, properly signed and attested, and thereby devised said premises to the plaint- iff [and U. Z.], and afterwards, without changing said will 1 Reagan v. Fox, 4", Ind. 8 (1873). 2 McCampbell v. Vastine, 10 la. 538. 454 DEEDS. [§§ 487, 488. as to said devisee, on or about the day of , 18 — , died, he at the time having his domicile in county, Ohio. That said will was thereafter duly admitted to probate in the probate court of connty, Ohio. That the plaintiff thereupon entered into possession of said premises under said will, but was ousted and dispossessed thereof by due course of law by one L. X., said defendant not having a good and sufficient title to said premises at the time he executed and delivered said deed to E. F, That the plaintiff has sustained damages by reason of the premises in the sum of S • Sec. 487. Actions upon other covenants. — The cause of action on a covenant for quiet enjoyment accrues to the cov- enantee upon eviction by legal process under a prior mort- gage.^ A covenant for peaceable enjoyment in a ninety-nine year lease is broken by the assignment of dower in the prem- ises, so that an action may be maintained by the lessee against the assignee of the reversion.- Where one has entered into mutual covenants with another, such as a covenant to convey and to pay, the purchaser cannot maintain an action thereon without averring payment or tender of the purchase-money.-^ If payment is to be made at stated periods and the purchaser is placed in possession, a cause of action arises for the sums agreed to be paid as they become due, without a tender by the vendor of a conveyance.^ An action may be maintained on an instrument which, has been executed and recorded ac- cording to statute, if it has been acted upon by the parties in accordance with the terms thereof.'^ In alleging a breach of covenant where the liability depends on the performance of a condition, its performance or a tender must be averred; if there are mutual conditions, the plaintiff must aver readi- ness or an offer to perform.^ Sec. 488. Petition for breach of covenant for quiet en- joyment. — On the day of , IS — , the defendant A. D. and his wife, C. D., in consideration of the sum of $ then paid, 1 Smith V. Dixon, 27 O. S. 471 ; 3 McCoy v. Bixbee, 6 O. 310 (1834) ; White V. Wliitney, 3 Met. 81 ; Tufts Campbell v. Gittings. 19 O. 347 (1850). V. Adams, 8 Pick. 547 ; Furnas v. * Wiggins v. Bridge Co., 1 Disn. Durgan, 119 Mass. 500; Cheney v. 573(1857). Straube, 53 N. W. Rep. 477 (Neb., 5 Bridgeman v. Wells. 13 O. 43. 1892). " Courcier v. Graham, 1 O. 331-343 ; 2 McAlpin V. Woodruff, 1 Disn. 339. 5 John?. 179. § 489.] DEEDS. 455 delivered to the plaintiff a deed for the following described premises, situate in the county of and state of , to wit: [Describe land.] Said deed contained a covenant for quiet enjoyment as follows: [^Copy covenant.'] That plaintiff, upon receiving said conveyance, immediately went into possession of the said premises under and by virtue of said deed, and had only remained in possession thereof until the day of , 18 — , when he was lawfully evicted therefrom by A. B., and is now excluded from the possession and enjoyment of said premises. That plaintiff has therefore, by reason of said lawful evic- tion, whoU}' lost said premises and the improvements and money expended by him thereon while in possession under said conveyance from the defendant, and has therefore sus- tained damages in the sum of $ , for which he asks judg- ment. Note.— See ante, sec, 487. The words "grants, demises and leases," in the absence of other covenants in a lease, imply a general warranty of quiet possession. But where there is a covenant for quiet enjoyment no such general warranty exists. Tooker v. Grotenkempler, 1 C. S. C. R 88 (1870). Sec. 489, Petition by assignee for breach of covenant in lease to insure. — On the day of , 18—, S. A. P. executed and delivered a lease to one F., thereby leasing and demising to said F. certain premises situated in the city of C, county of , and state of Ohio, and described as follows: [Descrip- tion.'] The terms of said lease were such that said premises were leased to said F. for a term of years, beginning on the day of , 18 — , and ending on the day of , 18 — . It was covenanted and agreed in said lease by and between the said S. A. P. and F., parties thereto, that the said F. should keep said leased premises fully insured for the benefit of the said S. A. P., and that if at any time the said F. should fail to keep the same so insured, that the said P. might cause an insurance to be made and ])hiced upon said premises at the expense of said F., and in the name and for the benefit of the said P. It was also further stipulated and agreed in said lease that in case said building upon said premises should burn down during the continuance of said lease, that the said F. should have the benefit of said insurance money for the pur- ])ose of rebuilding said building in case he should elect to rebuild the same. On the day of , 18—, said lease was deposited with the recorder of county, Ohio, and was by him duly re- 456 DEEDS. [§ 490. corded in the record of leases in said county, volume , page On the day of , 18 — , the said S. A P., for a valu- able consideration to him paid by this plaintiflF, duly assigned and sold to plaintiff all his interest in said lease. The said defendant on the day of • , 18 — , went into possession of the said premises under and by virtue of said lease, and on that date a policy of insurance for the sum of dollars was placed upon said premises by the said F., which said in- surance policy expired on the day of , 18 — . That at the time of the expiration of the said policy this plaintiff requested said defendant to reinsure said premises, which he neglected and refused to do. That by reason of the failure of said defendant to fully keep and perform his covenant in this behalf, plaintiff was com- pelled to and did, on the day of , 18 — , expend the sum of $ for the purpose of reinsuring said premises. \_Praye7\'\ Note. — See Masury v. Southwork, 9 O. S. 340. Such a covenant runs with the land. Id. Sec. 490. Petition for breach of covenant of grantee to build. — That on the day of , 18 — -, plaintiff was the owner and in possession of the. following described lands: [describe land], and on the day of , 18 — ■, plaintiff laid out said premises into streets, lots and blocks [as an addition to the city of ], and offered said lots for sale for the purpose of erecting dwelling-houses thereon. That the erection of dwelling-houses on the lots so sold greatl}^ enhanced the value of the remaining lots in said addi- tion belonging to the plaintiff. On the day of , 18 — , in consideration of the sum of $ , plaintiff sold and conveyed to said defendant lot 1, in block 2, in said addi- tion, and the said defendant, as a further inducement and con- sideration for said sale, undertook by his covenant in the deed of conveyance executed b}' the plaintiff to the defendant, to erect thereon a dwelling-house of the following dimensions: [state in ftdl\ to cost not less than % , and have the same finished and complete on or before the day of , 18 — [or copy covenant]. In consideration of said covenant and agreement on the part of said defendant, the plaintiff did on said day sell and convey to said defendant the aforesaid lot for the sum of I , the actual value thereof at that time being the sum of $ , but the defendant has wholly failed to erect said dwell- ing; and, on the contrary, has permitted said lot to remain vacant and unoccupied. I § 491.] DEEDS. 457 Defendant is therefore indebted to the plaintiff for the dif- ference between the prifce paid and the actual value of said lot, to wit, the sum of $ , and also for the damages sus- tained by a breach of said covenant in depreciating the value of the plaintiff's remaining lots in said addition, to wit, $ .. That plaintiff has sustained damages in the sum of $ . Note. — From Thornton's Forms. Sec. 491. Defenses to actions upon covenants generally. An answer of a grantor to an action by a covenantee upon a covenant against incumbrances, claiming that the tleed was made upon a consideration contained in an article* of agree- ment that the covenantee would assume, as part of the consid- eration, the payment of such incumbrances, is a bar to the action.^ Although a covenantee may bring several actions against each successive covenantor, and recover several judg- ments against each,^ a satisfaction against one is a bar to an action against a second covenantor.' A purchaser cannot set up as a defense to an action for purchase-money a breach of covenant in the deed, by reason whereof he had been deprived of his right to maintain and use the projection of a roof and eaves, unless he can show that the ri^ht thereto belono-ed to the grantor, and the burden of proof is upon him.'* A grantor in an action against him for the recovery of purchase-money may recoup for any damages he ma}^ have sustained by reason of failure of title and consequent loss of the premises conveyed.^ An assignment of the expenses of constructing a ditch made by the commissioners of a county in pursuance of law is not an incumbrance upon which recovery may be had for a breach of covenant against incumbrances by a covenantee against a covenantor who became the purchaser thereof after the ditch was established.*^ Greater strictness is required in pleading covenants in deeds than in other actions. If a defendant relies upon some matter of excuse for the non-per- formance of his covenant, or if he desires to excuse himself because of the non-performance of a covenant by the plaintiff, he must specially plead the same.' An answer admitting the ' Reid V. Sycks, 37 O. S. 285. ^ Meek v. Breckenridge, 29 O. S. 2 King V. Kern, 5 O. 155; Foote v. 642 (1876). Burnett, 10 O. 317 ; Wilson v. Taylor, ■'^Gest v. Kenner, 2 Handy, 87. ^ O. 597. 6 Newcomb v. Feidler, 24 O. S. 463. 3 "Wilson V. Taylor, sujjra. ^Courcier v. Graham, 16 O. 345, 346. 458 DEEDS. [§ 492. covenant, setting up an oral contract by which it was agreed that the plaintiff was to pay the incumbrances with a part of the purchase-money retained b}'' him, alleging no fraud or mistake, does not constitute a defense to an action to recover damages for a breach because it does not come within the ex- ception in respect to parol proof of consideration.^ The stat- ute of limitation cannot be made available as a defense under a general demurrer where the petition in an action for breach of covenant of warranty does not show when the cause of action arose.^ Sec. 492. Answer setting up want of title as against note for purchase-money. — [ Caption^ That the note sued on herein was given in consideration of a conveyance by the plaintiff to defendant by a deed of gen- eral warranty [or, in which he covenanted that he was seized and possessed of the real estate therein described by a title in fee-simple], a copy of which covenant is as follows: \_Copy of covenant or suhstance.'\ That plaintiff had not at the date of the execution of said deed nor has he since obtained any title to said real estate or any part of it. That defendant, by reason of the plaintiff's want of title, did not obtain possession of said real estate, and is not now in possession [or, defendant took possession of said real estate, but was, on the day of , 18 — , evicted therefrom by R F., who was the owner in fee-simple and entitled to the possession thereof, and is now in possession]. That there was no other consideration for said note. I Hott V. McDonough, 3 O. C. C. 177. 2 Mills v. Rice, 3 Neb. 76. I CHAPTER 32. DIVORCE AND ALIMONY. Sec. 493. Introductory. Sec. 512. 494. Residence of plaintiff. 495. Petition, where filed. 513. 496. Preparation of petition. 497. Causes for divorce enumer- ated. 514. 498. Causes — Husband or wife 515. living at time of marriage. 516. 499. Petition on ground of prior marriage. 517. 500. Causes — Absence for three years. 518. 501. Petition for wilful absence. 519. 502. Causes — Adultery. 503. Petition on ground of adul- 530. tery. 531. 504. Causes — Impotency. 531a 505. Petition on ground of im- 533. potency. 533. 506. Causes — Extreme cruelty. 534. 507. Petition on ground of ex- treme cruelty. 507a. Petition on ground of ex- 535. treme cruelty and drunk- enness, and for alimony 536. where husband owns real estate. 527. 508. Causes — Fraudulent con- tract. 538. 509. Petition on ground of fraudulent contract. 529. 510. Causes — Any gross neglect of duty. 511. Petition on ground of gross neglect of duty by failing to provide. Causes — Habitual drunk- enness. Causes — Imprisonment in penitentiary. Petition on ground of im- prisonment. Service. Affidavit for service by publication. Effect of foreign divorces. Petition to nullify marriage with imbecile. Petition to annul marriage with minor. The answer. Forms of answers. . Answer and cross-petition. The trial. Custody of minor children. Petition by divorced wife against father for sup- port of child. Allowance of alimony in divorce proceedings. Proceedings for alimony alone. Petition for alimony alone. Allowance of temporary alimony. Petition by divorced wife against divorced hus- band's widow and heirs to enforce payment of de- cree for alimonj' against his real estate, and note. Sec. 403. Introductory.— The law in Ohio on the subject of divorce is largely confined to statutes. There are but few decisions under the various provisions because of the fact that cases cannot be taken bevond the ti'ial court unless involvino" 460 DIVORCE AND ALIMONY. [§ 494. a question of alimony or the custocty of minor children. The law is therefore confined to such cases as were adjudicated before the law was enacted which confined the controversies to trial courts, and to such other cases as may appear in unofficial reports decided by trial courts. A systematic col- lection and treatment of those cases, supplemented by such others as may seem proper, may not be out of place. Many have no doubt been importuned to prosecute a suit upon the theory that all that is necessary is to have a cause, and that both parties are willing, the applicants not knowing that when a case discloses such a state of facts the court will refuse re- lief;^ or if the case appears to be a suspicious one, or there has been collusion, or something is kept back, a divorce will not be granted;- and that it will not ratify an agreament made by parties for a divorce, and will probably censure an attorney who undertakes to palm such an agreement upon the court as adversary.^ Sec. 41)4. Residence of plaiiitift*. — The statute provides * that the plaintifp, except in actions for alimony alone, must be a resident of the state for at least one year before filing the petition. If the wife makes the application for divorce, the fact that the residence of the husband is different from that of the wife does not preclude the latter from tiling her peti- tion in the county where she may reside;* as the rule that the domicile of a wife must be governed by that of her hus- band has no application to a suit by her for divorce, under a statute requiring it to be brought in the county where the in- jured party resides.^ The suit must, however, be brought where she actually resides.'^ Where the conduct of the hus- band has been such that the wife has been compelled to leave him, sufficient to give rise to a cause for divorce, she may do so and select a separate domicile, and in such case her domi- cile is not that of her husband.^ 1 Smith, W. 643, 644; Latham, 30 6 Cox, 19 O. S. 502; Hunt, 72 N. Y. Gratt. 43. 317; Colvin v. Reed, 55 Pa. St 375. 2 Wolf, W. 243 ; Friend, W. 639. '>U.; Smith, 11 Pa. Co. Ct. Rep. .3 Smith, W. 643 ; Blank v. Nohl, 113 465 ; Hewes, 16 N. Y. Supp. 119. Cf. Mo. 159 (1892); Stoutenburg v. Ly- Loker v. Gerald, 31 N. E. Rep. 709 brand, 13 O. S. 228 ; Cross, 58 N. H. 373. (Mass., 1892) ; Wood, 54 Ark. 172 ; 15 4 O. Code, sec. 5690. S. W. Rep. 459. 6 O. Code, sec. 5691. 8 Smith, 43 La. Ann. 1140 ; Thomp- son, 11 L. R. A. 443, and note; S. C, §§ 495— i'J i .] DIVORCE AND ALIMONV. 461 Sec. 495. Petition, where filed. — An action for divorce and alimony must be brought in the county where the plaintiff has a honafide residence at the time the same is instituted, or in the county where it arose ; and the court is required to hear and determine the same whether the marriage took place, or the cause of divorce occurred, within or without the state.^ Sec. 4%. Preparation of petition. — The petition must al- lege that the plaintiff is an actual resident of the county where suit is brought; that plamtiff had a honafide residence in the state at least one year before the application; the time and place of marriage; the names and ages of the children, if any; a brief statement of the cause or grounds for divorce; and if adultery be the cause, the time and place of the offense, and the person with whom committed, if known, and if unknown, the reason for the omission should be given.'- If alimony be sought, the petition should set out, as near as may be, the kind and amount of personal property, and a de- scription of the real estate of defendant.^ Unlike the rule in other cases, it is not necessary that the pleadings in divorce proceedings be verified,* but they may be amended as other pleadings, in which case new service should be made; waiver of counsel cannot be received in lieu of service in an}^ case.* If an injunction is prayed for, however, it would be proper to verify the petition positively, to comply with the rule as to obtaining an injunction, as the latter rule cannot be dis- pensed with. It is not necessary to aver that the offense has been condoned, as that is matter of defense.* It should be alleged, however, that the parties are no longer living to- gether. Sec. 497. Causes for divorce enumerated. — The statute^ provides that courts of common pleas may grant divorces for the following causes: 1. That either party had a husband or 8 So. Rep. 419 ; Watkins, 125 Ind. < r. g.^ gee. 5697. 163. 5 Stewart's M. & D., sec. 224 ; Smith, 1 0. Code, sec. 5960 ; Woods, 44 W. 643. O. S. 455, 456. 6 Young, 18 Minn. f'O. Cf. Roe, 14 2 Bird, W. 98 ; Dunlap, W. 210 ; Hun, 612 ; Smith, 4 Paige, 432. Mansfield, W. 284 ; Richards, W. 302. 7 Burnes, 60 Ind. 259. 3 Lattier, 5 O. 538 ; Randall, 31 « O. Code, sec. 5689. Mich. 194; Germond, 6 Johns. Ch. 347 ; Boone's Pldg., sec. 141. 4:02 DIVOKCE AND ALIMONY. [§§ 498-500. wife living at the time of the marriage from which the divorce is sought. 2. Wilfal absence of either party from the other for three years. 3. Adultery. 4. Irapotency. 5. Extreme cruelty. 6. Fraudulent contract. 7. Any gross neglect of duty. 8. Habitual drunkenness for three years. 9. The im- prisonment of either party in a penitentiary under sentence thereto; but the petition for divorce under this clause shall be filed during the imprisonment of the adverse party. Sec. 498. Causes — Husband or wife living at time of marriage. — Divorce may be granted if either had a husband or wife living at the time of marriage from which the divorce is sought.^ The court raa^r, in cases where the divorce is sought upon this ground, in its discretion admit proof of co- habitation and reputation as evidence of the marriage of the parties;* and alimony may also be decreed to the petitioner.' Sec. 499. Petition on ground of prior marriage. — Plaintiff is a bona fide resident of county, Ohio, and has been a permanent resident of the state of Ohio for the year last past. On the day , 18 — , at C, in the county of , Ohio, she was married to the defendant, and that the follow- ing named children were born as the issue of such marriage, whose names and ages are as follows {give names and ages], [or, to which marriage there have been no children born.]* At the time of the marriage of plaintiff to said defendant, the said defendant had a wife then living, to whom he had theretofore been married on or about [j/ive date if known], at . Plaintiff therefore asks that she may be divorced from said defendant, and for such other relief as is proper. Sec. 500. Causes — Absence for three years. — A divorce will be granted where either party has been wilfully absent for three years.^ It is wilful absence sufficient to authorize the granting of a divorce where a wife leaves her husband shortly after marriage, declaring that she will not be confined to one man, and continues absent for three years ; ^ or where the husband has left the wife with the children for more than three years without contributing to their support;^ or where a husband sends his wife to see her brother under the false 1 0. Code, sec. 5689. < O. Code, sec. 5689. 2 Houpt, 5 O. 539. 5 Milliner, W. 138. 3 Vanvaley, 19 O. S. 588. 3 White, W. 138. § 50U.] DIVORCE AND ALIMONY. 463 pretense that he is sick, and, availing himself of her absence, leaves the country, and continues absent for three years;' or where the husband sends his wife to her friends and leaves the country without any known cause, remaining absent for more than three years ;2 or where a husband leaves his wife and continues drunk about the streets for three years ;^ or where the wife leaves the husband after a quarrel and continues ab- sent for more than three years, refusing to return;* or where the husband converts his effects into money, leaves his wife and departs for a foreign country, where he remains for three years ;^ or where the husband leaves his wife without any known cause, remaining away for more than three years ;^ or where the husband is lazy, loitering about, neglecting to pro- vide for his family for more than three years ; ^ or where par- ties have been married to avoid the consequence of bastardy proceedings, and the husband refuses to live with the wife for more than three years.^ Fear on the part of the wife of hav- ing too many children is not cause for leaving her husband, and her absence will be considered wilful,^ It is not wilful absence for a man to frequently leave his family poorly pro- vided, but returning; and if the wife afterwards goes to her friends and the husband removes to another country, re- maining there two or three years, the time is too uncertain to constitute wilful absence for three years.'" But where a man leaves his wife with a scanty supply and goes off for months to labor, and upon his return finds his wife has gone to her friends with her furniture, it does not constitute wilful ab- sence without proof that he went after her, desired her to re- turn or informed her that he had returned." A man will not be divorced for the absence of his wife among her friends, where the husband used undue means to coerce her, she beins: a child of fourteen, against her declaration that she does not love him, without his having made decided efforts to win her affections 1 Gossan. AV. 147. 7 Amsden, W. 66. 2 St John, W, 211. 8 McQuaid, W. 223. 3 Clark, W. 235. 9 Leavitt, W. 719. See post, sec. 4 Thompson, W. 470. 508, and note 8. 5 Guembell, W. 226. lo Johnston. W. 454 6 Roberts, W. 149 ; Wyatt, W. 149. " Frarell, W. 455. 4<)-l: DIVORCE AND ALIMONY. [§ 501. and to induce her to live with him.^ Where the wilful absence relied upon was a leaving at the request of the petitioner or with funds furnished her, it will not avail her as a ground of divorce;- and wilful absence will not be presumed against cir- cumstances tending to show the separation by the procure- ment of the party alleging it.' The wilful absence must be full three years, and it will be computed from the time he de- termines to continue away, although he may have been absent longer, but intended to return when leaving.* An agreement between man and wife to divide their effects and their subse- quent separation cannot lay the foundation for a divorce for wilful absence.* If a wife refuse to support a drunken hus- band or longer cohabit with him, in consequence of which he leaves her, the absence is not wilful on his part to entitle her to a divorce for that cause.^ If the husband, having left his wife two months, returns and makes efforts to live with her, which have failed from any cause, he cannot be regarded as wilfully absent from her;'^ or where the absence is under an agreement of separation, or there is collusion or condo- nation, there can be no decree of divorce.^ Where the evi- dence tends to create suspicion that the parties separated without good reasons and were anxious to be divorced, the court w^iil be slow to grant the divorce.^ Mere separation does not give a cause of divorce; and absence to be a cause must be wilful, and is not inferred from the fact of separation.^** Sec. 501. Petition for wilful absence. — [Averments as in ante, sec. ^PP.*] Plaintiff further says that the said defendant has been wil- fully absent from plaintiff for more than three years last past, and wholly disregarded all marital duties. [Prayer, etc.'] Note. — Want of affection between husband and wife is no defense to an action by the husband for divorce on the j^round of desertion. Taylor v. Taylor, 45 N. W. Eep. 307 ; Lane v. Lane, 67 la. 76. 1 Bigelow, W. 416. 8 Mansfield, W. 284 ; McDwire, W. 2 Barnes, W. 475. 354. 3 Scott, W. 469. 9 Wolf, W. 243, as it will not grant 4 Reed, W. 234. a divorce by consent. Smith, W. 643. 5 Van Vorhees, W. 636. lo Ferree, 7 W. L. B. 302 ; Thomp- 6 Helser, W. 210. son, 1 S. & T. 231. 7 Friend, W. 639. §§ 502-504.] DIVORCE AND ALIMONY. 465 Sec. 502. Causes — Adultery. — As heretofore stated,^ when divorce is sought upon this ground, the petition must set forth the name of the person with whom adultery was committed, and if not known the want of knowledge must be averred, and a reason given for the omission. It must also be charged to have been committed at a particular place.^ An allegation that adultery was committed " with a certain woman " is un- certain and not therefore a compliance with the statute.' A decree will be granted for a single act of adultery,* and it may be inferred from the fact that a man passed the night alone in a room with a woman.* One who has himself committed adultery cannot procure a divorce;* nor can a man who has been divorced from a woman whom he had seduced while the wife of another, and whom he has abandoned, because she has committed adultery after such desertion." Evidence of the com mission of bigamy in another state is not proof of adultery.* Sec. 503. Petition on ground of adultery. — [Averments as in sec. 4^9.'^] That since said marriage was contracted, and on or about the day of , 18 — , the defendant [at the of , in the state of ] committed adultery with one I. M. [Or, That on or about the day of , 18 — {or, some time in the month of , in the year 18 — ), the defendant committed adultery with one F. P. at the hotel, in the of , in the state of , and that the defendant, at various other times in the year 18 — , committed adultery with various other (women) whose names are unknown to the plaintiff, at certain other places in the city of .] Note. — Coats: A court cannot require a petitioner who is entitled to a decree to pay the costs as a condition preceflent to the entry of the same. State V. Bates, 5 O. C. C. 18 ; Heffer v. Scranton, 27 O. S. 579. Sec. 504. Causes — Ini potency. — Divorces granted on the ground of the irapotency of one of the parties are rare and no new cases can therefore be added.® The mere fact that a ^ Ante, spc. 496; Dunlap. W. 210; tions have sometimes been held suffi- Richards, W. 302; Freeman. 31 Wis. cient Maxwell's Pldg., 178-9. 235. 4 Wilson, W. 128. ii Smith, W. 643; Miller, 20 N. J. » Fenger, 7 W. L. B. 304. Eq. 216-17; Caldwell, 12 Hun, 92. 6 Maddox. 2 O. 233. 3 Map.sfieUl, W. 284 ; Van Vorhees, ^ Mayer, 2 W. L. B. 47. W. 636. Although general allega- « Wilson, W., 128. 'J Keith. W. 518. 30 4G6 DIVOKCE AND ALIMONY. [§§ 505, 506. woman is sterile does not constitute impotencv.' The petition in this case must specifically state that the impotency existed at the time of the marriage,^ that it was unknown to the plaintiff,' and that it still exists and is incurable.* A voluntary separation between husband and wife will not operate as a bar to a divorce upon this ground.^ Sec. 505. Petition on gronnd of impotency. — [At^erments as in sec. J^OO."^] That at the time of entering into the marriage with said defendant plaintiff believed her to be a woman capable of entering into the marriage state, and of performing all the duties and relations of a wife. That he took her to his residence [or, that she took up her residence with him], and for the space of six months endeav- ored to cohabit with her as his wife, until he ascertained, both from his own knowledge and from her own admissions and confessions, that she was and ever had been physically inca- pable of cohabitation or sexual intercourse, or of entering into the marriage state, by reason of [here state natm^e of incapacity]. And jihiintiff alleges, upon information and belief, that the said defendant was, at the time of such marriage, physically incapable of entering into the marriage state, and that such incapacity still continues and is incurable.] [Oi\ That the defendant was wholly impotent at the time of said marriage of the plaintiff to her, and still continues to be so.] Sec. 506, Causes — Extreme cruelty. — At one time it was considered that some physical violence was essential to constitute cruelty.^ But the modern doctrine, adopted in the interest of society, does not confine the term to such narrow limits. A general definition of legal cruelty cannot be form- ulated, as it always depends upon the character, habits and disposition of the parties,^ and must be left to the sound dis- cretion of the courts.^ But it is generally conceded that such unjustifiable conduct as will wound the feelings, endanger the health, destroy the peace of mind, and utterly destroy the iDevanbaugh, 5 Paige, 556. Kempf, 34 Mo. 211-13; Bascomb, 25 2 Powell, 18 Kan. 371 ; J. G. v. H. N. H. 267 ; Morrell, 17 Hun, 324 G., 33 Md. 401 ; Bascomb, 25 N. H. » J. G. v. H. G., 38 Md. 401. 267. 6 Conn, W. 563. 3 Gulick, 41 N. J. L. 13 ; J. G. v. H. ^ Kennedy, 73 N. Y. 869 ; Carpenter, G., 33 Md. 401. 10 W. L. B. 409 ; s. C, 80 Kan. 718. * Slagg V. Edgecomb, 3 S. & T. 240 ; « Duhme, 3 W. L. G. 186. II § 507. J DIVORCE AND ALIMONY. 467 very objects of matrimony, constitute cruelty.' Withholding medical assistance when able to furnish it; 2 profane, obscene and insulting language habitually indulged in towards a per- son of sensitive nature and refined feeling,^ or charges made of want of chastity,* or subjection to excessive sexual inter- course,^ constitute extreme cruelty. But mere words will not necessarily constitute cruelty.^ Eefusal of the husband to have sexual intercourse with the wife is not "cruel and inhu- man treatment" authorizing a divorce.^ If parties cohabit after the commission of acts of cruelty, the same are con- doned and cannot be relied upon as a ground for divorce.' A divorce will sometimes be granted for one act of cruelty if of an aggravated and outrageous character, or an outgrowth of a continued and systematic course of oppression.^ In pleading cruelty the specific acts must be clearly set forth,'" and a de- cree cannot be had upon proof of personal violence not stated in the petition." Cruelty may be set up by way of recrimina- tion as a defense.'- Sec. 507. Petition on ground of extreme cruelty.— [Ave)wients as in a?ite, sec. 4-99.^] That the defendant has been guilty of extreme cruelty against this plaintiff in this, to wit: [State fads.] \_Prayer.'\ Note.— The acts of cruelty must be set forth in detail. Alimony: If the^wife has means of her own no alimony will be allowed. Methven, 60 Am. Dec. 664; Kenemer, 26 Ind. 330; Westerfield, 36 N. J. hq 19a ; Correy, «1 Ind. 469. It should appear in the petition that the wite has no separate property of her own. Ross. 47 Mich, 185. 1 Duhme, 3 W. L. G. 186; Carpen- Kelvin, 58 N. H. 569. ter, 10 W. L. B. 409; Green, 15 W. L. 6 Hansel, W. 212. B. 113; Kennedy, 73 N. Y. 369; ^Schoessow, 83 Wis. 553; Fritz, Gibbs, 18 Kan. 419; Bennett, 24 138 111. 436 ; 14 L. R A. 685 and note! Mich. 482. 8 Questel, W. 491. 2 Evans, 1 Hag. Con. 35 ; Dysert, 1 9 Hummel, 1 AV. L. B. 153 ; Poor, liobt. 106 ; 1 Bisliop on M. & D. 735, 8 N. H. 307 ; Beyer, 50 Wis. 254 ; Ma- 3 Bennett, 24 Mich. 482 ; Briggs, 20 son, 131 Pa. St. 161. Mich. 34; Green, 15 W. L. B. 113; "> Conn, W. 563; Walton, 20 How. Beebe, 10 la 133 : Beyer, 50 Wis. 254 ; Pr. 347 ; Young, 18 Minn. 90. Powelson, 52 Cal. 358 ; Whitmore, 49 u Bennett, 24 Mich. 482. ^^'^'^•417- 1-' Church, 16 R. I. 667; 7L.RA. 4 Green, 15 W. L. B. 113; Beebe, 385; 19 Atl. Rep. 344 (1890). 10 la. 133; Palmer, 45 Mich. 150. 468 DIVORCE AND ALIMONY. [§ 507a. Sec. 507a. Petition on ground of extreme cruelty and drunkenness, and for alimony where husband owns real estate.— The plaintiflp, M. G., says that she is a bona fide resident of the county of H. and state of Ohio, and has been a permanent resident of the county and state aforesaid for several years last past [or, one year last past] ; that on or about the day of , 18 — , at , she was married to the defendant [and that ever since said marriage she has conducted herself toward the said defendant, R. G., as a faithful and obedient wife]. Plaintiff says there are no children as the issue of said marriage [or, the issue of which marriage being the following children], 1. On the day of , 18 — , the said defendant [without any just cause or justification whatever so far as this plaintiff is concerned] was guilty of extreme cruelty toward her by striking her with his fist and otherwise beating and mal- treating her in a shameful manner. And plaintiff further alleges and says that said defendant has on divers and sundry times prior to the day of , 18 — , been guilty of ex- treme acts of cruelty towards her by striking, beating and threatening to kill her; and that said defendant has on va- rious occasions within the last three years, and prior to the last alleged act of cruelty herein mentioned, driven her from the house at night-time, when she would be compelled to re- main awa}^ for hours at a time. 2. Second cause of action. [Formal averments], and says the said defendant has been guilty of habitual drunkenness for more than three years last past. Plaintiff further states that, in addition to a store and a large amount of stock therein and other personal property, the said defendant is the owner of the following described real estate, to wit : [Description of realty.'] Plaintiff further says that she has not cohabited with the said defendant for more than one year last past. Wherefore plaintiff prays the court that upon the hearing of this cause she be divorced from said defendant; that rea- sonable alimony be allowed her out of the property of said defendant ; that she be restored to her maiden name, M. T., and for such other and further relief as in equity she may be entitled to. Prayer for custody of children and alimony: Wherefore the plaintiff prays judgment divorcing the said plaintiff and defendant and dissolving the said marriage, and that the plaintiff may be awarded the custody of said chil- dren [and that the court may require the defendant to provide suitably for the education and maintenance of the said chil- § 508.] DIVORCE AND ALIMOXY. 469 dren, and for the support of the plaintiff, and that she may have temporary alimony and the costs of this action]. Sec. 508. Causes — Fraudulent contract. — It is a fraud for a pregnant woman to represent herself virtuous to induce marriage, and to take means to prevent discovery of her con- dition, and divorce will be granted under such circumstances.^ But merely representing herself chaste when in fact she was not is not such fraud a^ will warrant a divorce.^. Represen- tations as to respectability, connections in society, wealth, or matters of this kind, are not such frauds as will warrant a de- cree for divorce.^ In the interest of society it has been con- sidered that want of chastity, even though representations to the contrary are made by a woman, does not fall within the ground mentioned in the statute as fraudulent contracts.* But where the woman is pregnant it is quite different.* A somewhat peculiar case is found where the husband or man goes through the marriage ceremony without any intention of living with the woman, but only to escape bastardy pro- ceedings. The court calls it an unconsummated marriage, voidable at the election of the wife, annuls it and grants an absolute divorce.^ 1 Morris, W. 630. 2 Meyer, 4 W. L. B. 368-70. 3 Meyer, 4 W. L. B. 368 ; Reynolds, 3 Allen, 605; Clarke, 11 Abbott's Pr. 228; Carris, 24 N. J. Eq. 516; Wier, 31 Iowa, 110. 4 Allen's Appeal, 99 Pa. St. 196. There is no implied warranty of chas- tity. Varney, 52 Wis. 120, 130; s. C, 38 Am. Rep. 726. ^ Long, 77 N. C. 304 ; s. C, 24 Am. Rep. 449; Reynolds, 3 Allen, 605; Baker, 13 Cal. 87; Morris, W. 630; Carris, 24 N. J. Eq. 516. 6 Miller v. Miller, 31 W. L. B. 141 (Scioto, Ohio, Common Pleas). If it is an unconsummated marriage, and hence voidable, how can the court grant a divorce? The court, how- ever, in the syllabus, states that the marriage is annulled, and an absolute divorce {jranted. From tiie opinion, the question of fraudulent contract seems to enter into the case very largely, and perhaps was the ground for divorce, if it was a petition for a divorce. This is not disclosed. If it was a void marriage, the petition should have been based upon that ground. It may have been. The court follows the doctrine laid down by Mr. Bishop : The absence of inten- tion to marry, it not having been afterward consummated, would ren- der it (the marriage contract) void. 1 Bishop's M. & D., sec. 178. The precedent is an important one. It is a novel way of being relieved from such unfortunate contracts, but the mode of relief is not clearly pointed out If the marriage is void, it may be annulled ; but a divorce cannot be granted if there is no cause for it. See ante, sec. 500, p. 463. 470 DIVORCE. AND ALIMONY. [§§ 509, 510. Sec. 509. Petition on ground of fraudulent contract. — [Ave?'Jnents as iii sec. 1(39. *'\ Plaintiff alleges that said defendant, for the purpose of in- ducing and persuading this plaintiff to enter into said mar- riage, falsely and fraudulently represented herself to be a virtu- ous and chaste woman, when in truth and in fact she was not, but was then pregnant by some man other than this plaintiff. Plaintiff, relying upon the representations so made by said defendant, and believing the same to be true, entered into said marriage, which he would not have done had not said false representations been made to him. That immediately upon discovering that said representations were false, to wit, on or about the day of , 18 — , he ceased to live and cohabit with said defendant, and has ever since remained away from her. \_0r\ That the consent of the said plaintiff to said marriage was obtained by fraud, the defendant, for the purpose of ob- taining said consent, having fraudulently represented to the plaintiff, prior to said marriage, that [here state facts constitut- ing the fraudulent representations']., which representations the plaintiff believed to be true, and was induced thereby to con- sent to said marriage, and entered into said marriage rel3nng upon such representations, which representations plaintiff, after said marriage, discovered to be wholly untrue.] Note. — A fraudulent marriage cannot be annulled by the one commit- ting the fraud. Tomppert, 26 Am. Rep. 197; Frolet, 14 Am. Dec. 563. A marriage is not void if there is illicit intercourse before marriage. Crehore, 97 Mass. 330 ; s. C, 93 Am. Dec. 98. Sec. 510. Causes — Any gross neglect of duty. — The de- termination of what is gross neglect of duty, as in the case of cruelty, must be left largely to the discretion of the court, to be governed by the peculiar circumstances of the case. The expression is so indefinite that it is difficult to formulate any general rule by which every case can be determined to fall within its limits.^ The statute in Ohio is silent as to how long the neglect shall continue, and the trial courts of the state in some earlier cases were inclined to take the view that it partook of the nature of cruelty and wilful absence, so as to require endurance for three years.^ But this is not now the practice, and a decree will be made for neglect for a less time, as circumstances may require. Whatever uncertainty may attend the definition of gross neglect of duty, it is certain that it does not consist in the husband's merely ab- 1 Smith, 22 Kan. 699. 2Ziegler, 1 W. L. B. 163; Nail, 3 W. L. M. 328. §§ 511, 51 2. J DIVORCE AND AilMONY. 471 senting himself from his wife ; neither is it gross neglect of duty to merely fail to pi^ovide, at least for a short period of time, unless attended by aggravating circumstances. It must at any rate continue, not three years, but some length of time, to be left to the discretion of the court.^ Any gross neglect of duty for a short time attended by aggravating cir- cumstances will warrant a decree;^ as where a man is in- toxicated most of the time and fails to give sufficient sup- port.^ In pleading gross neglect of duty it is not proper to merely use the language of the statute, but the specific acts which it is claimed constitute the neglect must be stated.* Sec. 511. Petition on ground of gross neglect of duty by failing to provide. — Plaintiff says that she has beeh a resident of the state of Ohio for a year last past, and has a honafide residence in the county of , in the state of Ohio. On the day of , 18 — , at , county, Ohio, she was married to the defendant, the issue of which mar- riage were the following named children : [naining them.'] The defendant for more than three years last past has been guilty of gross neglect of duty towards plaintiff in that, by reason of his idleness and dissipation, he has wilfully failed and neglected to provide this plaintiff and their said children with food and clothing and the common necessaries of life, so that she has been compelled to live by her own exertions and labor, and on the assistance and charity rendered by her rela- tives, although he was fully able to properly support her and their said children. \_Prai/er.'j Sec. 512. Causes — HaMtual drunkenness. — To constitute an habitual drunkard within the meaning of the statute, a man must have the habit, and indulge the same so frequently as to become excessive, and to interfere with his business and render marriage intolerable.* The allegations upon this ground may be made in the language of the statute, without stating 1 Nichols, 8 AV. L. B. 88 (Ham. Co. ^ziegler, 1 W. L. B. 1G3. C. P., 1882); Stevens. 8 R. I. 557, 560; * Burner, 1 W. L. B. 164; Dunbar, Holland, 8 W. L. B. 86; Tiberghein, 1 Clev. Rep. 14. 8 W. L. B. 89; Smith, 22 Kan. 699; 5 Stewart's M. & D., sec. 276; Ma- Peabody, 104 Mass. 195; Ferree, 7 W. lone, 19 Cal. 626. See Reynolds, 44 L. B. 302. Minn. 132. -' Holland,.8 W. L. B. 86 ; Smith, 22 Kan. 699. 472 DIVORCE AND ALIMONY. [§§ 513-515. any particular facts.* It may simply state that the "defend- ant has been guilty of habitual drunkenness for three years last past." Sec. 513. Causes — Imprisonment in penitentiary. — It is not necessary that the imprisonment be for any particular length of time. It is said that the conviction must be finaU But the petition for divorce shall be filed during the impris- onment of the adverse party.^ Sec. 514:. Petition on gronnd of imprisonment. — [Averments as in see. 4^9."] Plaintiff saj^s that on the day of , 18 — , the de- fendant vs^as convicted of the crime of by the court of common pleas of county, Ohio, and by said court sen- tenced to confinement in the penitentiary of said state for the term of years, which said judgment and sentence is in full force and not reversed, and said defendant is now con- fined as a prisoner in the penitentiary of said state for said crime. Sec. 515. Service. — If the defendant be a resident of the state, summons, with a copy of the petition, shall be served by the sheriff of the county in which he or she resides at least six weeks before the cause is heard.* If the defendant is a non-resident or his residence is unknown, service must be made by publication as in other cases.^ If the residence is known to the plaintiff, a copy of the summons and of the peti- tion shall be mailed to the defendant. This requirement can only be dispensed with by filing an affidavit that the residence of the defendant is unknown and cannot with reasonable dili- gence be ascertained.^ The publication of the notice may be made immediately upon the filing of the petition and affidavit without any order of court for that purpose. It would be much better to present the affidavit to the court, and have an order made upon the journal authorizing service by publication. Personal service may be made by an officer outside of the state.' Service need not be made upon the filing of a cross petition by the defendant.^ 1 Burns, 13 Fla. 369 ; Golding, 6 « O. Code, sec. 5693, Mo. App. 603 ; 3 Bishop, M. & D., sec. 6 O. Code, sees. 5693, 5048. 6846. 6 0. Code, sec. 5693. 2 Vinsant, 49 la, 639. See Cone, 58 7 Holland, 39 W. L. B. 98. N. H. 153. 8 Young, 9 W. Lu B. 34 3 O. Code. sec. 5689. §§ 5 16-51 S.J DIVOKCE AND ALIMONY. 473 Sec. 516. Affidavit for service by publication. — M. C, the plaintiff in the above-entitled action, being first duly sworn, says that this action is brought against the de- fendant J. C. in this court for divorce, according to the statute in such case made and provided ; that the residence of the said defendant is to this plaintiff unknown, and that she has been unable by the exercise of reasonable diligence to ascertain the same; for that reason service of summons and a copy of the petition cannot be made in this state, nor is the said plaintiff able to mail a copy thereof to said defendant's place of resi- dence. Note. — See form of legal notice in 1 Bates' Pldg., p. 423. Sec. 517. Effect of foreign divorce. — It is settled law, sup- ported by numerous authorities, that a decree of divorce granted in a state in which neither of the parties was domi- ciled is beyond the limits of such state and a nullity.* The question of the jurisdiction of the court is always open to in- quiry, and a decree rendered without jurisdiction must nec- essarily be void.2 The one domiciled in the state may ask for divorce and alimony notwithstanding the fact that the other has procured a divorce in another state.* And in Ohio, where the wife has procured a divorce in another state, she may be allowed to return to the former state and file her petition for alimony and subject property of her husband to payment of the same.* A divorce granted by the courts of another state without personal service when onl}'' the plaintiff is a resident of that state will not affect the property rights of the defend- ant.* Sec. 518. Petition to nullify marriage with imbecile. — The plaintiff, F. M. M., guardian of D. H., alleges the fol- lowing facts, viz.: Said D. H. is an imbecile ])erson, and has been an imbecile and feeble-minded from his birth, and is and has been wholly incapable to transact business or to make contracts for any purpose by reason of his imbecility and want of capacity to consent thereto. 1 Van Fossen v. State, 37 O. S. 320; 2 Thompson v. Whitman, 18 Wall. Watkin8,1251nd. 163, and cases cited; 467; Van Fossen v. State, 37 O. S. Sewell, 122 Mass. 156; Cox, 19 O. S. 320, and cases cited. 502 ; Hoffmar, 46 N. Y. 30 ; Hood v. 3 Cox, 19 O. S. 502. State, 56 Ind. 263 ; People v. Dowell, * Woods v. Waddle, 44 O. S. 449. 25 Mich. 247 ; Litowich, 19 Kau. 451 ; » Doerr v. Foisythe, 31 W. L. B. 43; Woods V. Waddle, 44 O. S. 449; 16 50 O. S. 726; Mansfield v. Mclntyre, W. K B. 357 ; 15 W. L. B. 232 ; 13 W. 10 O. 27; McGill v. Deming, 44 O. S. L. B. 4. 645. 4:74 DIVORCE AND ALIMONY. [§ 519. PlaintifiF says that his said ward is the owner of certain lands situate in county, Ohio, and particularly described as follows: [^Oive description.'] Said plaintiff further avers that his ward is in possession of a personal estate of dollars in addition to the said real estate. Plaintiff further avers that said ward has been under guard- ianship since he became possessed of said real and personal estate, and that on the day of , 18 — , this plaintiff was duly appointed by the probate court of county, Ohio, guardian of the person and estate of said imbecile, and thereupon duly qualified, and is now the duly acting and qualified guardian of the person and estate of said imbecile, as is fully shown by the records of the probate court of county, Ohio. Plaintiff says that heretofore, to wit, on the day of 18 — , without his knowledge and consent, and in fraud of the rights of said imbecile ward, he, the said imbecile, was taken to the state of , away from his residence in this state, and not the residence of the defendant, and a pretended marriage was then attempted to be solemnized, whereby said imbecile should become the husband of the defendant, T. R. That said pretended marriage was brought about wholly by a fraudulent conspiracy on the part of the defendant and other persons unknown to this plaintiff, with the intention and for the purpose, as the plaintiff believes and charges, of securing some interest in or support from said imbecile's estate. Plaintiff says that said imbecile was and is wholly and en- tirely incapable of contracting marriage, and that he had no capacity to consent thereto. That said pretended marriage is an absolute nullity, and should, for the protection of the es- tate of said imbecile, and of social order and public decency, be so declared by the court. Plaintiff therefore prays that said pretended marriage be declared a nullity, absolutely void and of no effect, and that said defendant, T. P., be forever restrained from asserting any interest in or deriving any support from the estate of said imbecile, and for other relief to which he may be entitled. Note. — From Reynolds v. Moore, Supreme Court, unreported, No. 1942. A marriaf^e with one affected with congenital imbecility of mind so as to render him incapable of consent is void. Waymore v. Jctmore, 22 O. S. 271 ; Wightman, 4 Johns. Ch. 343; Crump v. Morgan. 3 Ired. Eq. 9. The guard- ian of such person may maintain an action to declare such pretended mar- riage void. Id. Sec. 519. Petition to annul marriage with minor. — That the plaintiff is now and has been a hona fide resident of the state of Ohio for the year last past, and a hona fide resi- dent of the county of . That on the day of , 18 — , the plaintiff was mar- ried to the defendant. §§ 520, 521.] DIVOECE AND ALIMONY. 475 That at the time of said marriage the plaintiff was years of age, and incapable, from want of age, of contracting said marriage contract. That on the day of , IS — , the plaintiff separated from the defendant and repudiated said marriage, and they have not since cohabited or lived together as husband and wife. [That the plaintiff's name at the time of her marriage was A. C] Wherefore the plaintiff prays that said marriage be declared void [and that she be permitted to resume her said former name]. Note. — There can be no marriage without consent, and a marriage when one lacks the capacity to consent is ineffectual and void ab initio. Way- more V. Jetmore, 22 O. S. 271. Sec. 520. The answer. — A defendant may set up such de- fenses as he may have, and may file a cross-petition asking a divorce.^ If the defense be a condonation, or if it be a recrim- inatory'charge in bar, the same should be set forth,^ although there are cases which hold that a defendant may prove any defenses under a general denial,' excepting acts of adultery by way of defense, which must be pleaded with the same strictness as in the petition.* The public being interested in divorce proceedings, if there are any defenses discovered, even though not pleaded, the same will not be granted.* Mr. Bishop states the correct rule, as evidence may be introduced showing any facts, such as adultery, on the part of plaintiff, not entitling him to a divorce, whether an answer is filed or not.® Sec. 521. Forms of answer, — That the defendant denies each and every allegation of the complaint. [Or, in case of adtdieri/, That this cause of action was not commenced within two years after the plaintiff had discov- ered the offense charged in the petition.] [Or, in case of adulter y, That the plaintiff has voluntarily cohabited with defendant, with a full knowledge of the facts alleged in the petition.] [Or, in case of adultery. That the offense of adultery charged in the petition was committed with the connivance and con- sent of the plaintiff.] 1 Stewart, M. & D., sec. 340. * Pollock, 71 N. Y. 137 ; Tim, 47 2 Smith, 4 Paige, 432. How. Pr. 253 ; Mitchell, 61 N. Y. 398. 3 Backus, 3 Me. 136 ; Shackett, 49 5 Bishop's M. & D., sees. 478-98, 619. Jle. 195; Sickles v. Carson, 26 N. J. 6 Id. E.]. 440. 476 DIVOKOE AND ALIMOUY. [§§ 521(2, 522. [Or, in case of adultery, That on the day of , 18 — (and at various other times thereafter), the plaintiff comniitted the crime of adultery with one E. F.] [Or, That since the bringing of this action the plaintiff and defendant have lived and cohabited together as husband and wife.] [0?', That after the offense charged in the petition, the plaintiff, with a full knowledge thereof, voluntarily condoned such offense and forgave the defendant.] Sec. 521a. Answer and cross-petition. — Defendant admits that plaintiff and defendant were married on the day of 18 — , and that there was born to them [state childreii], but denies each and every other allega- tion in said plaintiff's petition contained not hereinbefore ad- mitted. For answer and cross-petition defendant says that [state any of the causes of divorce, as in ante, sees. 503, 507, 509, 511, 512, etc.']. Sec. 522. The trial. — The cause may be heard and decided at any time after the expiration of six weeks from the service of summons or of the first publication of notice.^ If the de- fendant does not appear, or, having appeared, admits or denies the allegations of the petition, the court shall proceed to hear and determine the cause; and if the evidence proves a cause, the court may pronounce the marriage contract dissolved.^ The general reputation of the plaintiff must be shown, as it is an issue in the case, and the plaintiff should be prepared to both sustain and defend it, if attacked.^ Proof of cohabita- tion and reputation of the marriage of the parties shall be competent to prove marriage, and may be, in the discretion of the court, sufiicient evidence thereof.* A court cannot re- fuse to try a cause for divorce until costs incurred in other cases for divorce by the same plaintiff are paid.' And in rendering a decree in favor of one entitled thereto, the court cannot require a petitioner to pay the costs as a condition precedent to the entry of the same.* 1 O. Code, sec. 5694. 5 state ex rel. v. Miller. 8 O. C. C. 2 0. Code, sec. 5695. As to evi- 10. dence, see W. 212, 354, 632, 128, estate v. Bates, 5 O. C. C. 18; 156, 161, 514, 559, 4.54, 416. Heffner v. Scranton, 27 O. S. 579. The 3 Harper, W. 283. entry is frequently held by clerks 4 O. Code, sec. 5698 ; Lipen, 1 W. until costs are paid. This they have L. B. 164. no right to do, but must put the §§ 523, 524.] DIVORCE and alimony. 477 Sec. 523. Custody of minor children. — The court may make such order respecting the disposition, care and mainte- nance of minor children as may seem to be just and reason- able.^ The jurisdiction over the custody of minor children in divorce proceedings is a continuing one, and an order may be changed or modified as conditions and the best interests of the children may require.^ So long as a decree in reference to the custody of a minor in divorce proceedings remains in force, the same cannot be interfered with by proceedings in habeas corpus? A mother who has been granted a divorce and awarded the custody of minor children, and who has been decreed alimony which did not include support for the minor children, may bring an original action against the father for the recovery of compensation for necessaries furnished bv her to such children in any other court than that in which the divorce was granted.* Sec. 524. Petition by divorced wife against father for support of child. — Plaintiff says that on or about the day of , 18 — , she was married to the defendant; that the issue of said marriage was a son, A. J. P., who still lives and is now of the age of years; that at the term of the court of com- mon pleas of the county of , in the state of Ohio, 18 — , such proceedings were had by such court, in a certain ac- tion for a divorce therein pending, in which action said ])laint- iff herein was plaintiff, and the said defendant herein was defendant, that in said action, on account of the misconduct, ill-treatment and neglect of the said defendant, by the judg- ment of the said court of common pleas this plaintiff was di- vorced from said defendant and awarded the custody, nurture, education and care of their said minor child, A. J. P. Plaint- iff further says that ever since said decree of said divorce was entered this plaintiff and said defendant have lived separate and apart, and the said A. J. P., the minor son of the said de- fendant, has been boarded, clothed and cared for by this l^laintiff, and that said boarding, clothing, care and attention entry on, whether costs are paid or not be taken in such an action, as an not Under this rule it would seem order requiring the father to pay a that the clerk could not refuse to file a certain monthly stipend is not an petition without a deposit. order for the payment of alimony. 1 O. Code, sec. 5696. Id. 2 Hoffman, 15 O. S. 427 ; Rogers, 3 Hoffman, 15 O. S. 427. See ch. 42, 31 W. L. B. 118; s. c. 51 O. S. 1; sec. 655. Pfau, 8 O. C. C. 87. An appeal can- < Pretzinger, 45 O. S. 452. 478 DIVORCE AND ALIMONY. [§-525. SO furnished said son by the plaintiff herein were necessary and appropriate to his comfort and condition in life, and were of the value of not less than dollars per year. That the said defendant is possessed of the following property [describe the property]^ is solvent, and well able to keep and support his said minor child. There is due and owing to plaintiff from the said defendant for said boarding, clothing and care afore- said the sura of dollars upon an account, a copy of which is hereto attached and marked Exhibit '* A," in which said sum plaintiff asks judgment against the said defendant. Note.— From Pretzinger, 45 O. S. 452. Sec. 525. Allowance of alimony in divorce proceedings. — If the divorce be granted by reason of the aggression of the husband, the wife may be allowed such alimony out of the husband's personal or real estate as the court deems reason- able. It may be allowed either in real or personal property.^ Even where the divorce is granted by reason of the aggres- sion of the wife, the court may adjudge to her such share of the husband's real or personal property as it deems just and reasonable." Alimony may be allowed against a bigamist : ' and unless so stated in the decree, the subsequent marriage of the woman does not affect the allowance, except that it may furnish a ground for reducinof the amount to a nominal sum.* Eeal estate may be decreed the wife as alimony,^ and all the title which the husband had therein will be virtue of the decree be vested in her.® The adequacy of alimony decreed cannot be collaterally questioned by a stranger, as by a per- son who is seeking; to recover for necessaries furnished the wife during the pendency of the proceedings." Such subse- quent allowance may be made to the wife as the circumstances may seem to require.^ Alimony decreed to be paid in in- stalments may be enforced by execution for the instalments or any number of them as they become due," and the payment of alimonv may be enforced by imprisonment where the de- 1 0. Code, sea 5699. For form of 548 ; King. 38 O. S. 370, 372 ; Onley v. petition asking alimony, see post, "Watts, 43 O. S. 499. sec. 527. 5 Broadwell 21 O. S. 657. 2 0. Code, sec. 5700; Wolf, W. 243. 6 Gallagher v. Fleury, 36 O. S. 590. s Vanvaley. 19 O. S. 588. "Hare v. Gibson, 32 O. S. 3a 4 Lockwood V. Krinn. 34 O. S. 1 : » King. 38 O. S. 370. Stillman. 99 III. 196: s. c. 9 W. L. J. » Piatt 9 O. 37. § 526.J DIVORCE AND ALIMONY. 479 fendant is able to pay the same.^ Even where there is no ground for divorce and the court finds it necessary to dismiss the petition, it may nevertheless allow the wife a reasonable sum as alimony where the parties are living apart.'^ Alimony will be allowed where a divorce is decreed for a single act of adultery, where there is hope for reformation, upon the theory that it is not wise "to turn the wife loose to starvation and prostitution;'" and so where a decree has been made on ac- count of the fault of the applicant, where there is much prov- ocation, and the parties are too contentious to live together,* or where the decree is granted because of the wilful absence of the husband,^ or where the wife has been abused and the abuse is forgiven but she is afterwards abandoned.^ Alimony will be allowed a woman asking for a divorce even where it appears that there has been a decree of divorce granted the husband in another state,'' In Ohio she may prosecute a suit for alimony though she has been granted a divorce in another state.^ A husband may not be entitled to a divorce where he has been guilty of adultery, yet he may not be obliged to render support to a wife who has means of her own.^ Sec. 526. Proceedings for alimony alone. — A wife may prosecute a separate action for alimony, or she may file her cross-petition in suit for divorce commenced by her husband with or without a prayer for divorce when the husband has committed adultery, or any gross neglect of duty, or has abandoned her without good cause, or where there has been a separation in consequence of ill treatment on the part of the husband, or on account of habitual drunkenness, or imprison- ment in a penitentiary,^" She may maintain this action even though she has been granted an ex parte divorce in unothev state;" and she need not be a resident of the state for any 1 Kaderabek, 3 O. C. C. 419 ; Hand, » Amsden, W. 66. 25 W. L. B. 214; Stewart 23 W, L, B. ^Questel, W. 491. 38. ' Cox. 19 O. S. 502. 2 Graves, 50 O. S. 196; ^9 W. L. B. 8 Woods v. Waddle, 44 O. S. 449. 256. 9 Meyer, 2 W. L. B. 48. 3 Dailey, W. 514. lo O. Code, sec. 5702. 4 Bascoinb, W. 633. "Woods v. Waddle, 44 O. S, 449, 480 DIVORCE AND ALIMONY. [^§ 527, 528. particular time to enable her to bring an action for alimony only.^ Sec. 527. Petition for recovery of alimony only. — . Plaintiff says that she was married to the defendant A. B* on the day of , 18 — , at . The following named children were born as the issue of such marriage; [JV^ames and ages.'] Plaintiff says that the defendant did on the day of , 18 — , at in the city of , county of , commit adultery with one , etc. [or state any grounds, as m B. S., sec. 5702\ The defendant is the owner in fee-simple of the following described property situate in the county of , Ohio, to wit : [Description, or if personal property describe it.'] Plaintiff therefore asks for reasonable alimony for the support of herself and children and expenses during the pend- ency of this action, and that upon a final hearing of this cause the defendant be ordered and adjudged to pay her rea- sonable alimony out of his said property, and for such relief as is proper. Note. — The residence need not be stated. O. Code, sec. 5690. Sec. 528. Allowance of temporary alimony. — The court, or a judge in vacation, may, on notice to the opposite party of the time and place of the application, grant alimony to the wife for her sustenance and expenses during suit, and may also make an allowance to her for the support of their minor children during the pendency of such proceedings. It will be allowed to defray the expenses of the prosecution and main- tenance until the termination of the suit upon affidavit mak- ing a prima facie case."-^ Alimony may be allowed by the circuit court during the pendency of an appeal, upon giving notice to the opposite party as in the action in the lower court.^ The allowance of temporary alimony at chambers is a final order and may be prosecuted on error.* When it is made to appear to a court, or a judge in vacation, that the husband is about to dispose of or incumber property so as to defeat his wife's right to alimony, the court may grant an injunction with or without bond.^ An order for temporary 1 0. Code, sec. 5690 ; Woods v. Wad- 3 O. Code, sec. 5701. die, Hupra; Lithovvich, 19 Kan. 451. *Kiiig, CS O. S. 370. 2 Johnston, W. 454; Dorsey v. ^O. Code, sec. 5701; Tolerton v. Goodenovv. W. 120 ; Martin, W. 104 ; Williard, 30 O. S. 579. Wooley, W. 245 ; Edwards, W. 308. g 529.] DIVORCE AND ALIMONY. 481 alimony does not create such a debt as will warrant punish- ment as for contempt, and payment cannot be enforced in this manner.^ Sec. 529. Petition by divorced wife against her divorced linsband's widow and lieirs to enforce payment of decree for alimony against his real estate, and note. — At the term, 18 — , of this court, the plaintiff obtained, by the judgment thereof, a judoment and decree of divorce from tlie bonds of matrimony, and for alimony, against A. M., then her husband. By said decree of alimon}'' it was adjudged and ordered that the said A. M. should pay to the ])laintiff, as alimony, the sum of dollars days after the close of said term, and the sum of dollars annually, during her natural life, on the of in each of said years, and that if such sum should stand unpaid in either of said years for the period of ten days after being due and payable as aforesaid, execution should issue against said A. M. to satisfy the same, and that the real estate of said A. M., being [description of lands], ^howld be held and charged with the payment of the aforesaid several sums of money, and that a lien should be, and was by said decree, created to secure the payment of the said several sums of money, on said real estate. On or about the day of , 18 — , the said A. M. died testate, and afterwards the defendant M. C. M., who is his widow, was appointed, by the probate court of this county, administratrix, with the will annexed, of his estate — the will of said decedent having been admitted to probate by said pro- bate court. She accepted the appointment, gave bond as such, and entered upon and still continues in discharge of said trust. After the rendition of said decree the said A. M. made pay- ments upon the annual sums specified therein during his life- time, and after they became due and payable. But the sum of dollars, payable according to said decree on the of , 18 — , except the part thereof for the period up to, and sums of the same amount, payable accord- ing to said decree, annually during the life of "^the plaintiff, after said day of ,18—, have not, nor has either of them, been paid, in whole or in part, although those payable respectively on the of , 18—, and the of , 18 — , and the interest on them respectively, after maturit}'', have each long since been due. The defendant M. C. M. became the wife of said decedent after the rendition of said decree, and the defendants L. and 1 Stewart, 23 W. L. B. 38 ; Ex parte Perkins, 18 CaL 60 ; Haines, 35 Mich. i:38. 31 462 DIVORCE AND ALIMONY. [§ 529. R. M., C. P., E. H. and N. E. were given by said w^ill certain pecuniary legacies, and to the other defendants said testator, in said will, devised all his property of whatever kind, subject to said pecuniary legacies. But whatever right of dower or other right the defendant M. C. M. may have in said real es- tate, and whatever lien, right, interest or claim the other de- fendants, or either or any of them, may have in said premises, any such right, title, claim or interest was created and ac- quired subsequent to the rendition of said judgment and decree of the plaintiff, and is subject and inferior to said de- cree which the plaintiff is entitled to have first paid and sat- isfied. The plaintiff further says that as the divorced wife of said A. M., she, on the day of , 18 — , in an action in this court in which all the defendants were also parties, duly served with process, obtained an assignment of her dower in said premises, which was made by the commissioners appointed for that purpose, as of one-third of the rents and profits of said premises, which was valued by them at | per year, which assignment and valuation the court approved, and or- dered the same to be paid to her in two semi-annual payments of dollars each, on the of and of ■ of each year, during plaintiff's life, and that they should be a lien on said premises. Said lien is also superior to any title, claim or lien of the defendants, or either of them, on said premises. The said administratrix, although requested by plaintiff, has refused to pay said sums, or either of them, or any part thereof. The defendants A. L. and C. M. are minors over the age of fourteen years, and the defendants S. and C. M. are minors under the age of fourteen years. The plaintiff therefore prays that her said judgment and decree against A. M. may be revived against his said adininis- tratrix and widow, and the said devisees, under his will, of said real estate ; that the priority of her said decree and lien be determined, and the amount due under said decree ascer- tained; and for a judgment and order for sale of said prem- ises to pay the same, and for other proper relief. Note. — From Marcliand v. Marchand, Supreme Court, unreported, No. 1843. Decree a lien on real estate. — A decree for alimony payable in instalments to become a lien must be so stated in the decree. Olin v. Hungerford, 10 O. 269. See Tolerton v. Williard. 30 O. S. 579. But a decree payable in gross operates per se as a lien upon real estate of husband in the county where the same is rendered. Conrad v. Everich, 50 O. S. 476 ; s. c, 30 W. L. B. 294; 4 O. C. C. 231. See Webster v. Dennis. 4 O. C. C. 315. It may be en- forced against a third person to whom the premises have been transferred subsequent to the rendition of the decree. Id. All sums ordered paid at once become genei-al liens without being so expressed. Kurtz v. Kurtz, 38 Ark. 119. See R S., sees. 5310, 5375, 5697, 5703. The claim for alimony rests I § 529.] DIVOKCE AND ALIMONY. 483 on the common-law liability of husband to support the wife. Lockwood v. Krum, 34 O. S. 1. A judgment for alimonj' creates a debt of record. Chase V. Chase, 105 Mass. 385. Judgments for alimony stand on same footing as other judgments for money. Frakes v. Brown, 2 Blackf. 295 ; Keyes v. Scanlan, 63 Wis. 345. A lien cannot be declared on real estate situate in a county other than where the decree is rendered. Wilniot v. Cole, 23 W. K B. 339. A decree for alimony like an ordinary judgment will become dor- mant unless kept alive by executions. MuUane v. Folger, 21 W. L. B. 277. On decreeing a wife a separate maintenance, the court may make its decree a lien on the husband's realty and award execution for the collection of the instalments as they become due. Johnson v. Johnson, 125 111. 510. CHAPTER 33. DOWER. SeCi 530. Action for dower. 531. Petition by widow. 533. Incumbrances may be pre- sented by cross-petition. 533. Proceedings generally. Sec. 534 Petition to discharge land of dower of insane person and proceedings there- under. 535. Petition bj- widow for the enforcement of judgment for dower. Sec. 530. Action for dower. — A widow or widower may file a petition for dower in the court of common pleas against the heir or other person having the next immediate estate of inheritance, or any other estate or interest therein, which petition should set forth the right thereto and describe the tracts of land in which dower is claimed; such judgment should be made as appears just and consistent with the rights of all the parties interested therein.^ A proceeding to assign dower is regarded as a civil action.^ Sec. 531. Petition by widow. — Plaintiff says that on the day of , IS — , she was married to J. A. C, who died on the day of , 18 — . The said J. A. C, her late husband, during her coverture with him, was the owner of and seized of an estate of inherit- ance in the following real estate, situate in the county of state of Ohio, to wit: \_Descrihe jy^ojyei'ty.'] The defendant A. B. now claims to hold the estate of the said J. A. C, deceased, in said premises. The plaintiff says that she is entitled to dower in said premises as the widow of the said J. A. C, deceased. The plaintiff prays that her reasonable dower in said prem- ises may be decreed her, and that an assignment thereof be made, and for such further relief as equity requires. Note.— From Corry v. Lamb, 43 O. S. 390; O. Code, sec. 5707. Dower is allowed only to widow or widower who is the wife or husband at the time of the death. Rice v. Lumley, 10 O. S. 596. A wife divorced for the aggression of the husband, even though remarried, is entitled to dower. Lampkin v. Knapp, 20 O. S. 454; O. Code. sec. 5699; Arnold v. Donaldson, 46 O. S. 73. She is entitled to dower in what. 16 O. S. 193 ; 28 O. S. 503 ; 40 O. S. 391; 8 0. S. 324; 1 Disn. 121; 21 O. S. 509; 27 0. S. 464; 39 O. S. 172; 12 W. L. B. 90 ; 2 W. L. B. 92 : 2 0. C. C. 136. Dower is barred by adultery and divorce by wife's aggression. R. S., sec. 4192. » O. Code, sec. 5703. « Corry v. Lamb, 43 O. S. 390. §§ 532, 533.] DOWER. 4S5 Sec. 532. lucumbrances may be presented by cross-peti- ition. — Any person who has any claim as alien-holder or other- wise upon the premises in which dower is sought to be estab- lished may set forth the same in an answer and cross-petition, and such rights and lien shall be regarded by the court.^ Sec. 533. Proceedings generally. — If the land in which dower is sought lie in several counties, the petition may be filed in any county wherein a part of the same is situate, and the court of common pleas of such county shall have complete jurisdiction and may order the whole of such dower to be asi- signed in any one or more of such counties and out of any one or more of such tracts, if the same can be done without prejudice to the rights of any person who may have a lien thereon.- If the plaintiff die before the assignment has been made or before final judgment, the action may, under the statute, be revived in the name of the personal representative.^ A decree may be rendered for a sum equal to one-third of the rental value of the real estate of which she would have been dowable had she lived, from the time of filing the petition until her death, after deducting one-third of the expenses.* Three disinterested men of the county in which the action is brought shall be appointed commissioners to set off and as- sign the dower in the manner set forth in the judgment.* If the court approve the assignment made by the commissioners, the same shall be entered upon the records and execution shall issue to put the widow or widower in full possession.* If a division cannot be made by metes and bounds, dower shall be assigned as of a third part of the rents and profits.' In partition proceedings, or in any action or proceeding wherein the court may order the sale of real estate to satisfy any judgment or decree, a widow or widower having a dower interest therein, being a party, may file an answer and waive the assignment of dower by metes and bounds and have the same sold free of such dower, and have allowed in lieu 1 O. Code, sec. 5709. Beam, 10 O. 498; Dunseth v. Bank, 6 2 R S., sec. 5710. O. 77 ; Allen v. McCoy, 8 O. 417. 3 O. Code. sec. 5711. ^ O. Code, sec. 5718. result of election. Sec. 541. Answer of contestee. 542. Reply of relator. 543. Precipe for notice of appeal. 544. Notice of appeal to be issued by clerk. Sed 536. Contest for county offices. 537. Notice of appeal in contest for county office. 538. Hearing of contest 539. Contests of election of state and judicial officers. 540. Petition on appeal to the supreme court from the Sec. 536. Contest for county offices. — The method of con- testing the election of county oflBcials is pointed out by statute in Ohio. The right is given to any elector of a county by an appeal to the court of common pleas of the county from the decision of a board of deputy supervisors of election. The contestor must file a notice of such appeal with the clerk of court, and must himself give notice to the contestee on or before the thirtieth day after the day of election.^ The ap- peal must be properly perfected within the prescribed time to give the court juristliction,^ which dates from the declara- tion of the election by the proper officials.' It is not essential that the notice contain facts sufficient to constitute a good case for the contestor/ but only the grounds, or, as interpreted by the court, the " points " accurately stated, so as to apprise the contestee of the nature of his objections.' It must show that the contestor was either a candidate or an elector.^ The manner of contesting elections is purely statutory, and the mode there prescribed is exclusive; maiidamus Vf\\\ not lie to compel a recanvass of the vote.'' It is a statutory proceeding, no right to the prosecution of which was known to the com- 1 R. S., sec. 2997. - Ingerson v. Mario w, 14 O. S. 568. a Taylor v. Wallace, 31 O. S. 151. * Howard v. Shields, 16 O. S. 184. 5 R. s., sec. 2997 : Howard v. Shields, supra. ^ Edwards v. Knight, 8 O. 375. See Kieliborth v. Bernard, 2 W. L. B. 171 ; SUaub v. Wilson, 2 W. L. B. 158. 'State V. Marlow, 15 O. S. 672; Slate \. Simpson, 5 W. L. B. 422; Ingerson v. Berry, 14 O. S. 315. §§ 537-539.] ELECTION CONTESTS, 489- mon law. All agree that the questions are public or political, in which the people are tlie real parties in interest,^ But it la said that the remedy by contest is one belonging to the indi- viduali, and that it does not oust the jurisdiction of the proper court to inquire into the authority of any person assuming the functions of a public office by proceedings in quo warranto} In the: trial of contested election cases for county officials the general rules of evidence are applicable.' The whole subject- matter is transferred to the court, whose duty it is to correct all errors, frauds and mistakes.* See. 537. Notice of appeal in contest for county office. — This day comes A. B., who was a candidate for office of sheriff of county, Ohio, at the election held in said county on the day of , 18— [or, an elector of the county of , etc.\ and files this his written notice that he has appealed to the court of common pleas from the finding and decision of the board of deputy supervisors of election of county, Ohio, of the result of the election of a sheriff in said county, Ohio, held on said day of , 18—. Note.— R S., sec. 2997. A complete copy of the notice to be served on the contestee may be found in Howard v. Shields, 16 O. S. 186. Sec. 538. Hearing of contest.— The parties may file a motion to have the case taken up and have any matter relating to the contest determined ; otherwise it will be heard in the regular order on the docket.' Sec. 539. Contests of elections of state and judicial offi- cers. — The legislature of Ohio has very wisely removed con- tests of election of state and judicial ofiicers from the higher branch of that body and transferred it to the judiciary. It is provided that contests of election of common pleas and superior court judges shall be had by an appeal from the finding and decision of the canvassing board declaring the re- sult of such election to the circuit court of the county in which the contestee resides.^ The supreme court is given exclusive jurisdiction over the contest of elections of all circuit court judges, supreme court judges, and of all state officers.' The 1 State V. Harmon, 31 O. S. 250 ; ^ r. §., sec. 3002. As to method of State ex rel. v. Stewart, 26 O. S. 216 ; procedure, consult sees. 2998 et seq. Paine on Eltv-.. sec. 420. of statutes. 2 Paine on Elec, sec. 800. 6 89 O. L. 363, sec. 1, 3 Sinks V. Reese, 19 O. S. 306. 7 89 O. L. 864, sec. 6w * Ingerson v. Berry, 14 O. S. 315. 490 ELECTION CONTESTS. f§ 539. law conferring this power was attacked in tiie Fupreme court, in the only case brought under it so far -^William T. Wear against Charles C. Shearer, a contest of the election of circuit judge, upon a motion to dismiss the proceeding upon the ground that the supreme court had no jurisdiction of the sub- ject-matter for the reason that the law conferring the same was unconstitutional, as granting original jurisdiction upon that court not permitted by the constitution. The constitu- tion provides that the supreme court "shall have original ju- risdiction in quo warranto^ mandamus, habeas corpus and pro- <;edendo, and such appellate jurisdiction as may be provided by law." * The law in question requires the court to hear the case upon depositions, and to determine the contest in a summary manner,^ It may be true that it requires the court to act in reference to matters which partake of the nature of original jurisdiction, as it must hear evidence and render judgment. But there is another provision of the constitution which per- mits the general assembly to determine by law before what authority and in what manner the trial of contested elections shall be conducted.^ It was also urged in support of the mo- tion to dismiss in this case that there can be no appeal to the supreme court except from the finding and judgment of a judicial tribunal; and yet the provision of the constitution already quoted : "and such appellate jurisdiction as maybe provided by law," is very significant. Suffice it to say that the motion to dismiss for want of jurisdiction was overruled, thus giving evidence that the supreme court was sufficiently satisfied of the constitutionality of the law to entertain the contest. The case, however, was never heard upon its merits.* The mode of procedure under this law is sufficiently outlined in the forms following, which may be modified to meet the requirements of a case where the contest is brought in the circuit court. 1 Art. 4, sec. 2, Const. 21, of the constitution, the legislature 2 89 O. L. 364 had power to confer the hearing of ' Art 2, sec. 21, Const contests of election on the supreme * The motion was in fact overruled court, and expected to report the case upon the ground that the court con- when heard upon its^ merits, but it aidered that under article 2, section was settled. § 540.] ELEOTION CONTESTS. 491 Sec. 540. Petition oa appeal to the supreme court froi the finding and decision of canvassing board as to result ( )D1 as to result of election. — In the Supreme Court of the Statb of Ohio. The State of Ohio ex rel. Will- iam T. Wear, Plaintiff, vs. Charles C. Shearer, Defendant. To the Honorable the Supreme Court of the State of Ohio : And now comes W. T. W., the relator herein, and shows to the court that he is an elector of the county of Champaign, state of Ohio, which county is in the second judicial circuit of said state, and that he was such elector on the day of No- vember, 18 — , and as such had a right to vote at the election held on said day for any candidate for judge of the circuit court of the said second judicial circuit ; he further says that he files this relation and brings this proceeding by way of ap- peal from the finding and decision of the board of deputy supervisors of election of Franklin county, Ohio, which county is the county in said judicial circuit having the greatest popu- lation, and which board of deputy supervisors is the canvass- ing board which finds and declares the result of the election of circuit judges of the said judicial circuit ; and your relator further states that at such election there was one circuit judge to be elected for said judicial circuit, and there were two can- didates for said office, viz. : Charles C. Shearer, who was the republican candidate, and Frank Chance, who was the demo- cratic candidate, and who was also the candidate of the peo- ple's party, and on the day of , 18 — ,said canvassing board found and declared that the contestee herein, Charles C. Shearer, had received at such election for said office twenty- five votes more than the said Frank Chance, a copy of which finding and declaration is hereto attached, marked "Ex- hibit A," and your relator hereby and herein appeals from such finding and declaration for the reasons following, viz. : In the county of Fayette, in said circuit, twenty-one (21) votes were cast for F. C. for the said office by electors voting the people's party ticket, none of which were counted for him, to wit: Eleven (11) votes in western precinct, Union township, etc. And in the county of Darke, in said judicial circuit, fifteen (15) votes were legally cast for the said F. C. for the said office in precinct, and other voting precincts of said county, that were not counted for him, but all of which ballots were sealed and sent up to the board of deputy supervisors of 492 ELECTION CONTESTS. [§ 541, elections of said county and who now have the same in their possession. i And your relator further states that in their finding of the aggregate vote cast for the said S. and C. respectively at said election, the said board of deputy supervisors of elections of Franklin county included and counted in the vote for the said C. C. S. the thirty -five (35) illegal votes so cast for him as aforesaid in Greene and Champaign counties, and did not in- clude or count in the vote for said F. C. the lawful votes so as aforesaid cast for him in Fayette, Clark, Greene and Darke counties ; and your relator states that the said F. C. received at said election a majority of all the lawful votes cast for the said office of circuit judge for the second judicial circuit and was duly. elected to said office. Wherefore your relator prays that the finding and declara- tion of the board of deputy supervisors of elections of Frank- lin county may be reviewed and inquired into and set aside and held for naught, and the said F. C. held and declared to be duly elected to said office, and that the court make such order or decree and award such process as may be proper and necessary in the premises. D. C. J., Attorney for Relator. Tee State of Ohio. ~( ^„ County. ( W. T. W., the plaintiff, being duly sworn, says that the statements in the foregoing pleading are true as he verily be- lieves. W. T. W. [Jurat.'] Note. — From Wear v. Shearer, filed m supreme court Sec. 541. Answer of contestee. — [Capiicm.'] Now comes the respondent, C. C. S., and for his answer herein denies that at the election for circuit judge in the sec- ond judicial circuit of the state of Ohio, held on the day of , 18 — , said F. C, the relator herein, was the candi- date of the people's party for circuit judge for said judicial circuit. The respondent further denies that in said county of any votes were cast for said F. C. for circuit judge for said circuit by electors voting the people's party ticket which were not counted for him ; he denies that in said county of Clarke any votes were lawfully cast for said Chance for said office which were not counted for him ; he denies that in said county of Champaign there were counted for said C. C. S. any votes that were not cast for him; he denies that in said county of Greene any votes were lawfully cast for the said F. C. for the §§ 542, 543.] ELECTION CONTESTS. 493 said office by electors voting the people's party ticket which were not counted for him.- \_Such defenses as the contestee may have, may he stated in addi- tion to formal denials as above.'] "Wherefore this defendant praj^s that this proceeding may be dismissed, ^nd that he recover his costs herein expended. H. J. B., G. K. K, F. A. D., Attorneys for Respondent. Note. — From Wear v. Shearer, Supreme Court. See. 542. Reply of relator. — And now comes the relator, and for reply to the first de- fense in the answer of the defendant, C. 0. S., set out, avers that in fact and in law said defense is but a general denial of the statements of the relator's petition, but the relator denies each and every statement contained in and set out in said de- fense contradictory to and inconsistent with the statements of the relator's petition. And for reply to the second defense in the respondent's an- swer set out, the relator denies each and every statement therein contained, except the statement that the boards of deputy state supervisors in said several counties composing the second judicial circuit, returned to the deputy state super- visors of elections of Franklin county one thousand six hun- dred and forty-five votes cast for F. C. for judge of the cir- cuit court for said circuit, and which were cast for him by electors voting the people's party ticket. And the relator, for further reply to the second defense, etc. {make specific de- mands or set out dfenses]. And by way of reply to the tenth defense in the answer of the respondent contained and set out, the relator says that he denies each and every allegation thereof. "Wherefore he prays as in his petition herein he has prayed. D. C. J., L. D. J., Attorneys for Relator. Note. — From Wear v. Shearer, Supreme Court Sec. 543. Precipe for notice of appeal.— {Caiytion.l To Clerk of Supreme Court: Please issue notice of appeal in the above-entitled case, to- gether with a copy of the relation, directed to the sheriff of county, Ohio, and serve the two'copies on the contestee, C. C. S., in the same manner as a summons, but to be served within five days from , 18 — . D. C. J., Attorney for Relator. Note.— 89 0. L. 364, sea 8. 494 ELECTION CONTESTS. [§ 544w Sec. 544. Notice of appeal to be issued by clerk, — SrPKEME COUKT OF OeIO. ss. The State of Ohio, ) City of Cohimbus. To the Sheriff of County, Greeting: You are commanded to notify C. C. S. that W. T. W., an elector having a right to vote for any candidate for judge of the court, etc.,^ has filed a petition in appeal from the finding and decision of the canvassing board upon the result of the election of circuit judge in the judicial circuit of Ohio, in the nature of a relation against him in the supreme court of the state of Ohio; and that he is required to answer to said relation within fourteen days from the day of service of this notice upon him. A copy of said relation and the ex- hibit therein referred to is furnished herewith to be served upon him. You will make due service and return this writ within five days from the date hereof. Witness my name and the seal of said supreme court, etc. Note.— 89 0. L. 364, 365, sec. 8. 1 89 O. L. 364 CHAPTER 35. EXECUTORS AND ADMINISTRATORS. Sec. 545. Pleading representative ca- pacity. 546. Averment of appointment of executor. 547. Form of allegation of ap- pointment of administra- tor. 548. Statutory actions by execu- tor or administrator. 549. Action by executor or ad- ministrator to complete contract. 550. Action to set aside fraudu- lent sale of real estate and to sell same to pay debts. 551. Petition to set aside fraudu- lent conveyance and for sale. Sec. 552. Actions against executor or administrator individu- ally. 55.3. Actions on rejected claims. 554. Petition against executor or administrator on rejected claim. 555. Petition on unpaid claim' allowed. 556. Defenses to actions oa claims. 557. Actions to set aside errone- ous or fraudulent settle- . ments. 558. Actions for recovery of dis- tributive share. 559. Petition for recovery of dis- tributive share. Sec. 545. Pleading representative capacity.— It is a rule too well settled to warrant the citation of authority that rep- resentative capacity is a traversable fact. Yet it is surprising,, upon an examination of pleadings contained in cases which have reached the court of last resort, at the lack of uniformity in practice. In the more populous places, where every inch of ground is fought, the rule is uniformly observed. In other places no objections are made, and hence there are frequent violations of the rule. Every fact necessary to show that the appointment has been duly made should be set forth, and it should be shown with reasonable certainty that the remedy is sought in a representative capacity.^ In alleging representa- tive capacity of an executor, the fact and date of the death of 1 Neil V. Cheney, 1 W. L. M 155 ; See Stihvell v. Carpenter, 62 N. Y. Sheldon v. Hoy, 11 How. Pr. 11; 639; Dayton v. Connah, 18 How. Pr. Forrest v. Mayor, 13 Abb. Pr. 350; 826. Kingsland v. Stokes, 58 How. Pr. 1. 496 EXECUTORS AND ADMINISTRATORS. [§ 545. the testator should be stated; that he left a will in which the plaintiff or defendant was niaraed as executor; that the will of the testator was duly probated, giving the date of the issu- ance of letters testamentary, and that the plaintiff or defend- ant has duly qualified and entered upon the duties of such executor.! In alleging the representative character of an ad- ministrator, it is held to be sufficient if the petition shows that the plaintiff filed an application for letters of administration at a certain time in a designated court, and that such proceed- ings were had, that he w^as duly appointed and qualified and that letters of administration were issued to him.^ Merely giving the name of the administrator in the commencement of the petition, and attaching the words "administrator of C. D., late of , deceased," being descriptive only, is there- fore insufficient.^ Even though the requirements of the stat- ute have not been complied wnth as to the giving of a bond, a judgment against the administrator will not be vacated on that account.* Under an allegation that a person has been appointed administrator by proper authority, it will be pre- sumed as against a demurrer that he has taken the necessary steps to secure the appointment.* "Where a petition shows that property has been in charge of two administrators, the letters of one of whom have been revoked, the petition should state the fact of such revocation.^ The omission of the word "as," between the name of the plaintiff and the words descriptive of his representative capacity, is not fatal.'' At common law the issue of representative capacity could be raised only by plea in bar or abatement. The rule remains the same under the code, it being necessary to state the facts 1 Kirsch v. Derby, 96 Cal. 602; tliat the plaintiff was duly appointed Hurst V. Addington, 84 N. C. 143 ; his administrator and qualified, is Barfield v. Price, 40 Cal. 535 ; Hal- held sufBcient to show that the ad- lock V. Mixer, 16 Cal. 574. niinistrator was suing in representa- 2 Monroe v. Dredging Co., 84 Cal. tive capacity. Quinn v. Newport 515 ; s. c, 18 Am. St. Rep. 248. News Co., 22 S. W. Rep. 223 (Ky., 3 Sheldon v. Hoy, 11 How. Pr. 11. 1893). The time and mode of appointment * Mitchell v. Albright, 20 W. L. B. should be given so as to enable the 101 ; Slagle v. Entrekin, 44 O. S. 637. adverse party to take issue thereon. 5Gutridge v. Vanatta, 27 O. S. 366. Dayton v. Connah, 18 How. Pr. 320. 6 state v. Green, 65 Mo. 528. An allegation that the intestate died, ' Beers v. Shannon, 73 N. Y. 292. §§ 546-548.] EXECUTORS and administrators. 497 relied upon to show that the averment is not true.^ The proper method of reaching a defect in an allegation of repre- sentative capacity is by motion.' Sec. 546. Averment of appointment of executor. — Plaintiff says that J. K. died on the day of , 18 — , leaving a last will and testament, which said will was duly filed and admitted to probate by the probate court of • county, Ohio, on the day of , 18 — . That said will named plaintiff as the executor thereof, and that he was appointed by the said court on the day of , 18 — , as executor of the said last will and testament of the said J, K., deceased, and is now the duly qualified and acting executor of the said will of said J. K., deceased, and brings this suit as such executor. Note.— Modeled from Kirsch v. Derby, 96 Cal. 602. Sec. 547. Form of allegation of appointment of .adminis- trator. — Where plaintiff: Plaintiff states that on the day of , 18 — , C. D., late of the county of and state of Ohio, died intestate; that on the ■ day of • , 18 — , this plaintiff was appointed by the probate court of said county as administrator of the estate of the said C. D., deceased, and is now the duly qualified and acting administrator of such estate, and brings this action as such administrator. Where defendant: That on the day of , 18 — , C. D., late of the county of ■■, state of Ohio, died intestate: that on the day of , 18 — . the defendant E. F. was by the probate court of said county duly appointed administrator of the estate of the said C. D., deceased, and is now the didy qualified and acting administrator of such estate, and this action is brought against him as such administrator. Sec. 548. Statutory actions by executor or administra- tor. — The statutes authorize an executor or administrator to maintain an action upon a contract made by his decedent without joining with him the person for whose benefit it is prosecuted ; ^ or an action against a former executor or ad- 1 Mayes v. Turley, 60 Iowa, 407 ; 23 Barb. 591 : Neil v. Cheney, 1 W. L. Ewen V. Railway Co., 38 Wis. 614. M. 15.1 Contra. Gilniore v. Morris, 18 Mo. 3 r. g.. sec. 4995. See ante, sec. 9. App. 114. The holder of a note payable to 2 Jewett V. Fairchild, 4 Denio, 83 ; bearer may be sued by an adminis- 13 How. Pr. 413; Bangs v. Mcintosh, trator in his own name, although it 32 498 EXEOUTOKS AND ADMINISTRATORS. [§ 549. ministrator,^ though this does not authorize an administrator de bonis non to sue the administrator of his predecessor, who died in office ; - or an action for the sale of real estate to pay debts either in the probate or common pleas court;' or an action against another for wrongfully causing the death of the decedent ; * or a civil action against creditors, legatees, distributees or other parties, to determine questions with re- spect to the administration of a trust imposed;' or an action against a former executor or administrator upon his bond for any maladministration of such administrator or executor ; ^ or an action for the foreclosure of a mortgage made to his dece- dent." A foreign executor or administrator is authorized to prosecute an action in the state in the same manner as a non- resident is permitted to sue.* Sec. 549. Action by executor or administrator to com- plete contract. — If an executor or administrator so desires, he may file a petition in the court of common pleas of the county in which the land is situate, for the completion of any contract entered into by a decedent for the sale or convey- ance of an interest in land, which has not been completed be- fore the death of such decedent.** An executor may carry out a contract made by his testator, in a lease which had not expired at his death, to pay for certain buildings which the tenant was allowed to erect, by allowing the necessary sum to cover the value of such building and any damages that may accrue to the tenant.^" The specific performance of a contract made by an intestate for the erection of a dwelling-house, belongs to the estate of which he is zard v. Filler, 20 O. 479 ; Curtis v. administrator. Holcomb v. Beach, Lynch, 19 O. S. 392-399. 112 Mass. 450. Possession of such SR. S., sees. 6137, 6136, 6141. note is evidence of title. Pettee v. ■* R S., sec. 6134 ; Weidner x. Ran- Prout, 3 Gray, 502. An executor kin, 26 O. S. 522. See chapter 63, may sue either in his own name or Negligence Causing Death. as executor, upon a note given him ^ R. S., sec. 6202. See chapter 92. as executor, for a debt due the testa- on Wills. tor at the time of his decease. Mer- <> R S., sees. 6020, 6051. See chap- ritt V. Seaman, 6 N. Y. 168. ter 23, on Bonds ; R S., sec. 6214. 1 R S., sees. 6020, 6214 ; ante, sees. • R S., sees. 6070-72. 354, 358. 8 R S., sec. 6133. 2 Herckelrath v. Van Nes. 31 W. L. s* r, s., sec. 5800. B. 35 (C. a C. R., 1893), citing Bliz- h) Jackson v. O'Brannin, 14 O, & 177. § 550.] EXECUTORS AND ADMINISTRATORS. 499 which was not intended as an improvement of the realty as an investment, cannot be enforced against the executor in favor of the heirs.^ The personal representative may rescind or perform any personal contract of the decedent as the best interest of the estate may seem to demand, subject to the approval of the court.^ An independent contract made by an executor to sell his decedent's real estate to the purchaser at a price less than that agreed upon by the testator, under a power of sale granted him by the will, cannot be enforced against the executor although he might be wholly responsible in damages.' Sec. 550. Action to set aside fraudulent sale of real estate and to sell same to pay debts. — Where land has been fraudulently sold by the decedent during his life-time, an executor or administrator may, if it becomes necessary to sell the same to pay debts, bring an action for the recovery of the possession thereof, and to have the same set aside on the ground of fraud, and sold for the payment of debts due from the decedent.^ As in other cases, the petition must set forth the amount of debts, charges of administration, and the value of the personal estate.^ All persons who hold or claim to hold any interest under and by virtue of such fraudulent con- veyance should be made parties to the action.^ An action cannot be maintained by an administrator against his dece- dent's grantee in possession to recover the value of real estate held by the latter for the payment of debts, upon the ground that the decedent conveyed it during his life-time in fraud of creditors. The proper remedy in such cases is to bring a civil action under the code to set aside the fraudulent conveyance and subject the land to sale for payment of debts.^ I Gray v. Hawkins, 8 O. S. 449. administrator unless it becomes nec- '^ Id. See Howard v. Babcock, 7 O. essary to sell the same for the pay- (PL 3), 73. ment of debts. Benjamin v. La Bar- s' Pollock v. Pine, 2 O. C. C. 359. ron, 15 O. 518, in which it was * R. S., sees. 6139, 6140 ; Spoors v. intimated that equity would relieve Coen, 44 O. S. 497 ; McCall v. Pixley, where it was necessary to sell land 48 O. S. 387 ; 25 W. L. B. 417. The to pay debts. McCall v. Pixley, power of an administrator over the supra, real estate of his decedent being de- ^R. S., sec. 6141. rived entirely from statute, it ueces- ^R S., sec. 6142. sarily follows that a fraudulent con- " Doney v. Dunnick, 8 0. C. C. 163. voyance cannot be impeached by an 500 EXECUTORS AND ADMINISTRATORS. [§ 551. Sec. 551. Petition to set aside fraudulent conveyance and for sale. — \_Aver?ne?it of apjyointment as in ante, sec. 5Jf7.'] That valid debts of said decedent amounting to dol- lars or more were presented to the said plaintiff as adminis- trator of the estate of said A, B., deceased, which said claims were allowed by him as valid claims against the estate of said decedent. That the total value of the personal estate and effects of the said decedent amounted to the sum of dol- lars, which was wholly insufficient to pay the debts and costs of administration. Plaintiff further represents that the said A. B. died seized as owner, and in possession, of the following described real estate, situate in the county of and state of Ohio, to wit : [^Desc7'ij)t{o7i of proj}erty.'] That on the day of , IS—, the said A. B., then in full life, conveyed said premises to F. G. by deed purporting to convey the same in fee and to be in consideration of dollars paid by the said F. G. ; but this plaintiff avers that said deed was m fact executed without any consideration and none whatever was paid. That the said decedent, at the time of executing said deed of conveyance, was largely in debt to divers persons, to wit: [_]S^a)ne them.] That the said A. B., fearing that his said indebtedness was and would be more than he could pay, and that all his prop- erty would be insufficient to pay the 'same, and to hinder and delay his then and any subsequent creditors that he might have, and for the sole 'purpose of avoiding payment of his said debts, did execute and deliver the said deed to the said A. G., thereby conveying the said premises hereinbefore de- scribed; that'the said purchaser, F. G., then and afterwards had knowledge and notice of the intention and purpose of the said A. B. in making said conveyance, and that said purchaser received and accepted the same upon agreement and under- standing between himself and the said A. B., deceased, that the said F. G. would sell said premises and the title to the same so conveyed to him and their proceeds in trust for the sole use and benefit of the said A. B., deceased, his heirs and assigns, and that he would reconvey the same to him upon request. The plaintiff further says that the fraud of the said A. B., deceased, in so executing said deed and conveying said prem- ises to the said F. G. as aforesaid, was not discovered by plaintiff or by his creditors aforesaid until after his death and within the four years last past.^ Plaintiff further says that it is necessary to sell the prem- 1 See sec. 607, post. I § 552.] EXECUTORS AND ADMINISTRATORS. 501 ises hereinbefore described to pay the debts of the said A. B., deceased. Wherefore plaintiff prays that the said conveyance from the said A. B,, deceased, to the said F. G., may be declared null and void, and that the same may be sold, the proceeds thereof subjected to the payment of the debts of said decedent and costs of the administration, and that the said proceeds may be brought into court for distribution, and for all other and further proper use and relief in the premises. Note.— From McCall v. Pixley, 48 O. S. 387. Sec. 552. Actions against executor or administrator in- dividually. — AVhere an action has been broufjht against sur- viving executors jointly in their respective capacity on a claim asserted against them in which they have no right of recovery, the plaintiff cannot treat the same as an action brought against them individually, and be allowed to amend the petition for that purpose.' Nor has an executor or administrator, in the absence of autliority granted by will, the right to take possession of the decedent's leasehold property ; and if he does so, and receives the rents and profits therefrom, he becomes person- ally liable therefor to the lessor, who may elect to hold the es- tate or the personal representative personally.- But in certain cases it is said that he may be properly charged in his account with the rents which he has collected from the real estate of the decedent." An administrator who has knowledge of a valid claim against an estate, and who has funds in his hands with which to pay the same, becomes personally liable therefor if he pays out the funds in his hands without regard to prefer- ence.^ Where an administrator is sued individually by credit- ors, and appears and answer to the action in his individual capacity, he cannot after verdict ask for a new trial in order that he may be allowed to make a defense in his representa- tive capacity.* An executor may, by virtue of power of sale under a will, make a contract with a purchaser for a sale of land at less than purchase price fixed by the testator, and may be held personally responsible to an injured party in damages ; " 1 Fleischman v. Shoemaker, 3 O. C. 3 Campbell v. McCormick, 1 O. C. C. 152. C. 504. 2 Becker v. Wallworth, 45 O. S. * In re Wakefield, Goebel, 5. 169. STen Eick V. Dye, 14 W. L. B. 214. « Pollock V. Pine, 2 O. C. C. 359. 502 ■ B-XEOUTORS AND ADMtNISTEA.T0E8, [§ 653. and actions upon an oral contract to convey land, for the re- covery of compensation in lieu of specific performance, should be brought against the real and not the personal representa- tive.' A suit cannot be maintained against an executor indi- vidually upon a contract made upon a consideration that the executor would resign, as such a contract is void.' An action cannot be maintained against an administrator or executor for the recovery of attorney fees if based upon a contract. Such expenses are usually allowed, upon the principle that an executor may use the funds of an estate for purposes author- ized by law; but an executor or administrator has no power to make such a contract upon a new consideration, unless author- ized by law so to do, and cannot bind the estate for payment of fees so incurred. A contract so made is regarded as per- sonal to the executor or administrator.^ Sec. 553. Actions on rejected claims. — If a claim is pre- sented to an administrator before the estate is declared insolv- ent, and is rejected by him, the claimant must bring suit thereon within six months from such rejection if the debt be then due, or within six months after some part thereof shall have become due.* And if the claim has been rejected by an administrator or executor upon the written request of an heir or creditor by the proper proceedings, the owner of such claim must bring suit thereon against the administrator or executor within six months after such rejection.^ Yerbal no- tice by the widow to the administrator not to allow a claim is not sufficient.^ An administrator may require claims to be verified.' A formal presentation is waived where an admin- istrator has seen and examined a claim and refused to allow it.' Where a bond has been given by an heir or creditor in accordance with the provision of the statute,* the persons »Crablll V. Marsh, 38 O. S. 831; Bullard, 5 Gray, 404; Taylor v. My- Howard V. Brower, 37 O. S. 403. gat, 26 Conn. 184. 2 Withers v. Ewing, 40 O. S. 400. * R. S.. sec. 6097. 3 McBride v. Brucker. 5 O. C. C. 12 ; ^ R. S., sec. 6098. Austin V. Munro, 47 N. Y. 364; Lucht 6 Thomas v. Chamberlain, 39 O. S. V. Behrens, 28 O. S. 231 ; Kittredge v. 112. Miller, 19 W. K B. 119; Lovell v. 7 R. s., sec. 6092. Field, 5 Vt. 221 ; Fitzhugh v. Fitz- 8 Kyle v. Kyle, 15 O. S. 15. hugh, 11 Gratt 300 ; Luscomb v. 9 R S., sec. 6098. § 553.] EXECUTORS AND ADMINISTRATORS. 603 giving the same should be made parties to an action on the rejected claim, that they may be allowed to set up any de- fense they may have thereto.^ In suits against an adminis- trator or executor upon a rejected claim the petition must show a compliance with the various provisions of the statutes. All technical objections as to informality in an affidavit ac- companying a claim are waived, however, by the indorsement of the disallowance thereon.^ It is essential to prove pres- entation and rejection of a claim, or to show some other reason why the administrator is liable to be sued thereon,* though a formal rejection is not a prerequisite to the right to maintain such suit.* It will be considered rejected if the executor informs the creditor to so consider it, even though no formal indorsement of the disallowance is made thereon, and in such case suit must be brought within six months.' In an action on a rejected claim it is not necessary to aver and prove that at the time the claim was rejected a specific de- mand for the indorsement of the disallowance thereon was made;^ and a holder of a claim having presented the same to the administrator, and given ample time to examine and allow it, may bring an action thereon even though no disallowance has been indorsed thereon and no demand has been made for such disallowance." If suit be brought within six months after its rejection, and a judgment thereon is reversed after the expiration of the six months, the plaintiff is nonsuited.^ No suit can be maintained against an administrator or exec- utor until after the expiration of eighteen months from the date of his bond unless it be a claim which would not be af- fected by the insolvency of the estate, or unless it be brought after the estate has been represented insolvent, or unless the same has been exhibited to the executor or administrator and been rejected by him.' » Fuller ton v. Davis, 1 O. C. C. 572. Treasurer v. Walker, 23 W. L. B- 2 Morgan v. Bartlette, 3 O. C. C. 106. 431. ^ Treasurer v. Walker, 22 W. L. B. 3 Yager v. Greiss, 1 O. C. C. 531. 106: Kyle v. Kyle, 15 O. S. 15. •Treasurer v. Walker, 22 W. L. B. « Haymaker v. Haymaker, 4 0. S. 106. 272. 5 Barter v. Taggart, 14 O. S. 122. » R S., sec. 610a t* Stambaugh v. Smith, 23 0. S. 584 ; 504 EXKCCTORS AND ADMINISTRATORS. [§§ 554-556. Sec. 554. Petition against execntor or administrator on rejected claim. — [Caption and averment of appointment as in ante^ sees. 5^6-7.'] There is due plaintiff from the defendant as executor [cr, administrator] the sum of dollars upon an account of which the following is a copy with all the credits and indorse- ments thereon [or attached, as in ante, sees: 57-8, lo.\] Plaintiff further states that he presented to the defendant, D. H. M., as executor of the estate of E. D.. deceased, a written statement of his said claim, and demanded the in- dorsement of allowance thereon, but that said defendant on the day of , 18 — , refused and rejected said claim, and refused to indorse his said allowance thereon. Plaintiff further asks that he may recover judgment against the said defendant for the said sum of dollars with inter- est from . Sec. 555. Petition on unpaid claim allowed.— [Caption. Averment of appointment as in ante, sees. oJf6-7. State cause of action, as in ante, sec. SoJi..'] Plaintiff further says that he presented to the defendant A. B., as executor of the estate of E. I)., deceased, a copy of his said claim, duly authenticated according to law, which said claim was allowed by the said defendant as shown by his indorsement thereon as' follows: [Copy of indorsement of alloivance.'] That more than eighteen months have expired from the date of the bond of the said defendant as administrator, but that said defendant has wholly failed, refused and neglected to pay said plaintiff's claim or any part thereof. Plaintiff" therefore prays judgment against said defendant for the sum of dollars with interest from . Sec. 556. Defenses to actions on claims.— An administra- tor or executor to avail himself of the defense to an action upon a rejected claim, that it was not presented within the prescribed time, must plead that fact, setting forth all facts showing due notice and publication of his appointment.' Where a claim has been presented twice upon the theory that the first presentment was not properly made, the limitation for bringing suit begins to run from the date of the first pre- sentment.- The limitation of six months in which rejected claims must be sued is penal in its nature and must, therefore, be strictly construed. A party seeking to avail himself of this provision as a defense must bring himself strictly within iRyan v. Flanagan, 38 N. J. L. 161. -'Gillespie v. Wright, 93 CaL 169, 1 § 557.] EXECUTORS AND ADMINISTRATORS. 505 its terras.^ If a claim is past due when rejected, it will be- come barred unless suit is brought thereon within six months.* Where an administrator joins issue and goes to trial on a claim, he cannot be heard afterwards to object that the same was not presented for allowance before the action was brought, as such objection would be waived.^ A judgment cannot be rendered upon a claim disallowed more than six months before the action thereon is commenced, and a failure on the part of an executor to plead the statute limiting the time does not give the court a right to render judgment thereon.^ If suit is brought by a creditor upon a claim which has been allowed, and the estate is solvent, the provision limiting actions against the administrator until after the ex- piration of the eighteen months ' has no application, as such creditor is entitled to payment within the eighteen months.^ A petition on a claim falling within the eighteen months' limitation which fails to allege that the eighteen months have elapsed is bad upon demurrer.' Nor can a suit be brought against a decedent's estate within eighteen months after let- ters of administration have been issued, unless the claim has been first presented.^ Where an executor is relieved from giving bond, a suit on a claim against the estate can only be brought within four years from the date of the appointment if the proper notice of such appointment has been given. ^ An ac- tion may be maintained on a rejected claim after the expira- tion of eighteen months from the date of the bond and such further time as may be granted by the court for the collection of the assets."' See. 557. Actions to set aside erroneous or fraudulent settlements.— The heirs or distributees may maintain an action against an administrator or executor to set aside a 'Keenan v, Saxton, 3 O. 41 ; Har- * Greer v. State, 2 O. S. 574; Levi ter V. Taggart, 14 O. S. 122; Kyle v. v. Buchannan, 2 C. S. C. R 144; Kyle, 15 O. S. 15; Stambaugh v. Rhodes v. Doggett, 3 W. L. M. 134. Smith, 23 O. S. 584 ; Thomas v. Cham- ' Rhodes v. Doggett, 3 W. K AL 134 : berlain, 39 O. S. 116; Reynolds v. Levi v. Buchannan, 2 C. S. C. R 144 ; Collins, 3 Hill, 36. Hammerle v. Kramer, 12 O. S. 252. ^McKent v. Kent, 2 W. L. M. 540. ^Keenan v. Saxton, 13 O. 41. "Pepper v. Ridweli, 36 O. S. 454. ^ Delaplane v. Smith, 38 O. S. 413. •1 Pollock V. Pollock, 2 O. C. C. 140 ; »' Thomas v. Chamberlain, 39 O. & Brown v. Anderson, 13 Mass. 203. 112. 5R S., sec. 6108 506 EXECUTORS AND ADMINISTRATORS. [§ 558. fraudulent settlement made by him with the probate court, and to compel an accounting to be made by such administra- tor.* There being no liability upon the part of the sureties of an administrator to account to the heirs, this action cannot therefore be sustained against the administrator and his sure- ties jointly .2 In framing a petition to set aside a fraudulent settlement, after alleging the representative capacity of the defendant, it may be stated that : Plaintiff states that he is an heir-at-law of the said C. D., deceased, and as such heir entitled to a distributive share of the estate of the' said C. D., deceased. That the defendant, -as administrator of the estate of the said C. D., deceased, did on the day of , 18 — , file in the probate court of county, Ohio, his final account, which said account was on the day of , 18—, duly examined and allowed by said court, and a balance of $ found in the hands of said defendant, as said administrator, which he was ordered to pay over and distribute according to law. Plaintiff states that said defendant erroneously \or, fraud- ulently] credited himself in his said account with the follow- ing items as having been paid out by him, which, in fact, were not so paid by him {narne items and any other matters]. Plaintiff therefore prays that said account may be set aside and held for naught, and that the court will take an account of the transactions of said defendant as such administrator, and that he be ordered to pay any balance remaining in his hands as such administrator into court for further orders. Sec. 558. Action for recovery of distributive share. — A legatee, widow or distributee, after an order of distribution has been made, may prosecute an action upon the bond of an executor or administrator for the recovery of their share of the estate.' Such an action may be based either upon the bond or regarded as a mere pergonal liability secured thereby. In the latter case it will be barred within six years after the expiration of thirty days from the date of the order of distribution;* and legatees may maintain this suit without first having the probate court fix the amount of the legacy or order its payment.* This action may be maintained by a dis- tributee who has not received his proportionate share, not- 1 Reed v. Reed, 25 O. S. 423. < Lease v. Dowuey, 5 O. a C. 480. 2 Cadwallader v. Longley, 1 Disn. As shown in a preceding section, 497. See ch. 28, Bonds, sec. 354. mite, sec. 559, and note to form. » R. S.,sec. 6211. See ch. 23, sec. 354. » Mighton v. Dawson, 38 O. S. 650. § 559.] EXECUTOES AND ADMINI3TEATOE3. 50T withstanding ttie fact that the remainder of the distributees have received their share/ Distributees of the personal es- tate cannot join in an action against an administrator for the recovery of their distributive share.' And an administrator or executor cannot retain out of the share of a distributee any portion of his share in payment of a debt due by him to the estate which was barred during the life-time of the decedent.' Before the adoption of the code suits for the re- covery of a legacy or distributive shares of an estate were concurrently within the jurisdiction of courts at law and chancery and not subject to the statute of limitations, but it is otherwise under the code.* Sec. 559. Petition for recovery of distributive share. — [Averment of representative capacity as in ante, sec. 5^7.1 After the defendant entered into the discharge of his duties as such administrator there came into his hands a large amount of assets belonging to said estate to be by him ad- ministered according to law, and on -the day of , 18 — , said defendant filed in the probate court of county his final account as such administrator. Thereafter, on the day of , 18 — , by the consideration of said probate court, said account was duly examined, allowed and settled, and said court found that there remained in the hands of said defendant as such administrator for distribution a balance of dollars, which said balance said administrator was, on said day of , 18 — , by the consideration of said court, adjudged to pay over and distribute acccording to law. The plaintiff is one of the heirs at law \or, widow] of the said J. B., deceased, and as such heir entitled to receive out of said balance, so as aforesaid adjudged to be distributed accord- ing to law, the sum of dollars. Plaintiff has demanded of said defendant as such adminis- trator payment of the said sum of dollars, his distributive share of said estate, but defendant has wholly failed, refused and neglected to pay the same. Plaintiff therefore prays judgment against the said defend- ant for the sum of dollars, with interest thereon from the said day of , 18 — , being the day when said money became due to plaintiff, and to such further relief as he may be entitled. Note.— R S., sees. 6195-6199; Lease v. Downey, 5 O. C. C. 480. 1 Negley v. Guard, 20 O. 310. Garrett v. Pierson, 29 la. 804. The sWaldsmith V. Waldsuiith, 2 0. 156. following cases sustain the text: 2 3 Harrod v. Carder, 3 O. C. C. 479. Pearson, 473 ; Drysdale Case, 14 Pa. St. The contrary doctrine is held in Eng- 531 ; Reed v. Marshall, 90 P;i. St. 855. land. Williams on Executors, sea * Webster v. Bible Society, 29 W. 1304; In re Boggart, 28 Hun, 466; L. B. 141. CHAPTER 36. FALSE IMPRISONMENT. Sec. 560. Nature of the action — Pleading. 561. Action against an individ- ual making complaint 562. Action against magistx'ate and judicial officers. 563. Action against other officer. 564. Actions against carrier of passengers. Sec. 565. Averment of damages. 566. Petition for damages for false imprisonment. 567. Defenses to actions for false imprisonment 568. Answer of justification un- der process. 569. Answer by individual Sec. 560. Nature of the action — Pleading. — The action for false imprisonment is the coramon-law action for trespass, and consists in the unlawful restraint of a person without his consent, either with or without process. In Ohio it must be brought within one year from the time it occurs.^ It is distinguished from mahcious prosecution in that in the lat- ter there must be malice and want of probable cause for an arrest and imprisonment, while in the former the process or order by which the real imprisonment is effected must be absolutely void.^ Although malice is not an essential ingredi- ent of the action, yet it may be taken into consideration upon the question of damages.^ Where the allegation of a petition makes it an action for malicious prosecution, an amendment may be permitted by striking out the words " want of prob- able cause," and averring that the arrest was illegally made, and with force, thus changing it into an action for false im- prisonment.* To constitute false imprisonment it is not es- 1 O. Code, sec. 4983. 2 Spice V. Steinruck, 14 O. S. 213 ; Seeger v. Pfeitfer, 35 Ind. 13 ; Boaz v. Tate, 43 Ind. 60; Colter v. Lower, 35 Ind. 285 ; Carey v. Sheets, 60 Ind. 17 ; Diehl V. Friester, 37 O. S. 473. Tlie words •' without reasonable or prob- able cause " may be rejected as sur- plusage. Johnson v. Von Kettler, 84 111. 315; Woodall v. McMillan, 38 Ala. 622. 3 Johnson v. Bouton, 35 Neb. 898 ; Comer v. Knowles, 17 Kan. 436 : Hewitt V. Newberger, 20 N, Y. S. 913; s. c, 66 Hun, 230; Cunningham V. Electric Light Co., 17 N. Y. S. 372, and cases cited. « Spice V. Steinruck, supra; John- § 561.] FALSE IMPRISONMENT. £09 sential to aver and prove that the defendant used any vio- lence in causing the imprisonment.^ In stating the cause of action the ordinary rules of pleading should be observed, and hence it is not necessary to set forth all the facts and cir- cumstances, but the same should be stated in plain and con- cise language, and not at great length.- The particular in- strumentality by which the plaintiff was deprived of his liberty should be stated;' and if the petition does not show that the arrest was unlawfully made, it is demurrable.* Sec. 561. Action against an individual making complaint. Upon the question as to the liability of a person making a complaint or affidavit before a magistrate or other court, there seems to be some conflict between the different courts in New York. The higher and lower courts are not in har- mony upon this question. In Ohio, however, the rule is laid down in unequivocal terms, that where a court issues a war- rant of arrest without authority in law, that is, without juris- diction, both the court and complainant are responsible in an action for false imprisonment at the suit of an injured party."^ Other jurisdictions have adopted the same rule, and hold all who participate in the unlawful detention liable;^ while still other courts hold that the one who makes the complaint is not responsible for a wrongful arrest, placing the responsibil- ity entirely upon the officer whose duty it is to determine whether or not a warrant should issue.'^ The courts adopting the latter view, however, hold that the complainant to become responsible must be guilty of some improper conduct in con- nection with the arrest and imprisonment, and that he is re- lieved if he has reasonable cause to believe that the crime son V. Corrington, 3 W. L. B. 1139. STiuesdell v. Combs, 33 O. S. 186; Although this would seem unneces- "Wheeler v. Gavin, 5 O. C. C. C46. sary according to some authority. 6 Johnson v. Boutou, 35 Neb. 896; Johnson v. Von Kettler, 84 III. 315; Comer v. Knowles, 17 Kan. 436; 7 Woodall V. McMillan, 38 Ala. 623. Am. & Eng. Enc. of Law, 679; 1 Hawk V. Ridgeway, 33 111. 473. Vaughn v. Congdon, 56 Vt 111; 2 Eddy V. Beach, 7 Abb. Pr. 17: Miller v. Adams. 52 N. Y. 409; Guil- Shaw V. Jayne, 4 How. Pr. 119. leaume v. Rowe, 94 N. Y. 269. 3 Eddy V. Beach, siipm. ~ Latham v. Libby, 38 Barb. 339 ; < Cunningham v. East River Elec. Hewitt v. Newberger, 20 N. Y. S. 913; Light Co., 17 N. Y. S. 372; Marks v. s. c, 66 Hun, 230; Teal v. Fissel, 28 Townsend, 97 N. Y. 596 : C^astro v. Fed. Rep. 351 ; Langford v. Railroad ■Uriarte, 12 Fed. Rep. 250. Co., 144 Mass. 431. 510 FALSE IMPRISONMENT. [§ 562. has been committed, and merely furnishes the information.^ "Where the affidavit is made under a municipal ordinance which is afterwards declared invalid, such person is not liable to an action for false imprisonment.^ In setting forth a cause of action for false imprisonment against one who makes the complaint, the petition should state facts showing that the imprisonment was without jurisdiction and without legal pro- cess.' It should also be averred that the order of arrest has been vacated.* If imprisonment is made upon a lawful war- rant at the instigation of a person for the purpose of enforc- ing a debt, the remedy is for malicious prosecution.* Sec. 562. Actions against magistrates and judicial offi- cers. — It is well settled that inferior tribunals clothed with special or limited jurisdiction must at their peril keep within the bounds of their prescribed jurisdiction, and are answer- able to any one injured by any acts in excess thereof.^ A justice of the peace cannot be held liable where he believes a defendant is guilty of an offense charged when acting within his jurisdiction.' The duties of a magistrate in issuing an order of arrest in civil actions are regarded as of a ministerial character, and an action for an injury in this respect should be upon his bond.^ So long as a judicial officer or magistrate keeps himself within the limits of the jurisdiction conferred upon him, he cannot be held liable for a wrongful imprison- ment under a mistaken idea of the law;^ nor is he liable if he believes the accused probably guilty of the offense charged j^*^ nor IS a magistrate liable if he commits a person under an 1 Teal V. Fissel, supra; Murphy v. Clark v. May, 2 Gray, 410 ; Knowles Walters, 34 Mich. 180. v. Davis, 2 Allen, 61 ; Piper v. Pear- 2 Wheeler v. Gavin, 5 O. C. C. 246; son, 2 Gray, 120; Courcey v. Cox, 94 Gifford V. Wiggin, 52 N. Y. 904. Cal. 665. Cf. Lang v. Benedict, T6 s King V. . Johnston, 81 Wis. 578 ; N. Y. 12. Murphy v. Martin, 58 Wis. 276 ; Getz- ' Marks v. Sullivan, 8 Utah, 406 : enleuchter v. Neumeyer, 64 Wis. 321 ; 33 Pac. Rep. 224 (1893). Cunningham V. Electric Light Co., 17 8 pjace v. Taylor, 22 O. S. 317. N. Y. S. 372 ; Nemitz v. Conrad, 22 9 Budd v. Darling, 25 Atl. Rep. 479 ; Ore. 106; 29 Pac. Rep. 548 (1892); s, C, 64 Vt. 456 ; Austin v. Vrooman, Painter v. Ives. 4 Neb. 122. 38 N. Y. 229 ; Booth v. Karrus, 26 4 Searll v. McCracken, 16 How, Pr. Atl. Rep. 1013 (N. J., 1893) ; Hender- 262. son V. Brown, 1 Caines, 92. 6 Mullen v. Brown, 138 Mass. 114; i^ Booth v. Karrus, 26 Atl. Rep. Coupal V. Ward, 106 Mass. 289 ; Colter 1013 (N. J.. 1893) ; Marks v. Sullivan. V. Lower, 35 Ind. 285. 8 Utah, 406 ; 33 Pac. Rep. 224 • Truesdell v. Combs, 33 O. S. 194 ; §§ 563, 564.J FALSE IMPRISONMENT. 511 ordinance which is invalid.^ An action may be joined against both the judge who issued the warrant and the oflBcer making the arrest.2 Sec. 563. Actions against other oflScers.— There is no lia- bility on the part of an oflBcer making an arrest under a war- rant issued by a court which has jurisdiction of the offense charged, as he is protected under such a writ.' An action for false imprisonment will not lie where the arrest was made under a lawful process wrongfully obtained.* A constable who acts under the orders of a justice of the peace, who re- ceives a witness in a criminal case in obedience to an order of commitment and detains him for one day during the continu- ance of the case, is not liable for an action for false imprison- ment ; 5 nor is an oflBcer of the legislative department liable for an arrest made under the direction of the legislature ; « but an oflBcer who arrests a man and, instead of taking him before a magistrate to be dealt with according to law, compels him to pay a fine or go to jail, is liable for false imprisonment.' A police oflBcer is not authorized by law to arrest, without a warrant, any one on suspicion of being a deserter from the United States army. Hence an action for false imprisonment will lie against an oflBcer making such an arrest.^ Sec. 564. Actions against carriers of passengers — Liabil- ity of carriers. — A carrier of passengers is liable for any mis- conduct of its servants in wrongfully ejecting a passenger and causing his arrest.^ The company cannot be held liable if the arrest be made by the police authorities." 1 Wheeler v. Gavin, 5 O. C. C. 246 ; * Hobbs t. Ray, 25 AtL Rep. 694 Brooks V. Mangan, 86 Mich. 576. (R L, 1892). See, also, Gifford v. Wiggins, 52 N. » Fawcett v. Linthecum, 7 O. C. G W. Rep. 904 (Minn., 1892) ; Kelly v. 141. Beemish, 4 Gray, 83. 6 Canfield v. Gresham, 17 S. W. 2Zeller V. Martin, 84 Wis. 4; 54 N. Rep. 10; 82 Tex. 10. W. Rep. 330 (1893). 'Twilley v. Perkins, 26 AtL Rep. 3 Jennings v. Thompson, 55 N.J. 286 (Md., 1893). L 55; Cooley on Torts, 400; Seava- 8 Kendall v. Scheve, 3 O. C. C. 526. cool V. Boughton, 21 Am. Dec. 190; » Shea t. Manhattan Ry. Co., 15 Daly, Lieb V. Irou (.'o., 12 So. Rep. 67 (Ala., 528; Oppenheimer v. Manhattan Ry. 1893); Hobbs v. Ray, 25 Atl. Rep, Co., 18 N. Y. S. 411; Southern Pac, 694 (R I., 1892); Johnson v. Morton, Co. v. Hamilton. 54 Fed. Rep. 468; 53 N. W. Rep. 816 ; s. c, 94 Mich. 1 ; Norfolk, etc. R R Co. v. Galliher, 1& Marks v. Sullivan, 8 Utah, 406; & a, & E. Rep. 935 (Va, 1893)i 33 Pac. Rep. 824 (1893). lo Oppenheimer v. Manhattan Ry. 512 FALSE iMPRisoNMh;:;!'. [^';} 505-5(37. Sec. 565. Averment of damages. — If the plaintiff desires to make any claim for damages for injury to character, the facts with reference thereto must be specially pleaded ; ^ but the recovery will not be limited to nominal damages merely because there is no allegation of special damages.^ Evidence as to special damages arising by reason of the kind of food furnished during imprisonment cannot be admitted in the ab- sence of an averment to that effect.'^ Sec. 566. Petition for damages for false imprisonment. — Plaintiff states that the defendant D. E. is. and was at the time of the grievances hereinafter complained of, a police offi- cer of the city of C. That on the day of , 18 — , said defendant arrested and imprisoned this plaintiff, and unlaw- fully and by force deprived him of his liberty for one da}" on a pretended charge of desertion from the United States army. That by reason of such unlawful and wrongful imprison- ment, plaintiff was thereby prevented from attending to his business during the time he was so under arrest, and incurred an expense of s in obtaining his discharge and suffered damages in sum of s , for which sum he prays judgment. Note.— Adapted from Kendall v. Donahue, 3 O. C. C. 526. Sec. 567. Defenses to actions for false imprisonment. — The fact that an arrest was justifiable is purely a matter of defense, and must be specifically set forth, as it cannot be shown under a general denial.^ A defense that an offense had been committed and that the officer had reasonable grounds to believe that the plaintiff was guilty should be specially pleaded and cannot be made under a general denial.^ An answer which attempts to justify an arrest and imprisonment must identify the trespass complained of ;^ but an answer of justi- fication sufficiently identifies the imprisonment if it states that it is the same imprisonment complained of by the plaintiff.' A defense that the defendant assisted the officer who made the arrest, under compulsion, is good where there has been Oo., supra; Gillingham v. Railroad * Carey v. Sheets. 60 Ind. 17 ; Boaz Co., 35 W. Va. 588. But see Cun- v. Tate. 43 Ind. 61 : Willson v. Man- ningham v. Railway Co., 3 Wash, hattan Ry. Co.. 20 N. Y. S. 852. 471; 28 Pac. Rep. 745: Palmeri v. MVhite v. McQueen. 96 Mich. 249; Manhattan Ry.. 133 N. Y. 261. 55 N. W. Rep. 843 (1893). 1 Comer v. Knowles. IT Kan. 436. ^ Gallimore v. Ammerman, 39 Ind. 2Josselyn v. McAllister, 22 Mich. 323. 300, ' Scircle v. Neeves. 47 Ind. 289. 'Miles V. Weston, 60 IlL 361, II g 568.] FALSE IMPRISONMENT. 513 filed a proper affidavit and legal process issued.* And so a de- fense that a marshal or constable arrested the plaintiff on the street while intoxicated, and that he had just assaulted a cit- izen, and that he was arrested and detained until he became sober, is good where a criminal charge is properly filed against him.2 An answer that an arrest was made under a warrant must clearly show that the arrest was made for the dense charged in the complaint.^ It is a good defense by an indi- vidual that at the time he made the affidavit for arrest he acted upon the advice of the justice.* It has been held that an action will not lie against a person who makes a complaint before a magistrate or arresting officer where the warrant issued thereon is sufficiently regular on its face to protect the officer who executes it.* Sec. 568. Answer of jiistificatiou under process. — Defendant was a constable of township, county, Ohio, duly elected, qualified and acting as such. On the day of , 18—, by virtue of a warrant of arrest duly issued by a duly qualified and acting justice of the peace of said town- ship, he arrested and brought before said justice one P. G-., charged with the crime of burglary and larceny, the said charge then and there pending before the justice upon the complaint of one C. The accused, on being arraigned, pleaded not guilty; and in the opinion of the magistrate it was nec- essary to adjourn the examination of the accused on the pending charge to the next day, which was done. The ac- cused was thereupon ordered to enter into a recognizance for his appearance for an examination, which he failed to do, and was by the magistrate committed to his custody; that at the same time the plaintiff was present at said trial under sub- poena as a witness against the accused, and was required by said justice to enter into recognizance, with sufficient sureties, to give evidence against the accused on the day of , 18—, which the said plaintiff failed and refused to do; that thereupon the said magistrate, by an order and warrant in writing, duly committed said plaintiff into the custody of this (lolendant for safe keeping until he complied with the order of said magistrate or was otherwise discharged. That in pur- suance of said order of commitment this defendant received the said plaintiff into his custody and detained him until he 1 Goodwine v. Stephens, 63 Ind. 112. Stanton v. Hart, 27 Mich. 539 : Straus 2 Wilke V. Holt, 95 Ind, 469. v. Young, 36 Md. 247. 8 Young V. Warder, 94 Ind. 357. * Wheatou v. Beecher, 49 Mich. 348 ; ■« Dolbe V. Norton, 23 Kau. 101. Newman v, Davis, 58 la. 447. See White v. Tucker, 16 O. a 468 ; 83 514 FALSE IMPKISONMENT. t§ 569. was discharged, and had him before the magistrate on the day of , IS — , to give evidence against the accused; that this defendant did not otherwise or to any further ex- tent detain or imprison the plaintiff, and therefore asks that he may go hence, with his costs. Sec. 560. Answer by individual.— That on the day of , 18—, the horse of one C. D., of the value of I — — , had been stolen and feloniously taken away from county, state of Ohio. [State the causes of suspicion against the plaintiff?^ That the defendant, having good and' probable cause to suspect that the plaintiff committed said felony, arrested him and took him before E. F., a justice of the peace of said county, to be examined and dealt with according to law, and the acts above set forth are the same of which the plaintiff complains in his said petition. CHAPTEK 37. FORECLOSURE OF MORTGAGES — REAL AND CHATTEL DEMPTION AND DECLARING DEED A MORTGAGE. RE- Sec. 570. Parties plaintifif to actions in foreclosure, 571. Parties defendant. 572. Limitations to actions to foreclose mortgages. 573. Nature of the action — Per- sonal judgment, etc. 574. Averments as to liens. 575. Allegation of demand. 576. Stipulations as to defaults in payment of instal- ments and interest 577. Litigating paramount titles. 578. Petition in foreclosure by the original mortgagee — Simple form. 579. Petition where another party claims to own a portion of the premises, and against other mort- gagees. 580. Petition by executor of mortgagee against widow and heirs of mortgagor for foreclosure merely. 581. Petition where mortgage was taken upon fraudu- lent representations that there were no other mort- gages. 582. Petition against defendants holding tax-title deed claimed to be void, and de- fendant holding premises under land contract 583. Petition by assignee of notes and mortgage against maker and in- dorser, for personal judg- ment and foreclosure. Sec. 584. Petition by mortgagee against purchaser assum- ing mortgage — Prayer for personal judgment 585. Service. 586. The right to trial by jury. 587. Sale of mortgaged prop- erty. 588. Motion to set aside, in part, decree of confirma- tion. 589. Defenses in foreclosure proceedings. 590. Answer that defendant holds premises under land contract and that mort- gage was given after execution of contract 591. Answer asking to have mortgaged premises sold in inverse order of alien- ation. 592. Answer that note bears usurious interest and that payments made thereun- der reduce amount due. 593. Answer that notes were without consideration and were purchased after maturity, 594. Answer and cross-petition setting up judgment lien, 595. Answer that note and mortgage was made to cheat and defraud credit- ors, and without consid- eration. 596. Answer by defendant after proceeds are in court, contesting co-defendant's mortgage. 516 FORECLOSURE OF MORTGAGES. [§ 570. Sec. 597. Answer and cross-petition of building association in foreclosure proceedings. FORECLOSURE OF CHATTEL MORT- GAGE. 698. Actions to foreclose chattel mortgages. 699. Petition to foreclose chattel mortgage. DEED DECLARED A MORTGAOB. Sec 600. Action to declare deed a mortgage. 601. Petition to declare deed a mortgage when there ia a verbal agreement to re- convey. 603. Reformation of mortgages. 603. Action to redeem mortgage. 1 Sec. 670. Parties plaintiff to actious in foreclosure. — One of the most difficult and important steps to be taken in the foreclosure of a mortgage or other lien is to see that all proper parties are brought before the court. Close examina- tion of records is required. The measure of responsibility is equally as great upon the person who counsels the purchaser. As adjudications upon the subject of parties in foreclosure proceedings are numerous, it therefore seems unnecessary to attempt in a work of this nature to make a complete review. As the proceeding is an adversary one, it is essential that jurisdiction be acquired over the person and the res} It is settled that the only proper parties, as far as mere legal rights are concerned, are the mortgagor and mortgagee, and those who have acquired rights under them subsequent to the mortgage.^ It is the duty of the court upon discovering that all proper parties are not before it, to order them to be made parties,' as it is the well-settled rule of practice that claims may be brought in at any time up to the distribution of the proceeds, such claims being entitled to share therein.* Following the equitable rule now embodied in the code, that an action should be brought in the name of the real party in interest, one who merely holds an equitable interest in the property, such as mortgagee or pledgee, may maintain an action for foreclosure.* All persons interested in the mort- 1 Moore v. Starks, 1 O. S. 369, answer cannot be stricken from the 2 Frost V. Koon, 30 N. Y. 428; files (Alleraania v. Mueller, supra), Eagle F. Co. v. Lent, 6 Paige, 635 ; nor should the court dismiss a neces- Emigrant, etc. Bank v. Goldman, 75 sary party asserting a lien without N. Y. 127, 131. prejudice Thacker v. Dickinson, 'Thacker v. Dickinson, 3 O. C. C. sujiva. 144. See anfe, sec. 16. ^See ante, sec. 8. See also cases ■* AUemania v. Mueller, 7 W. L. B. cited in note 1, on p. 518. 301 (Ham. Co. C. P., 1892). Such an § 570.] rOKECLOSUKE OF MORTGAG-ES. 517 gaged premises should be made parties in order to bar tho right of redemption, even though the sale is made upon the oldest lien. Where lienholders are so numerous that it be- comes impracticable to bring them all before the court as parties, some may be allowed to prosecute for the benefit of all.^ An administrator may maintain an action to foreclose a mortgage made payable to his decedent;- and so may a mortgagee, who has been appointed administrator of his mort- gagor's estate, maintain an action to foreclose his own mort- gage against the heirs.^ A person who acquires notes and mortgages by virtue of proceedings in attachment may main- tain the action, as ownership is in legal effect assigned to him.* An assignee of one of several notes secured by mortgage may bring an action in his own name.* Where one of several notes secured by mortgage has been assigned, each person who holds a separate note must bring a separate action thereon for foreclosure, as they cannot join in one suit;^ and if the as- signment be absolute and the entire interest transferred, the mortgagee need not be made a party, although it may be the better practice to do so.^ All holders of notes must be made parties, so that the amounts and priorities may be determined.* A junior mortgagee may maintain an action to foreclose against those having an interest in the premises to subject the same to the payment of all liens thereon, without having first paid off the prior mortgage.^ An owner of a mortgage who has pledged the same as collateral may nevertheless bring an action in foreclosure, but should make his pledgee a party.^" It is equally well settled that a pledgee may maintain an action to foreclose in his own name, but is limited to the recovery only 1 Carpenter v. Canal Co., 35 0. S. "McGuffej' v. Finley, 20 O. 474; 307. Newman t. Chapman, 2 Rand. 92. 2 Miller V. Donaldson, 17 O. 264. 8 Winters v. Bank, 33 O. S. 250; 3 Hunsucker v. Smith, 49 Ind. 114. Bushfield v, j\Ie3-er, 10 O. S. 334 ; Bank 4Alsdorf V. Reed, 4r> O. S. 653; t. Covert, 13 O. 240. This rule is Secor V. Witter, 39 O. S. 218; Ed- based upon the theory that the as- wards v. Edwards, 24 O. S. 411. signment operates as an assignment ^Swartz V. Leist, 13 O. S. 419; jaro ^««?o of the mortgage. Gower v. Howe, 20 Ind. 396 ; Myers » Stewart t. Johnson, 30 0. S. 24. V. Wright, 33 111. 284. 10 Simson t. Satterlee, 64 N. Y. 657; fiSivenson V. PlowCo., 14 Kan. 887; McKinney t. Miller, 19 Midi. 142; Pettibone v. Edwards, 15 Wis. 104. George v. Woodward, 40 Vt. 672; Brunnette v. Schetter, 21 Wia 189. 518 FORECLOSURE OF MORTGAGES. [§ 571. of the amount of his own claim.^ A mortgagee who is a trustee for the holders of notes secured hy mortgages is a proper party plaintiff, although he does not own anything in his own right.- He falls within the meaning of the code' as a person with whom or in whose name a contract is made for the benefit of another, and is expressly authorized to bring the action. He is more than a mere mortgagee holding naked legal title to the mortgaged property. He is presump- tively clothed with requisite power to act for the holders of the note in an action to collect the debt. "Whether or not the beneficiaries are numerous, he ma}" nevertheless sue with- out uniting those for whose benefit the action is prosecuted.* Sec. 571. Parties defendant. — All persons who have claims against or are interested in the mortgaged premises should be made parties to bar the liens or right of redemption. Fore- closure proceedings being adversary, it is essential that juris- diction over both person and thing be acquired. The mort- gagor and all minor defendants must be personally served. The appointment of a guardian ad litem for minor defend- ants who have not been served with process does not give jurisdiction over them.^ A widow is entitled to dower, even though she signs a mortgage, where her husband's assignee has sold the mortgaged premises and also other property, the proceeds of which pay the mortgage debts and cancel the mortgage during the life-time of the husband. A sale under such circumstances does not bar her right of dower.^ So a widow who united with her husband in a mortgage upon lands seized by him during coverture should be made a party so as to bar her right of redemption; and foreclosure before her husband's death without making her a party to the proceed- ino-s will not divest her of that right.' The dower of a wife is not affected in foreclosure proceedings where a defendant files an answer setting up a mortgage signed by her, but fails to make her a party .^ The wife or widow is not entitled to iBard v. Poole, 13 N. Y, 495; « Coe v. Railroad Co., 10 O. S. 372 j Bloomer v. Sturgess, 58 N. Y. 168 ; Pomeroy's Code Rem., sec. 174. Dalton V. Smith, 86 N. Y. 176 ; Wil- 5 Moore v. Starks, 1 O. S. 369. son V. Giddings, 28 O. S. 554. « Ketchum v. Shaw, 28 O. S. 50a 2 Hays V. Coal Co., 29 O. S. 330. ^ McArthur v. Frauklin. 16 O. S. » Ante, sec. 9, 193 ; s. c, 15 O. S. 485. 8 Parmenter v. Binkley, 28 0. S. 821 I §571.] FORECLOSURE OF MORTGAGES. 519 dower in premises as against a mortgage or lien which at- tached before the marriage, and in an action against the mortgagor to foreclose such a mortgage his wife is not a neces' sary party.^ It is also held that a wife of a guarantee who did not sign the mortgage is not a necessary party, and that she need not be made a party where the mortgage was given to secure purchase-money.^ But upon the whole it seems that the wife should be made a party in any case, that her right of redemption may be cut off. Heirs or devisees of a mort- gagor must be made parties," and a judgment against a de- ceased mortgagor without the personal representative or heirs being made parties is void.* "Where the defendants are in- fants, some courts hold that the petition should state what their interest is — whether it is paramount or subordinate to plaintiff's mortgage.^ In an action of foreclosure against a trustee, the beneficiary or cestui que trust is a necessary party ; ^ though it has been held in an action against an executor and trustee of a will of a mortgagor that the cestvAs que trust are suflBciently repre- sented by the executor and trustee.' Where a trustee brings an action to foreclose a mortgage given for the benefit of creditors, the beneficiaries should be made parties thereto.' An action of foreclosure may be maintained in case of death of the mortgagor before the expiration of the time or the bringing of suits against the estate of the decedent, in which case the administrator and heirs are proper parties.* But an administrator of a mortgagor is not a proper party to the ac- tion, where the premises passed from the mortgagor before his death, unless a personal judgment is desired against the estate.^'' A mortgagor who, subsequent to the execution 1 Wilson V. Scott, 29 O. S. 636 ; 3 Nev. 57 ; Moore v. Pope, 97 Ala. 462 ; Phillipps V. Keels, 4 O. C. C. 316. 11 So. Rep. 840 (1892). 2 Ruffner v. Evans, 2 O. C. C. 70 ; 'In re Booth, 62 L. J. Ch. 40 ; In re Welch V. Buckins, 9 O. S. 331 ; Folson Mitchell, 65 L. T. (N. S.) 851. V. Rhodes, 22 O. S. 435. f^ Kloone v, Bradstreet, 2 Handy, 3 Green v. Ulyat, 3 W. L. M. 44 74 ; S. c, 7 O. S. 322 ; Bank v. Bell. 14 < Craven v. Bradley, 51 Kan. 336 ; O. S. 200. a C, 32 Pac. Rep. 1112 (1893X 9 Hathaway v. Lewis, 2 Disn. 260 ; * Aldrich v. Lapham, 6 How. Pr. Hall v. Musler. 1 Disn. 36 : Cinciu- 129. nati Savings Co. v. Jones, 4 W. I* 6 Hamilton v. Jacobs. 10 Am. Law. B. 475 ; Hall v. Hall, 3 W. L. G. 82. Rec. 445 (C. S. C); Mavrich v. Grier. ^ Puckett v. Reed, 22 S. W. Rejfc 520 FORECLOSURE OF MORTGAGES. [§ 571, of the mortgage, conveys all his interest in the premises to another, is not a necessary party where a simple decree of foreclosure and sale of the premises is sought ; ^ nor is a mort- gagor who has conveyed the premises to a grantee who as- sumes the payment of the mortgage indebtedness a necessary party,^ unless it is desired to hold him personally in his rela- tion of surety to his grantee. Nor is a mortgagee who as- signs the mortgage a necessary party.^ The rights of a junior mortgagee are not affected, even though not a party defend- ant, in an action by a senior mortgagee, and he may therefore maintain an action against the purchaser to foreclose his mortgao-e.'* To bar prior lienholders who are made parties, the petition must ask that they be required to set up their claims or be barred, which must be followed by judgment ordering a sale free from their claims.* Mortgagees upon a railroad represent- ing bondholders are not necessary parties.* And in an action against a railroad company to foreclose a mortgage, any ma- terial-man not an original contractor cannot come in as a party and ask relief as to matters independent of the things in litigation.^ Judgment liens acquired during the pendency of an action of foreclosure, though the holders are not parties thereto, are divested by sale of the mortgaged premises under decree in foreclosure.^ Where property is sold in foreclosure 515 (Tex., 1893) ; Roberts v. Piatt, 43 due on a prior mortgage does not 111. App. 608 ; s. c, 38 N. E. Rep. 484 ; prejudice the mortgagor or other United States Security Life Ins. Co. parties standing in the same relation V. Vandergrift, 26 Atl. Rep. 985 (N. J. to the mortgaged property. Stratton Ch., 1893); Gutzeit v. Pennie, 98 Cal. v. Reisdorph, 35 Neb. 314. One as- 327; S. C, 33 Pac. Rep. 199 (1893). serting a right under a mortgagor 1 Jones V. Lapham, 15 Kan. 540; prior to a mortgage involved in fore- Bigelow V. Bush, 6 Paige Ch. 343. closure proceedings should be made 2 McArthur v. Franklin, 15 O. S. a party in order that the priorities 485; s. C, 16 O. S. 193. may be determined. Brown v. 3 Grant v. Ludlow, 8 O. S. 1 ; Mc- Volkening. 64 N. Y. 76. Guliey v. Finley, 20 O. 474. * Emigrant, etc. Bank v. Brown, 4 Stewart v. Johnson, 30 O. S. 24 ; 75 N. Y. 127. See sec. 574, post. Holliger v. Bates, 43 O. S. 437; Childs « Coe v. Railroad Co., 10 O. S. 373. V. Childs, 10 O. S. 339 ; Moulton v. ■ Bartlett v. Patterson, 10 W. L. B. Cornish, 138 N. Y. 133; Goodall v. 367. Mopley, 45 Ind. 355. A late Nebraska ^ Roberts v. Dorent, 30 W. L. R case holds that in an action of fore- 397 (Franklin Co. C. P.X closure a failure to find the amount § 572.] FOEEOLOSUEE OF MOKTGAOE8. 521 proceedings against several persons owning land as tenant* in common, each of whom is bound to pay his equal pro- portion of the debt, a portion of whom buy the same and exe- cute another mortgage to a third person for money borrowed for the purchase of the premises, the latter mortgage may be- enforced against that portion of the original owners in com- mon who did not join in the purchase of the premises.* Devisees under a will who have an interest in the property should be made parties defendant.^ A purchaser assuming payment of a mortgage is a necessary party if the mortgagee desires to take personal judgment against him. And where there are several purchasers, each of whom has assumed the mortgage, all should be joined, as each one, together with the mortgagor, stands in the relation of principal and surety;* and if the mortgagee seeks to enforce the personal liability existing between such parties, it is necessary, as matter of course, that all should be made parties. But a purchaser who takes property subject to a mortgage merely is not a neces- sary party if he has parted with the premises, as a personal judgment cannot be obtained against him.* A guarantee of a mortgagor does not lose his right to redemption even though not made a party to the proceedings.* Persons claiming title by virtue of a sheriff's sale, which in fact does not pass title, are not necessary or proper parties to an action to foreclose.* Sec. 573. Limitations to actions to foreclose mortgages. A rule has been adopted by the supreme court of Ohio with respect to the nature of a mortgage making a radical change in what has been for many years the established prac- tice as to the time within which a proceeding to foreclose shall be brought. The court holds that a mortgage is a specialty, and hence falls within the fifteen-year period of limitation prescribed by the code. This doctrine is placed upon the theory that, as between mortgagee and mortgagor, the title, upon condition broken, rests in the former, and that his right 1 Rhodes v. Raymer, 6 O. C. C. 68. * Farguay v. Felthousen, 45 Wia 2Knierin v. Zaengerle, 10 W. L. B. 30. 293 (Cuyahoga Co. C. P.). 5 Childs v. Childs, 10 O. S. 339. 3 Scarry v. Eldridge, 63 Ind. 44 ; « Hall v. Yoells, 45 Cal. 584. Hand v. Hutchinson, 13 J. & S. 385. 422 FORECLOSURE OF MORHJAGES. [§'^73. still exists, as at coraraon law, to recover possession of the premises as by the old form of action in ejectment; that a sale on foreclosure is not a recovery of real estate.^ That being the case, it cannot be governed by the statute of limit- ation relating to recovery of real estate prescribing twenty- one years. This is a logical evolution of the law. Where the mortgagor has died, the action may be maintained against the administrator or executor. The ])etition in such a case must show that eighteen months have elapsed since the date ■of the administration bond.^ An action, however, against the estate on the notes secured by the mortgage is barred in four years,^ unless it has been presented and allowed by the admin- istrator. But the provisions under which an action on the notes are barred being a part of the administration law are not applicable to foreclosure of the mortgage, which is gov- erned by the more general act concerning the limitation of actions, and the creditor has his remedy in equity.* Sec. 573. Nature of the action — Personal judgment, etc. — The mortgagee at common law had the right to prose- cute three actions concurrently, namely, an action to foreclose, a personal action on the debt, and an action in ejectment to recover possession of the mortgaged property.* The mort- gagee may still pursue any of the remedies which existed prior to the code, such as ejectment, now recovery of real property, against one claiming to have purchased the premises from the mortgagor,** or an action of forcible entry and deten- tion, notwithstanding the pendenc}'" of foreclosure proceedings.'' It must now be considered settled that an action to foreclose a mortgage cannot be maintained after the note which it se- »Kerr v. Lydecker, 51 O. S. — ; Ch. 330; Delahy v. Clement, 3 IlL 31 W. L. B. 290; Heighway v. Pen- 201; Joslyn v. Millspaugh, 27 Mich, dleton, 15 O. 735 ; Allen v. Everly, 24 517 ; Spence v. Insurance Co., 40 O. S. O. S. 97; Hibbs v. Insurance Co., 40 517-20. See chapter on Real Actions, O. S. 543-559. sec. — . 2 Green v. Ulyatt, 3 W. L. M. 44 6 Kerr v. Lydecker, 51 O. S. ; »R S., sec. 6113. 31 W. L. B. 290; ante, sec. 572; < Fisher v. Mossman, 11 O. S. 42; Hart v. Blackington, W. 386; Robin- Belknapp v. Gleason. 11 Cona 160; son v. Fife, 3 O. S. 551. 9 W. L. B. 220; Robinson v. Fife, 3 "Br id well v. Bancroft, 4 W. L. M. O. S. 551 ; Clark v. Potter, 32 O. S. 49. 617 (1862). "Dunklev v. Van Buren, 3 John. § 573.] FORECLOSURE OF MORTGAGES. 523 cures is barred.' An action in forclosure is strictly a proceed- ing in rem, although the" plaintiff may proceed against the defendant personally if more desirable. In an action to fore- close a mortgage given to secure payment of money, or to enforce a specific lien for money, the plaintiff may also ask in his petition a judgment for the money claimed to be due; and such proceedings shall be had and judgment rendered thereon as in a civil action for the recovery of money.- This necessarilj^ applies only to those who are personally liable for the debt.^ A personal judgment cannot be had, however, unless the peti- tion contains an express prayer therefor.* The pendency of an action to foreclose a mortgage in which personal judgment is not demanded will not bar another action upon the note alone for personal judgment.' Even where the petition only asks that the mortgage be foreclosed and the property be sold, an amendment may be made so that personal judgment may be obtained.^ A widow cannot ask for personal judgment in an action by her for the recovery of her dower in premises which were secured to her by a mortgage executed by a pur- chaser from her husband, based upon the ordinary defeasance clause of a mortgage.'' Nor can personal judgment be rendered against a nonresident defendant who has only been served by publication ; ^ nor can a mortgagee defendant obtain a personal judgment against another co-defendant.** The fact that no indorsement is made upon the summons of the amount of judgment asked for, when the petition contains a prayer for personal judgment, will not render the proceedings erroneous,'" as it is not necessary to indorse thereon the amount or nature of the claim." It is necessary to allege title to the note and mortgage, 1 Kerr v. Lydecker, 51 O. S. ; sspence v. Insurance Co., 40 O. S. 31 W. L. B. 290. 517. 2 0. Ck)de, sec. 5021. SFoote v. Sprague, 13 Kan. 155. 'Fleming v. Kirkendall, 31 O. S. See Stephenson v. Reider, 2 W. L. B. 56a 335. «Giddings v. Barney, 31 O. S. 80. 'Hardinger v. Zeigler, 6 W. L. B. For form, see sees. 583, 584. Tlie 326. court may order an execution for any 8 Wood v. Stanberry, 21 O. S. 142. deficiency after the property is ex- 9 Bank v. Fisk. 2 W. L. M. 543. hausted. Giddings v. Barney, supra. lo Conn v. Rhodes. 26 O. S. 644. Personal service must be had. Buck- H Larimer v. Ciemmer, 31 O. S. 499. heimer v. Alsdorf. 2 W. L. B. 266. 524 FORECLOSURE OF MORTGAGES. [§ 574. although an averment that a note was duly executed and de- livered by the defendant to plaintifif, and that there is due thereon a certain amount, is a suflBcient allegation of owner- ship.^ But where an action is brought by one who has ac- quired title to a mortgage by virtue of attachment proceedings, he should plead all necessary facts showing his title.- The action partaking of the nature of an equitable proceeding, the plaint- iff may attach interrogatories to his petition.^ But where he desires to ascertain the rate of interest on a claim of a defend- ant prior mortgagee, the petition must contain an allegation that the mortgaged property is not sufficient to pay both mort- gages before he can interrogate as to the rate of interest.* There can be no doubt as to the right to join an action on the note with an action to foreclose.* A mortorao^e cannot be fore- closed by piece-meal by selling only a portion of the premises which it covers. If this course is pursued by the mortgagee, he waives the lien on the remaining property.^ In a suit by a judgment creditor to enforce the same against real estate upon which there is a mortgage, the holder of the mortgage being a party defendant who sets the same up by answer, the suit will be dismissed if it appears that the debtor has other property out of which the judgment can be had.' The assignee of a note and mortgage cannot maintain a personal action on the assignor's guaranty of the collectibility of the note, made at the time of assigning the same, without resort- ing to the mortgage.* The petition must contain an averment that the debt is due at the time the action is commenced.* And it must also be averred that the mortgage was duly en- tered of record, althouofh it is said that such an alleoration is immaterial as between the mortojacror and mortcraccee.'® Sec. 5<4. Averments as to liens. — It has been held that an averment that a defendant has or claims to have a lien upon or interest in the premises, the nature of which is not known 1 Sommers v. Hawkins, 1 Clev. Rep. ' Lee v. Harback. 2 W. L. M 527. 210 ; ante, sec. 50. p. 50, n. 7. 8 Timmerman v. Howell, 3 O. C. C. 2 Alsdorf V. Reed, 45 O. S. 653. 27. !>. Ante, sec. 24 13 How. Pr. 95; Budd v. Kramer, 14 * Mascarel v. Raffour, 51 Cal. 242. Kan. 101. § 575.] FORECLOSURE OF MORTGAGES. 525 to plaintiff, does not state any fact which a defendant lien- holder is bound to answer, and in the absence of any other averment or pleading by the defendant, a court cannot render a decree quieting or barring the claim of such a defendant ; a decree made upon such pleadings would be a nullity.' With- out an allegation in the petition in some way controverting or denying the validity of the claim of a defendant, such de- fendant may assume that his lien is paramount to plaintiff's, and his rights are not therefore affected by the proceedings.' The usual allegation made in such cases, which has been ap- proved by courts and writers generally, is: "That the defend- ant G. II. has or claims to have some interest in or lien upoa the said real property; but the same, whatever it may be, is subject to the lien of the said mortgage of plaintiff." ^ There must be an allegation showing that the defendant's claim is inferior to that of the plaintiff. The most usual allegation in Ohio probably is, " that the defendant A. B. has or claims to have some interest or lien upon the property hereinbefore de- scribed, which plaintiff asks he may be required to set forth or be forever barred from asserting the same."* The su- preme court has recently held, however, that an averment that a co-defendant has or claims to have some interest in or claim upon the mortgaged premises, and advises him that his claim or lien will be barred if he fails to appear and dis- close it, is sufficient without averring the character of the interest.' The doctrine of this case, which was a well-consid- ered one, is not m entire harmony with the strict rule an- nounced by other cases considered in this section, and must necessarily supersede all others. Sec. 575. Allegation of demand. — Whether or not a peti- tion to foreclose a mortgage should aver a demand for pay- iLaughlin V. Vogelsong, 5 0. C. C. . S. B., for that the said defendant, in order to secure the payment of said note and the interest thereon, according to the tenor and effect thereof, executed and delivered to plaintiff his certain mortgage deed on the said day of , 18 — , and thereby conveyed to the said plaintiff in fee-simple, her heirs and as- signs, the following described premises, to wit : [Description of property.'] Said mortgage deed had a condition thereunder written as follows, to wit: [Copy condition or substance.] The said mortgage deed was left with the recorder of D. county, Ohio, to be by him recorded, at o'clock — . M., , 18 — , and was recorded , 18 — , in county, rec- ord of mortgages, volume , page There is due the said plaintiff from the said defendant, D. S. B., on the note and mortgage in the petition described, the sum of $ , with interest at per cent, from , 18 — , which the said defendant has failed to pay according to the tenor and effect thereof, by reason whereof said mort- gage deed has become absolute. The said L. B., defendant, at the time said note and mort- gage Avere given, claimed to own the undivided one-fourth of said premises, and now claims some interest in said premises by way of mortgage, the exact nature of which plaintiff is ignorant, and she therefore asks that he be required to answer and set forth his claim or be forever barred.^ The said defendants, A. C. and N, C, his wife, claim some interest in said real estate, the exact nature of which plaintiff is ignorant, and she therefore asks that they may be required to answer and set forth their claim or be forever barred. Wherefore the plaintiff prays that an account may be taken by the court of the amount due the plaintiff from said defend- ant, D. S. B., on said note and mortgage, and that the said D. S. B. be ordered to pay the amount so found due by the court within a short time to be named by the court, and in ■default thereof that the court order said undivided one-fourth of said premises, or such part thereof, if less than the amount stated in said mortgage deed, owned by said D. S. B., to be appraised, advertised and sold according to law, and the pro- ceeds applied to the payment of the amount so found to be due by the court, and for such other and further relief as the equity of the case may require. J. H., Attorney for Plaintiff. Note.— From Benton v. Shafer, 47 0. S. 117 I See ante, sec. 574. ■I I 580.] FORECLOSURE OF MORTGAGES. 531 Sec. 580. Petition by executor of mortgagee against widow and heirs of mortgagor for foreclosure merely. — That on the day of , IS—, W. B. died testate leaving a will which was duly probated by the probate court of county on the day of , 18 — , and the said plaintiff was duly appointed and qualified as the executor of the said last will and testament of said deceased, and is still qualified and acting as said executor. That on the day of , 18 — , one J. W. B. executed and delivered to the said W. B. his promissory notes of that date, being for a balance of purchase-money of the tract of land hereinafter described, each of said notes being for the sum of $ , copies of which are as follows: [Coj)y.'] 2, \_Formal averments.'] Plaintiff further says that, to se- cure the payment of the said notes and the interest thereon as it should become due, the said J. W. B. and the defendant S. F. B., his wife, on the said day of , 18 — , executed and delivered to the said W. B. their mortgage deed, and thereby conveyed to the plaintiff's said testator, W. B., his heirs and assigns, the following described lands and tenements situated in the county of and state of Ohio, to wit : \_De- scription of ■premises^ The condition contained in said deed was in substance that if the said J. W. B. should pay the notes according to the tenor thereof the said deed should be void, otherwise to be and remain in full force and virtue in law. Plaintiff further says that since the execution of said deed and notes the said J"^ W. B. departed this life intestate, leav- ing as his sole heirs and representatives the defendant S. F. B., his widow, and the defendant M. B., an infant child under the age of twelve years. On the day of , 18 — , at o'clock — . M., the said mortgage was delivered to the recorder of county to be by him entered for record and was recorded in volume of mortgages at pages and following. The said deed has become absolute. There is due and un- paid on the second of said notes the sum of dollars with in- terest thereon from the day of , 18 — . The third mentioned note is due and unpaid, to wit, the sum of dollars, with interest thereon from the day of , 18 — , at the rate of per cent, per annum payable annually. There is due and unpaid for annual interest on the whole of said notes the sum of dollars with interest thereon from the day of , IS — , There is also due as the annual interest on the sum of dollars, the principal sum of fourteen of said notes, the sum of dollars, with interest thereon at the rate of per cent, from the day of , 18 — . There is also due on 532 FORECLOSURE OF MORTGAGES. [§ 581. said principal sum the interest which became due on the day of , 18 — , to wit, the sum of dollars, together with interest thereon at the rate of per cent, per annum, less what interest may be found due on second and third notes aforesaid. The plaintiff therefore prays that there be an account of the amount due upon the several notes mentioned herein and the interest accrued, that said mortgage be foreclosed, the said premises ordered to be sold, that an order of sale issue to the sheriff to sell the said premises as upon execution, and for such other and further relief as may be proper in the prem- ises. B. B. K., Attorney. Sec. 581. Petition where mortgage was taken upon fraud- ulent representations that there were no other mortgages. — The plaintiff says : 1st. That on the day of , 18 — , the defendant R. M. executed to him his two certain promis- sory notes of that date, copies of each of which are hereto at- tached, marked Exhibits A and B respectively [or, a copy of which notes is as follows] : [Copy.] There is due plaintiff upon said notes the sum of $ with interest from . [Formal averments as in ante, sec. 578.'] 2d. On the day of , IS — , the defendants R. M. and C. M., his wife, to secure the payment of said two notes and interest thereon, executed and' delivered to plaintiff their mortgage deed and thereby conveyed to this plaintiff, his heirs and assigns, the following lands and tenements, situate in the county of and state of Ohio, and described as follows : [DesGription of lands.] 3d. The condition contained in said mortgao^e deed was in substance that if the said should well and truly pay the aforesaid promissory note with interest thereon, according to the tenor and effect thereof, to the said , his heirs and assigns, then said deed to be void, otherwise to be and remain in full force and virtue in law forever. 4th. On the day of , 18 — , at o'clock — M., said mortgage deed was filed in the office of the recorder of county, Ohio, to be by him entered on record, and on the day of , 18 — , the same was recorded as required by law. Plaintiff says that as between him and all the defendants, except B., B. & C, his is the first mortgage and lien upon said described premises and should be paid out of the proceeds arising from the sale of the same. That sometime in , 18 — , the defendant J. M. executed and delivered to the defendants R. and C M. a warranty deed for said described premises, and at the time the plaintiff § 582.] FOKECLOSTJEE OF MORTGAGES. 533 took his said mortgage on said premises, said J. M. represented to this plaintiff that there was not an}^ lien or mortgage on the same, and plaintiff, relying on the statement so made by J. M. with reference to the same, forbore to make an examination of the record, and was induced to take his said mortgage on said premises by reason of said J. M/s said representations that said premises were entirely free and clear of all incum- brances, when in fact, plaintiff says, he is advised and believes that there was then and still is a mortgage on the same for about I to the defendants B., C. & C, and plaintiff says he first learned that said representations of said J. M. were untrue on , IS — , Plaintiff says the defendant H. S. IT. has a mortgage on said premises, or a note secured by the mortgage held by the defendant J. M., but he says that said note and the security for it is the sole and separate property in her own right of the said H. S. H. The defendants E. and R. S. W. have or claim to have some lien in or upon said lands and tenements, but whatever claim they or either of them have is subsequent to that of plaintiff, and should be postponed to plaintiff's, but the exact nature and amounts of their claims plaintiff is not advised of, and asks proof of the same. Plaintiff asks that his said mortgage may be foreclosed, the said premises ordered to be sold, and the proceeds arising from such sale applied to the payment of his debt, and that execu- tion be awarded for any balance, and for such other and fur- ther relief as he may be entitled to in the premises. Sec. 582. Petition against defendant holding: tax-title deed claimed to be void, and defeudaut claiming premises under land contract. — First cause of action: I. The said plaintiff F. J. complains of the said defendant J. H. H. for this: that there is due him from said defendant on a promissory note, a copy whereof with all in- dorsements thereon is hereto attached, marked *' Exhibit A," and made a part hereof, the sum of dollars, which sum plaintiff claims of said defendant with interest thereon at the rate of per cent, per annum from the dav of , 18—. II. That to secure said promissory note the said defendant J. E[. H., on the day of , 18 — , executed and de- livered to this plaintiff his mortgage deed of that date and thereby conveyed to this plaintiff the following described premises, lands and tenements, to wit : Situated in the city of , county of , and state of Ohio, and known as [descrihe propeHy\. 634 FORECLOSURE OF MORTGAGES. [§ 582, On the day of , 18 — , at o'clock — . M., this plaintiff duly delivered said mortgage deed to the recorder of said county of for record, and the same was by said re- corder duly recorded in volume at page of the records of said county. Said deed had a condition thereunder written that if said , his heirs, assigns, executors or administrators, should well and truly pay said promissory note according tothe tenor thereof to the said plaintiff, his heirs or assigns, then said deed to be void, otherwise to remain in full force and virtue in law. The condition of said mortgage deed hath been broken and the same hath become absolute for this : that the said and his assigns have failed to pay said note according to the tenor thereof, but so to do have failed and refused, and there is now due plaintiff on said note and mortgage the sum of dollars, which sum is due with interest at the rate of per cent, per annum from the day of , 18 — , and which is the amount due after giving credit for all payments and the proceeds of the other property in the mortgage de- scribed, and is the first lien on said premises. The said de- fendant M. A. H., wife of J. H. H., released her right of dower in said mortgage deed. That said , defendant, claims title to said premises by a tax deed, but plaintiff says that the sale by which he ac- quired title was defective and void"; that the advertisement of the property for sale was insufficient; that no effort was made to collect said tax before sale ; that no suit was brought to collect said tax, and that the tax deed is thereby defective and void, and the only claim that the said has is for the sum of $ , with interest from , 18 — , as a lien upon said premises. That said defendant claims to have some title to said premises by deed from J, H. H., but the same is subse- quent to and inferior to plaintiff's claim. AVherefore the plaintiff prays that said {defendant having tax title'] and [defendant claiming property hy land contract] may be required to set up their claims to said premises or be forever barred, and plaintiff prays judgment against said for the sum of dollars, with interest at the rate of per cent, per annum from , 18 — . Plaintiff prays that the premises in the petition described may be ordered to be sold according to law and the proceeds applied to the payment of plaintiff's claim and costs, and for such other and further relief as equitv may require. W. & S., Attorneys for Plaintiff. Note. — From Jaeger v. Hardy, 48 O. S. 335. § 583.] FORECLOSURE OF MORTGAGES. 535 Sec. 583. Petition by assignee of notes and mortgage against maker and indorser, for personal judgment and foreclosure. — I. Plaintiff's cause of action is founded upon a promissory- note of which the follo\vin>^ is a copy, viz. : \_Set out copy.'] The following are the only credits and indorsements thereon, viz. : \_Set out credits and indorsements.^ On the day of , 18—, and after said note became due, the said W. D. indorsed and delivered the same to these plaintiffs. The defendants E. S. and C. C. S. are liable on said note as makers, and the defendant W. D. as indorser. There is due from the defendants to the plaintiffs on said note the sura of dollars, which he claims with interest from the day of , 18 — , payable annually. II. These plaintiffs furtlier say that at the time of the exe- cution of the notes above set forth and to secure the payment of the same and the money stated therein, the said C. C. S. and E. S.. his wife, did by their mortgage deed, duly executed and delivered to the said W. D., convey to the said defendant W. D., his heirs and assigns forever, the following real estate situated in the county of , in the state of Ohio, and_ in the city of , and bounded and described as follows, viz.: {Set out descri})tion.'\ To have and to hold the same to the said W. D., his heirs and assigns, and to his and their own use and behoof forever. This mortgage deed was given to secure a part of the purchase-money for said premises as is recited therem — which said deed of conveyance had a condi- tion thereunder written whereby it was provided that if the said C. C. S. and E. S. shall pay or cause to be paid unto the said W. D. their seven certain promissory notes of even date herewith, each for the sum of dollars, payable in years respectively, and bearing interest at the rate of per <3ent. per annum, interest payable annually, when the same became due and payable according to their tenor and effect, then these presents to be void, otherwise to be and remain in full force and virtue. The said mortgage deed was duly left with the recorder of said county of on the day of , 18 — , at ()\;lock — . M., for record, and was by him duly recorded in the rocord of mortgages in volume — — , at page , record of lortgages of said county, Ohio. That when said promissory notes became due and payable ucording to the tenor and effect thereof as set forth in the lirst and second cause of action herein, they were not paid or I uy part thereof, except the interest thereon for the first year on each of said notes; that there is due and unpaid on each of said notes all interest payable annually — whereby the con- 536 FORECLOSURE OF MORTGAGES. [§ 584. dition of said mortgage deed has been broken and said mort- gage deed has become absolute. That on the day of , 18—. the said W. D., for a valuable consideration in hand paid, transferred and assigned all his right, title and interest in said mortgage deed to these plaintiffs, E. G. C. and A. W., by his written assignment in- dorsed on said mortgage, which said assignment was duly entered on the records of county, Ohio, on the day of , 18 — . These plaintiffs are now the owners and holders of said mortgage deed by reason of the premises. Wherefore the plaintiffs pray judgment against the said de- fendants for said sum of dollars, with interest from , 18—, payable annually, on dollars, and also on a failure to pay said judgment by a day to be named, said premises to be appraised, advertised and sold as upon execution and the proceeds applied to pay said judgment so to be rendered, or so far as said proceeds shall go in paving the same. K. & AV., Attorneys for Plaintiffs. Note. — From Kragle v. Diehl, Supreme Court, No. 1652. An assignment of the debt carries with it the security. Swartz v. Leist, 13 O. S. 419. Sec. 584. Petition by mortgagee against pnicliaser as- suming mortgage — Prayer for personal judgment. — [Caption.'] Plaintiff says that the defendant C. D., on the day of , 18 — , made, executed and delivered to him his promis- sory note for the sum of S , and thereby promised to pay plaintiff said sum of | with interest thereon at per cent., of which note the following is a copy, together with all credits and indorsements thereon, to wit: [Copy of note.'] There is due upon said note the sum of | with interest at per cent, from . [Formal averments.] The said C. D., at the time of the execution and delivery of said note, and to secure the pay- ment of the same, executed and deliv^ered to plaintiff a mort- gage deed, and thereby conveyed to said plaintiff the follovy- ing described premises situate in the county of — — and in the state of Ohio, and described as follows: [Description o/ premises.] The said mortgage deed had a condition there^ under written that [copy or substance of conditions]. That on the day of , 18—, at o'clock, said mortgage deed was delivered to the recorder of said county for record, and was by him duly recorded on the day of . 18 — , in volume of record of mortgages of said county, at page . That on the day of , 18—, the said C. D. sold and conveyed the premises hereinbefore described, and upon which said mortgage was given, to E. F. ; and it was thereupon cove- 1 § 585.] FORECLOSURE OF MORTGAGES. 537 nanted and agreed by the said grantee E. F., by a special agreement incorporated in the conveyance by said C. D. to E. F., that he would assume and pay off and discharge the said note and mortgage hereinbefore set forth as part of the con- sideration for said conveyance, a copy of which agreement is as follows: [Copi/.] Plaintiff says that said defendants C. D. and E. F. have wholly failed to pay said mortgage indebtedness, and there is therefore due from said defendant E. F. as principal and C. D. as surety the sum of $ , with interest from the day of , 18 — , and the conditions of said mortgage deed have been broken and the same has therefore become absolute. Wherefore plaintiff asks judgment against the said defend- ants for the said sum of * , with interest from , 18 — ; that said mortgage deed be foreclosed, the said premises sold and the proceeds applied in payment of said debt, and for all proper relief. l>iOTE.— Assumption of mortgage: A pui-cliaser assuming one-half of mortgage debt is a proper party and is liable for one-half of a deficiency after exhausting tlie property, and execution may be issued against him. C. S. & L. Assn V. Kreitz, 41 O. S. 143. The grantee becomes the original debtor and the mortgagor his surety. Calvo v. Davies. 73 N. Y. 215; Klap- worth V. Dressier. 13 N. J. Eq. Cifs. c, 78 Am. Dec. 69. See Teetors v. Lamborn, 43 O. S. J.jo. Each successive grantee who assumes payment of the mortgage also becomes a surety. Bank v. Goff, 13 R. I. 516 : Torrey v. Ranks, 8 Paige, G49. On question of assumption, see Brewer v. Maurer. 38 O. S. 543. Sec. 5S5. Service. — As title depends upon proper parties and proper service, great care should be exercised in this re- spect so that all defendants may be brought before the court. As heretofore stated, all minor defendants must be actually served with process.^ It is also essential that the precipe for process should indicate the proper indorsement to be made upon the summons. As the action is not for the recov- ery of money only, the indorsement merely of the amount claimed upon the summons would mislead the opposite party into the belief that it was merely an action for money.- Where the action is for the sale of mortgaged premises and for per- sonal judgment, no indorsement on the summons as to the amount or nature of the claim is necessary.'' Where a defend- 1 See ante, sec. 570. county, Ohio, indorsed : Prayer 2Kious V. Kious. 3 W. L. M. 418. for judgment f or .| , foreclosure The indorsement on the summons and equitable relief. may be made as follows : To clerk : ^ Larimer v. Clemmer, 31 O. S. Issue summons for the within named 499. In B. & O. R R. Co. v. Weeden defendant directed to the sheriff of (in June, 1894), Severns, J., of the 538 FORECLOSURE OF MORTGAGES. [§ 586. ant files an answer and cross-petition service should be made the same as upon the original petition, if he is in default. Other- wise a personal judgment cannot be rendered upon a cross- petition without a summons being issued thereon when the defendant is in default for answer to the original petition.^ Where a judgment is rendered on a note and mortgage against the maker and payee as an indorser, and an order of sale has been made, the same cannot be reversed upon the ground that such payee has not been served with process.- If the defend- ant is a non-resident, service must be made as in other cases by publication. A judgment in foreclosure against a non- resident mortgagor without constructive service, as required by the code,' will not bar his equity of redemption;* nor can a personal judgment be rendered against such a non-resident defendant upon constructive service merely.' Where the aflBl- davit upon which service by publication has been made is in proper form, the jurisdiction of the court cannot be collater- ally assailed upon the ground that it is false.^ Sec. 586. The right to trial by jury. — The question as to whether or not parties in foreclosure have a right to demand trial by jury is often a perplexing one, and has troubled both practitioner and court. The difficulty arises, however, in laying down a general formula or rule which may govern all oases. It is generally conceded that where questions of fact are presented which, if true, will extinguish the right to fore- close, a trial by jury may be demanded. This doctrine has been expressly laid down, and followed in practice, and yet re- cent adjudications are apparently at variance with it. A brief review of the cases can only be made. As a legal and an equi- table cause of action are joined, it is therefore said that, where a judgment is asked upon the imte and for the sale of the United States district court sitting at I Thatcher v. Dickinson, 3 O. C. C. (Dolumbus, Ohio, in an action against 144 a clerk for failure to issue summons, 2 Larimer v. Clemmer, 31 O. S. 499. decided that under the Ohio statutes ^ O. Code, sec. 5048. it was the duty of the attorney to see * Endell v. Leibrock, 33 O. S. 254. that the summons was properly 5 Wood v. Stanberry, 21 O. S. 142. placed in the hand of the sheriff, aid ^ Laughlin v. Vogelsong, 5 O. C. C. that there was no liability on the part 407; Harris v. Hardeman, 14 How. of the clerk 334 ; Fowler v. Whitman, 3 O. S. 271 ; Buchannan v. Roy, 2 O. S. 251. g 586.] FORECLOSDRE OF MORTGAGES. 539 mortgaged property, any issue of fact which affects the judg- ment upon the note is an issue which either party has a right to demand shall be tried to a jury.^ Yet a trial by jury was denied in an action to subject the estate of a married woman to the payment of a note and for foreclosure.^ In another instance, in an action against a defendant grantee who had assumed payment of the mortgage, which was contro- verted, a demand to trial by jury was made, which the trial court refused. In Si 2^<^f" ouriam report it was stated that in taking an account without a jury, to ascertain how much of the mortgage debt remained unpaid, and in allowing execu- tion against the mortgagor, the trial court did not err.' In another case, decided by the circuit court of Ohio, upon the same question, in which a defendant mortgagor answered set- ting up a defense that the mortgage given to the plaintiff to secure a balance of unpaid purchase-money, upon certain mis- representations for which he claimed damages, the rule was adopted that, where new matter is set up in an answer which states a legal cause of action, which, if established, ex- tinguishes the cause of action set forth in the petition, a right of trial by jury exists.* The converse of this arises where new matter is set up in an action constituting an equitable case, extinguishing a legal cause of action contained in the petition.' In still another case, where the prayer was for an ordinary decree of foreclosure, and the answer of the defend- ant was that he had paid the mortgage indebtedness, the right to trial by jury was held not to exist.^ 1 Ladd V. Jones, 10 O. S. 437 (1859) ; case in which it was held that if the Brundridge v. Goodlove, 30 O. S. 374 legal defense set up were such that, if (1876); Kellar v. Wenzell, 23 O. S. established, it would extinguish tlie 579. equitable cause of action, is expressly !i Avery v. Van Sickle, 35 O. S. 270. disapproved. The defense made in This action would be inapplicable this case was, that the mortgage under the present state of the law. indebtedness had been paid, which, 3 C. S. & L. Ass'n V. Kreitz, 41 O. S. if true, necessarily ended the whole 143(1884). proceeding. The issues raised by the * Sallady v. Webb, 2 O. C. C. 553 defendant were in fact submitted to (1887, Bradbury, J.). a jury, which found in favor of the » Buckner v. Mear, 2G O. S. 514. defendant, thereby extinguishing the 8 Alsdorf V. Reed, 45 0. S. 653(1888). equitable cause of action, and the Following this case it would seem plaintiff's petition was dismissed, that the doctrine of the circuit court The plaintiff thereupon appealed the 540 FORECLOSURE OF MORTGAGES. [§ 586. A distinction upon this question is clearly drawn, that if a money judgment will answer the demand, or, in other words, is the principal relief sought, then either party is enti- tled to trial by jury.' But where the relief sought is para- mount or goes be3^ond a mere money judgment, such as sale and distribution of the funds as in foreclosure of a mortgage, then no right of trial by jury exists. Such seems to be the tenor of the more recent decisions upon this question.^ These principles do not conflict with those announce 1 by other cases where the defendant controverts the debt in such a manner that, if he is right in his contention, it completely extinguishes the right or necessity for foreclosure. If there is no debt there can be no foreclosure. This has been so de- cided by the supreme court of Ohio in an unreported case.^ This is an illustration of the confusion caused by the union of legal and equitable causes of action. There are other cases of similar nature, as where an accounting and a money judg- ment is asked, or where a reformation of an instrument is asked and a money judgment thereon. It will probably al- ways be a bone of contention until some radical change is made. It cannot reasonably be expected that courts can foresee how decisions will operate upon future cases. Cases may be peculiar and of such a nature that it would be ad- visable to try the whole case to the chancellor. On the other hand, the questions raised by the answer of the defend- ant may demand that the questions going to the money judg- case, the only question there reviewed the supreme court of Ohio June 5, being as to the right of appeal on tiie 1894. Black v. Herbert, 31 W. L. B. part of the defeated plaintiff. But 348, No. 2921, the defendant in the the court held that neither party had trial court set forth a claim by way the right to a jury trial. In the opin- of set-off consisting of rent which ion of Minshall, J., the difference be- he claimed compensated the amount tween these cases, hinging on the due upon the note secured while in prayer is pointed out, as shown in the hands of an intermediate holder, text. 45 O. S. 653. The case was tried to a jury, verdict 1 Dunn V.Kan macher, 26 0. S. 497; in favor of defendant. The plaintiff Chapman v. Lee, 45 O. S. 356 ; Bruud- appealed the case to the circuit court, ridge v. Goodlove, 30 O. S. 374 ; Aver- which court dismissed the appeal, ill Coal & Oil Co. v. Verner, 22 O. S. whose judgment was affirmed by 372. the supreme court, thus holding that 2Alsdorf V. Eeed, 45 O. S. 653; a right of trial by jury existed in a Black V. Boyd, 50 O. S. 46. case of this character. 3 In an unreported case decided by § 587.] FORECLOSURE OF MORTGAGES. oil ment would better be submitted to the jury, that it may first be determined whether the plaintiff will be entitled to any equi- table relief; and if the answer discloses such a state of facts that the right of equitable relief will not be completely barred, then the case may properly be tried without the in- tervention of a jury. It is held in other code states that a jury trial may be had in foreclosure proceedings, upon the theory that it is an action for the recovery of money, though not one for money only.^ Sec. 587. Saieof mortgaged property .— When a mortgage is foreclosed the sale of premises shall be ordered; and when the same are to be sold in one or more tracts, the court may direct that they be sold in parcels or in one of the tracts as a whole.- As between successive purchasers in fee and for full value of separate parcels of land incumbered by a prior mort- gage on the whole, a sale of the same to satisfy a mortgage will be made in the inverse order of alienation.^ When the mortgaged property is situated in more than one county, the •court may order the officer in the county where the land is situated to make the sale, or may direct one officer to sell the whole.* An order to sell cannot be made subject to any un- determined indebtedness set forth in the answer and cross- petition of a defendant lienholder.^ A judgment creditor who has obtained judgment against a husband cannot enforce the sale of premises upon which the husband and wife have executed a mortgage in order to cut off a right of homestead.' A judicial sale ordered and made in foreclosure proceedings instituted by a mortgagee against the mortgagor alone, after the mortgagor has conveyed his equity of redemption, is not void.^ 1 Clemenson v. Chandler, 4 Kan. 2 R. s., sec. 5316. 558 ; Bradley v. Parkhurst, 20 id. 470. 3 Sternberger v. Hanna, 42 O. S. In the case of Fleming v. Kirkendal, 305. 12 W. L. B. 26, the defense was made « R S., sec. 5317. that the debt had been paid. The * Thatcher v. Dickinson, 3 O. C C. Pickaway county district court in 144. this case held that the question of ^ Berusee v. Hamilton, 6 O. C. C. payment could be submitted to a 487. jury. This case was affirmed upon "^ Childs v. Childs, 10 O. S. 339. •other questions in 31 O. !S. 568. 542 roRECLOSiJKE or mortgages, [^§ 588, 589. Sec. 588. Motion to modify and set aside in part decree of confirmation. — Now comes L. N. P., the purchaser of the property hereto- fore sold in the above-entitled cause by the sheriff of said county, and moves the court to modify the order of confirma- tion heretofore made in this respect, to wit: That the con- firmation of the sale of the property described as being in section twenty-one (21), town nine (9), range nine (9), in county, Ohio, be set aside. Note.— From Niles v. Parks, 49 O. S. 370. The court has complete power or control over its own orders during the term at which they are entered and may set them aside at its discretion. Id. ; Huntington v. Finch, 3 O. S. 445. This is not lost by a continuance to another term. Niles v. Parks, mpra; Bank v. Doty, 9 O. S. 508. See 6 O. S. 228 ; 35 O. S. 177. Purchaser may make motion to set aside or confirm a sala Reed v. Radigan, 43 O. S. 294. See 11 O. S. 516-20; 25 O. S. 270. All parties — defendants, plaintiffs and purchaser — may be heard. Fideldy t. Diserens, 26 O. S. 314; 10 O. S. 557. Sec. 589. Defenses in foreclosure proceedings. — Defenses to an action in foreclosure, to be available, must be set forth in the answer in such a way as to constitute a complete de- fense, and none are available which are not so pleaded.^ Where the mortgaged premises are sold to a person holding a mort- gage thereon for purchase-money, in satisfaction of a judg- ment for a portion of the purchase-money notes which had become due, a sale thereunder cannot be urged as a defense to an action by the assignee of the mortgage for the foreclos- ure of the same for the remaining notes against the mort- gagor and his grantees.^ If a mortgagor has sold mortgaged premises to another who has assumed and agreed to pay the mortgage as part of the consideration, and the premises are transferred by such person to still another grantee, upon an agreement that the intermediate grantee will pay off and discharge such indebtedness, the last grantee, in an action by a raortsrairee to foreclose, cannot avail himself of a defense that the loan was originally given for a usurious rate of in- terest, as he was not a party thereto, and does not stand in any relation to the borrov/er entitling him to make such a defense.^ In an action by a prior mortgagee to foreclose a mortgage on premises which have been conveyed in trust for 1 Higman v. Stewart, 38 Mich. 513; 2Hollister v. Dillon, 4 O. S. 197. Mann v. State, 116 Ind. 383; 19 N. E. 3 Jones v. Insurance Co., 40 O. Si. Rep. 181 (1888). 68a § 589.] FOEECLOSUKE OF MOKTGAGES. 54S the benefit of creditors, the beneficiaries may set up a defense of usury against such mortgage, even though the trustees under such conveyance fail so to do.* Where the petition contains the ordinary allegation with respect to a defendant lienholder, that he claims some lien on the mortgaged prem- ises, and asking that he be recjuired to answer the same, such a defendant cannot, after he has failed to answer, object to a decree in a proceeding in error because it includes usurious interest.^ In case the note stipulates that the personal prop- erty of the maker must be exhausted before foreclosure, the property of the debtor is regarded as exhausted when he has nothing which can be reached ; the creditor is not then bound to bring suit to exhaust the equities of the judgment debtors before foreclosing the mortgage, and no such defense can be made in the action.' As stated in a preceding section, a demand is not necessary where the conditions are that the mortgagor shall pay or cause the note to be paid at maturity. It is therefore no defense that the mortgagee did not make a demand and give notice of non-payment in order to charge the indorser personally.* "Where a person has taken a mort- gage of indemnity upon which a judgment has been rendered against such mortgagee on his indorsement in foreclosure proceedings against the lands brought by others, such in- demnity mortgagee may, where all parties interested are be- fore the court, require the proceeds of such sale to be applied to the payment of the judgment against him.' It is no defense on the part of a mortgagor that a third party has also brought a similar action against him in a court of concurrent jurisdiction founded upon the same claims set up in plaintiff's petition.^ The fact that no written assign- ment of a junior mortgage has been taken or recorded will not defeat an action by such mortgagee to foreclose the same.' It is a rule that usury may be available as a defense between the immediate parties to a mortgage, but, being personal to the mortgagor, it cannot be set up by one who purchases 1 Bank t. IVll, 14 O. S. 200. * Hilton v. Catherwood, 10 O. S. - Hubbell V. Mansfield, 4 Am. Law 109. See ante, sec. 575. Rec. (C. S. a, 1875). 5 Kramer v. Bank, 15 O. 253. 3 Riblet V. Davis, 24 O. & 114. 6 West v. Morris, 2 Disn. 415. ' HoUiger v. Bates, 43 O. S. 437. 544: FOItECLOSUKE OF MOKTGAGES. [§ %S[). property subject to the mortgage lien tainted with usury, as it is thereby waived.^ But a defendant mortgagor may set up as a defense, by way of counter-claim, damages claimed by him arising upon a contract in part performance of which the mortgage was executed by him;- or he may set up an illegality in the consideration of the mortgage as forbearance to prosecute a criminal prosecution.* A court will never aid in the foreclosure of a mortgage founded upon an illegal con- sideration. This defense ma}'' not only be made by the mort- gagor, but by any one succeeding to his interest as well.* In an action by the vendor against the vendee for the balance of purchase-money, the vendee by way of counter-claim may set up a defense for an unpaid assessment which was a lien on the premises at the time of the conveyance.' A mortgagor may claim as against an assignee of a note and mortgage a defense that the same was procured by fraud ;^ and he may also claim damages as against the mortgagee for any fraud practiced by him in the sale of the premises." When fraud is claimed as a defense the answer must clearly set forth the facts constituting the same, and the burden of proof is upon the defendant.^ Damages may also be claimed by the mort- gagor for fraud on the part of the mortgagee in concealing from him material facts as to the situation and extent of the premises.^ An alteration made by a recording officer is in it- self harmless, and cannot therefore be urged as a defense to an action to foreclose.^" Where a demurrer has been sustained to a petition, and an answer and cross-petition with proper aver- ments and prayer have been filed in the same case by other 1 Cramer v. Lepper, 36 O. S. 59 ; 5 Craig v. Heis, 30 O. S. 550. Bankv. Bell, 14 O. S. 201; Green v. SBaiiy v. Smith, 14 O. a 396; Kemp, 13 Mass. 515; Jones v. Insur- Palmer v. Yates, 3 Sandf. 137; Allen ance Co., 40 O. S. 583 ; Loomis v. v. Shackleton, 15 O. S. 145. Eaton. 32 Conn. 550 ; Austin v. Chit- " Allen v. Shackleton, supra; Cor- tenden, 33 Vt, 553; Studebaker v. nell v. Corbett, 64 Cal. 197; Wimer Marquardt, 55 Ind. 341 ; Shufelt v. v. Smith, 22 Oreg. 469. Shufelt, 9 Paige, 137. See sec. 2, s Sloan v. Holcomb, 29 Mich. 153; Jones on Mortgages, sec. 1494, Elphick v. Hoffman, 49 Conn. 331. 2 Burckhardt v. Burckhardt, 36 0. » Pierce v. Tiersch, 40 O. S. 168 ; S. 261. Allen v. Shackleton, 15 O. S. 145; 3 Raquet v. Roll, 7 O. (Part 1), 76. Baughman v. Gould, 45 Mich. 481. *McQuade v. Rosecrans, 36 O. S. "^Hemstreet v, Kutzner, 58 Ind. 319. 442. I ^ 590.1 FORECLOSURE OF MORTGAGES. 545 morto-aire lienholders, the court mav proceed to determine the rights of the latter, and render judgment, even though the plaintiff does not amend his petition. The court will treat the answer as a cross-petition if not so denominated.^ Sec. 590. Answer that defendant holds premises under laud contract, and that mortgage was given after execu- tion of contract. — That on or about the day of , 18—, defendant pur- chased the premises in the plaintiff's petition described by a land contract of the defendant J. H. H., and this defendant at once went into possession of said premises and has remained in possession thereof ever since and is still in possession thereof. That said purchase by the defendant of said H. of said prem- ises was long before the plaintiff's mortgage was executed and delivered to him, and he avers that said plaintiff had full knowledge of the fact that this defendant had purchased said premises 'of said H., and that this defendant was in actual possession thereof, and that he has ever since been in actual possession of the same. That afterwards on, to wit. the day of , 18—, the defendant H. and his wife executed a deed to this defendant for said premises in accordance with the terms of said contract, which deed was duly recorded by the defendant. He further said that he had no knowledge whatever of the giving of said mortgage by said H. to the plaintiff at the time said mortgage was given until long after. He further says that said premises were sold for taxes to the defendant C. on or about the day of , 18—, and that afterwards, on the day of , 18—, a deed was made and executed by the auditor of said county to said — ^ for said premises, thereby conveying the same to said , who afterwards, on the day of , 18—, conveyed the same by deed to , this defendant's wife, who caused said deed to be recorded in the proper office in said county of , state of Ohio, and who now holds the legal title to said premises. He further says that said premises are now in the actual possession of himself and wife, and have been ever since he purchased said premises of said H. as afore- said. The defendant, further answering, says that he paid upon said contract for said land to said H., before he had knowl- edge that said mortgage was placed on said property, the sum of $ , and interest, which amount he is entitled to have paid back to him before said mortgage shall be ]mid ; and he avers that said sum so paid is a first lien upon said property and superior to the lien or pretended lien of the l>Uuni,iff'. I Kloone v. Bradstreet, T O. S. 322. 35 546 rOKECLOSUKE OF MORTGAGES. [§§ 591, 592. Wherefore, and by reason of the premises, this defendant says that the plaintiff has lost whatever interest it had by virtue of said pretended mortgage, that the plaintiff is not entitled to the relief prayed for by hira, and he prays judg- ment against the plaintiff and for all proper relief. G. A. G., Attorne3^ Note. — From Ja'^'ser v. Hardy, 48 O. S 337. Possession of lands by vendee under contract to purchase is constructive notice of contract, .ind a mortgage placed thereon subsequent thereto by the vendor is subordinate to the vendee's equity. Id. Payments made by the vendee with knowl- edge of the mortgage, however, are made at his peril. Id. : 20 O. S. 68 ; 1 Sandf. Ch. 344 ; 87 N. Y. 457 ; 16 S. & R. 266 ; 1 Warvelle on Vendors, 188. Such purchaser might continue to make payments on purchase-money until the holder of the mortgage asserts his claim ; and. before this was done, complete his payments and receive his deed. 48 O. S. 341 ; 48 O. S. 157. Sec. 591. Answer asking to have mortgaged premises sold in inverse order of alienation. — That after the making of the mortgage set forth in said petition, to wit, on the day of , 18 — , \the tnortgagor] sold and conveyed to the defendant a portion of said mort- gaged premises, described as follows: [^Describe property con- veyed.'] That on the day of , 18 — , after the sale and con- veyance of the above-described real estate to this defendant, said [jnoi'tgagor'] also sold and conveyed an undivided half of the residue of said premises to one E. F. The defendant therefore prays that the premises still re- maininoj in the name of the mortgagor be first sold under the decree of foreclosure, to satisfy said mortgage indebtedness, and that if the proceeds derived from the sale of such portion remaining in said mortgagor be not sufficient to satisfy said mortgage indebtedness, that the part of said premises sold and conve^^ed by said mortgagor to E, F. be next sold, and that the premises conveyed to this defendant be not sold unless a deficiency exists after said sales, and said mortgage indebtedness remains unsatisfied. Note. — See ante, sec. 587, p. 541, note 8. Sec. 592. Answer that note bears usurious interest and that payments made thereunder reduce amount due. — Defendant admits the making and delivery of the note set forth in plaintiff's petition. That at the time of the execution of said note the defendant agreed to pay, and the said plaintiff agreed to receive, for the use of the money which forms the consideration of said note, a higher rate of interest than eight per cent, per annum, as is expressed in said note. The defendant further avers payment upon said note on the day of , IS — , as interest, the sum of $ over and above the eight per cent, expressed in said note, all of which was usurious. §§ 593, 594.] FORECLOSURE OF MORTGAGES. 547 That on the day of , 18 — , this defendant paid to said plaintiff as interest on said note the sura of $ , of which I was usurious. The defendant further avers that on the day of , 18 — , this defendant paid upon said note, from the proceeds of sale of a portion of said mortgage security, the sum of $ . This defendant therefore says that by reason of said agreement to pay and said plaintiff's agreement to receive usurious interest, and the payment of usurious interest on the -dav of , IS — , above set forth, there is not due from this defendant to the plaintiff upon said note any greater sum than $ with per cent, interest from the da}" of , 18 — . Sec. 593. Answer that notes were without consideration and were purchased after maturity. — And now comes C. C. S., one of the defendants herein, and for separate answer to the plaintiff's petition says that he ad- mits the execution of said notes at the time and for the amount claimed in plaintiff's petition, but denies that there is any money due or to become due on said notes. That as a defense to plaintiff's petition this defendant says that said notes were given entirely without Consideration, and that this defendant is the husband of E. S., and that he signed said notes entirely without consideration, and that this de- fendant ought not to be compelled to pay same. That as a further defense this defendant says that the plaintiff purchased said notes after same became due and payable. The defendant therefore prays to be dismissed from this suit, with his costs. Sec. 594. Answer and cross-petition setting up judgment lien. — [ Caption,'] And this defendant, by way of cross-petition against said plaintiff, says: 1. That on the day of , 18 — , this defendant, in a certain action in this court, duly and legally recovered a judg- ment in this court against the defendants J. W. G., H. B. and W. A. C, for the sum of dollars, and dollars and cents costs of suit. 2. That on the day of , 18 — , this defendant caused an execution to be issued upon saitl judgment, by the clerk of this court, directed to the sheriff of county, who, for want of goods and chattels whereon to levy, on the day of , 18 — , levied the same upon the lands and tenements and real estate in the petition described, which said execution was returned by the sheriff' of said county on the day of , 18 — , for want of time to advertise and sell said real es- tate; all of which will more fully appear, reference being had to the records of this court in said case. 5J:8 FOKEGLOSUKE OF MORTGAGES. [§§ 595, 596. 3. That costs have accrued on said judgment and execution to the amount of dollars, 4. On the day of , 18 — , the defendant H. B. paid to this defendant the sura of dollars and cents, being the one-third of the amount of said judgment above men- tioned ; that no other payment has been made on said judg- ment, and that said judgment and said levy remain in full force, unreversed and unsatisfied (except as to the amount paid by H. B. as above stated), and that said judgment and costs and levy is a legal, valid and subsisting, and the oldest and prior lien, on the real estate in the petition described, and should be first paid out of the proceeds of the sale thereof. This defendant is willing that said real estate may be sold as this court may order and direct. Sec. 595. Answer that note and mortgage was made to cheat and defrand creditors, and without consideration. — {^Caption.'] Defendant says that at the time of the execution and de- livery of the S note and mortgage mentioned in said peti- tion by the defendant J. W. G. to the said plaintiff E. M. G., he, the said J. AY, G., was insolvent and largely indebted to this defendant upon a certain claim, to wit, the sum of % , and largely indebted to others, all of which the said E. M. G. then well knew ; and defendant avers that the said note and mortgage mentioned in said petition of plaintiff was executed and delivered to the said E. M. G, b}'" the said J. W. G. for the purpose of cheating and defrauding this defendant and others, the creditors of the said J. W. G,, and for the purpose of hindering and delaying said creditors in the collection of their said claims, all of which the said E, M. G, then and at all times well knew; and the said note and mortgage was so executed and delivered without any consideration whatever, and the said E. M. G, took said note and mortgage for the purpose of aiding the said J, W. G. in cheating and defraud- ing his creditors, and in hindering and delaying them in the collection of their claims, and all of which was done by and between the said J. W. G. and E. M. G, in pui'suance of a com- bination and confederation between them for the express pur- pose of so cheating, defrauding, hindering and delaying said creditors. This plaintiff therefore says that the said E. M. G. is not entitled to anything by reason of said note and mortgage, and the plaintiff asks that said note and mortgage be adjudged fraudulent and void. Sec. 596. Answer and cross-petition by defendant after proceeds are in court, contesting co-defendant's mortgage.— 1, Now comes C, M, O. and by leave of court files his an- swer and cross-petition herein, and says that on the day § 597.] FOKECI.OSURE OF MORTGAGES. C49 of , 18—, J. ]\r. P. made, executed and delivered to the said C. M. O. his promissory note of that date, of which the fol- lowing is a copy: [Copy."] No payments have been made on said note and there is due thereon to said C. M. O. the sum of % with per cent interest from , 18 — . 2. [Formal averments.'] At the time of the execution and delivery of said note by said J. M. P., and to secure the pay- ment of the same, said J. M. P. and his wife, C. P., who thereby released her rio^ht and expectancy of dower in said premises, made, executed and delivered to said CM. O. their mortgacre deed upon the premises set forth and described in plaintiff's petition and thereby conveyed to defendant said premises. Said mortgage deed had a'^ condition written therein as fol- lows : That if said note should be paid, then said mortgage deed to be void. The said mortgage deed has become abso- lute; the conditions thereof have been broken. Said mort- gage deed was filed with the recorder of county, )hio, for record on the day of , 18—, and was recorded in vol- vime , page , of record of mortgages for county, Ohio. This defendant further says that said property has been sold by the former order of this court and defendant's lien transferred to the fund now in court, the proceeds of such sale. Defendant further says that the co-defendant, the , filed its mortgage on the day of , IS — , at o'clock — . M. Said mortgage was made and delivered to said on the day of , 18—, and at said time no deed or conveyance of said property had ever been made to said P., and no conveyance was made to said P. until the day of , IS — ; \hat the mortgage of the plaintiff was made as alleged in said petition. Defendant therefore prays that the court order his claim paid out of the proceeds of such sale, subject only to the claim of the plaintiff that the amount due him upon his mort- gage may be found and declared, and for such other relief as he may be entitled to. Sec. 507. Answer and cross-petition of bnilding associa- tion in foreclosnre proceedings. — And now comes the defendant, the H Building and Loan Association, and for its answer and cross-petition says that it is a corporation duly incorporated under the laws of Ohio. On the day of , IS—, the said defendant, J. M. P., executed and delivered to this defendant his certain written obligation, of which the following is a true copy, to wit: [Cojjy.'] The said defendant, J. 'M. P., has not paid the weekly instal- ments of dues and the monthly instalments of interest as re- quired by the terms of the aforesaid note, and there is due .550 FOEECLOSUEE OF MOETGAQES. [§ 597. nnd unpaid thereon at this date ( , 18—), for dues $ , and for interest $ , making in all the sum of dollars and cents. Section I of article 11 of the constitution of The H Building and Loan Association provides as follows: "Any member who neglects to pay his weekly dues shall be fined five (5) cents for every default on each and every share. When the fines of a share equal the paid weekly instalments on the same it shall be forfeited by its owner to the association." The defendant further says that said J. M. P. has failed and neglected to pay his weekly dues as required by said note for the forty-two weeks last past, whereby the said J. M. P. is indebted to this defendant for fines in the sum of dol- lars and cents. Whereupon this defendant says that the said defendant. J. M. P.. is at this time indebted to it in the sum of dollars and cents for dues, interest and fines called for by said note, and for which amount this defendant asks judgment. And the said H Building and Loan Association for a second cause of action says: It embodies in this its sec- ond cause of action all the allegations of its first cause of ac- tion herein, and further says. That in order to secure the payment of the above note according to its terras, the said J. M. P. and C. P., his wife, executed and delivered to this de- fendant their certain mortgage deed on the day of , 18 — , and thereby conveyed to this said defendant the real estate described in the petition of the plaintiff. On the day of , 18 — , at o'clock — . M., said mortgage deed was received by the recorder of county, Ohio, to be by him entered of record, and was recorded by him on the day of , IS — , in volume , page , of the records of mortgages of said county. Said mortgage deed contains a condition, the substance of which is that if the said J. M. P. should pay the above-described note accord- ing to its terms and the constitution of said The H Build- ing and Loan Association, then said conveyance should be void. Said mortgage deed has become absolute. The said defend- ant further says that said mortgage deed is the first and best lien on said premises, and it denies the pJlegation of plaintiff's petition that said lien is subordinate to the lien of plaintiff's mortgage. Wherefore the said defendant, the H Build- ing and Loan Association, prays the court to find the amount due it from the said defendant J. M. P., and that unless the said J, M. P. pay or cause to be paid to it the amount so found to be due, an order of sale issue directed to the sheriff of this county, commanding him to appraise, advertise and sell said premises according to law, and apply the proceeds of such sale to the payment of its claim against said J. M. P., and for all such further relief as it may be entitled to. X. & M., Attorneys, etc. § 598.] FORECLOSUKE OF MORTGAGES. 551 FORECLOSURE OF CHATTEL MORTGAGE. Sec, 598. Actions to foreclose chattel mortgages.— It is not necessary here to discuss at length the law upon the subject of chattel mortgages, but onh^ a few incidental mat- ters which may seem pertinent to proceedings in foreclosure. In Ohio a mortgagee of chattels becomes the general owner thereof. Where the mortgaged property is left in the pos- session of the mortgagor under a power of sale, the trans- action is looked upon with suspicion, and is considered void as against creditors.^ This has been modified, however, to the extent that such a stipulation in a mortgage is not re- garded as^j)^r se fraudulent and void, the question of the good faith of the mortgagor being left to the determination of a jury.- There are certain statutory provisions which must be observed to make a valid chattel mortgage, such as filing and verifving.^ The mortgage must have indorsed upon it a state- ment under oath of the amount of the claim, that it is just, and given to secure the payment of money, or, if an indem- nity mortgage, the liability which it is given to secure must be set forth.^ A mortgage given to indemnify the mortgagee against any liability is void as against creditors of the mort- gagor, if it does not contain a true statement under oath of the liability.' A defect in the statement cannot be cured by any conditions contained in the mortgage, unless reference thereto is made.^ It has been held that an unrecorded mort- gage, where recording is necessary, which is free from fraud, creates a valid lien after the death of the mortgagor, as against the administrator, heirs or general creditors.' And so a mort- gage is void as against execution creditors who have levied an execution before the mortgage is filed, although the mortgage was executed before the levy of the execution.'^ A joint mort- gage given by several persons, living in different townships, 1 Brown V. Webb, 20 O. 389; Free- ^r. s,, sec. 4154; In re Biocamp, man v. Rawson, 5 O. S. 1 ; Harmau 2 O. C. C. 372. V. Abbey, 7 O. S. 218 ; Collins v. o Blandy v. Benedict, 43 O. S. 295. Meyer, 16 O. S. 547. ^ Blandy v. Benedict, 42 O. S. 295 ; - Kleine v. Katzeuberger, 20 O. S. Gardiner v. Parmalee. 31 O. S. 551 ; 1 10 (1870). Haues v. Titfau y, 25 O. S. 549. ' R. S., sec 4154 ' Martin v. Ogdeu, 41 Ark. 18(>. sCass V. Roth.. Kin, 42 O. S. 380. 552 FORECLOSUKE OF MORTGAGES. [§ 598. must be filed in all the townships where the several owners reside.^ The mortgage to be valid must necessarily be filed vs^ith the proper officer,^ It must be filed with the clerk of the township where the mortgagor resides at the time of the execution. If a resident of the township where the office of the recorder of the county is, then it should be filed with the recorder. If a non-resident of the state, then it should be filed with the township clerk of the township where the prop- erty is situated.^ To preserve the lien the statutory require- ment* must be complied with, and the same must be refiled within thirty days next preceding the expiration of one year. A refiling before the commencement of the thirty days men- tioned in the statute will not be sufficient.^ The validity of a morto-ao-e is not revived by havinof it reverified and refiled after the expiration of the 3^ear as against creditors who have taken liens in the meantime." Other questions as to the right of different mortgagees arise where there has been some defective filing or refiling, which depend entirely upon notice. The lien of a defectively filed mortgage is prior to a mortgage which has been subsequently filed with actual knowledge of the former mortgage.^ If a mortgagor fails to refile his mortgage within the time pre- scribed by statute, and another person files a mortgage before the prior mortgage is filed, actual notice by such subsequent mortgagee is necessary to defeat his mortgage.^ The rem- edy which a mortgagee may pursue for the enforcement of his rights is optional. He may prosecute an action at law for the recovery of the debt, or Avhere the mortgage so pro- vides he ma3% if no objections are made by the mortgagor, enter and take possession of the property and sell the same, applying the proceeds to the payment of the debt;^ or if pos- session of the goods is not yielded by the mortgagor, the mortgagee may prosecute an action in replevin for the recov- 1 Aultman v. Guy, 41 O. S. 598. ^ Biteler v. Bakhvin, 43 O. S. 125. - R. S., sec. 4150 ; Wilson v. Lesslie, « Cooper v. Koppes, 4? O. S. 625. 20 O. 161 ; Houk v. Condon, 40 O. S. ^ Whittaker v. Westfall, 2 O. C. C. 569. 321. "R. S., sec. 4151: Curtis v. Mc- « Paine v. Mason, 7 O. S. 19M; Day Dougal, 26 O. S. 66 ; Houk v, Condon, v. Muuson, 14 O. S. 488. supra. 3 Tyson v. Weber, 81 Ala. 470 ; Bar- 4 R. S., sec. 4155. rett v. Hart, 42 O. S. 41. § 598.] FORECLOSURE OF MORTGAGES. 563^ ery of the same;^ or he may prosecute an action to foreclose the mortgage as an ordinary real-estate mortgage. The latter is the more appropriate remedy, and avoids many diflBculties which may arise in the action of replevin. It is said that he may pursue all civil remedies at the same time.^ The remedy by foreclosure does not seem to have been pursued to any very great extent in Ohio, but rather the action of replevin has been adopted. For that reason we are not aided by decisions in Ohio as to the method of procedure in foreclosing a mort- gage, with which remedy only we are here concerned. The reason for the scarcity of decisions, however, may be the fact that the power of sale given in the mortgage has proven a more speedy means of effecting the mortgagee's rights bar- ring the mortgagor's equity of redemption, which has to a great extent superseded the action to foreclose.^ The power to sell being uppermost in the mind when the mortgagor re- fuses possession, the mortgagee knowing that he is a general owner naturally resorts to replevin. In view of a most excel- lent chapter upon foreclosure of chattel mortgages in a recent work,* and of the scarcity of material in Ohio, any extended discussion here seems unnecessary. Where a mortgagor dies after the expiration of the time for filing a mortgage and the property is taken possession of and sold by the administrator, the remedy of the mortgagee is to assert a lien against the fund arising from the sale in the hands of the administrator and not an action to foreclose.^ In Iowa, where the mortgagor of chattels dies, the mort- gagee may, for a breach of its conditions, proceed to fore- close notwithstanding the debt, and is not required to submit to the request of the administrator to adjust and determine his rights.^ A court of equity has power to decree the fore- closure of chattel mortgages where it has jurisdiction over the parties and of the subject-matter, even though no provis- ion is made therefor by statute.' It is not necessary to make 1 See chapter on Replevin, sec. 1078. 6 Cocke v. Montgomery, 75 Iowa, 2 Cobbey fui Chattel Mortgages, sec. 259. 947. "Bank v. Davidson, 18 Oreg. 57; 3 Briggs V. Oliver, 68 N. Y. 336. S. C, 22 Pac. Rep. 517 ; McCauley v. 4 Cobbey on Cliattel Mortgages, Rogers, 104 111. 578 : Briggs v. Oliver, ch. 36. 68 N. Y. 336 ; Charter v. Stevens, 8 5 Whitply V. Weber, 2 O. C. C. 336. Denio, 35. 554: F.>KKCLOSL'liE OF MORTGAGES. [-^ 098. any demand upon the mortgagor or purchaser,^ nor upon a subsequent mortgagee, before bringing a suit to foreclose.^ The petition must contain an averment that at the time the mortgage was executed the chattels mortgaged were the prop- erty of the mortgagor.* A petition asking judgment upon a note, sale of the chattel property mortgaged, and the applica- tion of the proceeds to the payment of the debt, sufficiently shows that foreclosure is asked for although the word fore- closure is not used,* Mistakes may, by ]>roper allegations in the petition, be corrected as in other cases, and the mortgage foreclosed as reformed. The right to foreclose a mortgage ex- ists where there is a breach of covenant to insure.' In case of failure of the mortgagee to establish his right to equitable relief he cannot have a judgment for the payment of the debt. A release, however, of the mortgage by the mortgagee will not deprive him of his right to sue for and collect the debt.® An action of debt will not lie on an ordinary chattel mortgage which does not contain any promise, undertaking or covenant to pay the money .'^ A decree of foreclosure may be had when the court has jurisdiction of the parties, even though the mortgaged property should not be within the jurisdiction. In ordering the sale of the property the rules governing ordinary sales will be observed; but where these rules cannot be applied without defeating the ends of jus- tice they will be disregarded.^ The court in such a case will require the defendant to pay the value of the property.^ There can be no warranty of title where the sale of the property is made by the mortgagor by virtue of the power given him in the mortgage.^" The same rule prevails as to foreclosure of chattel as in real-estate mortgages, where the debt is payable in instalments. Upon default of payment of one instalment the right to foreclose for the whole debt accrues ; nor is de- mand for the instalment due a prerequisite to the action.^^ A creditor of the mortgagor may seize by legal process the in- 1 Zehner v. Aultman, 74 lud. 24. 6 Rawson v. Taylor, 30 O. S. 389. 2 Means v. Worthington, 33 O. S. "Larmon v. Carpenter, 70 111. 549. 622. 3 Means v. Worthington, 23 O. S. 3 Edwards V. Trittipo, 62 Ind. 121. 632. 4 Graham v. Blein, 3 Wyo. 746 ? Gaar v. Hurd, 92 Jll 315, (1892), 10 Harris v. Lynn, 25 Kan. 281. 6Leland v. Collver, 34 Mich. 418, " Maddox v, Wyraan, 92 Cal. 674. . §§ 599, 600.] FORECLOSUKE OF MORTGAGES. 555 terest of such mortgagor in the property, and may then sus- tain an action against the mortgagee to redeem the property. In an action of replevin by such mortgagor against the officer holding the property, such creditor may set up his claim by way of cross-petition,^ See. 599. Petition to foreclose chattel mortgage. — 1. Plaintiff says that there is due him from said defendant on a jn-omissory note the sum of dollars, with interest from the day of , 18 — , a copy of which note with all credits and indorsements thereon is as follows: \_Copy of note.] 2. For a second cause of action plaintiff adopts so much of the first cause of action hereinbefore set forth, beginning with the word " " in the first line thereof, ending with the ■word" "in the line thereof, the same as if fully here rewritten, and says that on the day of , 18 — , in order to secure the 'payment of the said promissory note set forth in the first cause of action, the said defendant G. W. duly executed and delivered to this plaintiff his chattel mort- gage, thereby conveying to plaintiff the following chattel property, to wit: {^Deseription of property ?\ The said chattel mortgage provided that if the said G. W. should well and fully pay to his certain promis- sory notes for the sum of dollars, dated . due -, payable to , with interest at , then the said chattel mortgage to be void ; otherwise to be and remain in full force and virtue in law. The said chattel mortgage was on the day of , 18 — , at o'clock — M., duly deposited and filed in the office of the recorder of couuty, the said mortgagor being a resi- dent of township, where the office of the county re- corder is kept. The defendant has wholly failed to pay the said promis- sory note set forth in said"^ first cause of action, or any part thereof, and by reason whereof the condition of said mortgage chattel has been broken. Wherefore plaintiff asks judgment aoainst the said defend- ant in the sum of dollars, with interest at , from , and that said property may be ordered sold and the proceeds thereof applied to payment of said plaintiff's claim, and for such other relief as is equitable. DEED DECLARED A MORTGAGE. Sec. 600. Action to declare a deed a mortgage.— A deed absolute in form which is in fact intended to secure the pay- ment of money due from the maker to the grantee, in which 1 Morgan v. Spangler. 20 O. S. 38. 556 FORECLOSURE OF MORTGAGES. [§ 601. there is an agreement by the grantee to reconvey property to the grantor, is considered an equitable and not a legal mort- gage, and the statute as to the recording of mortgages ' does not govern its validity.- The intention of the parties is the criterion in the determination of this question, and if the deed, though absolute in form, is intended to secure pay- ment of mone}^, and the relation of debtor and creditor exists between the grantor and grantee at the time of its exe- cution, it will be treated as a mortgage.^ It may be shown by the grantee that, although originally a mortgage, the equity of redemption has been released by a parol agreement.* A deed conveying land to a trustee as collateral security for the payment of a debt, with a condition that it shall be void on the payment, with power in the trustee to sell the land and pay the debt in case of failure to pay the indebtedness, is a morto-ao-e.'* Where a contract is made and delivered at the time of execution and delivery of a deed, which provides that the grantee will reconvey the premises Avithin a specified time upon repayment of the purchase-money with interest, the deed will be declared a mortgage.* An action may be maintained to declare a deed a mortgage, both against the grantee and parties who have purchased the premises from him.'^ Sec. 601. Petition to declare deed absolute on its face a mortgage, where there was a verbal agreement to recon- vey.— That plaintiff on the day of , 18 — , was the owner in fee-simple of the premises hereinafter described. That on or about , 18 — , the said E. D. D., deceased^ signed a note with this plaintiff, as surety, payable to one F. E., 1 R. S., sec. 4133. Harrison v. Trustees, 12 Mass. 456 ; 2 Kemper v. Campbell, 44 O. S. 210 ; Trull v. Skinner, 17 Pick. 213 ; Green R. a, sec. 4134. t. Butler, 26 Cal. 596. 3 Slutz V. Desenberg. 28 O. S. 371 ; 5 Woodruflf v. Robb, 19 O. 312. Woodruff V. Robb, 19 O. 212. Where " Marshall v. Stewart, 17 O. 856. mortgages are in effect and form ^ Kuhn v. Rumpp, 46 Cal. 299. And converted into deeds absolute, the a purchaser assuming payment of a form of the conveyance will not mortgage is a proper party to such change their nature in equity. Wil- action. C. S. & L. Ass'n v. Kreitz, 41 son V. Giddings, 28 O. S. 554. As to O. S. 143. Under what circumstances sale of grantor's equity, see Baird v. a deed will be declared a mortgage. Kirkland, 8 O. 21. see Coleman v. Miller, 6 W. L. B. 199. 4 Shaw V. Walridge, 33 O. S. 1; § 602.] FORECLOSURE OF MORTGAGES. 557 which said note was for an indebtedness due from plaintiff to said E. That in order to secure the said E. D. D., and to save him harmless ao^ainst any loss that might or could occur to him by reason of his having signed said note as aforesaid, this plaintiff, on the day of , 18 — , executed and de- livered to the said E. D. D., deceased, a deed absolute upon its face, for a pretended consideration therein expressed of the sum of $ , and thereby conveyed to the said E. D. D. the following real estate situate in the county of , in the state of , and in the city of , bounded and described as follows: [DesGription.'] That said deed was intended as, was and is in fact, a mort- gage; that the consideration therefor was, as hereinbefore stated, to indemnify the said E. D. D., deceased, against any loss that might or could occur to him by reason of his becom- ing surety on the note aforesaid. That at the time of the making and delivery of said deed to the said E. D. D., deceased, this plaintiff and 'the said E. D. D. entered into an agreement and contract, not in writing, to the effect that if this plaintiff should pay the note so as aforesaid made b}^ him to the said F. E., upon which the said E. D. T>. became surety, then the said E. D. D., deceased, should thereupon reconvey to this plaintiff the aforesaid premises, which said verbal agreement and said deed were a part of the same transaction, (a) Plaintiff further says that he paid the said note and indebt- edness so as aforesaid due from him to the said F. E., upon which the said E. D. D. became surety, and thereby no loss or damage occurred to the said E. D. D., deceased, and that plaintiff is therefore entitled to have said deed canceled and said premises reconveyed to him. Plaintiff further says that on the day of , 18 — ^ and at divers other times, he applied to said E. D. D. for a re- conveyance to him of said premises, which said defendant failed and refused to make. Plaintiff further prays that said deed of conveyance may be declared to be a mortgage, that the same may be canceled and held for naught, and that the ownership of said premises may be declared to be in this plaintiff [or, that said defendant be ordered to reconvey said premises to this plaintiff], and for such other relief as is proper. Note. — The decree may operate as a couvej-^ance. R. S., sec. 5318. (a) This may be changed where there is an agreement in writing, or where defendant has received rents and profits. Sec. 602. Heforiiiation of mortgages. — Any mistake in description or execution of a mortgage may be corrected in actions to foreclose, and the lien will attach as of the date of 558 FOKECLOSUKE OF MORTGAGES. [§ G03. the execution, and not from the date of reformation.^ Such a description will be corrected not only against the mortgagor, but also as against attaching judgment creditors of the mort- gagee and purchasers under them with notice of such mistake.^ A mistake in the name of a party in the mortgage does not affect its validity.^ A mistake in the execution of a mortgage by having only one subscribing witness thereto does not render the same invalid between the i)arties. It may be reformed in equity, but not so as to defeat a judgment lien/ A mort- gage which fails to describe the land intended to be mort- gaged may be reformed at any time while the title remains in the hands of the mortgagor,^ but it cannot be reformed and foreclosed against a subsequent honajide purchaser, unless he has notice of the mistake.^ Attaching creditors of the mort- gagor cannot successfully object to reformation.' In fore- closure proceedings, where reformation is sought upon any ground, the evidence should clearly show that a mistake was made.^ Sec. 603. Action to redeem mortgage. — The right of a mortgagor or those claiming under him to compel a redemp- tion of the mortgage exists now as formerly. AVhere the mortgage is given to secure purchase-money, the mortgagor has the same time within which to redeem as if it were given for some other consideration." A guarantee who has not been made a party to proceedings in foreclosure does not lose his right to redeem.^" A wife signing with her husband may upon the death of her husband redeem the mortgage, and 1 Adams v. Stutzman, 7 Am. Law ^ Bartlett v. Patterson, 10 W. L. B. Rec. 76 (Holmes Co. C. P., 1878); 367. Davenport v. Sovil, 6 O. S. 459. » Robinson v. Fife, 3 O. S. 551 (1854) ; 2 Strang v. Beach, 11 O. S. 283; Kerr v. Lydecker, 51 O. S. — ; 31 Timmerman v. Howell, 2 O. C. C. 27 ; W. L. B. 290. See ante, sec. 572. Wall V. Arlington, 13 Ga. 88: White- lOChilds v. Childs, 10 O. S. 389 head v. Brown, 18 Ala. 682. (1859) ; Hess v. Feldkamp, 2 Disn. 3Dodd V. Bartholomew, 44 O. S. 332(1858); Stover v. Bounds, 1 O. S. 171. 107(1853). And the right may be exer- 4 White V. Denmau, 16 O. 59 ; 1 O. S. cised notwithstandmg the considera- 110. tion of the note was illegal. Cowlson 5 Bush V. Bush, 33 Kan. 556. v. Ragei, 14 O. 38. It may be exer- 6 Pence v. Armstrong, 95 Ind. 191. cised at any time before foreclosure. 7 Bush V. Bush, supra. Frischee v. Kramer, 16 O. 125 (1847)i § 603.J ^ FORECLOSURE OF MORTGAGES. 559 is not barred by a foreclosure against her husband during his life-time to which she was -not a party.^ An heir of an owner of redemption, after an action has been revived against him and decree of foreclosure and sale had, cannot maintain an action against the purchaser to compel the allowance of re- demption.2 A subsequent purchaser from a mortgagor can- not be allowed to redeem against a purchaser under a judg- ment on an older mortgage, even though made a party to the proceeding.* A petition to redeem mortgaged premises, charg- ing that the mortgagor fraudulently stood by and witnessed a purchaser from a mortgagee making improvements, and con- cealed his lien, is good as against a demurrer.^ Time may be given a mortgagor in a decree of foreclosure within which to redeem, which is within the discretion of the court.* 1 McArthur v. Franklin, 5 O. S. 485 ; * Carter v. Longworth, 4 O. 384. 16 O. S. 193. 5 West t. Morris, 3 Disn. 415. And 2Hentz V. Ward, 1 C. S. C. R. 387 this time may be extended. Stagg (1871). V. Harbeson, 2 C. S. C. R 33 (1870). 3Dennison v. Allen, 4 O. 495 CHAPTER 38. FRAUD AND DECEIT — CONSISTING OF FALSE REPRESENTA- TIONS AND CONCEALMENTS. Sec. 604. Parties to actions for fraud. 605. Limitations to actions for fraud. 606. Remedy and action for fraud and deceit 607. Principles of pleading. 608. Action for deceit or false representation. 609. Petition for fraud in ob- taining goods under con- tract induced by fraudu- lent representations. 610. Petition for fraudulent con- ceaimeut in sale of prop- erty. 611. Petition to declare subscrip- tion to the capital stock of corporation null and void, because of its being procured by false repre- sentations, and for the re- covery of the amount paid thereon. Sec. 612. Petition for false represen- tation to purchaser of real estate. 613. Petition for false represen- tations as to quality in sale of goods. 614. Petition to have judgment by justice of peace, for property fraudulently ob- tained, declared a charge upon real estata 615. Petition for false represen- tations in exchange of property. 616. Petition for false represen- tations made to induce credit 617. Attacking judgments and decrees for fraud. 618. Defenses to actions for fraud. 619. Defenses to actions for false representations. 620. Answer of fraud in procur- ing a contract Sec. 604. Parties to actions for fraud. — A person who is not a party to an instrument cannot assail it on the ground of fraud and recover money paid thereon, although he may have caused the same to have been executed between others.' A corporation is liable for fraudulent conduct of its agents in the same manner as if such agents had been acting for private persons.^ A trustee cannot maintain an action for deceit practiced upon his cestui que trustent, nor can he sus- 1 Insurance Co. V. Wright, 33 O. S. 113; 2 Disn. 302; Bartholomew v. 533. Bcntley, 15 O. 659. ^Nugent v. Railroad Co., 3 W. L. G. I g 605.] FRAUD AND DECEIT. 561 tain an equitable action on the ground of fraud.^ In every such case the person defrauded is the proper party plaintiff.'^ A wife Avho executes a deed with her husband which is after- wards fraudulently changed into a mo. .gage without her knowledge, not being a party to such fraud, may still assert her right of dower in the premises.'' One giving credit to an- other on the faith of a letter of credit directed to a person other than the one giving credit cannot maintain an action for deceit, though the representations in the letter are false.* Where two persons are induced by false representations to make a purchase of hogs which they divide between them im- mediately upon purchase, either purchaser may maintain an action for the fraud and deceit against the vendor without joining or making his co-purchaser a party.' The interest or cause of action of such purchasers is several, even though the representations were made to them jointly, thus enabling them to bring separate actions.^ It was not proper at com- mon law, nor is it under the code, to join a party who has neither legal nor beneficial interest in the subject-matter of the suit.^ If such a vendor has the misfortune to be com- pelled to answer a claim for damages at the suit of the other injured purchaser, the former is himself responsible for this result. Whatever the ancient rules were, the law in this class of actions has been modified by modern decisions.^ Sec. 605. Limitatious to actions for fraud, — An action for relief on the ground of fraud must be prosecuted within four years from its commission, though the right does not accrue until the fraud has been actually discovered.** Lapse of time is not available where a person has been misled by misrepresentations, or kept in ignorance of rights bj'- one who oug-ht to have disclosed the same.^" Xor will it bar the 1 Raymond v. Railway Co., 21 W. ^ Eccleston v. Clipsham, 1 Sand. L. B. 103. 154 : Duncan v. Willis, supra. 2 Raymond v. Railway Co., supra; 'Duncan v. Willis, sujira; O. Code, Bigelow (2d ed.), 214 ; Dickinson v. sec. 5007. Seaver, 44 Mich. 624; Foster v. « Duncan v. Willis, sw^ira. Wightman, 123 Mass. 100. ^ o. Code. sec. 4982. This applies 3 Conover v. Porter, 14 O. S. 450. to all classes of actions for fraud. * McCracken v. West, 17 O. 16. i" Williams v. Presbyterian See, 1 5 Duncan v. Willis, 51 O. S. — ; 32 O. S. 478. W. L. B. 102. See, also, Wells v. Cook, 16 O. S. 67. 36 562 FKAUD AND DECEIT. [§ 606. rights of an infant or a cestui que truM^ against whom the statute does not begin to run until his discovery of the fraud.* If the petition states a cause of action, and contains an averment that the fraud was not discovered until within four years before the suit was beo^un, an answer charo-ino^ that the cause of action did not accrue within four years before suit because the same was not committed within that time is insufficient.'' It has been held that a petition which alleges that plaintiff did not discover the alleged fraud until within four years before suit brought, as against a demurrer states in fact that the same could not have been discovered by the exercise of reasonable diligence. Such a petition, if contro- verted, ought to be met by an answer denying plaintiff's igno- rance of the facts constituting fraud. It is the actual discovery of fraud, or what might by the exercise of due diligence have been discovered, which puts the statute in operation.' Sec. 606. Remedy and action for fraud and deceit. — Fraud consists of any misrepresentation or concealment of a material fact.^ The forms adopted in its commission are not impor- tant. Schemes of fraud may be so cunningly devised as to blind the eye of justice, but when discovered should not es- cape condemnation and reprobation. It is therefore neces- sary to look beneath the surface, and, no matter in what form the same may appear, grant relief^ One* who has been defrauded may elect to pursue one of three remedies. He may restore or offer to restore what he has received, elect to rescind the contract, and sue at law for whatever he has parted with ; or he may, without restoring what he has re- ceived, sue for a rescission, in which case he must allege that he is willing and ready to restore ; or, he may elect to stand upon the contract and sue for damages suffered by reason thereof.^ An action for fraud and deceit may be brought, notwithstanding the death of the person liable therefor.'' iLong V. Mulford, 17 O. S. 485; 5 Rice v. Manley, 66 N. Y. 87; Beet- Carlisle V, Foster, 10 O. S. 198. hoven, etc. Co. v. McEwen, 59 N. Y. 2 Maple V. Railroad Co., 40 O. S. 313. Super. 7 (1892). s Stephenson v. Reeder, 2 W. L. B. e Thomas v. Dickinson. 22 N. Y. S. 335 (Cin. Super. Court, 1878); Piatt v. 260; s. C. 67 Hun, 350; Railroad Co. Longworth, 27 O. S. 198. t. Steinfeld, 42 O. S. 455-6. ade to in- dnce credit. — That on or about the day of , IS — , the defendant,. to induce the plaintiff to sell to him on credit certain goods and chattels [o/', wares and merchandise], to wit : [state nature of goods\ of the value of dollars, falsely and fraudulently represented to plaintiff that {state the representations raade\ That the plaintiff, relying upon these representations of de- fendant, and believing them to be true, sold and delivered the said good and chattels to the defendant, for which the defend- ant agreed to pay dollars. That the said representations so made by defendant were untrue, and that in truth and in fact \state in what respect]. That no part of the price of said goods and chattels has been paid. That by reason of said false and fraudulent rep- resentations the plaintiff has been put to great trouble and expense, to wit : [State damages.] Wherefore the plaintiff demands judgment against the de- §§ 617, 618.] FRAUD AND DECEIT. 575 fendant for dollars and cents, with interest from the day of , 18 — , and prays for all other proper relief. Sec. 617. Attacking judgments and decree for fraud. — The statutes of Ohio provide that a judgment may be vacated or modified by a court of common pleas or circuit court after the term at which it was rendered for any fraud practiced by the successful party in obtaining the same.^ This provision, however, is merely a cumulative remedy, and does not include or limit the right of a paf ty to prosecute an original action to impeach a judgment or enjoin its collection upon the ground of fraud.2 A petition to vacate a judgment under the statute which alleges that a judgment was rendered by default or answer without defense, upon a demand not based upon con- tract, discloses fraud upon the part of the prevailing party sufficient to vacate the judgment.^ When a petition is filed to impeach a judgment it must particularly set forth the facts and circumstances which it is claimed constitutes the fraud.* A decree from the bonds of matrimony, although obtained by fraud and false testimony, cannot be set aside on an original bill filed at a subsequent term,^ Where a case is submitted to arbitrators, their finding cannot be vacated except on the ground of fraud.^ An action for damages cannot be main- tained against one on the ground that a judgment was ob- tained by fraud.^ Sec. 618. Defenses to actions for fraud. — The same rules as to pleading facts constituting fraud when affirmative re- lief is sought in a petition are equally applicable when set up by way of defense.^ Where the charge of fraud consists in representing another worthy of credit, the defendant may prove what in his opinion he said the plaintiff was worth prior 1 O. Code, sec. 5354. See Fackler 5 Parish v. Parish, 9 O. S. 534. V. Relief Society, 5 W. L. B. 353 ; 6 Orrabsy v. Bakewell, 7 O. (Pt IX Baldwin v. Sheets, 39 O. S. 624. 98. 2 Darst V. Phillips, 41 O. S. 514 ; ' McCafiferty v. O'Brien, 1 C. S. C. Coates V. Bank, 23 O. S. 416 ; Lieby R 64. V. Pock, 4 O. 469: Long r. Mulford, ^gee ante, sea 607; Tucker v. 17 O. S. 484." Parks, 7 Colo. 62; Giflford v. Carvill, 3 Pollock V. Pollock, 2 O. C. C. 143. 29 Cal. 589 ; People v. San Francisco^ i Reeder v. Stephenson, 3 W. L. B. 27 Cal. 656. 1120, 1121 (Ham. Co. Dist Court); Pendleton v. Galloway, 9 O. 179. 576 FKALD AND DKCEIT, [j^ iill». to the time of making the statement charged, in order to repel the imputation of fraud.^ Tiie law will not permit any one to set up his own iniquity to defeat an innocent person; nor will it grant relief between two persons who are guilty of fraud to aid either to disturb a contract which has been ex- ecuted, or to perform any part of the transaction remaining.- Where a petition avers that fraud was not discovered until within four years before the commencement of the action, an answer charging that the cause of action did not accrue within four years before suit because the same was not committed within that time is not a good defense.^ An answer to an action upon a note that the same was procured by fraud and. without consideration, when it appears from the petition that the note was transferred long before due, the answer not containing an averment of knowledge on the part of the plaintiff of the existence of such fraud, or of want of con- sideration, is subject to demurrer."* It is no defense to an action for fraud resulting in damages that the fraudulent acts were committed in the capacity of a corporation '" A judgment against an agent for fraud committed while act- ing in the scope of his agenc}^ on which collection or pay- ment has been made, is not a bar to an action against the principal for the same fraud. The fact that the principal was wholly ignorant of the fraud is immaterial.^ A creditor hav- ing dealt with parties to a conveyance regarding it as valid, cannot afterwards impeach the same for fraud." The rule is well settled that fraud cannot be urged as a defense under a general denial.^ Sec. 619. Defenses to actions for false representations.— It is not a good defense to an action for false representations that the same were made in good faith and that the plaintiff had a reasonable opportunity to ascertain their truth.^ In an action to recover upon a contract for the sale of land, a de- 1 McCracken v. West, 17 O. 16. ^ Maple v. Railroad Co., 40 O. S. 313. 2 Goudy V. Gebhart. 1 O. S. 262 ; ' Rennick v. Rennick, 8 O. 554. Nellis V. Clark, 20 Wend. 24. « Great Western Dispatch 3 Maple V. Railroad Co., 40 O. S. 313. Glenny. 10 Am. Law Rec. 572. * Wisenogle v. Powers, 1 Clev. Rep. ^ Benjamin v. Mattler, 32 Pac. Rep. 141. 837 (Col, 1893). s Bartholomew v. Bentley, 15 O. «59 ; 1 O. S. 38. § 620,] FKAUD AND DECEIT. 577 fense that the sale was induced by false representation with respect to the property is good. Sec. 620. Answer of fraud in procuring a contract. — \_Ca2)tion.'] That the instrument set forth in the complaint upon which this action is founded was procured from the defendant by the plaintiff by fraud and misrepresentation in this: [^State the particular circumstances constituting the fraud.'] That said representations made by the plaintiff were false and untrue, as he then well knew, but the defendant, relying upon the same, executed and delivered said instrument to the plaintiff. The defendant therefore prays that said instrument may be were held fraiululeut preferences 588 FRAUDULENT CONVEYANCP:S. [§g 028, 020. Sec. 628. Petition to set aside a pretended sale as in fraud of creditors. — [Caption.'] [Averment of nature of claim, etc.^ as in ante, see. 6^4-"] That on the day of , 18 — , said [judgment debtor] was engaged in selling lumber at , and was jiossessed of about feet of lumber of all kinds, of the value of about dollars, but was then, and so remained continuously until the present time, and now is, insolvent, and unable to pay his creditors in full. That on said day said [judgment Greditor\ for the purpose of defrauding his creditors, made a pretended sale of said lumber to E. F., taking his promissory notes therefor, said E. F. well knowing that the object of said [judgment dchtor] in selling said property was to hinder, delay and defraud his creditors. That said E. F. is wholly insolvent, and has no means with which to pay said notes except such as he may derive from the sale of said lumber. That said judgment remains wholly unpaid, and there is due thereon from the [judgment dehtor] to the plaintiff the sum of dollars. That the property so assigned to said E. F. is of the value of about dollars. Plaintiff therefore prays that said assignment and transfer of said lumber to E. F. may be declared fraudulent and void as against said plaintiff, that a receiver may be apjiointed to take charge of said lumber and sell the same, and out of the proceeds thereof pa}^ said judgment and costs, and that until final hearing in this cause said defendants, and each of them, be enjoined from selling or disposing of said lumber, or any part thereof, and for such other relief as justice and equity may require. Sec. 629. Petition to set aside a fraudulent assignment. — [Formal averment of claim as iti ante, sec. 624:] That on the day of , 18 — , and after the recovery of said judgment, the defendant [judgment creditor'] assigned all his proj^erty, of about the value of ^ , to C. I), in trust for the payment of his debts. That said [judgment dehtor] is not indebted to E. F., one of the creditors mentioned m the assignment, in any sum what- ever, and his claim for the sum of $ is fictitious and is in- serted merely for the purpose of enabling said [judgment dehtor] to retain a large portion of the proceeds of the sale of said property. That the whole amount of bona fide claims against said [judgment debtor] is about the sum of % . That said assignee had full knowledg^e of the fraudulent character of said assignment at the time he accepted said § 630.] FRAUDULENT CONVEYANCES. 589 trust, and has collected money and other property from the assets of said assignor of the value of § . That said \_judg7nent debtor'] at the time plaintiff recovered his said judgment had, nor at any time since then, and now has, no other property than that included in said assignment, and the same was made by the defendant \_judgment debtor] with the intent to hinder, delay and defraud creditors, and he still retains possession of said property under a pretense that he is the agent of said C. D. That no part of said judgment has been paid, and there is due thereon from the defendant to the plaintiff the sum of Plaintiff therefore prays that said assignment may be de- clared fraudulent and void, and that said defendants may be required to account for all of said property received by them, and that a receiver may be appointed to take possession and dispose of said property and apply the proceeds thereof, or so much as may be necessary, to the payment of the plaintiff's judgment, and for such other relief as justice and equity may require. Sec. 630. Petition to set aside fraudulent deed. — \^Formal averment of claim, as in ante, sec. 6^4-'} That they are copartners in the wholesale notion business in the city of , under the name, firm and style of B. & C, and that a certain E. F. was and is now engaged in the retail dry goods and notion business in said city, and during the present year and prior thereto has become largely indebted to plaintiffs for goods sold by them to him. That said indebtedness being long overdue, the plaintiffs brpught suit thereon in the court of county, Ohio, against the said E. F., and on the day of , 18 — , ob- tained judgment against him for $— — and costs, and on the day of , 18 — , they caused an execution on the said judgment to be issued to the sheriff of county, Ohio, and the same was levied on certain real estate in the city of , of said county of , to wit: [description], then and for a long time previously in the possession of the said E. F. That the said real estate, and all the right, title and interest of the said E. F. therein, was on the day of , 18 — , sold under said execution to satisfy said debt, and the plaint- iffs became the purchasers thereof, and thereafter received from the sheriff of said county a deed therefor. That at the time of the institution of the plaintiff's suit and down to the day before they obtained judgment thereon, the said E. F. was seized and possessed in fee-simple of the said premises, but that on said day before the plaintiffs obtained judgment, to wit, on the day of , 18 — , the said E. F., for a pretended consideration of dollars, conveyed the .said real estate bv a deed of that date to a certain G. II. 590 FRAUDULENT CONVEYANCES. [§§ 631, 632: That notwithstanding the said conveyance the said E. F. has since continued, and still continues, to live on and occupy the premises described in said deed. That at the time of his making said deed the said E. F. was largely indebted and insolvent, and had not the means of paying his said debt apart from the property so conveyed by him, and since said conveyance has been possessed of no other property whatever; and that the said conveyance was fraudulently made and for simulated and pretended considera- tions, and was made to hinder, delay and defraud the plaint- iffs and his other creditors of their just and lawful debts. Wherefore the plaintiffs pray that the said deed from the said E. F. to the said G. H. of the said real estate may be de- clared to be void, and may be vacated and annulled, and that the plaintiffs may have such other and further relief as their case may require. Sec. 631. Defenses to actions to set aside fraudulent con- veyances. — Where a grantee by the fraud of his confederates obtains from another a deed for property, but. instead of hav- ing it recorded, sells the property to an innocent purchaser and makes a deed direct from himself to the purchaser, de- stroying the unrecorded deed, and obtains a new and defect- ively executed deed from his grantee, thereby securing the consideration, he is estopped from disputing the title of such innocent person to the land.^ An answer by an heir to whom lands were fraudulently transferred by judicial sale to a peti- tion to have the same set aside for fraud, alleging that ex- penditures for the benefit of the estate have been made and asking to be compensated for the same out of the proceeds of sale, is good as against a demurrer.^ It may be shown under a general denial that a transfer was fraudulent and void as against creditors.^ And so the defendant may show, under a general denial, that the property was his homestead."* Sec. 632. Answer by Innocent purchaser of mortgage at- tacked as fraudulent. — Defendant says that on the day of , 18—, said E. M. G., the mortgagee to whom the premises described in plaintiff's petition were conveyed by said mortgage, for a valuable consideration sold, transferred and assigned, by an indorsement written on said mortgage, the said mortgage so made by the said J. W. G. to E. M. G. to B., C. & Co., with the interest and all rights thereafter to accrue thereon, who- 1 Wilson V. Hicks. 40 O. S. 418. " Bailey v. Swain, 45 O. S. 657. ^ Boraberger v. Turner, 13 O. S. 263. * Hibben v. Soyer, 33 Wis. 319. § 632.] FRAUDULENT CUNVKVAXCi:^. 591 at the time of said sale and transfer had no notice, knowl- edge or information that any one claimed that said mortgage was made to hinder, delay or defraud the creditors of J. W. G. or either of them, or that it was made for that juirpose. On the same day said B„ C. & Co., for a valuable considera- tion then paid them by W. T. G., sold, transferred and as- signed, by written memorandum, said dollars of said mortgage, in writing, to said A¥. T. G., who at the time of said sale had no notice, knowledge or information that it was claimed, or that said mortgage was executed by said J. W. G.,. and received by said C. M. G., for the purpose of hindering, delaying or defrauding the creditors of said J. W. G., or either of them; and on the day of , 18 — , the s^id W. T. G.j for a valuable consideration then paid to him by J. G., sold, transferred and assigned, by a written memo- randum, said dollars of said mortgage to said J. G., who also had no notice, knowledge or information that said mort- gage was claimed to have been made, or was made, for the purpose of defrauding the creditors of said J. W. G. On the day of '■, IS — , the executors of said J. G.^ deceased, said executors being thereunto duly authorized, for a valuable consideration then paid to them by this de- fendant, sold, transferred and assigned dollars of said mortgage to this defendant, by a written memorandum on said mortgage, and this defendant at the time had no no- tice, knowledge or information that said mortgage was exe- cuted for the purpose of hindering, delaying or defrauding the creditors of said J. W. G., or either of them. And so this defendant says that he, and those under whom he claims, are innocent purchasers of the interest which he now holds under saiQ mortgage in the premises described in plaintiff's petition, for a valuable consideration, and without notice of an}'- infirm- ity or defect in the title of said E. M. G. in said premises, from whom they purchased the interest aforesaid. Defendant therefore prays that said petition, as to him, be dismissed, and that he recover his costs. CHAPTEK 40. GAMING. Sec. 633. Parties to the action. 634. What constitutes gaming. 635. Action under gaming stat- utes. 636. Same continued — The peti- tion. 637. Petition for recovery of money lost at gaming. Sec. 638. Another form of petition for recovery of money lost at gaming. 639. Petition for the recovery of money lost on a wager. 640. Petition to enforce the lien of a judgment rendered under gaming statute. Sec. 633. Parties to the action, — Any person who loses money or anything of value at gaming/ or one who is in any degree dependent for support on or entitled to the earnings of the loser,^ may bring an action to recover money so lost. If the loser fails to sue, a third person may bring an action and recover against the winner for the use of the person pros- ecuting.' And one who merely furnishes money to another for the purpose of betting, and is present at the game at which the money was lost, may recover as though he had himself lost the money.^ In an action for mone}'' lost at gam- ing it is improper to join the owner of ihe building with those concerned in the g^ame.^ An indorsee of a check iriven for money lost at a game of cards cannot recover on it against the drawer, even though a honafide holder for valiie,^ as the transaction falls within the statute relating to gaming. It has been held that the right of action for money lost at gam- ing is assignable, and not the mere personal privilege of the loser.'' Members of a copartnership may join in an action to recover property lost by one of them at wagering, even with out the knowledofe of the other.® A right of action will not 1 R. S., sec. 4373. 2 R S., sec. 4371. 3 R S., sec. 4373. 4 Mead v. McGraw, 19 O. S. 55. 5 Smith V. Wyatt, 2 C. S. C. R 12. ^Lagonda N. Bank v, Portner, 46 O. S. 381. 7 Meech v. Stoner, 19 N. Y. 26. Sec Wai-d V. Ritt, 7 W. L. B. 76. 8 Cannon v. Chenney, 8 0. C. C. 143 (1894). I 634.] GAMING. 593 lie under the statutes relating to gaming against a tliird person who pays money lost at betting to the winner under the direc- tion of the person losing it.^ Sec. 634. What constitutes gaming.— The keeping of any bowling or nine-pin alley,- or any bets on election,^ or the sell- ing of pools on an election, or upon the result of any trial or contest of skill, speed or power of endurance of man or beast,* or the keeping or exhibiting of any gambling table (except billiards) for game or to win any money, or faro or keno bank, or any gambling device,^ or any contract to have or to give to himself or another any option to sell or buy at a future time any grain or other commodity," or the exhibition of a pup- pet show for money,^ are all branded as gambling transactions by statute. An agreement to sell a lot of hogs at a certain price, to be paid for upon the election of a certain person to office, is a wager within the meaning of the statutes and can- not be enforced.^ The statutes are considered in a broad sense, and are held to include within their meaning a bet upon the result of a game, sport, horse-race or dog-fight, or a wager staked upon an election or upon the future selling of bohemian oats at extravagant, fictitious prices assumed in advance, which acts are therefore void.^ Where there is no intention to deliver commodities, but only to deal and speculate in them by sym- bolical purchases and sales at market prices, such as futures or optfons, or where the transaction, though in proper form, is in fact fictitious under whatever form it may appear, the courts have stamped them gambling transactions and therefore void.^" The fact that one of the parties to such a transaction assumes to make the purchase or sell as a commission merchant merely, will not alter the relation, and the loser may recover from the winner." And where it is the intention of the parties that property is not to be delivered, but that one party is to pay iRoulstone v. Moore, 19 W. L. B. 9 Williams v. Keel, 17 W. L. B. 118. 387. 10 Williams V. Keele, .sitj[«T»; Norton 2 R S., sec. 7000. v. Blinn, 39 O. S. 145 ; Harper v. » R S., sec. 6939a. Grain, 36 O. S. 338. What are known * R S., sec. G939a. as bohemian oats contracts are * R S., sec. 6934. fraudulent, immoral and void. Car- « R S., sec. 6934a. ter v. Lilley, 3 O. C. C. 364 ; Widoe v. 7 R a, sec. 7005. Webb, 20 O. S. 431. « Lucas V. Harper. 24 O. S. 328. " Lester v. Buel, 49 O. S. 240. 38 594 GAMING. [§ 635. to the other the difference between the contract price and the- market price at the time s])ecilied for executing the contract, the same is a gambling contract.^ A contract to deliver prop- ert}^ to another with the understanding that it will be a sale in the event of an election of a certain person is a wager, and may be rescinded before the election takes place.- Sec. 635. Actions under gaming statutes. — In an action for the recovery of money or other valuable thing lost by playing at any game, or by the means of anj'' bet or wager,, the defendant ma}^ upon the filing of an affidavit by the plaintiff stating the nature of the claim, that it is just, and the amount thereof, be arrested before judgment.^ It has. long been provided by statute that a person who loses money or other thing of value, and lias paid or delivered the same to- the winner, may within six months after such loss recover the same in a civil action.* Money deposited with a stake-holder may, when the bet is declared off by the parties, be recovered from hira.^ Recovery may also be had for money expended in the purchase of any lottery or policy ticket or chance, or in or on account of any game of chance.^ The well-known rule that the law will leave parties to an illegal transaction where it finds them ap]ilies in all its force to gaming trans- actions,' and will aid neither party to a gambling contract to enforce the same while it remains executory, in whole or in part; nor will it rescind the same Avhen executed.^ While the law will not enforce an illegal contract, yet it will authorize the recovery of money received thereunder." One of the par- ties to a gaming contract cannot recover money upon a note given in pursuance thereof, nor can the other recover damages sustained by its breach.^" But there are cases where a note which has been executed in a gambling transaction will be 1 Kahn v. Walton, 46 O. S. 195. Kahn v. Walton, 46 O. S. 195; Shir- 2 Harper v. Grain, 36 O. S. 338. ley v. Ulsh, 3 O. C. C. 401. 3R. S., sees. 5491-3. s Carter v. Lilley, 3 O. C. C. 364; 4 R. a, sec. 4373 ; Hoss v. Layton, 3 Widoe v. Webb, 30 O. S. 431. It will O. S. 353 : Veach v. Elliott, 1 0. S. 139. not set aside a deed executed upon SBarnettv. Neill,W. 473. In such the copsideration of a bet upon the cases a demand and refusal is first result of an election. Thomas v. necessary. Ward v. Ritt. 10 Am. Cronise, 16 O. 54. Law Rec. 567 ; 7 W. L. B. 76, 138. " Norton v. Blinn, 39 O. S. 145. 6 R. s.^ sec. 4371. '" See Grifiin v. Telegraph Co., 9 W. "Norton v. Blinn. 39 O. S. 148; L. B. 33. §§ 630, 037.] GAMING. 595 valid, and enforced.^ An action for the recovery of money or other property lost on a bet or wager is an action in the nat- ure of a penalty or forfeiture, within the meaning of the code.^ Sec. 636. Same continued — The petition. — In stating a cause of action for the recovery of money lost at gaming, it will be sufficient for the plaintiff to allege that the defendant is indebted to plaintiff, or that he has received to the plaint- iff's use the money so lost and paid, or converted the goods of the plaintiff to the defendant's use, whereby the action ac- crued to him, without setting forth the special matter.' To recover property or money lost at gaming from one to whom it has been transferred, it is not necessary that demand be made therefor. But where the money comes into the hands of a person voluntarily, there can be no liability upon the part of such person to return it until demand has been made upon him for it.* In an action for the recovery of money lost at gaming, an allegation that at the time the game was played and money lost by plaintiff the defendant was the owner of the building in which the game was played and the money lost, that he knowingly permitted the same for the purpose of gaming for mone}', and for the game with plaintiff, is, as against a general demurrer, a sufficient averment of the unlaw- ful* use and occupation of the building.^ It is sufficient to state the aggregate amount of loss, or the excess of loss over the winnings, between specified dates, without proving the amount and date of each particular loss, or the particular agent or proprietor to whom each sum was paid.® Sec. 637. Petition for I'ecovery of money lost at gaming. Now comes the plaintiff, and for his cause of action gays that the defendant is indebted to him in the sum of $ — — received to the plaintiff's use, won of plaintiff at gaming, and by him paid to defendant between the of and the of -, 18 — -, whereljy an action accrued to plaintiff under the statute against gaming, and for which plaintiff asks judgment with interest from . Note.— A demurn r was filed to this form which was sustained by the court of common pleas, but reversed by tlie circuit court of Cuyahoora county, w'hich was allirmed by the supreme court in Kelley v. Castle, 27 W. L. B. 287, without rei'ort. 1 Stewart v. Simpson, 2 O. C. C. 415 ; * Ward v. Ritt, 7 W. L. B. 7(3. R. S., sec. 4269. 'Binder v. Finkbone, 25 O. S. 103. -Cooper V. Rowley, 29 O. S. 547. fiLear v. McMillan, 17 O. S. 4G4. ■■ '^. S.. sec. 4270. 596 GAMING. [^§ G38-04U. Sec. 638. Another form of petition for recovery of money lost at gaming. — [Captio7i.] The plaintiff above named says there is clue to him from the defendants above named the sum of $ with per cent. interest thereon from , 18 — , for money lost by said plaintiff and paid to said defendants on said day of , 18 — , at the city of , county of and state of Ohio, by playing a certain game of chance commonly called faro, the defendants then and there playing the said game with the plaintiff, and then and there winning the said sum from the plaintiff. Wherefore plaintiff asks judgment against said defendants for said sum of $ . Sec. 639. Petition for the recovery of money lost on a wager. — M. B. L., on the day of , 18 — , at said county of , was indebted, and still is indebted, to the said H. H., the plaintiff, in the sum of $ for money, before that time ami within six inonths before the commencement of this suit, to wit, on the day of , 18 — , lost by the said plaintiff, and by him, the said plaintiff, paid to the said defendant, to wit, at the county aforesaid, upon a bet and wager then and there made by and between the said defendant and the said plaintiff, whereby an action hath accrued to the said plaintiff, according to the act against gaming, to demand and have from the said defendant the said sum of $ . Yet the said defend- ant hath not jiaid the same nor any part thereof. And also for that, whereas, on the day of , 18 — , at the said county of , and within six months before the commence- ment of this suit, the said defendant received for the use of the said plaintiff one other sum of $ , being money then and there bet and wagered by and between the said plaintiff and the said defendant, and afterward, to wit, on the day and year aforesaid, at the county aforesaid, lost by said plaintiff, and paid to and received by said defendant as the winner of such bet and wager, whereby an action hath ac- crued to said plaintiff, according to the form of an act entitled "An act," etc., jmssed , to demand and have from the said defendant the said sum of $ , yet the said defendant has not paid said sum of money nor any part thereof. [ Prayer.'] Note.— From Hoss v. Lay ton, 3 O. S. 52. Sec. 640. Petition to enforce the lien of a judgment ren- dered under gaming statute. — That at the term of the court of common pleas of county, Ohio, in a certain action wherein W. II. was plaintiff and F. Tl. and J. S. were defentlants, the ]5hiintiff tluly recov- § 640.] GAMING. 597 ered a judgment against the said J. S. for the sum of dollars. That said action was brought by the plaintiff against said R and S. under \]iere state gaming statute], for the recovery from the said R. and S. of certain money staked and betted by plaintiff with the said F. li. and J. S. on a certain game called faro, which said judgment in favor of said i)laintiff and against said J. S. as aforesaid was for the amount found by said court to have been staked and betted by said plaintiff with said S. on said game and won by said S., and paid over to him by the ])laintiff. That said judgment is still in force, unreversed, and no part thereof has been paid. That said game of faro, in which said sum of money was staked and betted and lost by plaintiff, was played on the tlay of , 18 — , at and in\i certain building owned by the said A. B., situate in the city of , county of , state of Ohio, of which the said A. B. was then and now is the owner, and is described as follows, to wit: [Give description-'] Plaintiff says that at the time said game was played and said money was staked and betted by said plaintiff on said game with said S., and lost by plaintiff and paid over to said 8. as aforesaid, and for a long time before that, said A. B. knowingly permitted the room in said building in which said game was played to be used by said S. for the purpose of gam- ing for money, and for the purpose of said game of faro with plaintiff. Plaintiff therefore prays the court to declare the judgment aforesaid a lien on said building and real estate, and for an oraer that said real estate and building may be sold for the satisfaction of the judgment, interest and costs of suit afore- said, and for all proper relief. NOTB.— From Binder v. Finkbone, 25 O. S. 103. CHAPTEK 41. GUARANTY. Sec. 641. Parties. 642. Rule as to alleging demand and notice. 643. Actions upon guaranty — Pleading. 644. Petition on guaranty bond for payment of money by agent 645. Petition on guaranty to pay i debt of third person on condition that time is ex- tended to the latter. Sec. 646. Petition on guaranty to pay the debt of another upon creditor agreeing to re- lease lien. 647. Petition on guaranty for payment of rent 648. Defenses to actions on guar- auty. 649. Answer that guaranty was made upon condition that others should sign as prin- cipal. 650. Answer setting up want of diligence against princi- pal. Sec. 641. Parties. — Where a guaranty is written upon a contract at the time it is executed, the guarantor becomes an original contractor, and the parties may be sued jointly or severally.^ A person who writes his name upon a note in transferring it, guarantying the payment at maturity, is a proper party to be sued jointly with the raaker.^ A subscriber to an institution of learning or other benevolent object, and a person guarantying payment thereof, may be joined in the same action upon the subscription.^ The guarantor ami the principal debtor are not joint promisors.* A contract of guaranty being assignable, an assignee thereof may bring suit upon it.^ It is held that where a stranger writes a guaranty 1 Leonard v. Sweetzer, 16 O. 1 ; Gale V. Van Arman, 18 O. 336 ; Mar- vin V. Adamson, 11 la. 371 : Tucker V. Shiner, 24 la. 334; Hendricks v. Fuller, 7 Kan. 331. Contra, Allen V. Fosgate, 11 How. Pr. 318 ; Graham V. Ringo, 67 Mo. 324; Central Sav- ings Bank v. Shine, 48 Mo. 463. 2Kautzman v. Weirick, 26 O. S. 380. See Stone v. Rockefeller, 29 O. S. 625. 3 Neil V. Board of Trustees, 31 O. S. 15. * Deming v. Board of Trustees, 31 O. S. 41. 5 Small V. Sloan, 1 Bosworth, 353. § 642.] GCARANTT. 599 upon a note he may be sued jointly with the maker.^ Under the Ohio code it is held that a guarantor cannot be joined in an action with an original contractor; yet if the instru- ment be in the form of the original contract of one of the de- fendants, and the guaranty of the other, and were executed upon the same consideration, and at the same time, taking eifect at the same .time, they will then be regarded as orig- inal contractors and may be sued jointly.^ Sec. 642. Rule as to alleging deniand and notice.— Where the guaranty is conditional the guarantor cannot be charged unless payment is demanded of the maker when due, and notice of the non-payment given to the guarantee.' But where it is absolute and unconditional, no averment of de- mand and notice need be made in the petition;* nor is it nec- essary to give notice of the default to charge an absolute guarantor of an existing demand, if the guaranty is made subsequent to such default. ^ Nor is it necessary that demand be made upon and notice given the makers of a note at ma- turity, to charge the payee, who has made a special guaranty of its collectibility, by due course of law; a failure in this re- spect will not discharge the guarantor.** A guaranty that a note shall be paid, which is made upon consideration that the payee delay the payment thereof, is an original agreement, and it is not necessary that demand and notice be made upon the guarantor.^ But demand and notice are requisite to charge a guarantor where the fact of his liability rests within the knowledge of the guarantee, or is dependent upon his option.^ It is also necessary that the guarantee give notice of his ac- ceptance and intention to act under it, where the instrument 1 Gale V. Vau Ariiiau, 18 O. S. 336. be given at once to the guarantor. 2 Lamping v. Cole, 5 W. L. M. 187 ; Taylor v. Wetniore, 10 O. 490. A de- 19 Barb. 638; 11 How. Pr. 218; 8 mand must be made upon a person N. Y. 214. not a party to a note who writes a 3 Greene v. Dodge, 2 O. 498. guaranty thereon. Parker v. Riddle. * Clay V. Edgerton. 19 O. S. 549 ; 11 O. 103. Wise V. Miller, 45 O. S. 388 ; Pow- 5 Bonebrake v. King, 49 Kan. 296 ; ers V. Bumcratz, 12 O. S. 273; Bash- 31 Pac. Rep. 1007. ford V. Shaw, 4 O. S. 266; Brown 6 Forest v. Stewart, 14 O. S. 246. V. Curtiss, 2 Conist. 225 ; Breed v. See Kyle v. Green, 14 O. 490. Hillhouse, 7 Conn. 523. Where a bill 'Reed v. Evans. 17 O. 128. of goods is taken upon the faith of ^ Bashford v. Shaw, 4 O. S. 263. a letter of credit, notice tiiereof must 600 ■ GUARANTY. [§ 613. is in legal effect an offer or proposal,^ A defense as to delay of notice, that the note guarantied could not be collected, may be made to show that the guarantor was injured thereby.'^ Sec. 643. Actions upon guaranty — Pleading. — It is the well-established rule of construction that the guarantor is bound only by the strict terms of his contract, and that the same is liberally construed in his favor.^ Even though a considera- tion be shown by the writing constituting the guaranty, it is nevertheless necessary that the petition should aver that it was supported by a consideration.^ If a guaranty be made as. to the collectibility of a note by the ordinary process of law, it is usually necessary to prosecute the maker to judgment. This, however, is not so when the latter is insolvent.^ The liability of a guarantor is fixed when the maker of the note is insolvent at maturity.^ A guarantor who guaranties that a debt will be paid when it becomes due will not be liable if the creditor fails to prosecute the principal with due dili- gence." The expression, " We know them to be good," con- stitutes a guaranty that a note is good and collectible at maturity, upon which a recovery may be had.^ Permission to use a person's name as guaranty up to a certain sum is not in fact a guaranty, but confers power to sign the name of such person to the note for money borrowed." An owner of a mortgaged debt who assigns the same to another,, guarantying payment, is released from his guaranty by a contract between the assignee and the mortgagor extending, the time of payment.^** A personal action cannot be main- tained by an assignee of a note and mortgage upon a guaranty of the assignor as to the collectibility of the note, made con- temporaneously with the assignment, without resorting to the mortgage security.^^ In an action upon a contract of guaranty made as to the payment of money, the petition should aver that the defendant has not paid the indebtedness for the re- 1 Wise V. Miller, 45 O. S. 388. 6 id. 2 Wolf V. Brown, 5 O. S. 804. 7 Craig v. Parkis, 40 N. Y. 181. 3 Morgan v. Boyer, 39 O. S. 324 8 Bank v. Bank, 45 O. S. 236. * Greene v. Dodge, 2 O. 498. As to 9 Palmer v. Yarrington, 1 O. S. 25;5. consideration, see Easter v. White, 13 lo Fithian v. Corwin, 17 O. S. 118. O. S. 219 ; Kelsey v. Hibbs, 13 O. S. " Tiramerman v. Howell, 2 O. C. C. S40. 27. 5 Stone V. Rockefeller, 29 O. S. 625. § (34i.] GUARANTY. 601 coverv of which the suit is brought, an allegation that the whole amount is not due not being sufficient.^ It is consid- ered unnecessary in an action upon a contract required by the statutes of fraud to be in writing, such as a guaranty, to al- lege in the petition that it is in writing. This is matter of defense.' Where the guaranty is a conditional one, the plaint- iff should allege and prove that the condition has happened which creates the liability.^ A statement of a cashier of a bank, made with reference to a bill, that it is perfectly safe, amounts to a guaranty upon which an action will lie.* The principle that delay in enforcing ]iayment does not release a guarantor, except to the extent that he is injured thereby,. does not apply where the delay is due to an extension of time without his consent.' Sec. 644. Petition on guaranty bond for payment of money by agent. — The' plaintiff says it is a corporation duly incorporated under the laws of Ohio,' and that on , 18 — , the defendant, C. H. (for a good and sufficient consideration, to wit, to en- able C. D. and W. S. S. to obtain [goods to he sold] in car-load lots on credit from the plaintiff), executed and delivered to plaintiff her certain written obligation, and thereb}' bound herself, her heirs, executors and administrators, to pay plaint- iff the sum of dollars. The condition of said obligation was, that if the said C. D. arftl AY. S. S., as agents for the sale of [goods to he sold] for the l)laintiff, should pay all money that may be owing the plaint- iff as purchase-money for all [specify goods] they may pur- chase while acting as agents for the plaintiff, then the above obligation was to be void. Otherwise the same was to remain in full force, (A copy of said bond of guaranty is filed here- with as an exhibit.) The plaintiff avers that the said C. D. and AV. S. S., as agents for the sale of [specify goods sold] for the said com- pany, did not pay the plaintiff for all [sp>ecify goods] they pur chased while acting as agents for plaintiff. But plaintiff avers that the said S. and D. now owe the plaintiff for the goods so purchased by them a sum greatly in excess of dollars. 1 Roberts v. Treadvvell, 50 Cal. 520. 583; McCulluch v. Tapp, 4 W. L. ]\L 2 Marston v. Sweet, 66 N. Y. 206 ; 575. McDonald v. Homestead Assoc, 51 3 Cereghino v. Hammer, 60 Cal CaL 210 ; Taylor v. Patterson, 5 Ore. 235. 131 ; Walsh v. Kattenburgh, 8 :\Iinn. ^ sturges v. Bank, 11 O. S. 153. 127; Ecker v. McAllister, 45 Md. a Jones v. Turner, 6 W. L. B. 231. 290; Mullaly v. Holden, 133 Mass. 6:12 GUARANTY. [§§ 64:5, 646. and the said S. and D. and the defendant C. H. all refuse and neo'lect, upon demand, to pay the same, or any part thereof. Wherefore the plaintiff prays judgment against the said G. H. for the sum of dollars, with interest from , 18—. Note. — From Hess v. Brewing Company, error to circuit court of Bel- mont county, Ohio, Supreme Court, unreported case. No. 1624. Sureties and guarantors are never held resijousible beyond the clear and absolute terms and meaning of their undertaking. Morgan v. Boyer, 39 O. S. 324; Donlej- V. Bank, 40 O. S. 47 and 51 ; Brandt on Suretyship, sec. 79. A guarantor is bound only by the precise words of his contract, and other words cannot be added by construction or implication. Morgan v. Boyer, 39 O. S. 326. Demand and notice is not necessary where the sureties guaranty that their principal shall sell and account for all goods placed in his hands witiiin a stated period. Bush v. Critcii field, 4 O. 103. Sec. 645. Petition on guaranty to pay debt of third per- son on condition that time is extended to the latter. — On the day of , 18 — , one E, F. was indebted to plaintiff in the sum of $ , which sura was then due and payable; that on said day defendant requested plaintiff to ex tend the time of payment of said debt until the day of , IS — , In consideration of said extension of time for said pa3'ment by plaintiff, said defendant promised plaintiff in writing that he would pay said sum in case said did not pay the same on or before the day of , 18 — ; a copy of which contract is attached as an exhibit. That plaintiff, relying upon said promise of the defendant, did extend the time for the payment of said sum to said E. F., until the .day of , 18 — , which time has since elapsed, but said E. F. has not paid said sum nor any part thereof, of all which the defendant was duly notified on the day of , IS — , 3^et said defendant has not paid said sum nor any part thereof. Plaintiff therefore asks judgment against the defendant for the sum of S . Note. — The contract of guaranty becomes an evidence of indebtedness. See ante, sec. 57. Demand and notice is not x'equired in all classes of guaran- ties, as where it is a guaranty undertaken orii'lually with the principal, or an absolute aud independent stipulation. Bash ford v. Shaw, 4 O. S. 263; McKensie v. Farrell, 4 Bosw. 192 ; Dearborn v. Sawyer, 59 N. H. 95 ; Allen v, Rightmere, 20 Johns. 365; 17 O. 128. It is necessary, however, where the agreement is to pay if the principal does not (Greene v. Dodge, 2 O. 430); and also where the facts on which the liability depends are peculiarly within the knowledge of the guai'antee. Bashford v. Shaw, supra. There must be actual damage resulting therefrom. Bashford v. Shaw, 4 O. S. 263. Sec. 646. Petition on guaranty to pay the debt of an- other upon creditor agreeing to release lien. — That on the day of , 18 — , one C. D, was indebted to plaintiff in the sum of $ , which was secured by a lien upon certain goods of C. D., then in the possession of this plaintiff. •§§ 04T, 048.] GUARANTY. 603 That on said day the defendant requested plaintiff to sur- render said goods to C. D; and release his said lien thereon, and in consideration of said release of said lien by ])laintiff, defendant agreed in writing to pay plaintiff the amount of said debt on the day of , 18 — , in case the said C. D. did not pay the same. A copy of which contract is attached as an exhibit. That in consideration of said promise of defendant the plaintiff then and there gave up possession of said goods to said C. D., and abandoned his lien thereon. That no part of said debt has been paid, and there is now due from the defendant to the plaintiff thereon the sum of $ . Note. — As to attaching contract, see ante, sec. 57. Sec. 647. Petition on guaranty for payment of rent. — That on the day of , 18 — , one A. B. leased from the plaintiff the following described premises, viz. : [describe premises'], at a yearly rent of $ , payable [designate time], beginning ou the day , 16 — , and ending on the day of , 18 — . That at the time of making said lease the defendant, C. D., in consideration of leasing said premises to said A. B., and as security for the payment of the rent thereof, made and deliv- ered to plaintiff an agreement in writing, by which agreement he guarantied that the said A. B. would punctually pay said rental for said premises as the same became due (a copy of which guaranty is filed herewith as an exhibit), {A7ite,seG. 57.) ^hat said A. B. entered into possession of said premises under said lease on the day of ■ , 18 — , and occupied the same until the day of , 18 — . That the said A. B. has failed to pay the rent due thereon from the day of , 18 — , to the day of , 18 — , amounting to the sum of $ , and on the day of , 18 — , the plaintiff' demanded payment thereof from him, but he did not pay the same, of which the defendant was then duly notified. That no part thereof has been paid, and there is now due from the defendant to the plaintiff on said guaranty of the defendant C. D. the sum of $ , for which he asks judg- ment. 8ec. 648. Defenses to actions on guaranty. — In an ac- tion upon a guaranty for payment of materials for another, a general denial of payment will be sufficient without other allegations.^ Where a defense to an action is founded on an iMcShane Co. v. Padian, 20 N. Y. S. 679. 604 GUARANTY. [§§ 64:d, 65a. agreement falling within the statute of frauds, the answer should aver that the same was in writing.^ Sec. 649. Answer that guaranty was made upon condition that others should sign as principals, — Defendant says that he executed the contract of guaranty by indorsing and signing the same on the bond mentioned in the petition. That said bond as then written had the names of R. F. and Y. O. inserted therein as principals; but said Y. 0. had not yet signed the same. That this defendant signed said guaranty at the instance and request of said R. F., and on the express agreement and condition with said R, F. that the same should not be binding on this defendant, or delivered to the plaintiff, until said bond was signed by said Y. O. as one of the principals. That said Y. O. never signed said bond ; and said R. F., in violation of said agreement, and without this defendant's knowledge or consent, delivered the same with said guaranty to the plaintiff [who accepted and received the same with full knowledge of the agreement and the condition on which this defendant signed said guaranty.] Sec. 650, AnsAver setting up want of diligence against principal. — That the plaintiff did not, at the maturity of the claim sued on, or at any other time [or, until the day of , IS — ], notify defendant that R. F. [thepri?icipal debtor] had not paid the same, nor had defendant any knowledge of his default in payment. That at the time said claim fell due, and for months thereafter, said R. F. was the owner of dollars' worth of real and personal property, situated in the county of , state of Ohio, subject to execution, out of which said debt could have been made; but the plaintiff did not commence an action against said R. F. therefor, nor take any steps to col- lect the same from him [until , 18 — ]. That in the meantime said R. F. became and still is wholly insolvent, and if this defendant is compelled to pay the said bond he will lose the same; whereas if plaintiff had used due diligence in notifying this defendant of the default of saitl R. F., or in collecting the amount of said bond, this defend- ant would not have been compelled to pay or lose the same. Wherefore this defendant says that by reason of the negli- gence and want of diligence of the plaintiff he has been dam- aged in an amount equal to the plaintiff's claim, and he de- mands judgment therefor. 1 Reinheimer v. Carter, 31 0. S. 579. CHAPTER 42. HABEAS CORPUS. Sec 651. Who entitled to writ, and questions raised thereon. 652. The petition or application. 653. Form of petition for habeas corpus — Setting forth facts. 654. Petition wlaere applicant is imprisoned by an offi- cer — A common form. 655. The use of the writ in de- termining the custody of minors. Sec. 656. Petition by parent for pos- session of his child. Petition by father to regain custody of minor son in United States army. Who may grant the writ The writ — Code provis- ions. 660. Return or answer. 661. Form of return or answer. 657. 658. 659. Sec. 651. Wlio entitled to writ, and questions raised thereon. — It is said that the right of trial by jury and the writ of habeas corpus stand as representatives of ideas as cer- tain and definite as any other in the whole range of legal le^rning.^ Yet the extent of the jurisdiction in haheas corpiis, as well as the manner of its exercise, is undoubtedly in a large measure within legislative control, and must therefore be de- termined in the light of the constitution and statutes.^ A per- son unhiwfully restrained of his liberty, or a person entitled to the custody of another, of which custody he is unlawfully deprived, may prosecute a writ of haheas corpus to inquire into the cause of such imprisonment, restraint or deprivation.^ While the writ is a sacred one in the light of the constitution, yet there are many questions which cannot be raised by re- sorting to it. The proceedings before a judge de facto cannot be questioned in a collateral proceeding in haheas oorpus^ any more than if he were a judge dejure} Neither can a wrongful sentence, unless absolutely void, be reviewed or reversed in haheas corpus proceedings, but the injured party must proceed 1 Work V. State, 2 O. S. 296. 302. 2 Kuapp V. Thomas, 39 O. S. 384. 3 O. Code, sec. 5726. 4 Ex parte Strang. 21 O. S. 610-15. 606 HABEAS COKPUS. [§ ()51.. by petition in error.^ And in al cases where relief is sought by persons sentenced for crime, the question of jurisdiction of the court pronouncing the same determines the right to apply for a writ of haheas corpas', and whenever it appears that they were sentenced by a court of competent jurisdiction, the same cannot be reviewed in haheas corpus proceedings, but the remedy in error must be pursued.^ Nor can mere irregulari- ties in the sentence of a court of competent jurisdiction be re- viewed in habeas corpus.^ Although the writ may be used to- inquire into a question of the jurisdiction of a court over a particular offense, yet a court having jurisdiction in habeas corpus^ but not over the crime, should not allow the writ and discharge the defendant.* A person cannot resort to haheas corpus proceedings in a national court on the ground that a state court forced him to trial without time for preparation:, or an}^ opportunity to secure compulsory process or the pres- ence of material witnesses;^ nor can the writ be used for the purpose of collaterally inquiring into the title of an officer;* nor can a question as to excessive punishment be determined in haheas corpus^ as it would be turning it into a remedy for the correction of errors;' nor of former jeopardy, when the legality of the proceedings under which the prisoner is re- strained is not called in question;^ nor is it the proper remedy to try an issue of autrefois ac.% dwelling-house, situated on the street in the city of , county of , state of Ohio. That said restraint is wholly unlawful and \yithout right in this, to wit : [Here state facts neoessary to disclose the urdavjful re- straint ?\ Wherefore your petitioner prays for a writ of habeas corpus^ and that the said minor child be ordered delivered up to him. Note. — See ante, sec. 653. Sec. 657. Petition by father to regain custody of minor son in United States army. — Your petitioner respectfully represents that he is a resident of the town of W., in the county of N. and state of — ^; that he has a minor son of the age of years, named J. M., who enlisted in the military service of the United States on or about the day of , 18—, for the term of — — years, by , having his office in the place of enlist- ment at , in the county of S. and state aforesaid, with- out the knowledge or consent of your petitioner, without whose consent he avers and believes said enlistment was and is void ; and your petitioner further represents that his said minor son is deprived and restrained of his liberty at -, by the said , or by officers or persons under his charge and direction; that your petitioner has represented to the said that the said J. M. is a minor and that your petitioner refuses to give his consent to the enlistment; but lln re Barnes, 31 W. L. B. 164; In any case will consider the choice of re Bolt, 25 Kau. 308 ; Thorndyke v. the cliild. Clark v. Boyer, 33 O. S. Rice, 24 Law Reporter, 19; People v. 399. Allen, 105 N. Y. 628. The court in §§ 658, 659.] HABEAS CORPUS. 613 that the said refuses to release the said J. M. and is about sending hira out of the jurisdiction of this court for the purpose of compelling him to perform military services. Wherefore your petitioner respectfully prays the court to grant a writ of liobeas corpus to be directed to , hav- ing charge of the said J. M., commanding him and them to bring the said J. M. before this court to do, submit to and receive what the laws may require. Note. — The father may inquire into the illegality of the detention of his minor son by habeas corpus. McConologiie's Case, 107 Mass. 154. See State V. Brearly, 2 Southard, 555. Sec. 658. Who may grant the writ. — The writ may be granted by the supreme court, circuit court, common pleas court, probate court, or by a judge of either.' In view of the light in which the constitution regards the writ, and of the fact that the statutes have conferred original jurisdiction in habeas corjpus upon all courts of record, it would seem that it ought to be regarded as a matter of right to have the writ issued in any court. Tet the supreme court early a^lopted the rule that it w^as within its discretion whether or not it would put aside its regular business and entertain applications for the writ, unless it be in very urgent cases, or under peculiar circumstances,- or when it seemed necessary to settle some important question." *Sec. 659, The writ — Code provisions. — The writ should not be issued if it appears from the application that the per- son is under restraint by virtue of a judgment having juris- diction.* The clerk shall issue the writ forthwith, or in case of emergency the judge may issue it himself and depute any oflBcer or person to serve it.^ If the person be detained by imprisonment by an officer, the writ should be directed to him, commanding him to have the body before the court at the time and place therein named.^ In case of confinement, imprisonment or detention by a person not an officer, the writ shall be in the form following: The State or Ohio, ) County. ( ^^• To the Sheriffs of our several counties, Greeting: We command you that the body of , of , by J O. Code, sec. 5727. ■« O. Code, sec. 5730. 2 Ex parte Shaw. 7 O. S. 81. » O. Code, sec. 5731. 3 Ex parte Shean, 25 O. S. 440. 6 O. Code, sec. 5733. 614 HABEAS CORPUS. [§ 660. of , imprisoned and restrained of his liberty, as it is said, you take and have before , a judge of our court, or, in case of his absence or disability, be- fore some other judge of tlie same court, at , forthwith to do and receive what our said judge shall then and there consider concerning him in his behalf; and summon the said then and there to appear before our said judge, to show the cause of the taking and detention of said . Witness, at , this day of , in the vear . The officer must make a due return of the writ, together with the cause of the caption and detention of the person, accordino- to the command thereof.^ When the writ is issued by a court in session, if the court is adjouri:\ed when the same is returned, it may come before any judge of the same court.^ A court having obtained jurisdiction of a child in one county in adverse proceedings involving the custody of a child may send its process in any county in the state in which such child has been taken,^ The writ may be served in any county by the sheriff of the same or any other county or by a person appointed.* Sec. 660. The return or answer. — The defendant is re- quired to make what is styled a return, which is in fact treated as an answer.^ When the person to be produced is imprisoned or restrained by an officer, the person who makes the return shall state therein, and in other cases the person in whose cus- tody the prisoner is found shall state, in writing, to the court or judge before whom the writ is returnable, plainly and un- equivocally: 1. Whether he has or has not the party in his custody or power, or under restraint. 2. If he has the party in his custody or power, or under restraint, he shall set forth at lar^e the authority and the true and whole cause of such imprisonment and restraint, with a copy of the writ, warrant or other process, if any, upon which the party is detained. 3. If he has had the party in his custody or power or under restramt, and has transferred such custody or restraint to an- other, he shall state particularly to whom, at what time, for what cause and by what authority such transfer was made.' 1 O. Code, sec. 5736. 263 ; Knapp v. Thomas, 39 0. S. 378 ; 2 O. Code, sec. 5737. Church's Habeas Corpus, sec. 120; » In re Talbott, 9 W. L. B. 271. Hurd on Habeas Corpus (2d ed.), 235. * O. Code, sec. 5735. « O. Code, sec 5738. 5 Amnion v. Johnson, 3 O. C. C. § 661.] HABEAS CORPUS. 615 The return or answer should be signed by the oflBcer and sworn to unless he is a public officer and makes the return in his official capacity.^ It has been said in Xew York that the better opinion is that a return to a writ of haheas corpus could not be controverted. But upon the return, which is really an answer, the petitioner is allowed to deny material facts set forth in the writ, and make new allegations in support of the application.- Indeed it has been held that the plaintiff, in- stead of making a complete statement of the facts in his ap- plication, may make it in reply to the return.^ This doctrine, however, is not a commendable one.* The relator may deny the return and allege other material facts.^ The return should show the cause of commitment as specifically and certainly to the judges before whom it is returned as it did to the court or person authorized to commit.^ Sec. 661. Return aud answer of respondent. — This respondent, A. L. C, producing the body of T. C. in obedience to the writ of haheas corpus hereinbefore issued, says thai he is the father of the said T. C, a minor of the age of ten years, and as such father entitled to the care and cus- tody thereof. {Then give full statement of facts. '\ Kespondent denies that the said T. C. is unlawfully re- strained of his liberty, and therefore prays that this court will order his said child, T. C, to be remanded to his care, custody and control, and that the said writ herein issued may be quashed, and that the petition herein may be dismissed and the costs of this proceeding adjudged against the petitioner, and for such further relief as is proper. 1 0. Code, sec. 5739. 5 Iq re Hardigau. 57 Vt. 100. 2 People V. Chegary, 18 Wend. 637. eg Am. & Eng. Eucy. of Law, p. 189, 3 Slavey v. Seymour, 3 Cliff. 439. aud cases cited. ^ Ante, sec. 653. CHAPTER 43. HUSBAND AND WIFE. Sec. 662. Relative duties, rights and liabilities of husband and wife. 663. Petition for recovery of value of necessaries fur- nished wife. 664. Answer that goods fur- nished wife were not nec- essaries. Sec. 655. Petition by wife against husband for support. 666. Petition by husband against wife for support. 667. Action by wife for aliena- tion of husband's affec- tions. Sec. 662. Relative duties, rights and liabilities of lius- baud and wife. — The changes made by statute in Ohio are so sweeping that it becomes impracticable here to give any attention to former decisions. Husband and wife may now enter into anv enffao^ement or transaction with each other, or with any other person, which either might do if unmarried. The same rule, however, which controls the actions or con- tracts of persons occupying confidential relations with each other will apply to such transactions.^' If one of them exerts influence which arises from the married relation to obtain advantage pver the other, it is a fraud for which equity will grant relief.'^ With the rules of pleading heretofore existing with respect to actions to charge the separate estate of a mar- ried woman we have nothing to do. Under existing laws,' the same obligations are imposed upon the husband as to sup- porting his wife and children as formerly. He must support his wife and children out of his property or by his labor, and suit may be maintained against him therefor. If he is un- able to do so the wife must assist him so far as she is able. And where the wife is able to support a husband who is at no fault, but unable to support himself on account of infirmity, it has been held that he mav maintain an action against his wife iR S., sec. 3112; Crum v. Sawyer, 132 111. 443. - Jackson v. Jackson, 94 Cal. 446. 3 R S., sec. 3109 et seq. § 663.] HUSBAND AND W"FE. 617 to subject her property to the payment of such a sum as may be found necessary for the husband's support.^ On the other hand, a wife may maintain an independent action against her husband for support without regard to the question of di- vorce.^ The code also gives the right to the wife to file a petition to prevent her husband from wasting or squandering property, or for fraudulently converting the lame to his own use, or from placing it beyond her use. The court may en- join him from interfering with it, and appoint a receiver to manage the same for the benefit of the wife.'' The wife may also sue her husband, or a firm of which he is a meuiber, and he may confess judgment to her.* Suit ma}'^ now be main- tained by and against a married woman as though she were unmarried.*^ She may recover for personal earnings from another, but not for services performed for her husband in and about his business.® Husband and wife may make any contract with each other,^ and may therefore enter into part- nership.^ Although the statutes have so changed the law that husband and wife may contract with each other, the husband is still the head of the family, and the expenses of the famil}'- and for the education of the children are chargeable upon the property of both or either of them in favor of creditors.^ When husband and wife are sued the wife may defend in her own right; and if the husband neglects to defend she may also defend for his right.^^ In such cases a separate answer by the wife may be a complete defense as to both.'^ Sec. 663. Petition for recovery of value of necessaries furnished wife. — \_Caption.'\ Plain tifif says that between the day of , 18 — , and the day of , 18 — , he furnished to A. B., the wife of the defendant, at her request, certain necessaries, and that there is due from said defendant as the husband of the said 1 Hickle V. Hickle, 6 O. C. C. 490, « Switzer v. Kee, 146 111. 577. now pending in supreme court. " Crum v. Sawyer, 132 111. 443. 2 Earle v. Earle, 27 Neb. 277 ; Beuter 8 Dressel v. Lonsdale, 46 111. App. V. Beuter (S. D., 1890), 45 N. W. Rep. 454. 208. 9 Tyler v. Sanborn, 128 III 136. 3 O. Code, sec. 5705. lo R. S.. sec. 4997. 4Freiler v. Kear, 22 W. L. B. 326. "Lowes t. Redgate, 42 O. S. 329. 5 Card Fabrique Co. v. Stanage, 29 Seean^e, sec. 11. W. L. B. 415; 51 O. S. — . 618 HUSBAND AND -^'IFE. [§§ 664:, 665. A. B. on an account for the same the sura of $ , with in- terest from the day of , 13 — , a copy of which is as follows, to wit: [Copy of account.] Plaintiff further states that the said goods so furnished by him to the said A. B. were necessary for her maintenance and support, and that the same were suitable for her in her station and walk of life; that on the day of , 18 — , and at divers other times he demanded payment therefor of said de- fendant, which was by him refused! Wherefore plaintiff asks judgment against said defendant for said sum of S , with interest from the day of , 18-. Note.— R. S., sec. 3110. See 27 C. L. J. 279. Tlie wife's earnings are her own. Presumptively a husband supplies the house. Dressel v. Lons- dale, 46 111. App. 454. Sec. 664. Answer that goods furuished wife are not nec- essaries. — That the articles set forth in the petition were furnished to the wife [or, child] of defendant without his knowledge or consent and were not necessaries. [That the defendant denies that the articles so furnished, or any part thereof, were needful or necessary to her sup- port] [or, suitable to her situation or the defendant's condition m life]. Sec. 665. Petition hy wife against husband for support. — That plaintiff and the defendant C. B. were married on the day of , 18 — , and lived together as husband and wife until the day of , 18 — , when said C. B. deserted the plaintiff and their children B. B., D. B. and E. B., without cause, leaving them no provision for their support, and has not since that time contributed to or made any provision for their maintenance. That said B. B. is years old, said D. B. is years old, and said E. B. is years old, and they are now and have been since the day of , 18 — , living with and supported by the plaintiff. That the defendant C. B. is the owner in fee-simple of the following described real estate, situated in the county of , state of Ohio, to wit: [describe it^, of the value of dol- lars, and of the rental value of dollars per annum. That said C. B. is also the owner of the following personal property, situated in said county [describe it], of the value of dollars. That said property is wholly unincumbered, and that said C. B. is [state his husi?iess], and amply able financially to main- tain the plaintiff and her children. That the plaintiff resided and lived with the defendant C. B. § QQQ.] HUSBAND AND WIFE. 619 until his desertion of her, as above stated, and has since lived with her said children at' . That she has no property or means of her own, and has been compelled since said day of . 18 — , to support herself and children wholly by her own labor. That the amount necessary for the support of the plaintiff and her said children is dollars per annum. Wherefore plaintiff prays the court for an order authorizing her to rent said real estate and sell said ])ersonal property, a,nd to collect the rents and purchase-money thereof, and make all necessary contracts for said purpose, and that judg- ment be rendered on said note against the defendants R. F. and L. A., and that she be authorized to collect and receipt for the amount due on said judgment, and for all other proper relief. Sec. 666. Petition hj husband against wife for support. [C'ajjtion.'] That he has a bona fide residence in the county of , state of Ohio, and that he was on the day of — — , 18 — , married to the defendant J. H., and that no children were born of said marriao-e. That the defendant, together with her son G. W., conspired together to drive plaintiff from his home. That they threatened to take his life and do him some great bodily harm if he did not leave the premises of the de- fendant. That she threatened him so cruelly, and her said son G. "W., at her instigation, and their treatment was so brutal, that on the day of , 18 — , plaintiff was com- jjelled, on account of fear of great bodily harm, to leave and did leave the premises of the defendant, Avhere they resided. That defendant well knew, at and prior to the time of their said marriage, that plaintiff' was possessed of no property. That prior to said marriage they talked about this matter, and that defendant said she knew he had no property but that made no difference, for she had plenty for both of them. That while they so lived together plaintiff treated her kindly and did all in his power to make their home a happy one. That he employed himself as best he could in looking after her financial interest, and did all he could to take care of and manage her property in a good husband-like manner. Plaint- iff states that he is years of age and is not able physic- ally to earn means with which to supply himself with the necessaries of life; that he has no means whatever, and is now residing temporarily with , on whose charity he is now living. That the defendant owns and is possessed of the following described real property, to wit: SJDescrijp- tion.] That the rents and profits which the said defendant derives from said property amount to dollars. That she is pos- 620 HUSBAND AND WIFE. [§ 667. sessed of and has ample and abundant means with which to support both plaintiff and defendant. That he is unable to support himself and wife, but that the defendant is able to do so, but refuses to render support or assistance to this plaintiff. Wherefore plaintiff asks that the court may decree him, out of the proceeds arising from the rents of the lands of defendant, a reasonable amount of money for his mainte- nance and support, and for all and any relief that the facts of the case may warrant. Note.— Adapted from Hickle v. Hickle, 6 O. C. C. 490 — Pike County O. C. C, now pending in Supreme Court Sec. 667. Action by wife for alienation of husband's af- fections. — There has been considerable litigation upon the subject of the right of the wife to sue for alienation of her husband's affections, and under the statutes of the differ- ent states the courts are not in accord upon the question of her right to maintain the action on her own account.^ In Ohio, however, prior to the adoption of the statute making changes in her legal status, her right to maintain an action for the loss of the society and companionship of her hus- band against one who wrongfully induces and procures him to abandon her was recognized.- Some courts give her this right upon the theory that it is a violation of her personal right, and therefore an injury to the person. Others proceed upon the principle that it is an injury to property, and others sustain the doctrine without regard to any statute.* The doc- trine that the wife may, under the modern statutes giving her equal rights with her husband, sue in her own name any one who has enticed her husband from her or alienated his affections and deprived her of his society, is well supported.^ It is held, however, that the wife cannot maintain an action where, acting upon the advice of counsel, she leaves her hus- band, and subsequently brings a divorce resulting in a decree of separation.* iSee Seaver t. Adams, 24 W. L. B. 584 ; 23 N. E. Rep. 17 (1889) ; Holmes- 121 (N. H.); Duffies v. Duffies, 76 v. Holmes, 133 Ind. 386; 32 N. E. Wis. 374 ; S. C, 24 W. L. B. 374 Rep. 932 (Ind., 1893). - Westlake v. Westlake, 34 O. S. ^ Bennett v. Bennett, supra, and 621. For form of petition see this cases reviewed ; 24 W. L. B. 121. case. Clark v. Harlan, 1 C. S. C. R = Buckel v. Suss, 21 N. Y. S. 907 ; 4ia s. c, 18 N. Y. S. 719; Rudd v. 3 Bennett v. Bennett, 116 N. Y. Rounds, 64 Vt 432. CHAPTER 44. INDEMNITY. Sec. 668. Actions on an indemnity. I Sec. 670. Petition for damages in- 669. Petition for defending ac- tion for money of another paid by plaintiff to de- j fendant \ curred by accepting bill for accommodation of de- fendant. 671. Petition on promise to save party harmless. Sec. 668. Actions on an indemnity. — The doctrine seems to be now settled that if there be a contract to indeninify simply, and nothing more, then damage must be shown be- fore the party indemnified is entitled to recover; but if there be an affirmative contract to do a certain act or to pay a cer- tain sum of money, then it is no defense to say that the plaintiff has not been damnified; the measure of damages in such cases is the amount agreed to be paid.^ An indorser is entitled to the benefit of an indemnity upon being informed by the principal that he cannot pay the amount of indebted- ness, when he pays the same to save the note from going to protest.^ "Where an indorser gives a note which is accepted in payment of the original note, it is considered equivalent to 1 Wilson V. Stilwell, 9 O. S. 467. Se- curity given by a principal to his surety in order to avail a creditor must be conditioned to secure the debt and enforceable for its payment ; if it is merely to indemnify the surety it cannot be enforced until he has sustained loss. Pool v. Doster, 59 Miss. 258. If a mortgage is given by one to indemnify a surety, his right of action does not accrue until he has paid the debt. McLean v. Rags- dale, 31 Miss. 701. Though a contract of indemnity merely cannot be sued upon for the liability or exposure to loss until actual damage capable of appreciation has been sustained, yet where the contract is to perform some act. the neglect is a breach, and will give immediate action. Lathrop V. Hatvvood, 21 Conn. 117. Where the condition of a mortgage is to save the mortgagee harmless from the pay- ment of a debt owing by the mort- gagor for which the mortgagee was surety, no action can be maintained on the mortgage until the mortgagee has paid the debt. Forbes v. McCoy, 15 Neb. 632. See further, Collier v. Ervine, 2 Mont. 335; Stout v. Folger, 84 la. 74 ; Maloney v. Nelson, 24 N, Y. S. 147 ; Port v. Jackson, 17 John. 239. 2 Bank v. Davis, 24 O. S. 190. 622 INDEMNITY. [§ 669. payment in money, so as to entitle him to an action upon an indemnity before he has in fact paid the mone3\^ The rule that where the principal indemnifies one of several sureties each is entitled to share therein does not apply where such indemnity is furnished by a stranger. Where the wife of a principal mortgages her realty for the benefit of one of her husband's sureties, the same will not inure to the benefit of his co-surety.- But a mortgage executed to one of several sure- ties upon the bond of an officer inures to the benefit of all, as well as additional sureties.^ A verbal promise by a judg- ment creditor to indemnify an officer holding an execution for any damages arising from the seizure or sale of property claimed by the debtor to be exempt is not within the statute of frauds, but is an original promise.* Sec. 669. Petition for defending action for money ot another paid by plaintiff' to defendant. — That on the day of , 18 — , the plaintiff, having dollars belonging to A. B., at the defendant's request delivered the same to him, the defendant, who claimed it, and not knowing to whom it belonged. That the said A. B. then threatened to bring an action against plaintiff for said money ; and therefore on the day of , 18 — , plaintiff, at the defendant's request, agreed with him, the defendant, to defend said action of A. B. for said money, in consideration whereof the defendant promised to save plaintiff harmless from the consequences of said action. \_Here insert substance of indemnity. '\ Thereafter the said A. B. prosecuted an action against plaint- iff for said money in the court of the state of Ohio, of which the defendant had notice, wherein was plaint- iff and was defendant, being cause numbered . That plaintiff, with the privity of the defendant and in compli- ance with his said agreement, defended said action to the best of his ability, but said A. B. by the consideration of said court, on the day of , 18 — , recovered a judgment against the plaintiff in said action for dollars, and dollars costs, w^hich plaintiff was compelled to and did pay, and plaint- iff was put to further expense of dollars in defending said action. That said sums, amounting to dollars, are now due from the defendant to plaintiff and unpaid. Note. — Changed from Thornton's Forms. 1 Bausman v. Guaranty Co., 47 3 Bank v. Teeters, 31 0. S. 86. Minn. 377. * Mays v. Joseph, 34 O. S. 28. 2 Leggett V. McClelland, 39 O. S. 624. §§ 610, 671.] INDEMNITY. 623 See. 670. Petition for damages incurred by accepting bill for accommodation of defendant. — Plaintiff says that on the day of , 18 — , he entered into an agreement with the said defendant that he would accept for the accommodation of said defendant a certain bill of exchange bearing date , 18 — , drawn by defendant on plaintiff, payable at sight, to the order of defendant, in the sum of dollars, and to deliver the same to the defendant, to be negotiated by him for his own benefit. Defendant promised, in consideration of the agreement on the part of this plaintiff as aforesaid, that he would hold plaintiff harm- less from any loss or damage by reason of said acceptance. Plaintiff did, on said day, accept said bill of exchange and delivered it to defendant for his accommodation, and defend- ant negotiated the same. That on the day of , IS — , plaintiff, as such acceptor, was called upon and obliged to pay K. F., the holder thereof, the amount therein specified, with interest and costs of an ac- tion brought upon said bill in the court of common pleas of county, Ohio, against plaintiff, and plaintiff was obliged to and did pay dollars costs in defending said action. That by reason of the above-mentioned facts plaintiff has been damaged to the amount of said sums, being dollars, no part of which has been paid, and which is now due. Note. — Changed from Thornton's Forma. Sec. 671. Petition on a promise to save snrety harmless. That the said defendant, on the day of , 18 — , in c*)nsideration that he, the said plaintiff, would by his bond or writing obligatory, bearing date on the day and year afore- said, become held and firmly bound as surety for one J. B. unto A. x\., then sheriff of the county of , in the penal sum of dollars, to be paid, etc. \clescrihtng the penal jpart of the said bond'], and which said bond or writing obligatory was to contain a certain condition that if. etc. [here set forth condition substantially]^ he, the said defendant, would in- demnify and save harmless him, the said plaintiff, of, from and against all damages, costs and charges which he might sustain or be put to, for or by reason of his becoming surety as aforesaid, in manner aforesaid, for the said J. B. ; and the said plaintiff, confiding in such promise and undertaking of the said defendant in manner aforesaid made to said plaintifi", did, in consideration thereof, duly execute and deliver the aforesaid bond or writing obligatory unto the said A. A. And the plaintiff further alleges that \]iere state when and in what manner the plaintiff was damnified in consequence of his becoming surety\ of all which the said defendant after- wards, to wit, on, etc., had due notice, but that the defendant has not paid the said amount or any part thereof. {Prayer:] CHAPTER 45. INFANTS. Sec. 673. Actions by infants. 673. Actions against an infant. 674. Petition against infant for necessaries furnislied. 675. Defense by infant. Sec. 676. Answer claiming infancy when contract was made. 677. Answer of parent that goods furnished minor child were not necessaries. Sec. 672. Actions by infants. — The statute of limitation begins to run against a minor upon his arrival at the age of majority.^ An action by an infant must be brought by his guardian or next friend; if brought by a next friend, the court may dismiss it if it is not for the benefit of the infant, or substitute the guardian or any person as the next friend.^ The verification of the petition may be by the agent or attor- ney of the infant.^ The next friend is made liable for the costs of an action brought by him, and, if he is insolvent, the court may upon motion require security.* The infant is not liable to judgment for costs.^ The court may remove a guard- ian ad litem upon failure to faithfully perform his duties and appoint another in his stead.^ Minority is a fact which must be distinctly averred in an action that it may be traversed.'' The jurisdiction of equity to protect infants is not limited to cases where there is a fiduciary relation, but is extended to all cases where influence is acquired and abused, or confi- dence reposed and betrayed.^ An infant may rescind any 633 enforce the execution of a trust, and to preserve the property from waste ; ^ or to prevent the unlawful use of a school-house.^ Although injunction is not the proper remedy to try title to public offices, or to determine questions concerning the au- thority to make appointments thereto, it may be employed by an incumbent to protect his possession against interfer- ence by an adverse claimant whose title is in dis))ute, until it shall have been established by law.^ It will also lie to pre- vent a disclosure or unauthorized use of an invention of a secret process ; ^ or to prevent the collection of notes given for a void patent-right ; ^ or to prevent the construction of a railroad in the streets of a city until a right has been first ob- tained;" or to prevent the removal or sale on execution of portions of mortgaged property of a railroad company, when the whole property mortgaged is admitted to be inadequate security for the payment of the mortgage debts.^ After a railroad company has taken possession of a right of w^'iy and located and completed its road, an injunction will issue to re- strain the company from taking any additional part of such land.^ The construction of a street railway with the consent of property owners may be enjoined.^ It will lie to prevent the collection of taxes illegally imposed,^^ and to restrain a county auditor from improperly placing property on the tax duplicate," although he will not be enjoined from placing upon the dupli- cate, valuation of property returned by an assessor until all other remedies have been exhausted.^- It will also lie to re- strain the collection of a special tax levied by the city council 1 Winslow V. Iron & Nail Factory, 41 ; Street Railway Co. v. Cummins- 1 Disn. 229. ville, 14 O. S. 524. 2 Weir V. Day, 35 O. S. 143. 7 Lane v. Railroad Co., 17 O. S. 642. 3 Remelin v. Mosby, 25 W. L. B. 8 Warner v. Railroad Co., 39 O. S. 120 ; 47 O. S. 570 ; Guillote v. Poincy, 70. 6 S. Rep. 507 ; 41 La. Ann. 333 ; Kerr 9 Roberts v. Easton, 19 O. S. 78. V. Trego, 47 Pa. St. 292 ; 2 High on 10 Frazer v. Seibern, 16 O. S. 614 ; Inj., sec. 1315. Mitchell v. Treasurer, 25 O. S. 143 ; * Cincinnati Bell Foundry Co. v. Cincinnati Gas Light & Coke Co. v. Dobbs, 19 W. L. B. 84. Bowman, 1 Handy, 289. SDarst V. Brockway, 11 O. 462. " Jones v. Davi^^. 35 O. S. 474 « Railway Co. v. Lawrence, 38 O. S. ^- Mills v. Board, 1 C. S. C. R 566. •eSl INJUNCTION. [§ 681. without authority of law.^ It is a well-established doctrine that it is within the peculiar province of equity to interfere and regulate the use of and define and limit the rights of dis- puting claimants in the same water-power or privilege.' Sec. 681. When it will not lie. — An injnnction will not of course lie when there is an adequate remedy at law.' A per- son must not sleep on his rights and then expect a court of equity to grant him relief.* A person desiring to protect rights by this remedy must show himself prompt and vigilant in their assertion. He cannot wait until the mischief is done and great expenditures have been made by other parties, as it w^ill be implied that he acquiesces.^ Thus, where a prop- erty owner has permitted an improvement to be made upon his land without objection, he cannot be allowed to main- tain an injunction to restrain the collection of a tax or assess- ment levied for the payment thereof.^ But this rule cannot apply to one having no notice of the improvement,' nor where the law under which the improvement is made is unconstitu- tional;^ nor can the appropriation of property be enjoined on the ground that compensation has not been made, where the owner had actual knowledge of the appropriation proceedings and failed to present his application for compensation.^ A person who stands by and sees property taken by a railroad company without objection cannot, after a road has been con- structed thereon, enjoin the company from using the same.^" An injunction will be denied where it appears that the plaintiff acquiesced in the matters complained of." Injunction is fre- quently resorted to as a means of obtaining specific perform- ance. And while there is some conflict, the apparent weight of authority sustains the doctrine that an injunction will not 1 Culbeitson v. Cincinnati, 16 O. " Teegarden v. Davis, 36 O. S. 601 ; 574 Kellogg v, Ely, 15 O. S. 64. See 2Raulet V. Cook, 44 N. H. 512; Duhnie v. Jones, 9 W. L. B. 293, Burnham v. Kempton, 44 N. H. 78; ^Teegai-den v. Davis, fsiipra. Detweiler v. Toledo, 5 O. C. C. 373; 8 Wright v. Thomas, L^O O. S. 346. Lembeck v. Nye, 47 O. S. 336. SReckner v. Warner, 22 O. S. 275. 3 Crocket v. Crocket, 2 O. S. 180. lOGoodia v. Canal Co., 18 O. S. 109. * Hanson v. Craighead, 4 W. L. B. ^ Railroad Co. v. Railroad Co., 1 500. O. C. C. 100. 5 Chapman v. Railroad Co., 6 O. S. 136. § 681.] INJUNCTION. 635 issue to restrain a breach of a negative covenant, the effect of which would be to compel the specific performance of aflBrm- ative covenants, unless the affirmative stipulation of the com- plaining party can be specifically enforced against him.' Xor will specific performance be compelled where the benefit of a contract cannot be realized in accordance with its terms.- Whenever a court is called upon to grant a mandatory in- junction to enforce the specific performance of a contract, it will act with great caution ;'•' nor will an injunction lie to pre- vent a defendant from violating the terms of a contract where there is doubt in reference to the matter, but will leave the parties to their remedy at law.* IS'or will it lie to control the discretion of a city council,^ or to prevent it from remov- ing a market-house, or abandoning a locality for market pur- poses ; « nor to restrain the publication of an anticipated libel or slander;^ nor to restrain labor organizations from the circu- lation of libels on the business or character of a merchant; a nor to prevent the enforcement of a judgment on the ground of negligence of an attorney,^ or on the ground that the case was compromised by the attorney without authority ; i" nor to enjoin a nuisance until the complainant has first established his right to relief at law." If the question as to whether or not a certain thing is a nuisance is a question of fact, an in- junction should not issue.^- Nor will the remedy be allowed at the suit of a county auditor, after his term has expired, to restrain the commissioners from appointing a suitable per- son to fill a vacancy in the office ; ^^ nor to prevent the county 1 Steinau v. Gas Co., 48 O. S. 524 ; ^ Dopp v. Doll, 13 W. L. B, 335. Pomeroy on Contracts, sec. 163; 8 Rjchter v. Tailors' Union, 24 W. Bailey v. Collins, 59 N. H. 459 ; Pin- L. B. 189. Though this seems doubt- gle V. Connor, 66 Mich. 187 ; Pub- f ul under recent decisions. See ante, lishing Co. v. TeL Co., 83 Ala. 498 ; sec. 680, p. 631, n. 1. Meason v. Kaine, 63 Pa St 335 ; 9 Barliorst v. Armstrong, 24 W. L. Richmond v. Railway Co., 33 la, 423. B. 58. 2 Railroad Co, v. Telegraph Co., 38 lO Boyle v. Beattie, 2 C. S. C. R 490. O- S. 24. 11 Goodall v. Crofton, 33 O. S. 271. 8 Cincinnati v. Street Railroad Co., See Gilbert v. Showerman, 23 Mich. 2 W, L. B, 17. 448. * Bryan v. Chyne. 22 W. L. B. 165. 12 Board of Health v. Purden, 14 W. * Wasem v. Cincinnati, 2 C. S. C. R. L. B. 215. ^^- " Robbins v. Board, 2 O. C. C. 2a * Gall V, Cincinnati, 18 O. S. 563. 636 INJUNCTION. [§ 681. commissioners from levying a tax to support a joint sub-school district established by the probate court ; ^ nor to prevent the removal of a police officer.- A contract for personal services cannot be enforced by in- junction unless the person sought to be enjoined is possessed of exceptional skill and abilitj', and a breach thereof would result in irreparable injury.^ But where the breach of a con- tract is not disputed an injunction may issue.^ An injunc- tion will not be allowed in such cases to prevent the defendant from contracting with others unless the contract and alleged breach are clear.^ An alleged threatened obstruction to a right of way claimed by prescription will not be enjoined unless it appears that the use has been adverse, uninterrupted, continuous and with the knowledge of the owner, and existing for a period of twenty- one years.** Nor will injunction lie to interfere with a street railway in extending its lines upon the application of a per- son who has put in a bid before a city council, nor to compel the city council to accept his bid because it is the lowest.^ ]S"or will it lie to restrain an execution and sale of railroad property, a portion of which is covered by mortgage under a judgment, on the ground that the same is needed to conduct the business of the company and to enable it to raise money to pay the interest on the mortgage.* Nor can an abutting property owner enjoin a telegraph company to prevent it from placing additional wires on poles in the street in front of his premises.^ Nor will it lie to prevent a trespass which may be compensated for in an action at law ; ^^ nor to prevent one of several tenants from exclusively using certain space for sign purposes, when the one so using the same had prior posses- sion ; " nor to restrain the prosecution of criminal proceedings.^^ 1 Board v. Stuck, 39 O. S. 259. The « Young v. Spangler, 2 O. C. C. 549. judgment of a probate court is final " Johnson v. Railway Co., 10 W. I* unless reversed on error. B. 345. 2 Reeves v. Gritfin, 29 W. L. B. 281. 8 Coe v. Railroad Co., 10 O. S. 412. 3 Columbus Base Ball Club v. >» Wirth v. Tel. Co., 7 O. C. C. 290; Reiley, 25 W. L. B. 383 ; Rogers Railroad Co. v. Tel. Co., 38 O. S. 24 Manuf g Co. v. Rogers, 56 Conn. 356 ; lo Bank v. Debolt, 1 O. S. 591. Cort v. Lasard, 18 Greg. 221 ; Carter " Law v. Haley, 17 W. K B. 242. V. Ferguson. 12 N. Y. S. 580. i^Crighto v. Dahmer. 70 Miss. — ; 4 Lacey v. Heuck, 12 W. L. B. 209. s. c, 21 L. R A. 84, and note. 5 Bryan v. Chyne, 22 W. L. B. 165. § 682.] INJUNCTION. 637 Sec. 082. Pleading and practice. — That courts of equity exercise jurisdiction of cases of purpresture and nuisances, and •of encroachments upon the public rights, as upon highways, rivers, and streets of towns, is well settled. It is predicated upon the ground of preventing irreparable injury, interminable litigation, multiplicity of suits and the protection of rights.^ It is well settled that the remedy by injunction cannot be invoked when there is one at law, but the remedy at law must be plain, adequate and complete ; it should be as prac- ticable and efficient to the ends of justice and its prompt ad- ministration as the remedy in equity.- On the other hand, to entitle a plaintiff to an injunction, his right must be clear, the apprehended injury irreparable, its breach perilous.' Where it is asked upon the ground of apprehended injury to real property, facts should be set forth showing that the injury is irreparable; the mere statement that it is irreparable is not sufficient.^ There must be an injury to property, actual or prospective, an evasion of property or of civil rights, or an irreparable injury of such a peculiar nature that it cannot be remedied at law.^ Adhere the same question has been pre- sented to a court upon application for an injunction, another court of co-ordinate jurisdiction may refuse to hear the ap. plication until decision is rendered in the first case.^ After trial and judgment, upon demurrer or otherwise, an objection cannot be made to an action for injunction on the ground that an adequate remedy at law existed." Under general allegations, evidence may be received to aid the court in determining whether or not a judgment should be enjoined.^ An injunction cannot be allowed upon the peti- tion alone, unless the same be sworn to positively.* Where 1 Putinan v. Valentine, 5 O. 187 ; 5 People v. World's Fair Columbian Wood on Nuisances, sees. 77, 777 ; Exposition, 34 W. L, B. 7 (U. S. Ct State V. Railroad Co., 36 O. S. 434. of Appeals). 2 Boyce v. Grundy, 8 Peters, 210. 6 Cincinatti v. Jackson Light Co., 3 Robbins v. Board. 2 O. C. C. 23 ; 26 W. L. B. 104. Fellows V. Walker, 21 W. L. B. 390; "Culver v. Rod,£rers.33 O. S. 537; Walker v. Railroad Co., 8 O. 38. See Nicholson v. Pirn, 5 O. S. 25 ; Russell Putmau V. Valentine, 5 O. 187; v. Loreua. 3 Allen, 121. Spangler v. Cleveland, 43 O. S. 526; SMcCurdy v. Baughman, 43 O. S. Burnham v. Kempton. 44 N. H. 92. 78. * Van Wert v. Webster. 31 O. S. » Ett v. Snyder, 6 Am. Law Rec. 420; McKinzie V. Mathews. 59 Mo. 99. 415; Atcheson v. Bartholow, 4 Kan. C38 INJUNCTION. [§ 682. facts are not within the knowledge of the person making the oath, it will not be sufficient to warrant the granting of an injunction. The affidavit of a person giving the information should be furnished and sworn to in positive terms ; verifica- tion by an attorney which does not state that he has personal knowledge of the facts will not be sufficient.^ Where the only relief sought to be obtained by a bill in equity is an in- junction, the same should contain a specific prayer for that purpose.- Upon an appeal to the circuit court in an action for injunction, the same may be suspend 3d for good cause until the case be heard upon its merits.^ An appeal does not lie from an interlocutory order modifying an injunction.* The court may, if deemed proper that a defendant should be^ heard before granting an injunction, require reasonable notice to be given of the time and place of the hearing of the appli- cation, and may grant a temporary restraining order until the application can be heard.' An injunction will not be granted against a party who has answered, except upon notice, al- though a restraining order mav be granted until the decision of the application for an injunction.'' A bond must be given with surety, to be approved by the clerk, for such a sum as may be fixed by the court or judge allowing the order, to secure the party from the damages he may sustain if it be finally decided that the injunction ought not to have been granted,^ excepting in a provisional injunction by the wife to prevent the husband from disposing of or wasting property, in which case it is discretionary with the court.^ Where the injunction is allowed at the commencement of the action, it will be sufficient to indorse the summons " in- 124 ; Levy v. Ely, 15 How. Pr. 397. 38 Md. 364 : Primmer v. Patton, 33 And when verified positively it be- III. 528. comes for purposes of injunction an 3 McClung v. Coal, etc. Co., 7 affidavit Levy v. Ely. supra ; Long O. C. C. 182. V. Kasbeer, 28 Kan. 226 ; Olmsted v. * Forgy v. Railroad Co., 1 O. C. C. Koester, 14 Kan. 463. 417. iHone V. Moody, 59 Ga. 731; 15 ^O. Code, sec. 5574 S. E. Rep. 947 : Manistique, etc. Co. v. 6 o. Code, sec. 5575. Lovejoy, 55 Mich. 189. "i O. Code, sec. 5576. And addi- 2 Lewiston Falls Mfg. Co. v. Frank- tional security may be require C. 357. A waiver may be made for '•Palmer V. Sawyer. 114 Mass, 13. the time fixed by the policy. Id.; * Union Ins, Co, v. McGookey, 33 Insurance Co. v. Harmer, 2 O. S. 453. O. S. 555 ; Crawford v. Satterfield, 27 O, S. 421. 42 658 INoUKANOE FIKE. [§698. a certain time cannot be available to a company where the insured brought an action within the time, but by mistake in the summons the company was not brought into court, where it voluntarily appeared and moved to strike the petition from the files, and the writ was afterwards amended.^ A vio- lation of a condition that the insured property shall not be alienated or incumbered w^ithout consent of the insurer will avoid the policy, although it be provided that the consent of the company will be given upon request.^ But a policy issued to a mercantile partnership containing no such stipulation can- not be avoided by a sale by one partner to his copartner.* Even where the policy contains such restrictions, a sale by one partner to another who continues the business does not avoid it;* the remaining partner, being the real party in interest, should bring the suit, and is entitled to recover the whole loss.* And where a person takes a partner in the business it is not considered such a sale or transfer as will avoid the policy.^ To work a forfeiture under such a condition the entire inter- est of the insured must be sold or transferred.'^ An assignee of a policy assigned with the company's consent, and in viola- tion of the terms of the policy, cannot recover thereon.^ So where a person takes a partner, and the premises are de- stroyed after the formation of the partnership, and the policy has not yet been transferred, recovery may be had in the name of the insured.^ Where an action is brought on a pohcy, the conditions of which were that the insurer might rebuild or replace the property, it is necessary to aver in the petition that the insurer refuses to so rebuild or replace the property destroyed. ^"^ If false statements have been made in an appli- cation for insurance, it is not necessary in an action thereon 1 Burton v. Insurance Co., 26 O. S. arises from the difference in the lan- 467 ; Minerick v. Insurance Co., 1 guage of the policy. Clev. Rep. 134. "^ Blackvvell v. Insurance Co., supra. 2 Home Ins. Co. v. Lindsey, 26 a S. « West v. Insurance Co.. 27 O. S. 1 348. Dix V. Insurance Co., 22 111. 277 3 West V. Citizens' Ins. Co., 27 O. S. 1. Hartford Ins. Co. t. Ross, 23 Ind. 179 * West V. Citizens' Ins. Co., supra. Cowan v. State, 40 Iowa, 551. 5 West V. Insurance Co., supra. ^ Blackvvell v. Insurance Co., 48 6 Blackwell v. Insurance Co., 48 O. S. 533. O. S. 533. There is some conflict lO Union Ins. Co. v. McGookey, 83 among the authorities. See cases O. S. 555 ; Howard, etc. Ins. Ca T. cited in the opinion. The CMiiflict Cornick, 24 111. 455. § 099.] INSUEANCB — FIKE. 659 to set forth the application and aver the truth of representa- tions therein, as the falsity of such representations is matter of defense.! If a policy of insurance on a store-house and stock of goods therein contains a condition that it shall be void if the premises insured stand on ground not owned in fee-simple by the insured, unless by consent of the company, an action thereon for the loss of goods will not be defeated by a breach of condition as to title of land, as the contract is held to be severable.- Sec. 699. The petition — A good cause of action on a policy of insurance may be shown without setting forth the survey or application.^ Where a policy of fire insurance con- tains a provision that the loss, if any, shall be paid to one other than the insured, it is insufficient in an action thereon by the heneJiGiary to allege and prove that he has complied with the terms thereof, and suffered loss, bnt it should be averred and proved that the insured has complied with the terms and suffered loss.* Where a petition alleges and relies on a complete performance of a contract, and a reply sets up a failure to perform as to time, and new matter as a cause of such failure, it will be such a departure as constitutes a vari- ance.^ Where the date of agreement to insure and the formal execution and delivery of a policy are different, the latter relates back and takes effect as of the (kite of the agree- ment to insure.'^ The same rule as to attaching a copy of instruments heretofore stated ^ applies to actions upon insur- ance. When a loss occurs the policy becomes an evidence of indebtedness, and a copy must therefore be attached to, but 1 Insurance Co. v. McGookey, 33 3 insurance Co. v. McGookey, 83 O. S. 555. See Insurance Co. v. O. S. 560 ; Insurance Co. v. Hogan, Hogan, 80 111. 35. 80 111. 35 ; Insurance Co. v. Carpen- 2 Coleman v. Insurance Co., 49 O. S. ter, 4 Wis. 200 ; Harraan v. Insurance 310 ; Insurance Co. v. Spankneble, Co., 28 111. 235. 53 111. 58 ; Insurance Co. v. Walsh, 4 W'estern Ins. Co. v. Carson, 17 54 111.464; Koontz v. Insurance Co., W. L. B. 357. 42 Mo. 126; Merrill v. Insurance Co., 8 Bennett v. Insurance Co., 27 W. 73 N. Y. 452 : Schuster v. Insurance L. B. 15, 17 ; Trainer v. Wornian, 34 Co., 102 N. Y. 260. Contra, Barnes v. Minn. 237. See also IMiller v. Insur- Insurance Co., 51 Mo. 110; Havens ance Assoc, 47 N. J. L. 393. V. Insurance Co., Ill Ind. 90; Cuth- 6 Bennett v. Insurance Co., 37 W. bert V. Insurance Co., 96 N. C. 480 ; L. B. 15. Bank v. Insurance Co., 57 Conn. 335. 7 Ante, sec. 57. 660 INSURANCE • FIRE. [§ 700. not made a part of, the petition.^ Where, however, a copy of the policy has been attached to a petition which has not been objected to by motion, it will not be error for the reviewing court to treat it as part of the petition.^ Sec. 700. Same continued — Insurable interest, how averred. — The first essential averment in an action on a policy of insurance is an insurable interest in the plaintiff.^ It is said that the petition should allege ownership of the premises at the time of insurance and of the loss; * while other courts hold that under an allegation setting forth the sub- ject-matter of insurance and the nature of the risk, without specifying the nature or extent of the interest of the insured, insurable interest may be shown.* And an insurable interest is sufficiently shown where it is alleged that the insurance com- pany, for a specified premium, executed and delivered a policy of insurance on specific property occupied by plaintiff.^ A landlord has an insurable interest in permanent improvements added to his building by a tenant." But a tenant who has made a verbal agreement with his landlord to keep the prem- ises insured has such an insurable interest therein that he may take it in his ow^n name.^ The test of insurable interest is whether an injury to the property, or its destruction by the peril insured against, will cause any pecuniary loss to the in- sured.^ The petition should identify by description the prop- 1 See ante, sec. 57. 2 Byers v. losurauce Co., 35 O. S. 606. 3 Freeman v. Insurance Co., 38 Barb. 247. 4 Phoenix Ins. Co. v. Benton, 87 Ind. 132. 5 Insurance Co. v. Harmer, 2 O. S. 453; Fletcher v. Insurance Co., 18 Pick. 419; Tyler v. Insurance Co., 12 Wend. 507 ; Strong v. Insurance Co., 10 Pick. 40. See Insurance Co. v. McGookey, 33 O. S. 561. 6 People's Ins. Co. v. Heart, 24 O. S. 831, 332. ^ Western Ins. Co. v. Carson, 17 W. L. B. 357. 8 Berry v. Insurance Co., 132 N. Y. 49; Lawrence v. Insurance Co.. 43 Barb. 479. 9 Wood on Fire Ins., sec. 282. A common carrier may insure goods intrusted to it. Crowley v. Cohen, 13 B. & A. 478; London, etc. Ry. v. Glyn. 1 El. & El. 652. So may a warehouseman. Stilwell v. Staples, 19 N. Y. 401 ; Pelzer Manufg. Co. V. Sun Fire Office, 15 S. E. Eep. 562. An administrator of an insolvent estate has an insurable interest in buildings. Herkimer v. Rice, 27 N. Y. 163. Agents, commission mer- chants and others having custody of property may insure in their own .names. Waring v. Insurance Co., 45 N. Y. 606. A husband has an in- §701.] INSURANCE — FIRE. 661 erty burned with that insured, and should show insurable in- terest in the plaintiff at the time of loss.^ Sec. 701. Petition on policy alleging compliance with Rerised Statutes, section :J743, requiring building to be ex- amined by agent of insurer, etc., and for total loss. — The plaintiff says the defendant is a corporation daly organ- ized under the laws of the state of New York to do and trans- act the business of insurance against loss by tire, and repre- sented by agents only, in said county, Ohio. That on the day of , IS — , said plaintiff was, and ever since has been, the owner of a two-story brick store build- ing, with basement, tin roof and brick cornice, situated on the northwest corner of E. and S. streets, in the village of W., ■ county, Ohio. That on the day aforesaid, in consideration of the premium of dollars paid, defendant by its policy of insurance (a copy of which is hereto attached, marked " Exhibit A "), in- sured plaintiff against loss or damage by fire to the amount of dollars on said property, from the day of , 18 — , at 12 o'clock, noon, until the day of , 18 — , ^t 12 o'clock, noon. That said defendant has received the premium upon the full amount mentioned in said policy, to wit: hundred dol- lars. That said insurance company, before insuring said build- ings as aforesaid, caused the same to be examined by the agent of said insurer, to wit, one S. W. S., and a full description thereof to be made and the insurable value thereof to be fixed by said agent. That no change has been made increasing said risk without the consent of said insurer, and that there has been no fraud, intentional or constructive, on the part of the insured. Plaintiff further says that on the day of , 18 — , all of said buildings were totally destroyed by fire. That plaintiff immediately thereafter, to wit, on the day of , 18 — , more than sixty days prior to this action, gave defendant due notice and proof of said fire and loss ; that the defendant at that time, by its agent duly authorized, and on the premises where said tire occurred, entered upon an adjustment of said loss — had the same estimated and damage thereof appraised — and thereby waived further notice and proof of said loss. That plaintiff has been at all times ready and willing to enter surable interest in a homestead of Appleton lion Co. v. Assurance Ca, which his wife holds title. Merrett v. 46 Wis. 23. Insurance Co., 42 la, 13. See Glaze ^ ^tna Ins. Co. v. Black, 80 Ind. V. Insurance Co., 87 Mich. 349. Both 513; ^tna Ins. Co. v. Kittles, 81 Ind. mortgagor and mortgagee of chattels S6; Home Ins. Co. v. Duke, 75 Ind* have an insurable interest therein. 535. 002 INSUKANCE riKE, [§ 702. into an arbitration, as provided in said policy, but has been unable to do so through the fault of defendant. That plaintiff has duly performed all the other conditions of said policy on his part to be performed, and no part of said loss has been paid. Wherefore plaintiff asks judgment against said defendant in the sum of dollars with interest thereon from the day of , 18—. J. B., Attorney for Plaintiff. Note. — From Phoenix Ins. Co. v. Ken uedy, error to circuit court of Lake county, No. 1902. Demurrer to petition overruled and affirmed by circuit and supreme courts. 27 W. L. B. 347. Revised Statutes, section 3643, requires all companies iusurius: buildings to cause the same to be examined by an agent of such insurer, and a full description made. The neglect or omission of a company's agent to make the examination and fix the value according to statute will not prevent application of statute to a policy issued by the company, or defeat or affect the operation of the statute. Insurance Co. V. Leslie, 47 0. S. 409. Sec. 702. Petition on fire iusnrance policy — Ordinary form. — [ Cajytion and averment of corporate capacity.'] That the said defendant, in consideration of a certain pre- mium, by and between the said plaintiff and defendant agreed upon and by the said plaintiff then paid, to wit, the sum of $ , on the day of , 18 — , at C, Ohio, did by a certain policy of insurance of that date, duly executed, insure the said plaintiff against loss or damage by fire to the amount •of $ , for the period of years from the day of , 18 — , at o'clock — M., to the — — day of , 18 — , ;at o'clock — M., upon the property specified, described .and located as follows : \_DesGriptiorh of propjerty^ And said com])any, in and by said policy of insurance, which was in writing, agreed to indemnify and make good unto his plaintiff, or to his legal representatives, all such loss or damage, not exceeding in amount the sum or sums insured as above specified, nor the interest of plaintiff in said prop- erty, as should happen by fire to the property above described ; the amount of loss or damage to be estimated according to the actual value of the property at the time of the loss, making due allowance for depreciation from location, use or other- wise, and to be paid sixty days after the loss shall have been ascertained, in accordance with the terms and conditions of said policy, and proof of the same satisfactory to said defend- ant should have been made by plaintiff and received at the office of said defendant. It was mutually understood and agreed in said policy by and between plaintiff and defendant that said policy was made and accepted with reference to the terms and conditions therein set forth, and the conditions as to procedure in case of loss annexed to said policy, which conditions were by said INSURANCE — FIRE. G63 § 702.] policy declared to be a part of the same and were to be used and resorted to in order to determine the rights and obliga- tions of the parties to said policy in all cases not otherwise specially provided for in writing, and that no condition, stip- ulation, covenant or clause contained in said policy should bo ; altered, annulled or waived, or any clause added to said pol- icy, except by writing, indorsed thereon or annexed thereto f'by the president or secretary or duly commissioned agent of said company. The terms and conditions set forth m said policy are in the words and figures following, to wit: [Set ihem fo7'th.'] That said policy is by said defendant numbered (and attached hereto as an exhibit). And the said plaintiff further saith that, at the time of the date of said policy of insurance, the said plaintiff was the owner of all property mentioned in said policy and so continued from thence up and until the time of the loss hereinafter mentioned. Plaintiff further ,ays that he has duly kept, observed and performed all the re- quirements and conditions contained in said policy and an- nexed thereto and on the back and sides thereof and in all the fine print and coarse print stamped or impressed upon said policy, by him, the said plaintiff, to be kept, observed and per- formed 'in that behalf; and the plaintiff further avers that afterward, on the day of , 18—, the said [description of jproperty and statement of loss]. Plaintiff says that on said day of , 18—, he imme- diately gave notice of said loss in writing to defendant, and on the day of , 18—, plaintiff did render to defend- ant a particular statement of the loss, signed and sworn to by plaintiff, stating all the knowledge and information which plaintiff had or was able lo obtain as to the origin and cir- cumstances of the fire, and also stating the title and interest of plaintiff and of all others in the property, the cash value thereof, the amount of loss and damage, all other insurance covering any of said property, and a copy of the written parts of all policies and occupation of the entire premises. Plaintiff says that defendant waived the filing of said state- ment within fifteen days and prevented plaintiff from com- plying with that provision of the policy. Plaintiff says that on the day of , 18—, he, in writing, requested said defendant to submit the question as to the amount of loss and damage, and all other questions that might arise under said pohcy, except the validity of the contract or the liability of said companv, to conqjetent and impartial persons, pursuant to 11 2d of the fine-])rint conditions on the top of the back part of said policy, but said defendant utterly refused thus or in any other inanner to submit said matter to arbitration. Plaintiff further says that said statement and proofs of loss so furnished by this plaintiff as aforesaid to said defendant QQ4: INSURANCE FIRE. [g 703. have never, by said defendant, been objected to; and plaintiff says that said proofs of loss so by this plaintiff furnished as. aforesaid were satisfactory to said defendant; that defendant received said proofs of loss on said • day of ■, 18 — , at the office of said company, and days from said time and from the time of ascertaining the loss, in accordance with the terms and conditions of said policy, have long since elapsed ; yet the said defendant, although the said plaintiff has performed all and singular the requirements and conditions by said policy and the schedule and line print on the back thereof and thereto attached required to be done and performed by the said plaintiff, to entitle him to the payment of said amount of loss so sustained by said plaintiff, and render the ^- ud defendant liable to pay the same, not regarding its duty in the premises, did not nor would not pay the said sum of $ , nor any part thereof, to the said plaintiff, but hitherto and still refuses so to do, to the dam- age of said plaintiff in the sum of 8 . AVherefore the said plaintiff prays judgment against the said defendant for the said sum of '$ , with interest thereon from , 18 — , his damages as aforesaid sustained. Note.— From United Firemen's Ins. Co. v. Kukral, error to C. C. Cuya- hoga Co., No. 1G99, 27 W. L. B. 311. Termination of a contract of insurance: Insured may require policy to be canceled. R. S.. sec. 3664. Parties to a contract of insurance may agree upon terms and conditions upon which it may be canceled. Insurance Co. V. Brecheiseu. 30 W. L. B. 303 ; 50 O. S. 542. Construction: Exceptions in a policy should be strictly construed. West. V. Insurance Co., 27 O. S. 10 : May on Insurance, sec. 174. Damages: Tiie measure of damages for loss of property is the actual cash value at the time of the loss. Mitchell v. St. Paul, etc. Ins. Co., 53 N. W. Rep. 1017 ; 28 W. L. B. 158 ; Chippewa Lumber Co. v. Insurance Co., 44 N. W. Rep. 1055. Insurance money collected after the death of the owner of the property is distributed as re'al estate, and widow is entitled to dower. Fleming v. Jordan, 38 W. L. B. 333. Sec. 703. Joint petition by assignee of mortgage and pur- chaser of insured property, averring indorsement of loss payable to petitioners by agent. — That on the day of , 18—, one A. C. was the owner of a certain barn'^and the contents therein, consisting of hay, grain, fodder and seed, and also was owner of certain farming implements, etc., in said buildings contained. That said buildings with contents as aforesaid were situate on the following described premises, to wit : iDesorlpiion.'] That on the day of -, 18 — , and in consideration of dollars paid, the said defendant by their policy of insurance, a copy of which is hereto attached marked - Ex- hibit A," insured the said A. C. against loss or damage by lire- on said buildings and contents thereof to the amount of > I § T03.] INSURANCE FIKE. 665 dollars from the day of , 18—, at 12 o'clock noon, untiltjie day of '-, IS — , noon. [State any necessary conditions of the policy.] That on the day of , IS—, said A. C. duly executed and delivered to one W. W. and 11. R. his certain " mortgage on said premises to secure the payment of histwo certam promissory notes of even date with said mortgage. [Give description of notes']. That on the day of , IS—, the said R E. for a valuable consideration duly assiersonal property, and that with such knowl- edge said agent W. agreed that said policy, when so indorsed by him as aforesaid, should have the force and effect of a new policy. That said plaintiffs, believing that such was the case, relied and acted upon tiie statements and agreements so made by said agent; that said insured has duly performed all the conditions on his part to be performed, and that on the day of , 18 — , the said barn and corn-house, and the con- tents of said buildings, consisting of hay, grain, fodder, seed, wagons, carriages, harness and farming implements, were totally destroyed by fire, and that immediatel_y thereafter, on the day of , 18—, said A. C. duly notified defendant ^§704.] INSURANCE I-IRE. G67 of said loss, and on the ^ — day of , IS — , and more than ninety days prior to this action, gave defendant due proofs of said loss and rendered to defendant a particular account of the same. That said buildings and property so destroyed were of the value of $ . That on the — — day of , 18 — , the said defendant by their agent, one G. H. M., care- fully adjusted said loss and agreed to pay the same. But plaintiffs say that said loss has not been paid, nor any part thereof, and that defendant refuses to pay the same, though often requested so to do. Wherefore plaintiff prays judgment against the said defend- ant, the O. F. Insurance Company, in said sum of $ , with interest thereon from the day of , 18 — . Note. — Fiom Ohio Farmers' Ins Co. v. Hames et al.. error to circuit court of Carroll county. Supreme Court, unreported, No. 1854. Judgment in favor of petitioners in common pleas and circuit court and supreme court Sec. 704. Petition by mortgagee building association for loss of property mortgaged. — Plaintiff is and at all times hereinafter mentioned was a corporation duly incorporated and existing under and by vir- tue of the laws of the state of Ohio, and having its place of business in the city of C, in the county of , and state of Ohio, and at all said times it had and has an interest, by reason of a mortgage in the property hereinafter described, greater than the amount of the policy hereinafter mentioned. At all said times defendant was and it is an insurance corpo- ration, duly incorporated and existing under and by virtue of the laws of the state of New York, and having at all said times, ever since and now, an office, agency and general agent doing business in said C. On the day of , 18—, at said C, in consideration of $ theu in hand paid by one M. E. K., the owner in fee- simple of the premises, subjiect to plaintiff's said mortgage hereinafter described, said defendant made, executed and de- livered to said M. E. R, who was then, ever since has been, and is a resident of said city of 0., and to this plaintiff, a policv of insurance, by which said defendant insured said M. E. RI, loss, if any, payable to this plaintiff as its interest might ap- pear, in the sum of $ , against loss or damage by lire on her frame dwelling-house in the rear of jS'o. R. street in said C, and agreed to make good and indemnify said M. E. R., and this plaintiff as its interest might appear, against all such immediate loss or damage as might happen to said building by fire from the day of , 18—, at noon, to the day of , 18 — , at noon, to be paid sixty days after proofs of loss made by said M. E. R were received at tlie otfice of the general agency of said comj)any in A^ew York, ^aid M. E. R. iiud this plaintiff have complied with all the conditions of said QQS INSL'KANCE FIRE. [g 705.. policy to be by them performed. Afterwards, to wit, on the day of , IS — , said building was wholly consumed by fire. Proofs of loss were, on the day of , 18 — . made out in accordance with the terms of said policy and deliv^ered to said defendant at said New York, who made no objection thereto; the delay in making out and delivering said proofs of loss occurring by agreement with said defendant. At the time of said issuing and delivery of said policy and of the ap- plication therefor the cash value of said building was agreed between this plaintiff, said M. E. K. and this defendant to be $ , which sum was then and there the real cash value thereof, and said premium so paid as aforesaid was the pre- mium for said period on said sum. Before issuing said policy said defendant's agent made a full examination and descrip- tion of said building and fixed its insurable value at $ . No changes were made in said building affecting said value thereafter and before said fire. Said M. E. K. has assigned to this plaintiff all claim she may have against said defendant by reason of the premises. By reason of the premises, on the day of , 18 — , said defendant became and was indebted to plaintiff in the sum of $ , and it became and was the duty of said defend- ant to pay to this plaintiff at said C. said sum of $ , which sum this plaintiff then and there demanded of said defendant, but defendant refused and neglected to pay the same or any part theref, and ever since has failed and neglected to pay the same or any part thereof, although often thereto requested by plaintiff. Therefore plaintiff prays judgment against said defendant for the sum of $ , with interest thereon from the day of , 18—. M., N. & W., Plaintiff's Attorneys. Note. — From Hanover Fire Ins. Co. v. Citizens' Savings & Loan Ass'n, error to circuit court of Cuyahoga county, Supreme Court, unreported, No. 1552. Sec. 705. Petition where conditions of policy as to proofs of loss not complied with on account of statements of ad- juster. — [Avenyients as in ante, sec. 70^.'] Plaintiffs aver that they have fully complied with and per- formed the agreements and conditions contained in said policy to be complied with and performed by them, or so far as. from the nature of things existing they could comply with and perform the same. That immediately after said fire they gave notice in writing to said defendant of said loss resulting therefrom. That shortly thereafter an adjusting agent was sent by de- fendant to the place where said fire occurred to examine inta § TOG.] INSURANCE FIRE. G69 the circumstances of said fire and the loss and destruction of said insured property thereby, and the loss and damage result- ing to plaintiffs therefrom, 'who, after making said examina- tion and obtaining information and evidence in regard thereto, informed plaintiffs that said loss was covered by said policy and that he would report, recommend and advise, Vithout further proofs, the payment of $ for the loss and damages sus- tained by them. That in consequence of such information from said ad'justing agent, plaintiffs delayed for some time the fur- nishing of the proofs of loss as required bv the conditions of said policy, but subsequently, upon learning that said loss would not be paid by defendant, they, under date of , 18—, made out in writing, duly authenticated and certified, the proofs of said loss as required by the conditions of said policy, and procured the same to be forwarded to said defend- ant at its office in K O., La., and the same was so forwarded to and received by it at its office , 18 — . Plaintiffs aver that more than sixty davs have elapsed since the receii)t by defendant of said i)ro6fs of loss, but defendant has wholly neglected, failed and refused to pay said sum of dollars as by the terms of said policv it was required to do, or any part of the same. They aver that their said loss and damage caused by the burning of their said store-house and stock of merchandise is $ and more. They therefore ask judgment against said defendant for said sum of dollars, with interest thereon from , 18—. M. & K, Plaintiffs' Attorneys. Note.— From Coleman & Co. v. Insurance Co., 49 O. S. 310. Sec. 706. Petition on policy asking for equitable relief against mistake by inserting wrong name of iusnred, and for recovery thereon. — [Caption and a'oerm.ents as in ante, sees. 701, 702.'] 1. The plaintiff says that on the day of , 18—, the plaintiff was the owner of certain store furniture and fixtures, and a certain stock of dry goods, hardware, queensware, hats, caps, boots, shoes and other articles not more hazardous, as are usually kept for sale in country stores, and all contained in the first and second story of the iron and shingle roofed frame building occupied by him as a general store, and situate on the north side of street, in the town of , in the county of , Ohio. That on or about said day said plaintiff applied to a dulv authorized agent of defendant company foi- insurance agains'^t fire in said company on said furniture and fixtures to the amount of | , antl upon said stock to the amount of § , (370 INSURANCE FIRE. [§ TOO.- and thereupon, in consideration of 8 then and there paid to said agent, the said defendant company agreed to issue to him a policy of said company in its usual form, insuring him against loss or damage by fire, etc., upon said property to the amount aforesaid from said , IS — , at noon, and for the period of one year and until ■, IS — , at noon. And said company by its said agent afterwards and on the same day delivered "to plaintiff its policy No. •, duly exe- cuted by its president and secretary and countersigned by said agent, the original of which is hereto attached, in pur- suance and performance of said contract, and the same was so accepted and received by said plaintiff, and the same was not at the time read or examined by the plaintiff, nor did he know that any mistake had been made therein by said agent in fill- ing out the policy until after the loss of said property by fire as hereinafter and in the next count stated. The plaintiff further says that, by mere mistake and inad- vertence, in the blanks provided in said policy for the name of the assured to be written, the said agent wrote the name of the said defendant AV. H. L., and described him as the as- signee of said plaintiff. The plaintiff therefore prays that said mutual mistake of the parties may be relieved against and said policy made to conform to the intention of the parties, and for other proper relief in the premises. 2. On the day aforesaid, the plaintiff being the owner of the property aforesaid, in consideration of the premium paid by plaintiff to defendant company as aforesaid, said defendant, by its policy of insurance JS'o. , in the manner aforesaid, in- sured the plaintiff against loss or damage by fire to the amount of $ on the property aforesaid from at noon to at noon. Plaintiff has performed all the conditions of said policy on his part to be performed, and on , 18 — , said property was damaged and partl}^ destroyed by fire and otherwise injured to the amount of s (and said defendant company at once took possession of said property and excluded the plaintiff therefrom for the period of seven days). The plaintiff on said ,1^—5 g'^'^^e said defendant company notice of said loss, and on , IS — , and more than sixty days prior to this action, gave said defendant proofs of said loss in due form. No part of said loss has been paid. Wherefore plaintiff prays judgment against said defendant company for $ and interest from , IS — , and for other proper relief. C. D. M. and B. >S: B., Attorneys for Plaintiff. Note.— See Globe Ins. Co. v. Boyle, 21 O. S. 119. §§ 707, TOS.] INSURANCE — FIKE. OTl Sec. 707. Petition for reformation of a Hint of policy and judgment for amount. — [Avennetits as in a7ite, sees. 701, 702.] That the amount of insurance agreed upon by the plaintiff and defendant at the time of the payment of the considera- tion was the sum of $ upon store-room and stock of goods therein, but the amount of $ was, by mistake of the agent who made out the policy, erroneously inserted. That on the day of , 18 — , said store-room and stock of goods was totally destroyed by fire. That at the time of the delivery of said policy to plaintiff he supposed it had been drawn in accordance with their agree- ment, but did not read the same, and did not learn of the error therein until after said fire. That said store and stock was of the value of $ . That on the day of , 18 — , the plaintiff furnished defendant with proof of loss by said fire, and has in all things duly performed all the conditions of said polic}^ on his part to be performed, and that no part of said loss has been paid. Plaintiff therefore pra3^s that said policy ma}^ be reformed by inserting therein the correct amount of said insurance ac- cording to said agreement, and for judgment against the de- fendant for the sum of $ and costs of suit. Note. — A contract of insurance may be reformed for mutual mistake. Evidence of the agent and insurer in relation to the object of the poHcy and the interest to be insured is admissible. Globe Ins. Co. v. Boyle, 21 O. S. 119. Sec. 708. Petition by trustees of fraternal society for loss upon property, including improvements, on real estate held under lease. — Plaintiffs say that they are trustees, duly chosen and quali- fied, of the Gibulum Lodge of Perfection, Ancient Accepted Scottish Eite, and that said Gibulum Lodge was, at the several times hereinafter mentioned, and now is, one of the various bodies of the Ancient Accepted Scottish Rite Masons ; and they say that the defendant, the Western Insur- ance Company, is a corporation under the laws of the state of Ohio. The plaintiffs further say that on the day of , 18 — , at the city of , defendant, by its certain policy of insurance duly executed on that day, did insure the masters and wardens of IS'ova Cesarea Harmony Lodge, Ko. 2, Free and Accepted Masons, a corporation, against loss or damage by fire, in the sum of dollars, for the jieriod of years next ensuing, on all permanent improvements, fixtures 672 INSURANCE FIKE. [§708. and repnirs made in those certain apartments and portions of a certain building- known as the Masonic Temple, situated on the nortlieast corner of Third and Walnut streets, in the city of , Ohio, occupied by the various bodies of the Ancient Accepted Scottish Rite Masons; and the said policy did pro- vide that the loss, if any, thereunder, should be payable to the trustees of Gibulum Lodge of Perfection, Ancient Ac- cepted Scottish Ilite, said lodge being, at the date of said policy, and at the present time, the oivrier, as lessee thereof^ of all that portion of said building described as aforesaid in said policy, and of all improvements, fixtures and repairs made in the apartments of said building occupied by the various bodies of the Ancient Accepted Scottish Rite Masons, and of all frescoing and wall decorations thereof, and of all other prop- erty covered by said policy of insurance — said Harmony Lodge helng the owner of said MasoniG Tejnple, but having leased the said portions thereof, hereinbefore mentioned, to said Gibulum Lodge, wJiich, as lessee, iinproved, furnished and decorated the same. And the said policy did further ]^rovide the privilege of additional insurance in any insurance com- pany ; and also of making necessary alterations and repairs without notice or extra charge; and further, that said policy should apply to and cover all frescoing and wall decorations in addition to other items hereinbefore mentioned. Plaintiffs further say that it came to pass that on the day of , 18 — , all of the said property, apartments and portions of said building, hereinbefore described, were totally destroyed by fire ; and thereafter, to wit, on , 18 — , and again, the day of , 18 — , the plaintiffs caused to be made and delivered to the defendant proper proof of loss of said building as required b}'^ and in accordance with the terms of said policy, and demanded payment of the same, which the defendant has failed and refused, and still fails and refuses, to pay, although by the terms of said policy this de- fendant undertook and agreed to pay any loss accruing under said policy within sixty days after the filing with said com- pany of said proofs of loss. Plaintiffs say that the other insurance upon the property herein mentioned, including policy now in suit, amounted to dollars ; that the total amount of the loss or damage sustained by said Harmony Lodge upon the property herein- before mentioned, by reason of said fire, is dollars and cents ; that by the terms of said policy it was provided that, in case of total loss, the amount to be paid by the de- fendant under its policy aforesaid should not exceed a greater proportion than the amount insured in said policy bears to the whole amount insured on the property. Plaintiffs say that said Harmony Lodge has observed all § 709.] INSURANCE — FIRE. 673 the terms and conditions of said policy of insurance incumbent upon them, and ask judgment against the defendant in the sum of dollars, with interest thereon from the day of , 18 — , and costs, H., J. & C, Attorneys for Plaintiffs. Note. — From Carson v. Western Ins. Co., error to Super. Ct. Cin,, Su- preme Court, unreported, No. 1755. Sec. 709. Fire insurance — The answer. — If a loss is caused by the fraudulent act of the insured, the company may set the same up as a defense to an action upon the policy.^ Where a company takes a note in payment of a premium it is estopped from setting up the non-payment thereof in case of loss.2 "When one has had the benefit of insurance, and the company becomes insolvent and goes into the hands of a re- ceiver, a member cannot set up fraud as a defense after rights of innocent creditors have intervened.^ Nor can the company, in the absence of intentional fraud on the part of the insured, in case of a total loss show that the value of the property is less than that fixed in the policy.* Nor can a company take advantage of the failure to make the examination of the prop- erty which is required by statute, as it is not justified in re- lying upon any statement of the insured claiming it to be fraudulent.^ Nor can persons dealing with a foreign com- pany deny its power to enter into the contract sued upon.^ Where a husband and wife represent that they are the joint owners of the premises insured, the policy to be void if in fact the title be in the wife alone, no recover}'' can be had if this representation prove false, even though there is no in- tentional fraud ; '' and a false representation as to the amount of incumbrance upon the premises insured will avoid the policy.^ It is immaterial whether the misrepresentations are 1 Insurance Co. v. Sherlock, 25 O. S. 409. Where there is a separate valu- 30. ation upon different things the con- 2 Krumm v. Insurance Co., 40 O. S. tract is severable. Insurance Co. v. 230. Ward, 50 Kan. 346 ; 31 Pac. Rep. 1079. 3 Mansfield v. Woods. 29 W. L. B. » Insurance Co. v. Leslie, 47 O. S. Ill; Newberg Petroleum Co. v. 418; R. S., sees. 3643, 3644. Weare, 27 O. S. 344 : May on Ins., ^ Newberg Petroleum Co. v. Weare, sec. 552; Lucas v. Granville Ass'n, 20 27 O. S. 344. O. S. 339. See Rundle v. Kt-unau. 79 ^ Insurance Co. v. Webster, 7 O. C. Wis. 492; 48 N. W. Rep. 516. C. 511. 4 Insurance Co. v. Leslie, 47 O. S. 8 Hutchins v. Insurance Co., 11 43 674 INSURANCE — FIRE. [§ 709. intentionally made, as they will in any event avoid the policy, if material.^ In setting up a defense that the insured con- cealed certain matters material to the risk, it should be averred that the insured knew of the existence of the fact concealed, and that the same was not open and notorious to all parties.^ Where it is provided that the prelimary proof of the loss must be furnished within a certain time, failure so to do will constitute a defense to an action thereon.^ Nor is such a de- fense waived by setting up and rel^'ing upon other defenses not inconsistent therewith.* Where the condition of a policy is that all subsequent in- surance of the same property in other companies will render the same invalid, the taking of other insurance may be set up by the company as a valid defense;' but there can be no breach available to the company, where a policy contains such condition, by taking additional insurance which for any reason is invalid or never took effect.^ The fact that a mortgage was given without the consent of the company cannot be urged as a defense to an action on a policy which provides that the property shall not be sold, transferred or any change made in the title without the consent of the company.^ The con- sent of an agent of the company to alienation by an assignment upon the policy has the same effect as a new policy.^ A condition O. S. 480 ; Davenport v. Insurance Pa. St 259. It is not a defense that Co., 6 Cush. 340 ; Howard v. Insur- the particulars were not furnished ance Co., 10 Cush. 444 ; Brown v. In- until a year after the loss, if that be Burance Co., 11 Cush. 280 ; Byers v. a reasonable time. Kirk v. Insur- Insurance Co., 35 O. S. 606. ance Co., 6 W. L. B. 200. 1 Byers v. Insurance Co.,. 35 O. S. * Insurance Co. v. Railway Co., 28 606 ; Insurance Co. v. Spankneble, 52 O. S. 69. As to what constitutes 111. 53 ; Insurance Co. v. Eddy, 55 other insurance, see Kimble v. Insur- Dl. 213; May on Ins., sec. 269. ance Co., 8 Gray, 33; Bigler v. In- 2 Insurance Co. v. Insurance Co., 1 surance Co., 22 N. Y. 402; Conway Handy, 408; s. c, 5 O. S. 450. Toll Co. v. Hudson Insurance Co., 12 3 Insurance Co. v. Frick, 29 O. S. Cush. 144. 466 ; Insurance Co. v. Lindsey, 26 * Knight v. Insurance Co., 26 O. S. O. S. 348. 664; Insurance Co. v. Holt, 85 O. S. * Insurance Co. v. Frick, supra. 189. But it is otherwise if the defenses are ^ Byers v. Insurance Co., 35 O. S. inconsistent. Insurance Co. v. Ku- 606 ; Insurance Co. v. Spankneble, 52 kral, 7 O. C. C. 362. See Railroad 111. 33 ; Insurance Co. v. Eddy, 55 III. Ga V. Insurance Co., 105 Mass. 570; 213; May on Insurance, sec. 269. Insurance Co. v. Scholleberger, \S » Insurance Co. v. Wall, 31 O. S. 624 § 709.J INSURANCE — FIRE. 675 as to change of ownership is not invalidated by sale of stock during the life of the policy, where it has been reconveyed to the original owner before loss.^ The fact that the premises in- sured are incumbered by dower is not a violation of a con- dition against an incumbrance, especially where the applica- tion for the insurance is made by the widow.^ Where the conditions of a policy are such that either party may termi- nate it upon giving notice, the same may be terminated by merely giving notice without returning the unearned pre- mium.^ This is also true where there is no agreement in the policy as to the return of unearned premiums ; where it is so provided in the policy the rule is otherwise.^ The fact that the premises have been vacated by the permanent removal of a tenant of the insured, before the expiration of a lease, with- out the knowledge or consent of the landlord, is a good de- fense when the policy is conditioned to become void if the premises are vacated.' A contract of insurance with an infant being only voidable, the company cannot set up infancy as a defense to an action thereon.^ The obligation to observe the conditions of a policy rests upon the insured only ; and where the loss is made payable to a third party who is a tenant in possession of the building insured, the action of the latter in- creasing the risk to the premises, contrary to the provisions See Insurance Co. v. Ashton, 31 O. S. not such alienation as vitiated the 477, As to acts of agents see Wood policy. See 1 Wood on Insurance, on Insurance, sec. 407 ; Pratt v. In- sec. 330 et seq. surance Co., 55 N. Y. 505 ; Insurance 2 Insurance Co. v. Britton, 31 O. S. Co. V. Wall, 31 O. S. 633. This is op- 488. See Insurance Co. v. Webster, posed to Cockerill v. Insurance Co., 7 O. C. C. 511 ; R. S., sec. 8643. 16 0. 148; but that case, holding that ;^ Insurance Co. v. Breckeisen, 50 verbal agreements with respect to O. S. 543 ; 30 W. L. B. 303 ; Insurance insurance are invalid, is virtually Co. v. Sammons, 11 Bradw. 230 ; Wood overruled. Insurance Co. v. Kelly, v. Insurance Co., 126 Mass. 219; In- 24 O. S. 345. See Insurance Co. v. surance Co. v. Reynolds, 36 Mich. Siiaw, 94 U. S. 547; May on Insur- 506; Richards on Insurance, sec. 157. ance, sec. 41. 4 Insurance Co. v. Breckeisen, 1 Insurance Co. v. Lewis, 1 O. C. C. supra. 79; 13 W. L. B. 592. In Lane v. In- 5 insurance Co. v. Wells. 42 O. S. surance Co., 13 Me. 44, it was held 519 ; Insurance Co. v. Webster, 7 O. that where the assured sold the C. C. 531. goods, the purchaser keeping theni «Monahan v. Insurance Co., 18 but a short time, then conveying the Rep. 176; 12 W. L. B. 89; Insurance same back to the assured, there was Co. v. Noyes, 32 N. H. 345. €76 INSURANCE FIRE. [§ 710. of the policy, cannot be pleaded as defense to his olaiin for the loss, because the contract of the company is with the in- sured.^ Sec. 710. Answer averring breach of conditions. — 1. The defendant admits that at the various periods in the petitipn named it was an incorporated company organized under the laws of L., with its principal otRce and place of business at N. O. in said state, and with an agent authorized to transact business for it located at P. in county, Ohio. And defendant admits that under date of , IS — , acting through its said agent, L. C. D., it issued in said county its policy of insurance, whereby, in consideration of dol- lars paid and of the agreements and conditions therein con- tained, it did insure H. 0. & Co. in the amount of dollars on the property described in the petition and for the period in the petition named. Defendant denies each and ever\^ allegation in the said petition not hereinbefore expressly admitted to be true. 2. The said policy was issued and was accepted by the as- sured upon the following condition and agreement, expressed therein, to wit: \Copy.'\ In applying for the said insurance the plaintiff, the assured, stated and represented that there was no building within one hundred feet of the store-house in the policy described, and that the said store-house belonged to and was the property of the assured, the said H. C. & Co. By the aforesaid condi- tion of the policy, the said statements and representations became a part of the policy, and by the assured were war- ranted to be true. There was a building within the distance aforesaid, and the said store-house was not the property of the said H. C. & Co. Wherefore the said policy was wholly void. 3. The said policy was issued and was accepted by the as- sured upon the following condition and agreement, expressed therein, to wit, that this policy shall become void : " If the assured is not the sole and unconditional owner of the prop- erty.'' The said H. C. & Co., the assured, were not the sole and unconditional owners of the said store-house at the time the said policy was issued. 4. The said policy was issued and was accepted by the as- sured upon the following condition and agreement, expressed therein, to wit, that this policy shall become void : " If any building intended to be insured stands on ground not owned in fee-simple by the assured." The said store-house, intended 1 Sanford v. Insurance Co., 13 Cush. jury. Insurance Co. v. Insurance 541. It is often a question for the Co., 5 O. S. 450. §711.] INSURANCE — FIRE. 677 to be insured by the said policy, stood on ground not owned in fee-simple by the assured, 11. C. & Co. 5. The said policy was issued and was accepted by the as- sured upon the following conditions and agreements, expressed therein, to wit: that ''loss under this policy shall not be due and payable until sixty days after the receipt of proofs in due form, nor until a full compliance with the requirements of this policy in respect to proofs, statements, examinations or a[> praisals has been made by the assured," and that " jS^o suit or action against this company for the recovery of any claim by virtue of this policy shall be sustainable in any court of law or equity until after full compliance by the assured with all the foregoing requirements." The plaintiffs, the assured, have not complied with the said requirements of the said policy, therein expressed, in that they did not within the time hmited in the said policy, to wit, as soon as possible after the alleged loss, nor at any time, make out and deliver such particular state- ment and account of said alleged loss as is required by said policy, and did not, as required by said policy, furnish a de- tailed estimate of disinterested appraisers, made under oath, as to the loss upon the said store-house, and did not, as re- quired by said policy, furnish a detailed schedule and inven- tory showing the quantities, qualities and costs of the various articles of personal property and merchandise alleged to have been destroyed. W. & W., Attorneys for Defendant. Note.— From Coleman v. Insurance Co., 49 O. S. 310. Sec. 711. Answer setting up fraudulent representations and concealment as to incumbrances by insured.— 1. For defense to this action defendant says that by the terms of said policy of insurance it w^as, among other things, stipu- lated and agreed that the defendant should not be liable on said policy of insurance if there should be any false represen- tation as to the condition, situation or occupancy of said prop- erty, or if there should be any misrepresentation whatever by the assured, or if the interest of the assured in the property be not truly stated in the application, which is, by agree- ment of said parties, a part of the contract of insurance, and a warranty by the assured of the truth of the facts therein stated. Defendant says that plaintiff, A. C, in the application for said insurance, falseh^ represented that said property was un- incumbered, save by a mortgage for $ , and falsely repre- sented that he was the absolute owner of said property, sub- ject only to said mortgage for $ . whereas, in fact and in truth, said property was at that time incumbered by mort- gage in the amount of $ (and interest on said sum at eight per cent, for a length of time not known by this defendant); OTS INSURANCE — FIRE. [§712. and said C. was not the owner of said property, subject only to said mort,^age for % , all of which was well known to said A. C, but was wholly unknown to the defendant. And by reason of said misrepresentation and the failure of said as- sured to truly state his interest in said property, said policy of insurance is wholly void and of no force and effect what- ever. 2. Defendant says that the policy of insurance sued on in this action was issued by defendant to said A. C. upon his written application therefor, and, by the agreement of the par- ties to said policy, said application was to be a part of the con- tract of insurance, and a warranty by the assured of the truth of the matter therein stated. And defendant says that by the terms of said policy and application, it was further stipulated and agreed that any omission to make known every fact ma- terial to the risk should render the said policy void. Defendant says said A. C. omitted to make known to defend- ant that said property was incumbered by mortgage to the amount of | , and"^ unpaid interest thereon, oi' was incum- bered more than $ . Defendant says that said property was incumbered to the extent of $ (and unpaid interest thereon, the amount of which is to defendant unknown), by mortgage valid and subsisting, as said A. C. well knew when he applied for said insurance, but said fact was wholly un- known to defendant. The fact of said property being so in- cumbered was material to the risk, and said A. C.'s omission to make said fact known, by the terms of said policy and agreement of the parties thereto, avoids the same. 3. Defendant says that the policy of insurance sued on in this action was issued by the defendant to the said A. C. upon his written application tlierefor, and by the agreement of the parties to said policy said application was to be a part of the contract of insurance, and warranty by the assured of the truth of the matter therein stated. And defendant says that, by reason of the premises, said policy of insurance has become void, and plaintiff ought not recover thereon. Wherefore de- fendant asks to be dismissed with its costs. Note.— The action of a solicitiug agent in wrongfully stating facts cor- rectly given him bv assured binds the company. Insurance Co. v. Williams, 39 O. S. 584. He is the agent of the company and not of applicant. R S., sec. 3644 : Savings Bank & B. Ass'u v. Insurance Co., 31 Conn. 517. And is acting ry Sec. 712. Answer that policy is invalidated by reason of sale of property insured, and judgment against same.— Defendant says that, among other things, it was expressly agreed and provided by said policy (and contract of insur- ance), that if said property should be sold, transferred or in- §713.] INSURANCE — FIRE. 679 cumbered by mortgage or otherwise, or levied on, or any change should take i)lace' in the title or possession thereof, whether by judicial decree or voluntary transfer, without the written consent of the defendant company, the policy of in- surance should be void. Defendant says that after said policy was issued as afore- said, A. C, the assured, on the day of , 18 — , and on the darv of , 18 — , executed and delivered to K. K, W. "W. and'l. C. his certain mortgage on said property as stated in the petition. On said day of , 18 — , said A. C. further incumbered said premises by executing and de- livering to J. H. a mortgage thereon to secure said H. the payment of $ . bn the day of , IS — , as set forth in the petition, the said A. C. sold to the plaintiff C. Y. C. all his right, title and interest in and to that part of the personal property cov- ered by said policy of insurance yet owned by said A. C, and transferred to said C. Y. C. all his interest in'said property so remaining, and said remaining j)art of personal property ever since the said day of , IS — , has been in the posses- sion of said C. Y. C. By the consideration of the common pleas court of : county, Ohio, J. H., having recovered two judgments against the said A. C. and another, caused executions to be issued thereon, which executions were, on the day of , 18 — , duly levied on the property insured by said policy, and so said property became incumbered to the extent of $ debt, and costs $ . R R. recovered two judgments against the said A. C. and others by the consideration of the said county common pleas court and caused executions to issue thereon, which said executions were dul}^ levied on said property on the day of , 18 — , and thereby said property became incumbered to the amount of | . And defendant says, by reason of the premises, said policy of insurance has become void (and was void from the begin- ning), and plaintiffs ought not to recover thereon against this defendant. Wherefore defendant asks to be dismissed with its costs. Note.— From Ohio Farmers" Ins. Co. v. Haines, ante, sec. 703. A provis- ion to tlie effect that a sale or transfer shall forfeit a policy will not avoid the policy unless the assured's entire interest is sold. Blackwell v. Insurance Co., 48 O. S. 533. Sec. 713. Answer that mortgagee has ample security in real estate, and that the policy became vohl because of breach of condition as to premises becoming vacant. — 1. The defendant for answer to plaintiff's petition admits that })laintift' and defendant are corporations as alleged. Ad- 680 INSUKAXCE — FIRE. [§ 714. mits that defendant insured, for the consideration named in plaintiff's petition, the house of M. E. E. for the time named in said petition, and that said policy of insurance was made payable to plaintiff as its interest might appear. Defendant says that plaintiff had made to M. E. R. a loan upon the premises on which said dwelling was situated, and, as addi- tional security to the mortgage received by plaintiff, took the conditional assignment in said policy written ; and this defend- ant avers on information and belief that the real estate cov- ered by said mortgage securing plaintiff is ample security, and that, by reason of said condition written in said policy, plaintiff has, and obtained, no interest in said policy, and for want of knowledge this defendant denies all further assignment of said ]wlicy to plaintiff, and denies that there was any consid- eration for any other or further assignment, and denies that plaintiff has any interest in any loss sustained by said M. E. R. ; and defendant denies that said dwelling was of the value of $ , and denies that the same was wholly consumed by fire, and denies all allegations in said petition contained not herein admitted. 2, For a second defense this defendant says that, by the terms and conditions of the policy issued by this defendant upon the dwelling-house of said M. E. R, said policy be- came void and was void, and of no force or effect on , 18 — , for this defendant says it was provided in said policy that if said house became vacant and unoccupied without the written consent of defendant, then and in ever}' such case the said policy shall be void; and defendant says that on and prior to , 18 — , the said frame dwelling-house had, without the Avritten consent of this defendant, become vacant and unoccupied, whereby said policy became and was void and of no effect at and prior to the time of said fire so alleged in plaintiff's petition; whereupon defendant asks to go hence without costs. E., I). tion of property.'] But this defendant says that the interest of the assured in the property intended to be insured by this policy was not truly stated to the defendant, but was wilfully concealed, in that said property was conveyed and incumbered by two or more deeds of mortgage; and defendant says that the interest of the assured in said property is not the entire, unconditional and sole ownership of said property; but plaintiff says that said property had been conveyed by said plaintiff by several mort- gage deeds, which were, at the date of the issue of said policy and continued until the time of the fire on the day of , 18 — , liens and incumbrances on said property, to the extent of its entire value. [False representations as to occupancy of premises.'] Second defense. The defendant [formal averment], and fur- ther says that, among other things represented to the defend- ant at the time said policy of insurance wac procured, was that the buildings desired to be insured were occupied by the in- sured and family as a dwelling and saloon and for no other purposes ; and defendant says that said buildings were occu- pied as a public dance hall, and were leased to societies, to wit, the second story thereof, and that such representations made by plaintiff as to the occupancy of said premises, as heretofore set forth, were false, were known by plaintiff to be false, and were made for the purpose of defrauding the defendant. [Breach of conditioiis.] Third defense. The defendant [form,al averme?it] further says that among other terms, conditions and agreements in said policy was the following, to wit : " When a fire has oc- curred injuring the property herein described, the assured shall give immediate notice of the loss in writing to this com- pany, and within fifteen days after the fire, unless the time be extended by the company in writing, shall render to the company," etc. And said defendant says that the plaintiff did not render to the defendant, within fifteen days after the fire, a particular statement of the loss, signed and sworn to by the assured, stating such knowledge or information as the assured had been able to obtain as to the origin and circum- stances of the said fire, and also stating the title and interest of the assured and of all others in the property, the cost value thereof, the amount of loss or damage, all other insur- ance covering any of said property, and a copy of the written parts of all policies, and the occupation of the entire premises; and defendant says that the time for surrendering such state- '682 INSURANCE — FIRE. [§715. ment was not extended bv the defendant, and defendant de- nies that it waived the rendering of said statement within fifteen days and bv any act of defendant prevented plaintiff from com|)iying with that provision of the policy. Fourth defense. And for a fourth defense herein the de- fendant refers to each and all of the allegations contained in the first, second and third defenses and makes them a part hereof as fully and completely as though written at length herein ; and defendant further says that it is a corporation or- fanized under the laws of the state of Pennsylvania, and it enies each and every other allegation and statement con- tained in said petition. Therefore this defendant asks to be dismissed with its costs. J. O. W., Atrtorney for Defendant. Note. — From United Fireman's Ins. Co. v. Kukral. error to circuit court of Cuyalioga county. No. 1(599, 37 W. L. B. 311. Sec. 715. Answer by assignee of policy held as collateral security. — \^Caption!\ That ever since the day of , 18 — , he has been and now is the })ona fide owner and holder of a certain promis- soiy note, of which the following is a true copy, to wit : \Copy of note of the assured, with indorsements.'] That there is due to this answering defendant from said F. K. and M. K., upon said promissory note, the sum of % , with interest at the rate of per cent, on $ r- thereof from , 18 — ; on $ thereof at per cent, from , IS — ; on $ thereof from . 18 — , and on $ fi'om , 18—. That to secure the payment of said promissory note, said M. K., the plaintiff in this action, did on the day of , 18 — , assign and transfer to this answering defendant, as col- lateral security, the sum of dollars of her claim against the defendant, the U. F. Insurance Company of , set forth in the petition herein, and that on the said day of 18 — , this answering defendant duly notified said U. F. Insurance Compa" y of said assignment and transfer. By rea- son of the premises this answering defendant claims a valid and subsisting lien for the payment of the amount due him upon said promissory note from said defendants, F. and M. K., to the extent of dollars, upon the claim of said M. K. against said U. F. Insurance Company, set forth in the peti- tion herein, and prays the court for the protection of the same. ' F. K, Defendant's Attorney. § 716.] INSURANCE — FIEE. 683 Sec. 716. Reply by insured that breach of conditions was waived by company. — And now comes said plaintiff, the Citizens' Savings and Loan Association, by M.. N . & W., its attorneys, and for reply to the second defense contained in the answer filed herein by said defendant, the H. Fire Insurance Company, says: It denies each and every averment therein contained. Further repl3Mng to said second defense, said plaintiff says : Said policy contained the following provisions and no other on the subject of the occupancy of said premises: "or if the above-mentioned premises shall be occupied or used so as to increase the risk, or become vacant and unoccupied, or the risk be increased by the erection of adjacent buildings, or by any other means whatever, within the knowledge or control of the assured, without the written assent of the company indorsed hereon, then and in every such case this policy shall be void." Said building was situated on the rear part of the lot on which said M. E. R. resided, and at the time said policy was issued was occupied by her tenants, all of which was then well known to the general agent of said defendant who issued to her said ])olicy, and without whose countersigning said policy was not valid. Afterwards without consent of said M. E, E., and without her power to prevent the same, said tenants left said house. She at once notified said general agent thereof, who told her that it was all right and he would call and see her at her house in a few days, and thereby pre- vented her from then insisting on written consent being in- dorsed on said policy or obtaining other insurance. Plaintiff avers that said defendant l^y said general agent waived said clause, consented to said house so remaining vacant until he saw her, and induced her and this plaintiff to believe said policy in force. Xo one did call on said M. E. E. on behalf of said defendant or said general agent until after said fire, which occurred a few days after said notice to said general agent. In the meantime said M. E. R. had commenced to move into said house from her residence on the front of said lot, and at the time of said fire had moved part of her furni- ture therein and was occupying it during the business hours of the day by placing and arranging therein said furniture, and also during said hours and others for other living pur- poses. Said temporary vacancy occurred and existed entirely from causes beyond the control of said M. E. R Plaintiff avers that said ])remises never w^re unoccupied within the time, intent and meaning of said policy, that defendant as- sented to such vacancy and uon-occupancv as did occur, and is estopped from asserting such vacancy and non-occupancy 684 INSUKAIJCE FIRE. [§ 7J6. as a defense herein, and that such vacancy and non-occupancy as there had been had ceased before said fire occurred. M., K & W., Plaintiff's Attorneys. Note. — The burden of proof of waiver is on the plaintiff. An agent may waive by parol. If assured has notice of limitation of agent's power, or if there is anything to put him on inquiry as to his actual authority, then acts in excess of authority are not binding. Wood on Fire Ins., sec. 411. By accepting policy containing express limitation of agent's authority, the as- sured is estopped from setting up powers in opposition to those expressed. Catoir v. Insurance Co., 33 N. J. L. 487 ; 66 N. Y. 274-380. See May on In- surance, sec. 138; Kyte v. Assurance Co., 144 Mass. 46; Hale v. Insurance Co., 6 Gray, 169; Worcester v. Insurance Co., 11 Cush. 265. A waiver even in writing' by the agent on his books is held not binding. Walsh v. Insur- ance Co., 73 N. Y. 5. Questions which are left unanswered by an applicant are waived by the underwriter. Insurance Co. v. McCulloch, 21 O. S. 176. CHAPTER 49. INSURANCE — LIFE. Sec. 723. Defenses tx) action on life insurance policy. Answer that death was caused by unlawful act. Answer of failure to pay premiums. Answer that insured made false answers to interrog- atories as to condition of his health. r24. 725. 726. Sec 717. Parties. 718. Actions on life insurance policy. 719. Petition on mutual protec- tive policy. 720. Petition on mutual benefit policy. 721. Petition by administrator or executor on policy in- suring decedent. 722. Petition by widow on life insurance policy of hus- band. Sec. 717. Parties, — AVhere the beneficiaries named in a policy die before the assured, the policy reverts to the latter and becomes subject to administration, upon which suit must be brought by an administrator.^ If it be payable to the as- sured, his executors, administrators and assigns, for the bene- fit of third persons, suit should also be brought by the personal representative.- A person who has obtained valid insurance upon his own life may dispose of it to whom he pleases, in the absence of prohibitory legislation or contract stipulation, even though the assignee has no insurable interest.'' One not a party to a policy cannot seek to rescind or avoid it, nor to recover back premiums paid thereon, although he may have effected the policy.^ Sec. 718. Actions on life insurance policy. — Under the code the heirs or legal representative of any member or policy-holder ma}' prosecute an insurance company for losses iRyan v. Rothweiler, 50 O. S. 595. 2 Greenfield v. Insurance Co., 47 N. Y. 430 ; Tripp v. Insurance Co., 55 Vt 100. Eckel V. Renner, 41 O. S. 232; Valton V. Insurance Co., 20 N. Y. 32. ■« Insurance Co. v. Wright, 33 O. S. 534; Insurance Co. v. Wilson, 111 Mass. 542. 686 INSURANCE LIFE. [§ 718. which occur on any risk, if payment be withheld more than two months after the same become due.* The contract be- tween the parties must be considered and construed as an or- dinary contract.- To set forth a cause of action upon a policy of life insurance, the petition should contain a statement of the contract, the death of the assured, and failure to pay as agreed ; an allegation that the death of the assured was not caused by the breaking of any conditions of the policy is not necessary, and does not require proof; nor is the plaintiff bound to anticipate the defense which the defendant may set up.' But where the plaintiff relies upon the provisions of a statute of a state where the defendant company was organ- ized, to avoid the effect of a forfeiture for non-payment of premiums, he must aver facts bringing his case within such provisions.* Where a policy is void by reason of uninten- tional misrepresentations, an action will lie to recover pre- miums paid thereon.* Where a company refuses to receive premiums on the ground that the policy has lapsed for non- payment of the premiums at the time stipulated, the assured may go into a court of equity to have the rights under the policy determined, and compel the company to receive the premiums thereon.^ The beneficiary of a policy may ask to have a mistake as to age corrected where there was no fraud, and maintain an action to recover on the policy as corrected.^ In an action upon a certificate of membership of a mutual insurance company which entitles the beneficiary to so much as may be realized from one assessment, the petition need not aver the number of members of the company against whom assessments may be made.® Other questions, such as plead- ing conditions, insurable interest and attaching copies, have been discussed in a former section and are equally applicable here.^ 1 R S., sec. 3601. 5 Insurance Co. v. Pyle, 44 O. S. 19. ^ Insurance Co. v. Pyle, 44 O. S. ^ Insurance Co. v. Tullidge, 89 O. S. 19 ; McEvoy v. K Mut. Ins. Co., 3 O. 240. C. C. 573. 7 Life Ins. Co. v. Goodale, 8 Am. 3 Hall V. Scottish Rite K. T. &c. Law Rec. 338. Ass'n, 6 O. C. C. 141, quoting from * Elkhart, etc. Relief Ass'n v. Boone's Pleading, sec. 156. Houghton, 103 Ind. 286; Excelsior * Scheifers v. Insurance Co., 46 Mut Aid Ass'n v. Riddle, 91 Ind. 84. O. S. 418. 9 A7ite. sees. 57, 699. §719.] INSURANCE LIFE. 687 Sec. 719. Petition on mutual protective policy. — The plaintiff, C. S., says that the defendant, the M. Y. Mutual Relief Association, is an association of persons duly- incorporated under the laws of the state of Ohio, for the pur- pose of paying stipulated sums to the family or heirs of its members and others named in its policies. The plaintiff further says that at the request of said defend- ant, A. S., the husband of said plaintiff, became insured in the second division of said association, on the day of , 18-—; and in consideration of the sum of dollars then paid by said A. S.,and the further consideration to pay certain death and other assessments that he might be called upon to pay by said defendant company, said defendant delivered to him its written and printed agreement (a true copv of which is hereto annexed as an exhibit only), whereby it agreed and promised that after due notice and satisfactory proof of the death of said A. S., and within sixty days thereafter, it would pay to this plaintiff, the wife of said A. S., the sum of dollars from the death fund. In case, however, the death fund of said division at the date of such death shall be less than that sum, then, and in that case, a sum equal to the amount actually received from one death assessment upon all the members of said division at the time of such death. That said association promised and agreed to keep and main- tain, at all times, a death fund, subject to the payment of death losses, equal to the largest sum payable on the death of a member. Plaintiff says that on the day of . 18—, said A. S. died, and on , 18 — , said defendant was dulv notified, and satisfactory proof thereof was made to the officers of said defendant corporation. Plaintiff says that at the date of the death of A. S., the death fund of said second division amounted at least to the sum of dollars, and said association were bound to have said sum on hand to pay the same, and, as plaintiff avers, did have that sum on hand as a death fund from which to pay death losses; and ought, in accordance with the terms of said agreement, to have paid the said sum to the plaintiff within sixty days thereafter. But plaintiff avers that said defendant has not paid said sum or any part thereof. Plaintiff says that said defendant is indebted to her in the sum of dollars, with interest thereon from , 18 — , and for which sum and costs she i)rays judgment. J. & M., Plaintiff's Attorneys. Note.— From Mahoning Valley Mutual Relief Ass'n v. Seyler, error to circuit court of Mahoning county, Ohio. No. 1495. The right to sue canuot be taken away by contract. Coiincil v, Garrigus, 104 Ind. 133; Bauer v. iSanison Lodge, 102 Ind. 262; Supreme Council v. Forsinger. 125 Ind. 53. 688 INSDRANCE— LIFE. [§§720,721. Sec. 720. Petition on mutual benefit policy. — Plaintiff says that defendant is a corporation created and existing under tlie laws of the state of Illinois, and doing busi- ness and having a place of business in the state of Ohio. That on the day of , IS — , the defendant in consideration of the payment of the usual membership fee, and agreement to pay an annual expense assessment and such mortuary assess- ments as may be levied, issued to one J. O. a certificate of membership, being No. , a copy of which certificate is hereto annexed and marked "Exhibit A," upon the terms of which certificate defendant promised and agreed to pay to plaintiff herein, in case of death of said J. O., all that shall have been collected from one assessment upon the members of said association, after first making provision for the guaranty fund, provided that such indemnity fund so to be paid shall in no event exceed the sum of dollars, and to pay said sum of money days from the receipt of satisfactory proofs of death. That on the day of , 18—, at B., Pa., the said J. O. died ; that proofs of death were furnished on or about , 18—. Plaintiff further says that plaintiff and said J. O. had each performed all the conditions of said certificate on their part to be performed : that defendant, although requested, has not paid said sum of money nor any part thereof. Wherefore plaintiff f)rays judgment against said defendant in the sum of dollars. H. L. B., Attorney for Plaintiff. Note.— From Total Abstinence Life Ass'n of America v. O'Harra, Su- preme Court, unreported, No. 3357. Sec. 721. Petition by administrator or executor on pol- icy insuring decedent. — 1. {^Averment of corporate character of company.'] 2. \_Averment of appointment of administrator or eosecutor.] That on the day of , 18—, in consideration of the sum of $ then paid by plaintiff's decedent to defendant, and of the further agreement by said decedent to pay to said defendant company the sum of'^l as an annual premium, said defendant company did execute and deliver to the said decedent its certain policy of insurance upon his life (a copy of which is hereto attached as an exhibit only), said defend- ant thereby contracting to insure the life of said decedent in the sum of $ , and thereby agreed to pay to the estate of said A. B., deceased, the sum of | . [Here state such terms of policy as seem, essential.] That on the day of , 18—, the said A. B. died from [state cause of death], and not within any of the causes excepted in and by the terms of said policy, by which ,§ 722.] INSURANCE — LIFE. 6S9 it was provided it would not pay a death loss in case death resulted therefrom. That the said A. B., during his life-time, fully and completely complied with all the terms and conditions of said policy of insurance, and this plaintiff, as his legal representative, has likewise complied with all conditions to be by him performed, and has made proof of the death of the said A. B., deceased, in accordance with the terms of said policy. There is therefore due and owing this plaintiff, as such ad- ministrator, upon said policy of insurance, the sum of $ , for which he asks judgment. Sec. 122. Petition by widow on life insurance policy ol husband. — [Averment of corporate caj?aciiy.'] Plaintiff states that she is the widow of A. B., late of the city of C, county of , Ohio, who died at C. on the day of , 18 — . That during the life-time of her said husband he entered into a contract, to wit, on the day of , 18 — , with the defendant company, by which, in consideration of the sum of $ then by her said husband, A. B., paid to said defendant company as a first premium, and of the further agreement on the part of her said husband, A. B,, that he would pay to said defendant the sum of %■ each and every year as an annual premium so long as said contract should remain in force, said defendant company thereupon, by its written contract of in- surance, duly executed and delivered to said A. B, upon the date aforesaid, did agree and contract by its policy of insur- ance, a copy of which is annexed hereto as an exhibit onlv, to insure the life of said A. B. in the sum of $ , the losspa}'-- able upon the death of said A. B. to this plaintiff as his widow. [Here may he stated any terms of policy deemed essential.'] That as before stated said A. B. died on the day of , 18 — , and that he did during his life-time punctually pay all premiums upon said policy and perform all and singular the conditions of said policy to be by him kept and performed, and that plaintiff as his widow complied with all conditions and requirements thereof, so far as were required of her, and did on the day of , 18 — , duly notify said defendant company of the death of her said husband, presenting said com- pany with proofs thereof, as required by said policy of insurance. That plaintiff as such widow has demanded ])ayment of the amount due her upon said policy of insurance from said com- pany, which it has failed and refused to pay and still refuses so to do. There is therefore due said plaintiff from said defendant upon said policy of insurance the sum of $ , for which she asks judgment. 44 690 INSURANCE LIFE. [§723. Sec. 723. Defenses to actions on life insurance policies. — Non-payment of premiums at the appointed time,^ misrepre- sentation made by the assured as to age - or as to other insur- ance,^ or fraud,^ or as to the use of intoxicating liquors,' will avoid the policy and discharge the insurer. But the denial of having a certain disease will not be such misrepresenta- tion as will invalidate a policy unless there were such S3^mp- toms as would reasonably indicate the disease.^ Nor will a wife be barred of her right of action on a policy which is her exclusive property, by the fraud or misrepresentation of her husband.' But by statute in Ohio companies are estopped, after having received three annual premiums on a policy, from defending upon any ground other than fraud; they can- not urge any error, omission or misstatement of the assured excepting as to age.^ A policy issued upon answers and state- ments warranted to be true, but which are in fact false, though- unintentionally so, is nevertheless void.** If a com- pany fails to give the accustomed notice of the time when the premium falls due, it cannot urge the non-payment of the premium as a defense to an action therein.^" Suicide may be a defense, but t?ie onus is upon the company to show that death was within such a proviso of the policy." If insanity be relied on to meet the defense of suicide it must be specially pleaded.'- When a defense made by a mutual aid society that the class to which the assured belonged was not filled at the time of his death, and that certain assessments have not been paid, is controverted by reply, it must be affirmatively proven by the defendant.'" Under a general denial a defend- ant cannot show that death resulted from intentional injury." 1 Robert V. Insurance Co., IDisn. 355. ^R S., sec. 3626. See Lowe v. lu- 2 Low V. Insurance Co., 10 Am. Law surance Co., 41 O. S. 273. Eec. 313. 9 Insurance Co. v. Pyle, 44 O. S. 19. 3 Penniston v. Insurance Co., 4 W. i* Insurance Co. v. Smith, 44 O. S. L. B. 935. 156. 4 Insurance Co. v. Sandal, 3 W. L. ii Schultz v. Insurance Co., 42 O. S. B. 559. 217. 5 Insurance Co. v. Holterhoff, 2 C. ^^ychultz v. Insurance Co.. 4 W. L. S. C. R. 379. B. 848. 6 Insurance Co. v. Reif, 1 W. L. B. , 13 Hall v. Aid Association, 6 O. C. C. 290. 137 ; Boone's Pleadings, sec. 156. ■^ Insurance Co. v. Applegate, 7 O. S. i* Coburn v. Insurance Co., 145 Mass. 293. " 225. §§ 724-726.] INSURANCE — life. 691 A company after having recognized a beneficiary for a num- ber of years cannot be permitted to deny his right to sue on a poh'cy.^ And so will a company which receives payments on policies after the time at which they fall due be estopped from claiming forfeiture by reason of non-payment;- and the company is bound by representations made by their duly au- thorized agents within the scope of their authority.' "Where the defense in an action on a life policy is that the policy had lapsed for non-payment of premiums, and that the assured had procured it to be reinstated by representations as to his health which he knew at the time were false, defendant must prove that the assured knew such representations to be false.* Sec. 724. Answer that death was caused by unlawful act. [Caption and formal averments.'] That it is provided in the pohcy of insurance sued on that if the assured should die by reason of his violation of the laws of any of the states or of the United States, then the policy should be null and void. That said assured came to his death as follows: [State facts shoioing violation, of lau) and cav.se of death.'] Sec. 725. Answer of a failure to pay premiums. — [Caption and formal a-cermerds.] That it is provided in said policy sued on that it is given in consideration of the semi-annual premium of dollars, to be paid before noon on the day of , 18 — , and , 18 — , and that upon a failure to pay any of said semi-annual instal- ments on or before the days mentioned, said policy should cease and determine, and all rights under said policy should be forfeited. That the instalment of said premium notes falling due on the day of , 18 — , was not paid on or before it fell due [but was still unpaid at the time of the death of the in- sured]. Sec. 726. Answer that insured made false answer to in- terrogatories as to condition of his health. — Defendant says that the application of the said J. O. to this defendant, upon which said certificate and policy sued on was issued, in answer to interrogatories therein contained the said 1 Insurance Co. v. Hamilton, 41 5 Insurance Co. v. "Wright, 33 O. S. O. S. 274. 533. 2 Insurance Co. v. Tullidge, 39 O. S. ^ Patten v. U. Life Ins. Ass'n, 24 N. 244; Insurance Co. v. Doster, 106 Y. S. 269 (1893). U. S. 30 : Insurance Co. v. Rudwig, 11 Ins. Law J. 603. 692 msuEANCE — life. [§ 726. J. O. stated that at the time said application was made he was in good health : that he had not then and never had had any lung difficulty ; that none of his brothers or sisters, father or mother had died of consumption or any disease of the lungs. He also in said application stated that he had never been rejected by any insurance company. At the time said statements were made they were all and each of them false and untrue, and were known to be so by the said J. O. at the time he made them: and they were made by the said J. O. for the purpose of defrauding this defendant. ' Two sisters of said J. O. died of lun^ disease. At the time said application was made the said J. O. had consump- tion, and he knew it ; of which disease he died at the time alleged in the petition. He had made application to an insur- ance company aild been rejected but a short time before he made the application upon which this policy was issued for the reason that he had disease of the lungs. Said statements were the basis upon which said policy was issued, and this de- fendant is not liable upon said certificate and policy, and prays to be discharged and recover its costs herein. J. H. N., Attorney for Defendant. CHAPTEE 50. INTERPLEADER Sec 727. Interpleader — Nature and extent of the remedy. 728. Form of petition in inter- pleader. Sec. 728a. Answer to obtain order in- terpleading and discharg- ing defendant on pay- ment into court Sec. 727. Interpleader — Nature and extent of the rem- edy, — A bill of interpleader is a bill filed for the protection of a person from whom several persons claim legally and equitably the same thing, debt or duty, but who has incurred no independent liability to any of them, and does not himself claim an interest in the matter.^ The ground of jurisdiction is the apprehension of danger to the person seeking the rem- edy, from doubtful and conflicting claims, and the only relief to which he is entitled is to have liberty to pay the money to the persons entitled to it.- The code interpleader invokes neither the common-law nor chancery powers of the court by an original common-law or chancery action. The jurisdic- tion conferred on the court is purely statutory.' In an action upon a contract, or for the recovery of per- sonal property, a defendant therein may make an aflBdavit that a third party has or makes a claim to the subject of the action, and that he is ready to pay or dispose of the same as the court ma}^ direct. The court may then make an order for the safe-keeping or for the payment or deposit in court of the subject of the action, or the delivery thereof to such per- son as it may direct, and also an order requiring such third person to appear in a reasonable time and maintain or relin- quish his claim against defendant. If such third party fails to appear, the court ma}^ then declare him barred of all claims 1 Sherman v. Partridge, 1 Abb. Pr. 256. 2Newhall v. Castins, 70 111. 156; Cogswell T. Armstrong, 77 111. 139 : Insurance Co. t. Insurance Co., 23 Minn. 7. 3 Bridge v. Martin, 3 W. L. M. 204 ; Board v. Scoville, 13 Kan. 17; O. Code, sees. 5016, 5017. 634 INTERPLEADER. [§ 727. against the defendant. But if he appears, he may be allowed to make himself a defendant in lieu of the original defendant, who shall then be discharged from all liability upon com- pliance with the order of the court for the payment, deposit or delivery of the subject of the action.^ An officer against whom an action is brought to recover personal property taken by him on execution, or the proceeds of such property sold by him, may have the benefit of this provision against the party in whose favor the execution issued.- In such a case the court may upon application of the defendant, or of tlu' party in whose favor the execution or attachment issued, per- mit the latter to be substituted as defendant.' Two claimants to a trust may be required to interplead, so as to enable the court to ascertain the beneficiary, without compelling either party to establish his legal right.* A bailee may protect the in- terest of the real principal by an interpleader,' and a corpo- ration may maintain a bill of interpleader against opposing claimants to a dividend due on shares of stock.* In an action by a corporation to cancel certificates of stock which have been wrongfully issued, all the holders thereof should be united so as to remove the cloud upon the title of the holders of the genuine certificates^ In an action to enjoin the en- forcement of a judgment by an assignee thereof, where it is claimed that there are several parties claiming the fund, the plaintiff should bring the fund necessary to pay the same into court, and make all claiming it parties, and call upon them to interplead.^ A defendant cannot take issue with the plaintiff, and at the same time have the benefit of an inter- pleader. The two are inconsistent, and he must elect between them.^ Actions of interpleader, it is said, ought not to be en- couraged, and ought not to be brought except where there is no other way for the plaintiff to protect himself from a litiga- tion in which he has no interest. To maintain the action it is necessary to show tjiat the plaintiff has not acted in a par- 1 0. Code, sec. 5016. ' Railway Co. v. Bank, -22 W. L. B. 2 O. Code, sec. 5017. 248. 8 O. Code, sec. 5018. ^ Liniman v. Dimnick, 1 O. C. C. ♦Presbyterian Society v. Presbyte- 563. rian Society, 25 O. S. 128. 9 Johnson v. Oliver, 51 O. S. — ; 5 McKay v. Draper. 27 N. Y. 256. 31 W. L. B. 133. 6 Mills V. Townsend. 109 Mass. 115. g 728.] INTERPLEADER. 695 tisan manner as between the different claimants.^ The party- seeking relief must have incurred no independent liability to either claimant;- if he denies his liability for part of the claim of the contestants, his position is not one of indiffer- ence, and he cannot avail himself of the remedy.^ Sec. 728. Form of petition in interpleader. — Plaintiff is a corporation organized under the laws of the United States and carrying on a banking business at . That on the day of , IS — , a money deposit ac- count, No. , was opened with the said bank in the name of Cigar-makers' Union, " subject to the order of the president, financial secretary and treasurer, or any two of them," and a deposit book was given therefor, bearing the number of said account, in which debits and credits have been from time to time made, and there now stands to the credit of said account the sum of $ . That both T. C. and H. S. claim to be president, S. J. and E. L. K. to be financial secretary, and G. F. and T. M. D. to be treasurer of said Cigar-makers' Union. That the said T. C, S. J. and G. F, have demanded and claim that the amount to the credit of said deposit account shall be paid to their order, or to the order of any two of them in their above-mentioned respective official capacities, and that the said H. S., E. L. K. and T. M. D. likewise have demanded and claim that the same shall be paid to their order, or the order of any two of them in their above-mentioned respective official capacities. That plaintiff is unable to decide between the aforesaid conflicting claimants, and while ready and anxious to pay or hold the amount appearing on the books of plaintiff to the credit of said deposit account, to or for the use of the true owner or owners, plaintiff cannot safely make any payments on account thereof, or recognize either of said conflicting claims, until the questions involved therein are settled author- itatively by some court of competent jurisdiction. That the said T. C, C. J. and G. F., in their aforesaid re- spective capacities of president, financial secretary and treas- urer of said Cigar-makers' Union, by W. P. W., their attor- ney, have already instituted suit in the court of , in the state of Ohio, against plaintiff for the recovery of said deposits, and plaintiff is apprehensive of a like suit on the part of the aforesaid adverse claimants thereof. 1 Hinckley v. Pfister, 83 Wis. 64, 85; par. 421 ; Conly v. Ala. G. C. I. Ca, Cook, S. & S., sees. 387, 407, 540, 544 ; 67 Ala. 472 ; James v. Pritchard, 7 M. McDonald v. Allen, 37 Wis. 108 ; & W. 216. Buffalo G. S. Co. v. Alberger, 22 3 Cogswell v. Armstrong. 77 111. Hun, 349, 353. 139 ; Patterson v. Perry, 14 How. Pr. 2 Adam's Eq. 200 ; Bispham's Eq., 505 696 INTERPLEADER. [§ 728^. That plaintiff has no claim or interest whatever in said de- posits, and desires and tenders payment of the amount of the same into this court under this proceeding. Wherefore the plaintiff prays that the said T. C, C. J. and G. F. on the one part, and the said H. S., E. L. K. and T. M. D. on the other part, may interplead and adjust their said sev- eral demands and claims between themselves, plaintiff being willing and desirous that the sum appearing on its books to the credit of the account above mentioned should be paid to such of the defendants as shall be entitled thereto. That in the meantime the said T. C, C. J and G. F., and the said H. S., E. L. R. and T. M. D,, their counsel, solicitors, agents and attorneys, may be restrained by the order and in- junction of this honorable court from prosecuting or com- mencing any action or actions at law against plaintiff for or in respect of the several matters aforesaid ; and that plaintiff may have such other and further relief as his case may require. [ Ve7''iji cation.'] Sec. 728a. Answer to obtain order interpleading and dis- charging defendant on payment into court. — T. Z., by way of interpleader herein, upon his oath says : That he is the defendant [or, the president, 07\ cashier of the defendant] above named [or otherwise state relation to the cause, indicating means of knowledge']. [Here indicate caiise of action on contract or for recovery of sjpecifc real or personal j[>7'operty.] That the claims of the plaintiff and of said have been made without collusion of this defendant with either of them; and that the defendant has no interest in the sum [or, property] claimed, except to pay [or, deliver] to the person rightfully entitled thereto ; that he cannot safely determine to which of said claimants it should be paid [or, delivered], and is ready and willing to deposit the same [or, to deliver the same as the court may direct] upon being discharged from liability to either claimant [and if discharge of a lien on de- fendant's property is involved, rnay add, as thus: and upon said mortgage being discharged of record]. Wherefore this defendant asks an order requiring the par- ties to this action to show cause why he should not be per- mitted to deposit the said sum of money [or, property] with the clerk of this court, and that he be discharged from further liability herein. Note.— R. S., sec. 5016. CHAPTER 51. INTOXICATING LIQUORa Sec 729. Liability for causing intox- ication. 730. Petition by widow for dam- ages to her support. Sec. 731. Petition by person intoxi- cated against liquor seller. See. 729. Lialbility for causing intoxication. — A statutory liability is imposed upon one who causes the intoxication of another, by compelling him to pay a reasonable compensa- tion to any one who may take charge of or provide for such, intoxicated person, and authorizes a recovery therefor in a civil action.^ A husband, wife, child, parent, guardian, or other person liable to be so injured thereby, upon giving no- tice as provided by statute to a person so furnishing liquors, or to the owner or lessors of the premises where the same are sold,^ may maintain an action severally or jointly against any person or persons who have caused such intoxication in whole or in part ; and the owner of the premises who rents the same with knowledge that the liquors are to be sold, or who knowingly permits the sale of liquor therein, which causes the intoxication of any person, is severally or jointly liable with the person selling the same for actual damages resulting from such sale, as well as for exemplary damages.' And any person who rents or leases premises to another to be used and occupied for the purpose of selling intoxicating liquors may be held responsible for all damages assessed against any person occupying the same. This does not apply, hoAvever, to an owner who rents or leases his premises without knowledge that the same are to be used for the sale of liquor.* Nor is an owner of premises who rents the same with a distinct understanding that liquor is not to be sold, liable when sold without his 5 R S., sec. 4356. -R. S., sec. 4358. 8 R S., sec. 4357. Contractors may Bue person furnishing liquor to their employees. Duroy v. Blinn, 11 O. S. 331. < Zink V. Grant, 25 O. S. 85a €98 INTOXICATING LIQUORS. [§ 729. knowledge.' An action may be maintained against a person who owns merely a life estate, but leases the same for the sale of intoxicating liquors, and the damages may be enforced against such life estate.^ But the estate in remainder cannot be held.^ Where the place is described as a room, and the proof shows that liquor was sold in a cellar or grocery, it is not a variance.* In an action by a wife for an injury to her means of sup- port, it is not necessary to show that she has been at any time, in whole or in part, without means of support.' The liability is not confined to injury resulting from drunkenness merely, but extends to cases where it results in insanity, sickness or inability caused by such intoxication." In Ohio and other states the doctrine is clearly laid down that under the liquor laws no recovery can be had for damages resulting in death as a necessar}'" result from the sale of intoxicating liq- uors.^ Under similar statutes other courts hold that damages to the support of any one resulting from death caused inci- dentally or otherwise by intoxication may be recovered.^ The liquor-dealer may be liable to exemplary damages in an action by the widow of the person losing his life." It has also been held that a right of action for injury to means of sup- port may be maintained by a child born after the father's 1 0'Rourke v. DeGiaw, 21 N. Y. S. 1118 (1893). 2 Mullen V. Peck, 49 O. S. 447. 3 Mullen V. Peck, supra. 4 O'Keefe v. State, 24 O. S. 175. fi Mulford V. Clewell, 21 O. S. 191 (1871). See Schneider v. Hosier, 21 O. S. 98 ; Sibila v. Bahney, 34 O. S. 399. Sales made after the cona- mencenieut of the action may be shown. Bean v. Green, 33 O. S. 444. 6 Mulford V. Clewell, supra; Stone V. Dickman, 5 Allen, 29; Shearman & Redfield on Neg., sees. 27 and 46, 7 Kirchner v. Meyers, 35 O. S. 85 ; Davis V. Justice, 31 O. S. 359. Re- covery can be had only for the time the intoxication lasts. Krach v. Heil- man, 53 Ind. 518. No liability where person intoxicated is assaulted and injured. Shugart v. Egan, 83 HL 56. Or is run over by a train of cars while intoxicated. Collier v. Early, 54 Ind. 559. See Backes v. Dant, 55 Ind. 181 ; Brookmire v. Monaghan, 15 Hun, 16; Hayes v. Phelan, 4 Hun, 733; King v. Henkie, 80 Ala. 505; Hackett v. Smelsley, 77 111. 109. See Tiffany's Death by Wrongful Act, sec. 78. 8 Eddy V. Courtright, 91 Mich. 264 Quinlen v. Welch, 23 N. Y. S. 963 Raflerty v. Buckman, 46 la. 195 Jackson v. Brookins, 5 Hun, 530 Quain v. Russell, 8 Hun, 319 ; Barrett V. Dolan, 130 Mass. 866. 9 Kennedy v. Sullivan, 136 111. 94. See Davis v. McKnight, 146 Pa. St 610. § 730.] INTOXICATING LIQUORS. 699 death which resulted from intoxication.' ]S"or is it essential that a defendant shall have been the sole cause of such intox- ication. Any one who contributes to cause the same by his illegal sales is liable.- Where separate actions are brouirht by a wife for injury to her means of support against different persons, the fact that one of thera has been compromised and settled is no defense to the other.'' And the fact that the husband drank to excess will not defeat a recovery, although it may be taken into consideration upon the question of dam- ages.* The statute lias also been held to include the mother of an adult son, with whom she lived and who voluntarily supported her.^ It is not necessary that the illegal sales be proved beyond a reasonable doubt.® Sec. 730. Petition by wife for injury to her support. — Plaintiff states that she is the wife of A. B. and entirely de- pendent upon him for support. That her said husband, when sober and free from the influence of intoxicating liquor, is a diligent and careful worker, being engaged in the business of [state inhat], and is capable of earning at said business the sum of $ per month. That her said husband is addicted to the habit of intoxication [state extent of], and when he once becomes intoxicated continues in that condition for a consid- erable length of time, which fact was well known to the de- fendant. That the defendant C. D. is and has been for [state approxi- mately] engaged in the sale of intoxicating liquors at No. , M. street, in the city of , and is well acquainted with plaintiff's husband and his said habits in respect to intoxica- tion. That on or about , IS — , said defendant sold to plaint- iff's husband intoxicating liquors, by reason whereof he be- came intoxicated, thereby reviving his said habit, and that he has continually since said date been in the habit of becom- ing intoxicated upon liquors sold him by the said defendant. That plaintiff did on the day of , 18 — . give notice to said defendant not to sell her said husband intoxicating liquors, but that said defendant wholly disregarded said no- tice, and continued at numerous times to sell her husband intox- icating liquors from the date of said notice until the commence- ment of this action, wholly disregarding said notice, and with full knowledge of the habits of her husband.- 1 Quinlen v. Welch, 23 N. Y. S. 963. 3 Miller v. Patterson, 31 O. S. 419. 2 Boyd V. Watt, 27 O. S. 259 ; Rautz < Uldrick v. Gilmore, 35 Neb. 288. V. Barnes, 40 O. S. 43; Bryant v. 5 Eddy v. Courtright, 91 Mich. 264, Tidgewell, 133 Mass. 86; Edwards v. 6 Lyon v. Fleahmann, 34 O. S. 151. Woodberry, 156 Mass. 21. INTOXICATING LIQUOES. [§ 731. That by reason of the sale of such intoxicating liquor by defendant to her husband the latter has been since , 18 — , to the present time, almost continuously intoxicated, wholly neglecting his business, squandering his money, and failing to provide plaintiff with the necessary food, etc. [state any spe- cial damages resulting], [Prayer for damages.'] Note.— See ante, sec. 729. As to notice, see R S., sees. 4359, 4360. The notice need not be recorded by township clerks. The substance only is sufficient Bankhardt v. Freeborn, 42 O. S. 52. Sec. 731. Petition against owner of premises where liquor sold. — [Continue from * i/n preceding form, sec. 730.] The defend- ant J. H. is the owner in fee of the premises located and sit- uated at No. , M. street, in the city of , and of the building situate thereon, in which the said C. D. is engaged in the sale of intoxicating liquors. That defendant J. H. leased said building to said C. D. with full knowledge that the said C. D. expected to engage in the business of the sale of intoxicating liquors therein, and that said defendant J. H. has had knowledge that said C. D. has so been using and occupying said building for the sale of intoxicating liquors therein. [Set out special damages^ and pra/yer for judgment.] CHAPTER 52. JUDGMENTS. Sec. 733. Action on a judgment | Sec. 735. What defenses may be made to action on judg- ment. 733. Petition on judgment. 73-1. Petition on foreign judg- ment. Sec. 732. Action on a jndi^nient. — That an action will lie under the code upon a judgment at law for money, whether domestic or foreign, is well settled.^ The same is true of de- crees in chancery for the payment of money.* A domestic lien becomes a lien as soon as pronounced, while a foreign judgment is meveXy pynma facie evidence of indebtedness.' The fact that a judgment rendered by a justice may be en- forced by execution will not bar an action thereon;* the action may be brought even though an execution which has been issued has not been returned.' After judgment the law implies a promise on the part of the judgment debtor to pay it, and in an action thereon plaintitf is entitled to such reme- dies as are authorized in actions upon contracts, whether it be a foreign or domestic judgment.^ That an action of debt will lie upon judgments at law for money, whether domestic or foreign, seems to be well supported,' though the supreme court of Ohio has refused to consider a domestic judgment a spe- cialty or contract within the meaning of the statutes of limita- tion,^ but holds a foreign judgment to be a contract.' So far 1 Healy v. Roby, 6 O. 521 ; Tyler v. » Linton v. Hurley. 114 Mass. 76. Winslow, 15 O. S. 364; Church v. «Gutta Percha Mfg. Ca v. Mayor, (Dole, 1 Hill. 645 ; Moore v. Ogden, 35 108 N. Y. 276. O. S. 433 ; Goodin v. McArthur, 4 • Moore v. Ogden, 35 O. S. 483-4 ; W. L. B. 215. Haly v. Roby, 6 O. 521 ; Tyler v. «Moore V. Adie, 18 O. 430; Moore Wiuslow, 15 O. S. 364; Church v. V. Stark. 1 0. S. 374. . Cole, 1 Hill, 645; Clark v. Goodwin, 3 Pelton V. Platner, 13 0. 209 ; Dun- 14 Mass. 236. bar V. Hollowell. 34 111. 168. 8 Tyler v. Winslow. 15 O. S. 364. ♦ Brooks V. Todd, 1 Handy, 169 ; 9 Stockwell v. Coleman, 10 O. S. 3a Fox V. Burns. 2 W. L. M. 3S7 ; Goodin V. McArthur. 4 W. L. B. 215. 702 JUDGMENTS. [§ 732. as the latter class of judgments are concernetl, it has been held that in actions thereon the substantial allegation of an action in debt may be made, as they possess no higher char- acter than simple contract debts.^ And it is generally con- ceded that the petition should state the court, the term when rendered, the parties and amount of the judgment, attaching a copy of the transcript thereto, the same being an evidence of indebtedness, though not for the purpose of supplying aver- ments.- The weight of authority seems to hold it unnecessary to aver jurisdiction in case of a foreign judgment.^ This must be restricted to courts of general jurisdiction,* as the facts giving a court of inferior jurisdiction cognizance over the sub- ject-matter involved should be set forth.^ As intimated, the doctrine is maintained in some jurisdictions that the petition on a foreign judgment should show jurisdiction in the court rendering the same ; ^ and indeed this seems the better rule, and more in harmony with other principles that statutes of foreign or sister states should be pleaded as well as the con- struction placed upon them. And it does not seem reasonable that a court should take judicial notice of the jurisdiction of a court rendering a foreign judgment.' The judgment may be set forth according to its legal effect,^ and it will be suffi- cient to state that the debt remains unpaid and is full force, without alleging that it was not appealed f rom.^ In an action on a domestic judgment it will be sufficient to allege that it was duly rendered and that the defendant is indebted to the plaintiff; ^^ it is not necessary to allege jurisdiction or personal service." It is provided by the code, which is considered ap- 1 Memphis Med. Coll. v. Newton. 1 5 Harmon v. Horse & Cattle Co., 9 Handy, 163 : Bank v. Eamsey, 26 Mont. 243. AtL Rep. 837 (N. J., 1893) : Black on 6 Grant v. Bledsoe, 20 Tex. 456 ; Mc- Judgments, sec. 850. Laughlin v. Nichols, 13 Abb. Pr. 244. 2 Dougherty v. Longmore, 2 C. S. '^ See Boone's Pldg, sec. 160. C. R 134; Burns v. Simpson, 9 Kan. 8 Bank v. Veasey, 14 Ark. 671. 658 ; Anderson v. Flack, 88 Ala. 294 ; 9 Choquette v. Artet, 60 Cal. 594. Mount V. Scholes, 120 111. 394. ic Wehrman v. Reakirt, 2 C. S. C. R. 3 Boone's Pldg., sec. 165; Scanlan 29. V. Murphy, 53 N. W. Rep. 799 (Minn., n Burnes v. Simpson, 9 Kan. 658; 1892). Spaulding v. Baldwin, 31 Ind. 376. 4 Butcher v. Bank, 2 Kan. 70; Dodge V. Coffin, 15 Kan. 277. §§ 733-735.] JUDGMENTS. 70a plicable only to judgments of inferior tribunals, that in plead- ing a judgment, or other determination of a court, it shall be sufficient to state that such judgment was duly given or made; and if controverted, the party pleading must estab- lish on the trial facts conferring jurisdiction.^ Sec. 733. Petition on judgment. — On the day of , 18—, at the terra of the court of common pleas of county, Ohio, plaintiff recovered a judgment against the said defendant, in cause No. . entitled , plaintiff, and . defendant, for the sum of $ , etc. That said judgment is wholly unpaid and is still a valid and subsisting judgment against said defendant, and there is due thereon from said defendant the sum of | , etc. \^Prayer.'\ [Attach copy of transcript.'] Sec. 734. Petition on foreign judgment. — On the day of , 18 — , at the term of , 18—, of the court of , in the county of and state of — — , to wit, on the day of , 18 — , in an action there pend- ing wherein plaintiff herein was plaintiff and defendant herein was defendant, plaintiff recovered a judgment aorainst said defendant in the sum of $ . (A copy of the transcript of the said judgment is filed herewith as an exhibit.) That by the laws of said state of said court of is a court of general jurisdiction, having cognizance over \_state the suhject-matter of judgment\ and said court, at the time of the rendition of the aforesaid judgment against said defendant, had acquired jurisdiction over him by personal service. That said judgment is wholly unpaid and is still a valid and subsisting judgment against said defendant, and there is due thereon from said defendant the sura of $ . [Prayer.'^j Sec. 735. What defenses may be made to action on judg- ment. — A judicial record is conclusive only as to those alle- gations which are material and traversable.^ The record of a foreign judgment may be contradicted as to facts necessary to give it jurisdiction." If there are two defendants one may set up want of jurisdiction over his co-defendant.^ A general denial will raise the issue of the rendition of the judgment, 1 O. Code, st'c. 5090, p. l'J9. < Mackay v. Gordon, 34 N. J. L. 2 Wixson V. Devine. 67 Cal. 341. 286. * Penny wit v. Foote, 27 O. S. 600; Spin- V. Corll, 83 O. S. 236. 704 JUDGMENTS. [§ 735. the jurisdiction of the court as to parties and subject-matter.^ It is a good defense to a foreign judgment tiiat it was ob- tained by fraud,^ or want of personal service,^ or in fact any defense may be made wliich would be available in the state where the judgment was rendered.* An answer setting up nul tiel record raises only the question of the existence of the record.'^ An answer that the plaintiff had no valid judgment is not a denial.' 1 Railway Co. v. McCarty, 8 Kan. * Rogers v. Gwinn, 21 la. 5a 125. * Goodrich v. Jenkins, 6 0. 44 2 Dobson V. Pearce, 12 N. Y. 156 ; ^ Gibbon v. Dougherty, 10 O. S. Ward V. Quinlivin, 57 Mo. 425. 365. » Marx V. Fore, 51 Mo. 69. CHAPTER 53. LANDLORD AND TENANT. Sea 738. Action for injury — The pe- tition. 737. Petition by tenant agaipst landlord for injury caused by negligence in failing to provide fire-escapes. 738. Petition by tenant against landlord for injury from defective sidewalk. 739. Action for use and occupa- tion — The petition. 740. Petition for recovery of rent under a lease. 741. Petition to recover rent under lease, to declare the same a lien on the lease- hold, and for a sale thereof. 743. Petition for breach of cove- nant for quiet enjoy- ment Sec. 743. Petition for assignee of lessor against assignee of lessee on covenant to in- sure, 744 General form of petition for breach of covenants — For non-repair, etc. 745. Petition for waste com- mitted by lessee. 746. Use and occupation — De- fenses. 747. Answer of surrender of lease. 748. Answer of eviction of ten- ant by third person. 749. Answer of loss of building by fire — Covenant to re- build. 750. Answer of loss by fire with- out covenant to rebuild. 751. Answer of eviction by law as a defense in an action for rent Sec. 736. Action for injury — The petition.— The gen- eral rule is that the tenant and not the owner of the premises is liable for injuries caused by a failure to keep the same in repair. If they become unsafe, it is the duty of the tenant to place them in proper condition ;i but where the premises are rented with a nuisance upon them, the owner is liable.^ Own- ers of property not occupying the same cannot complain of a nuisance created upon it, unless they suffer special damages, except as it may cause the diminution of the rents.^ Where 1 Burdick v. Cheadle, 26 O. S. 397 Shindlebeck v. Moon, 33 O. S. 264 Burns v. Luckett 3 W. L. B. 517 Williams v. McCready, 2 W. L. B. 45 272 ; Denver v. Solomon, 31 Pac Rep. 507 (Col, 1892). - Denver v. Solomon, supra. 3 Dieringer v. Wehrman, 12 W. L B. 706 LANDLORD AND TENANT. [§ 737. an owner of a building in which is operated an elevator leases the portion of the same containing the elevator, the lessee agreeing to keep the same in good repair and use, the owner is not liable for an accident arising from failure to keep the elevator in repair where it is operated exclusively by th& lessee.^ But where a landlord has retained any portion of the premises under his control, he must keep the same in re- pair and free from danger, and is not excused from liability for an injury to a tenant on the ground that its condition was caused by an independent contractor.^ And where an owner of land rents a store-room in which he places fixtures in an unsafe manner and rents them to another, he is liable to a third person who is injured by the falling of such fixtures.* A tenant who sustains an injury by reason of the failure of the landlord to comply with a law requiring fire-escapes to be placed upon the building may maintain a civil action in damages therefor against the owner.* A tenant whose term has expired, but who leaves certain property in a building by consent of the lessor, does not have such possession as will make him liable for an injury which occurs from not maintain- ing it in a safe condition.^ A landlord is liable for an injury to a person to whom he rents his premises caused by an ob- struction placed on a sidewalk in such a manner as to render the same unsafe.^ A landlord is also liable for an injury caused by the bad condition of a stairway.'' Sec. 737. Petitiou by tenant against landlord for injury caused by negligence in failing to provide fire-escapes.— \_Caption.'] At all times hereinafter mentioned defendant was the owner and in possession and control of a building located at num- ber on O. street, in the city of C, and state of Ohio, which said building was four stories high, the three upper 222; Worcester V. Manufacturing Co., 3 Burdick v. Cheadle, 26 O. S. 393, 41 Me. 159 ; Francis v. Schrockhoflf, See McNeal v. Emery, 8 W. L. B. 53 N. Y. 155; Jutte v. Hughes, 67 265. N. Y. 267. * Rose v. King, 49 O. S. 213 ; R S., 1 Sinton v. Butler, 40 O. S. 158. sees. 2573-84. 2 Dorse v. Fisher, 19 W. L. B. 106. spranke v. St. Louis, 110 Mo. 516. See Taylor on L. &T. 175a; Watkins 6 Brunker v. Gumming. 133 Ind. V. Goodall, 138 Mass. 533; Looney v. 433; 32 N. E Rep. 732 (1892). McLean, 129 Mass. 33. Cf. Purcell ^ Walton v. Kane, 23 N. Y. S. 1029.. V. English, 86 Ind. 34. § 737.] LANDLORD AND TENANT. 707 Stories of which were used as a tenement house. By reason of the premises it became and was at all times the duty of said defendant to provide a convenient exit or ilre-escape from the different upper stories of said building, which should be easily accessible in case of fire. Yet said defendant did not, and had not at any of the times hereinafter mentioned, performed his duty in any respect whatever, and did not pro- vide an}' convenient exit or fire-esca])e from any of said upper stories of said building forming a tenement house as afore- said; nor did he provide any exits or fire-esca))es from any of said upper stories which were easily accessible, or accessible at all to this plaintiff in case of fire. From about the day of , IS — , until after the events hereinafter mentioned, this plaintiff rented from de- fendant three rooms in the rear of said building, on the second story of said building, being part of said tenement house, and he was in possession and occupancy of said rooms and of said part of said tenement house on the da}' of , 18 — . In the night of the day last aforesaid, said building caught fire in the lower or ground story of said building in a dry goods store, and soon thereafter communicated with a pork store in said defendant's said building, which was particularly inflam- mable, owing to the character of business there carried on. Said pork store was carried on by , of which defendant was then, and for a long time previously had been, president and chief stockholder. Plaintiff was in bed when the alarm of fire was given, and to escape from said building he was forced to jump from one of said rear windows into an alloy which ran along the rear of said building, and in so doing suffered the injuries hereafter mentioned. The fire in said lower store rendered the passage leading to said stairs and front of the building impassable, and the said stairs and the front windows of said building inaccessible to those in the rear of said building. Had there been fire-escapes at any of said rear windows, as under the statute in such cases made and provided, and owing to the construction and dangers of said building, there should have been, or had defendant pro- vided said tenement house with convenient exits, easily acces- sible in case of fire, plaintiff would not have been compelled to escape in the way he did, nor have suffered the injuries hereinafter mentioned. In jumping from said window plaint- iff struck on his right side, breaking his right arm at the wrist- joint into a number of fragments [state nature of injury and special daraages']. While seeking to escape plaintiff inhaled so much hot, damp smoke as to seriously injure his lungs, causing a large abscess therein, etc. Said injuries to the ankle,Tungs and spine are permanent in their nature, and will enfeeble and sicken plaintiff as long as he lives. Plaintiff ex- ercised all due and proper cai'e in about said premises, and he. 7t»8 LANDLORD AND TENANT. [§ 738. received said injuries wholly by the carelessness, negligence and breach of duty of defendant aforesaid [and not through any carelessness or negligence of his own]. Plaintiff has there- fore, by reason of the premises and by force of the statute in such case made and provided, been damaged by defendant in the sum of $ , for which sum he asks judgment. M., K & W., Attorneys. Note.— From Rose v. King, 49 O. S. 213. R. S., sec. 2573, makes it the duty of the owner of a tenement house to provide Hre-escapes. Nor is this duty confined to buildings within municipalities. 49 O. S. 213. A tenant injured by reason of failure of the landlord to provide fire-escapes may maintain a civil action in damages. Id. Sec. 738. Petition by tenant a&:ainst landlord for injury from defective sidewalk. — [Caption, etc.] Defendant is the owner of the following described premises, situate in , , to wit: [Desonjdion.'] Plaintiff did on the day of , 18 — , rent said prem- ises from the defendant and is now his tenant. That said tenancy is by the month, renewable monthly, and as a part of said contract said defendant agreed to keep the said prem- ises, including the walk hereinafter mentioned, in good condi- tion and repair. Plaintiff says the plank walk on said premises was rotten tmd defective, and that it was necessary for her, in the proper use of said premises, to use said walk daily. That on the day of , 18 — , before entering upon a new month on said premises, she notified the defendants of the bad and danger- ous condition of said walk, and again on the day of , 18 — . That at said time she notified them that she would leave said premises unless said walk was repaired. That there- upon said defendants promised at each time to fix said walk, and, relying on said promises and upon the contract made by said defendant as to repairs, plaintiff renewed her letting, and by reason thereof was induced to remain. But that the de- fendant, disregarding said promises and neglecting his duty, failed to repair the said walk until after the day of , 18 — , on which day plaintiff had occasion to use said walk in her daily duties. And in so using the same in a careful man- ner, her foot slipped into a hole in said walk and her ankle was broken. Plaintifl says that No. , Ave., is one of a row of houses belonging to the defendants, and that the walk complained of is a walk in the rear of said row, and is a com- mon walk for the common use and benefit of all the occu- ])ants of said row, tenants of the defendants, being a com- mon highway for all said tenants as well as for the plaintiff, and not under the control of the plaintiff. That said walk made by the defendants was by virtue of the contract afore- § 739. J LANDLORD AND TENANT. 709 said under their care and control on the day of , 18 — , on which plaintiff was injured. Plaintiff says that she is a lace-cleaner by trade, tiiat she has dependent upon her own exertions a large family, and that hy reason of said ac- cident she has been prevented from following her trade and has suffered severe bodily ]iain and has been to a large ex- pense by reason of said accident, and that she has been dam- aged in the sum of S . Wherefore plaintiff prays judg- ment against the defendants in said sum of $ by reason of the facts above set forth. Note, — Adapted from Emery v. Dee, error to the superior court of Cincin- nati, Oiiio, No. 1543 ; superior court attirmed by supreme court, March 8, 189'2, in which it was Iield by the superior court (18 W. L. B. 349) that in the absence of a contract the landlord is not bound to keev) the walk in repair. The form, however, is changed to conform to the decision. See Watkins V. Goodall, 138 Mass. 533. If, however, the jireniises were a nuisance at the time of letting, recovery could be had, McNeal v. Emery, 8 W. L. B. 265. Sec. 739. Action for use and occupation — The petition. Several tenants in common who unite in renting property may join in one action for the recovery of rent.' It is not necessary to make a demand for rent when the lease provides that mere non-payment will determine the same.^ It is held that the action will lie only where a tenancy is established;^ and will not lie after ejectment.'* In New York it is held unnecessary to aver or show how the relation of landlord and tenant arose between the parties.* It will not lie at the suit of a purchaser of mortgaged premises sold under a decree against a tenant in possession under the mor-tgagor ; '' nor can it be maintained where possession is held adversely under a claim of title, where no contract, ex))ress or implied, is shown;' or where the circumstances of the case rebut a promise to pay rent.** A grantee of a reversion cannot main- tain the action in his own name against a lessee upon an ex- press covenant contained in the lease for the payment of rent.^ The action cannot be prosecuted in any county other than that where the land lies.'" A lessor may maintain an action for rent against his lessee on an express covenant to pay rent during the term of his leasehold, even though the latter has 1 Gaboon v. Kinen, 42 O. S. 190. 7 Cincinnati v. Wall, 1 O. S. 222. 2 Sweeney V. Garrett, 2 Disn. GOl ; SHeidelbach v. Slader. 1 Hand}% City V. Fitzgerald, 2 C. S. C. R. 61. 457 ; Mitchell v. Pendleton, 21 O. S. 3 Richey v. Hinde, 6 O. 371. 664 ; Despard v. Wallbridge. 15 N. Y. 4 Butler V. Cowles, 4 O. 205. 374 ; Moore v. Harvey. 50 Vt. 297. 5 Waters v. Clark, 22 How. Pr. 104. » Crawford v. Chapman, 17 O. 449. <> Peters v. Elkins, 14 O. 344. ^0 Genin v. Grier, 10 O. 210. 710 LANDLORD AND TENANT. [§§ 740, 741. assigned all bis interest and the lessor has accepted rent from the assignee of the term.^ Where a tenant holds over after the expiration of his term the landlord may treat him as a trespasser or a tenant for another year upon the terms of the prior lease; 2 and where the tenure is uncertain the amount recoverable is the fair rental vaiue.^ The plaintiff need not set forth an implied demise, but may declare for use and occu- pation and recover on the special facts shown.* AVhere rent is payable in monthly instalments, an action for each instal- ment may be maintained as it becomes due.'^ Sec. 740. Petition for recovery of rent under a lease. — Plaintiff is the owner in fee-simple of the following de- scribed premises situate in the city of , etc. : \ Description.'] On the day of , IS — , plaintiff leased said premises to the defendant 6. D., for the term of years, beginning on the day of , 18 — , and ending on the day of , 18 — , at a yearly rental of $ , to be paid on the day of , 18 — . Defendant took possession of said premises in accordance with the terms of said lease on the day of , 18 — , and has continuously occupied the same since said date, etc., but has not paid the rent for , 18 — [state time\ amount- ing to the sum of 8 . There is due from the said defendant to plaintiff the said sum of 8 for rent aforesaid, for which he asks judgment. [Attach copy of lease as exhibit under sec, 5085', ante., sec. 57.] Note.— See also form in Calioon v. Kinen, 43 O. S. 190. If a person i^ occupying premises in such a manner that a contract to pay rent cannot be implied, rent cannot, in the absence of an express contract, be recovered. Mitchell V. Pendleton, 21 O. S. 664. See 15 N. Y. 181 ; oO Vt. 297. If there be a void contract to purchase, the person occupying the premises will be liable for rent. Mattox v. Hightshue. 39 Ind. 95. The giving of a note by lessee to lessor is not payment of rent. Sutliflf v. Atvvood, 15 O. S. 186. Sec. 741. Petition to recover rent under lease, to declare the same a lien on the leasehold, and for a sale thereof.— On the day of , 18 — , plaintiff duly executed and delivered to said defendant S. A. F. a lease for a term of years, from the day of , 18—, to the day of 1 Taylor v. De Bus, 31 O. S. 468; even though the premises have been Sutliff V. Atwood, 15 O. S. 186 ; held under a void lease. Wilson v. Smith V. Harrison, 42 O. S. 180 ; Lodge Trustees, 8 O. 174. V. White, 30 O. S. 569. The action 2 Wheeler v. Grouse, 1 O. C. C. 234. cannot be sustained against the per- ^ Gaboon v. Kinen. 42 O. S. 190. son to whom assigned. Fulton v. * Morris v. Niles, 12 Abb. Pr. 103 : Stuart, 2 O. 216; Jones v. Smith. 14 Pierce v. Pierce, 25 Barb. 248. O. 606. The action may be sustained 5 Fox v. Althorp, 40 O. S. 322. ;§ 742.] LANDLORD AND TENANT. 711 ■ , IS — , for the following described real estate situate in coant3% Ohio, to wit': S^Desanption of j^remises.'] Plaintiff further says that the rent reserved in said lease and which said defendant S. A. F. in and by said lease agreed to ])ay to said plaintiff was and is $ per annum, payable •quarterly on the first days of June, Septemljer, December and March in each year during said term, being the sura of dollars each quarter. And said defendant, in addition to the payment of said rent, also agreed and {promised to pay all taxes and assessments on said premises during said term; that the said defendant entered into possession of said above- described real estate under said lease at the date thereof, and has ever since held possession thereof, and thereby became indebted to and liable and bound to pay said plaintiff the sev- eral instalments of rent falling due, as follows: [Copy instal- r/ients dtie.'] Plaintiff says that under and according to the terms of said lease said rent is a lien on said leasehold estate and all the in- terest of said defendants therein. A copy of said lease is hereto attached, marked " Exhibit A." And plaintiff further says that in and by said lease said ■defendant had and has the privilege of purchasing the fee of said premises at any time during said term for the sum of $ after payment of all rents and taxes then due. Plaintiff further saj^s that said defendant S, A. F. failed and neglected to pay said ground rent or any part thereof, and each and all of said instalments of ground rent are due and unpaid with interest on each instalment from the date of its maturity; and said defendant wholly neglected to pay the taxes on said lots as required by said lease. There is due plaintiff from said S. A. F. for rent of said real estate the sum of dollars, v/ith interest on each in- stalment thereof from the date of its maturity as above stated. Plaintiff says that J. E. F., the husband of said S. A. F., joined with her in the execution of said lease. Wherefore said plaintiff asks for a decree against said S. A. F. for § , with interest as above stated, and that the same be decreed to be a lien on said leasehold estate and premises, and that the court wnll decree a sale of said leasehold estate and all interest of the defendant therein for the payment of said indebtedness, and he asks for all other pro])er relief. C. & C, Attorneys for Plaintiff. Note.— Adapted from Evans v. Fortney, error to circuit court of Hamil- ton county, Ohio, Supreme Court, unreported, No. 1954. Sec. 742. Petition for breach of covenant for quiet en- joyment. — On the day of , 18 — , plaintiff duly executed and delivered to said defendant a lease for a term of years, from the day of , 18—, to the (hiv of ^1^— , 712 LANDLORD AND TENANT. [§ 743. for the following described premises situate in — — , etc.: [Deserijytioii.l " That said lease was made at a yearly rental of $— - — , and contained a covenant that said lessor, for himself, his heirs, executors and administrators, would permit plaintiff, upon promptly paying the rent as therein stipulated, to quietly enjoy the possession of said premises during said terra. That the plaintiff thereupon entered into possession of said premises under said lease, but on the day of , 18 — , was lawfully evicted therefrom by K. O., who possessed the paramount title to the same. That the plaintiff while in possession of said premises car- ried on the business of , and was compelled to expend the sum of $ in removing his goods to another store-room, and lost the trade of numerous customers by the removal, and by reason of the premises was damaged in the sum of $ , for which he asks judgment. Note.— See McAlpin v. Woodruff, 11 O. S. 120; Collins v, Lewis, 54 N. W. Rep. 1056. It seems unnecessary to attach a copy of lease when the action is for breach of covenants. Sec. 743. Petitiou by assignee of lessor against assignee of lessee on covenant to insure. — That on the day of , IS—, by a certain lease then duly made between S. A. P. and J. C. F., said C. D. leased to E. F. the following described premises, to wit [describe ])reiii- ise8\ for a term of years, beginning on the day of , 18 — , and ending on the day of , 18—, at a yearly rental of $ . That by one of the covenants in said lease the said lessee was to keep said premises fully insured in the sum of % , for the benefit of the lessor, and that if at any time said lessee should fail to keep the same so insured, the said lessor, S. A. P., might cause an insurance to be made on said prem- ises at the expense of said lessee and in the name and for the benefit of said lessor. That on the dav of , 18—, C. D. sold and assigned to the plaintiff all his "^interest in said lease, and on or about said date all the interest of E. F. in the premises and lease was sold under an order of court to satisfy a judgment against said E. F., and the defendants became the purchasers at said sale of the interest of said lessee in said ])remises. That defendants thereupon took possession of said premises under said sale, while a policy of insurance thereon for the sum of 8 . procured by E. F. in pursuance of said cove- nant, was still in full force" and effect. That on the day of , 18—, said policy of insurance expired. That the plaintiff thereupon notified defendants to insure said premises as required by said covenant, which they neglected and re- fused to do. §§ T44r-746.] LANDLORD AND TENANT. 713 That on the clay of , 18 — , the plaintiff insured the same according to the tenor and provisions of said cove- nant and expended therein the sum of $ ■. That no part thereof has been paid, and there is now due from the defendant to the plaintiff thereon the sum of $ . Note. — From Masury v, Southworth, 9 O. S. 341. The assignee of a lease may bring suit in his own name ; a covenant to insure runs with the land. Id. Sec. 744. General form of petition for breach of cove- nants for non-repair, etc. — On the day of , 18 — , plaintiff duly executed and delivered to said defendant C. D. a lease, and thereby leased to said defendant, for the term of years, from the day of , 18 — , to the day of , 18 — , at a 3'early rental of $ , the following described premises situate in the county of , Ohio, to wit : [DesGri2)tw?i.'] That by the terms of said lease said defendant expressly covenanted that he would [cojji/ covenant as to repairs or any other\ That said defendant took possession of said premises under and by virtue of said lease, and continued to occupy the same during said term, but has not \state covenant hroken\. That by reason of the failure of said defendant to fully and completely comply with the terms of said lease aforesaid, said premises have become greatly depreciated in value in the sum of $ . \_Prayer.'] Note. — As to liability of tenant for repairs, see Scott v. Haverstraw Brick Co., 135 N. Y. 141 ; Lydecker v. Brintuall, 33 N. E. Rep. 399 (Mass., 1893). Sec. 745. Petition for waste committed by lessee. — [Averments as in ante, sec. 71t2, to ■'■\J That the defendant lessee, while so occupying said premises, on the day of , 18 — , in violation of the terms of his said lease, and not being authorized by this plaintiff, did \set forth waste committed^ That by reason of said wrongful acts of said defendant in [state waste committed] has greatly damaged plaintiff's prem- ises [state any special damages] in the sum of % , for which sum plaintiff asks judgment against said defendant. Sec. 746. Use and occnpation — Defenses. — If the build- ing be destroyed by the elements or other cause, without fault of lessee, so as to become unfit for occupancy, he will not be liable to pay any rent to the lessor or owner thereof for such injury, unless otherwise provided.^ In an action by the land- 1 R. S., sec. 4113; Avery v. House, 2 O. C. C. 246. 714 LANDLORD AND TENANT. [§ 747. lord ngainst the tenant to recover possession, it is no defense to show that the parties were both in pari delicto in the un- lawful use of the premises causing the forfeiture.^ A tenant is entitled to a proportionate reduction of rent where he is evicted from a portion of the premises by a stranger under a paramount title ; and he is entitled to be relieved entirely if evicted by his landlord.^ Where there has been a breach of a covenant for quiet enjoyment, and an action is brought to recover rent subsequently falling due, the tenant may counter- claim and recover his damages.^ The tenant may also make a defense that the landlord has neglected to comply with the terms of the lease so that the premises have become unten- able, by reason of which he was compelled to leave the same.* The general rule is that in actions for rent the tenant will not be permitted to question or impeach the landlord's title. But there are exceptions. The tenant may show that the land- lord's title has expired, or has been terminated or extinguished by his own act or by operation of law.^ After the termina- tion of a lease the lessee may, without surrendering the same, assert a claim to a superior title.^ A defendant may unite, as defenses to an action for rent, want of legal or valid consider- ation for the lease, and a counter-claim for damages for a vio- lation of the terms of the lease, if it be found that it is supported by a proper consideration, without being compelled to elect upon which he will rely.^ Sec. 747. Answer of surrender of lease. — Defendant alleges that on the day of , 18 — , before the rent sued for by plaintiff became due and payable from the defendant under the lease set forth in plaintiff's petition, Justice V. Lowe. 26 O. S. 372. Robertson v. Biddell, 13 So. Rep. 358 2 Crown Mfg. Co. t. Gay, 13 W. L. (Fla., 1893); Lane v. Young, 21 N. Y. B. 188 (Ham. Co. D. C, 1885). S. 838 ; Jackson v. Rowland, 6 Wend. 3 Collins V. Lewis, 54 N. W. Rep. 670 ; Despard v. Walbridge, 15 N. Y. 1056 (Minn., 1893); Gobel v. Hough, 374; Hilbourn v. Fogg, 99 Mass. 12. 26 Minn. 252. 6 Dodge v. Phelau, 21 S. W. Rep. 4 Minneapolis v. Williamson, 52 N. 309 (Tex., 1893) ; McKie v. Anderson, W. Rep. 986 (Minn., 1892) ; Lawrence 78 Tex. 207. V. Marble Co., 20 N. Y. S. 698 ; Pierce ^ Hooven & Allison Co. v. National V. Joldersma, 91 Mich. 462 ; Young v. Cordage Co., 27 W. L. B. 18 (Cin. Collett, 63 Mich. 331. Super. Ct.), and cases cited. s Rooker v. Demerit, 1 O. C. C. 156; §§ 748-750. J LANDLORD AND TENANT. 715 he surrendered said premises to plaintiff, who accepted the same. Sec. 748. Answer of eviction of tenant by third person.— [Caption.'] Tliat on the day of , 18—, and after the making of the lease set forth in said petition, and before any part of the rent demanded in said petition became due, one E. F. brought suit in the court of of county, and state of Ohio, against this defendant and said plaintiff to re- cover ]iossession of said premises, to which suit said plaintiff appeared, filed an answer and stood trial, and such proceed- ings were had that on the day of , 18 — , judgment was recovered by said E. F. against this defendant and said plaintiff for the possession of said premises, and thereupon this defendant yielded the possession of said premises to said E. F., and on an execution issued on said judgment said ])laint- iff was duly ousted on the day of , 18 — , by the sheriff of county, which judgment is still in force and un- reversed. Sec. 749. Answer of loss of buihling by fire — Covenant to rebuild. — [Caj)tion.'\ That in the lease executed by the plaintiff to the defendant for the premises described in the petition the plaintiff cov- enanted that if the building so leased b}' defendant should, during the time it was so leased, be destroyed by tire, he woukl immediately rebuild it. That before any | art of the rent sued for became due said building was, without any fault of defendant, destro^-ed acci- 'dentalh^ by tire, by reason whereof defendant has not been iible to occupy any \mvt of said premises. That the plaintiff has wholly failed to rebuild said building. [Prayer.] Note.— R S., sec. 4112. Sec. 750. Answer of loss by fire without covenant to re- build. — [Caption.] That the premises leased by defendant for which the plaint- iff claims rent consisted of three rooms in a large four-story building, occupied by stores below and offices on the upper floors, severally, by different tenants. That on the day of , IS — , and before the rent claimed or any part thereof was due, said building, without the fault of defendant, was wholly destroyed by tire, by rea- son whereof defenthmi has since been unable to occupy said premises. 716 LANDLORD AND TENANT. [§ 751^ Sec. 751. Answer of evictiou by law as a defense in an action for rent. — [Caption.'] Defendant alleges that after he went into possession of the premises under the lease set forth in plaintiff's petition, and before the rent thereon became due and payable, the said plaintiff ejected and dispossessed defendant from said prem- ises, and that plaintiff has since had possession thereof. CHAPTER 54. LIBEL AND SLANDER. Sec. 752. Libel and slander — Defined. 753. What is actionable. 754. Libel and slander — The pe- tition. 755. Petition for libel — Illus- trating use of innuendo. 756. Petition for libel charging dishonesty in business. 757. Petition charging slander in speaking words action- able per se. 758. Petition charging slander by uttering words indi- rectly charging a crime. 759. Petition in slander charging perjury. 760. Petition for libeling an at- torney — with innuendo. Sec. 761. Petition in slander in charg- ing unchastity of femala 762. Slander of title. 763. Petition charging slander of title. 764. Libel and slander — The an- swer. 765. Answer to charge of per- jury. 766. Answer in mitigation of libel. 767. Answer claiming justifica- tion. 768. Answer of want of chastity. 769. Answer that defamatory matter was printed as part of judicial proceed- ings. Sec. 752. Libel aud slander — Defined. — It is a settled rule of law that every publication of language which tends to injure another in his business, trade or employment is, if without justification, libelous or slanderous, as the case may be, and actionable j^f?/" se} Where one falsel}" and maliciously orally charges another with anything involving moral turpi- tude, which, if true, will subject him to infamous punishment or will tend to exclude him from societ}^, or prejudice him in his office, profession, trade or business, the party accused may seek redress by suit in slander, and recover without proof of actual damages. Where the words are false, the law infers malice; and where their actual tendency is to injure, the law presumes damages.^ It is not necessary that the words used in a published article be slanderous to maintain an action for libel.' To speak or write of a trader that he is insolvent, or 1 Watson V. Trask, 6 O. 533. Evening News, 39 Mich. 636. See 2 Watson V. Trask, supra; Hatt v. Odgers on L. & S., p. 20, and note. News Assoc, 94 Mich. 114; Tryon v. ^Prosser v. Callis, 117 Ind. 105. 718 LIBEL AND SLANDER. lS '-^^ of an innkeeper that his house is infected with a contagious, disease, or to impute dishonesty or incapacity to one in his business, is actionable without any averment or proof of spe- cial damages.^ "Where the language does not import defama- tion, the special damages suffered must be alleged.'^ Sec. 753. What is actionable. — The general rule of law is ttiat where the charge, if true, would subject the plaintiff to an indictment for a crime involving moral turpitude, or to an infamous punishment, the words are actionable per se without proof of actual damages.^ In an action against another for 1 Hodge, S. & L., 30 ; Whittaker v. Bradley, 16 E. C. L. 310 ; Pollard v. Lyon, 9 1 U. S. 235 ; Price v. Conway, 134 Pa. St. 340 ; Manufacturing Co. V. Perkins, 78 Mich. 1 ; Orr v. Scho- field, 56 Me. 483 ; Moore v. Rolin. 15 S. E. Rep. 520 (Va., 1892) ; Nevvbold V. Bradstreet. 57 Md. 38. 2 Moore v. Rolin, supra; Townshend on S. & K, sec. 146 et seq. 3 Alfele V. Wright, 17 O. S. 238 ; Watson V. Trask, 6 O. 531 ; Dial v. Holier, 6 O. S. 228. Words imput- ing the crime of larceny. Ball v. White, 39 O. S. 650; Reinhardt v. Faschnacht, 4 O. C. C. 321. Tliief. Fedtman v. Hancock, 1 O. C. C. 238. See Hollingsworth v. Shaw, 19 O. S. 432 ; Hamm v. Wickline. 26 O. S. 81 ; Cheadle v. Buell, 6 O. 67 ; McKean V. Folden, 2 W. L. M. 146. False swearing to be actionable must be such as would be perjury. Wilson V. Oliphant, W. 153; Waggoner v. Richmond, W. 173. Charging in sub- stance that the person would com- mit the crime of perjury is libel per se. Sanford v. Rowley, 93 Mich. 119. An action cannot be main- tained for calling one a deserter with- out an averment of special damages. Hollingsworth v. Shaw, 19 O. S. 430. If the words spoken, taken in con- nection with matter set up by way of inducement, clearly impute the commission of a crime, they are ac- tionable even though under the cir- cumstances and manner of speaking them they might not be actionable per se. Karger v. Rich. 81 Wis. 177. But if language used be calculated- to induce those who read it to be- lieve a person of whom it is written guilty of crime, it is sufficient to support the action. Democrat Pub. Co. V. Jones. 18 S. W. Rep. 652 (Tex., 1892); Zeeliff v. Jennings, 61 Tex. 458; Stroebel v. Whitney, 31 Minn. 384 ; Lewis v. Hudson. 44 Ga. 568 ; Proctor v. Owen. 18 Ind. 21 ; Pros- ser V. Callis, 117 Ind. 105; Crocker v. Hadley, 102 Ind. 416. If words ia their ordinary acceptance amount to a charge of fornication, and the speaker so intends, and those who hear so understand, they are action- able. Rausou V. IMcCurley, 31 N. E. Rep. 119 (111., 1892); Barnes v, Ha- mon, 71 111. 609; Schmisseur v. Kreilich, 92 111. 347. But an action cannot be maintained for words which impute a crime where it ap- pears from all the circumstances that they had relation to a tranac- tion not criminal, and were so under- stood. Brown v. Meyers, 40 O. S. 99 ; Carmichael v. Shiel, 21 Ind. 66;. Williams v. Mines, 18 Conn. 473. A publication that a member of an official board was a liar, thief and perjurer is libelous per se. Orth v. Featherly, 87 Mich. 315. To print § 754] LIBEL AND SLAXDEK. 71^ falsely charging perjury, it is not necessary by colloquium to aver that the word was used in reference to testimony in a ju- dicial proceeding in which the plaintiff had been sworn as a witness.! A petition which sets out the language used, and states that in using the same the defendant intended to charge plaintiff with a crime, contains a good cause of action.- Charging a teacher with punishing a pupil so severely that it caused death is actionable;* and so with a charge that a county official published a false statement of the financial con- dition of the county; ^ or charging a clergyman with drunken- ness;'^ or a man with being afflicted with venereal disease; ^ or words s])oken of a female which tend to bring her into con- tempt and prevent her from occupying a proper position in society;^ or charging another with maliciously removing a corner-stone on lands ; ^ or a publication by a railroad com- pany that certain goods shipped by a consignor remained un- delivered because the consignee was unable to pay the freight ; ^ or a newspaper publication making charges against a public official which tend to diminish public respect and confidence.'* Words spoken, however, of an official in the discharge of du- ties are not actionable.'^ Nor is it actionable per se to publish of another that he is a political traitor and liar.'^ It is libel- ous, and therefore actionable, for a notary public to falsely and maliciously protest a negotiable instrument.'* Sec. 754. Libel and slander — The petition.— The codes of some states have simplified the method of pleading in ac- tions for libel and slander by providing that it shall be suffi- aud publish of a person that he "is as charging want of chastity, Bar- said to have been in the work-house, nett v. Ward, 36 O, S. 107. and to have a criminal record," is 8 Dial v. Holter, 6 O. 228. libelous per se. Post Pub. Co. v. 9 Campbell v. Bostick, 22 S. W. Maloney, 50 O. S. 71. Rep. 828 (Tex., 1893), 1 Stickels v. Hall, 3 O. C. C. 398 ; lO Bishop v. Gazette Co., 4 W. L. B. Green v. Long, 2 Caiues, 91. 1082 ; Spiering v. Andrae, 2 Clev. Rep. 2 Reinhardt v. Faschnacht, 4 O. C. 26. 0. 321. 11 Goodeuow v. Tapin, 1 O. 60. 3 Doan v. Kelley, 121 Ind. 413. J2 Settlage v. Kampf, 19 W, L. B. ^Prosser v. Callis, 117 Ind. 105. 321. SHayner v. Co%vden, 27 O. S. 292. 13 May v. Jones, 15 L. R A. 637; 88 ^Kaucher V. Blinn, 29 O. S. 63. Ga. 308 (1891). See Van Epps v.. TMalone v. Stewart, 15 O. 319; Jones, 50 Ga. 238. Murray v. Murray, 1 C. S. C. R 290 ; 720 LIJ5KL AND SLANDER. [§ 754. cient to state, generally, that the defamatory matter was pub- lished or spoken of the plaintiff. If the allegation be denied, the plaintiff must prove the facts showing that the defamatory matter was spoken of him. It is not necessary to set out any obscene word, the substance only being essential.^ Codes of other states provide in so many words that it is not necessary to state extrinsic facts to show the application of the defam- atory matter to the plaintiff.^ These provisions have caused confusion upon the question of the necessity and use of the innuendo and colloquium, as well as the necessity of averring extrinsic facts. It seems to be considered by some authorities that the code dispenses with the necessity of pleading extrin- sic facts. But the innuendo must be used where the publica- tion does not appear on its face to be of a defamatory char- acter, and only becomes so by reference to extrinsic facts, in which case the existence of those facts must be alleged to show a libelous meaning.^ But where the words themselves tend to injure the reputation, the allegation of extrinsic facts is not necessary.^ The office of an innuendo is to direct attention to the charge made. It can neither enlarge nor re- strain the natural sense and import of words used. If they are not in themselves libelous, or are incapable of a libelous mean- ing without the aid of an innuendo, they cannot be given that capability by the use of an innuendo.^ But when the language is ambiguous, or appears upon its face to be harmless, it may be explained by an innuendo and rendered actionable.® It is 1 Ohio R a, sec. 5093 ; Nebraska mond, 14 How. Pr. 265 ; Wallace v. Code (1891), sec. 46G8; Swearengen Bennett, 1 Abb. N. C. 478. V. Stanley, 23 la. 115 ; Wesley v. Ben- ■» Moore v. Bennett, 48 N. Y. 472. nett, 6 Duer, 688. A complaint which 5 Tappan v. Wilson, 7 O. (Pt. 1), 190 ; does not set out the slanderous words Fleischman v. Bennett, 87 N. Y. 231 ; is insufficient. Their effect, only, will Arrow Steamship Co. v. Bennett, 25 not answer. Small v. Fisher, 2 Ind. N. Y. S. 1029 ; Bishop v. Gazette Co., App. 426; 26 N. E. Rep. 714. 4 W. L. B. 1082. 2 N. Y. R S.,sec. 535 ; Iowa Code, sec. 6 Bishop v. Gazette Co., 4 W. L. B. 2681 (1889), sec. 4208. See Kinyon v. 1082 ; Start v. Blogg, 10 Q. B. 908 ; Palmer, 18 la. 377. Pond v. Hartwell, 17 Pick. 269 ; May- 3 Harrison v. Manship, 120 Ind. 43; nard v. Insurance Co., 47 CaL 207: McFadin v. David, 78 Ind. 445; Wachter v. Quenzer, 29 N. Y. 547; Wachter v. Quenzer, 29 N. Y. 547 ; Glatz v. Thein, 47 Minn. 278. See Fry V. Bennett, 28 N. Y. 324; Dias v. Stevens v. Handley, W. 123. Words Short, 16 How. 322 ; Blaisdell v. Ray- not actionable in themselves should § 754.] LIBEL AND SLANDER. 721 not the office, however, of the innuendo to make averments.* The court must determine whether the language bears the meaning ascribed to it by the innuendo, and whether the same is trulv assigned is for the iurv.^ The provisions of the code heretofore referred to were clearly intended to dispense with the necessity of the collo- quium, as it provides that it must be stated that the words were spoken of the plaintiff.* In any event, if it be denied that the words were spoken of and concerning the plaintiflF, they must be established.-* It is, however, dispensed with only when it is unnecessary to show that the defamatory words applied to the plaintiff. The averments required in common-law pleading to show the meaning of the words must still be made.^ The petition must also show that the libelous matter was published of some person in some way designated or indicated, so that reference may be made to it by the pleader as appli- cable to the plaintiff, and the actionable quality of the matter pubHshed as relating to the plaintiff must appear.'' And where the name of the person libeled is not given it will be suflflcient to aver that the defamatory matter w^as published of the plaintiff.^ The defamatory matter should be specified in the body of the petition with precision, and there should be introduced by way of inducement, v. Craig, 80 Mo. 367 ; Powell v. Craw- Wilson V. Runyou, W. 653 ; Brown ford, 107 Mo. 595. V. Kincaid, W. 87. Or special dam- 2Gohen v. Volksblatt Co., 31 W. L. ages should be alleged. Foster v. B. Ill ; Townshendon S.& L,6ec.342. Boue, 38 111. App. 613 ; Benz v. 3 o. Code, sec. 5093 ; Nebraska Code Weidenhoef t, 83 Wis. 397 ; Erwin v. (1891), 4668. But see Powell v. Craw- Dezell, 64 Hun, 391 ; Barnard v. ford, 107 Mo. 595. Press Pub. Co., 17 N. Y. S. 573; "> Harris v. Zanone, 93 Cal. 59-65. Odgers, S. & L., p. 112. Whether the 5 Bliss on Code Pleading, sec. 305; language will bear the meaning as- Fry v, Bennett, 5 Sand, 54 ; Petsch cribed it by the innuendo the court v. Dispatch P. Co., 40 Minn. 291 ; Mc- must determine, and the jury must Laughlin v. Russell, 17 O. 479; Pike decide whether such a meaning was v. Van Wermer, 5 How. Pr. 175. intended. English v, English, 11 W. 6 Carlson v. Tribune Co,, 47 Minn. L. B. 123; Democrat Pub. Co. v, 337; 50 N. W. Rep. 229; Smith v. Jones, 18 S. W. Rep, 652; Patch v. Coe, 22 Minn, 276; Petsch v. Printing Association, 38 Hun, 568; Harris v. Co., 40 Minn, 291; 41 N. W. Rep. Zanone, 93 Cal. 59-65. 1034 ; Small v. Fisher, 2 Ind. App. 1 Bundy v. Hart, 46 Mo. 464 ; Cristal 426. ^ Powers V, Seaton, 3 W. L, M. 532. 46 722 LIBEL AND SLANDEK. [§ 754 be direct allegations pointing out in wiiat particular the lan- guage was libelous.^ AVlien words are published in a foreign lano^uage thev should be set forth in that language, accom- panied by a translation of their meaning in English, and an averment that they were understood by those who heard them.^ It is a general rule that malice need not be alleged where words are actionable i^er se? In cases of libel and slander a distinction between malice in law and in fact is recognized. The former is inferred from the doing of a wrongful act with- out justification. The latter is distinguished from malice in law in. that it is proved expressly, while the former is inferred from the publication of the false language. Even though it be inferred from the publication, it is nevertheless a question of fact in respect to which evidence may be admitted to show what it is, or the proper inference to be drawn.* Where actual malice is shown, punitive damages may be assessed.^ To render words which are of such character, or which have been spoken under such circumstances, that they may fall within the purview of " privileged communications," actionable, actual malice must be averred and proved.^ An action will not lie 1 Brown v. Durham, 22 S. W. Rep. 394 ; Simonsen .v. Herald Co., 61 868 (Tex., 1893) ; Bradstreet v. Gill, Wis. 626 ; Bower v. Deideiker, 38 la. 77 Tex. 117; Lynde v. Johnson, 39 418. See Bechtell v. Shatler. W. 107 ; Hun, 13 ; Cassidy v. Daily Eagle, 138 Lettmann v. Ritz, 3 Sand. 734 ; Glatz N. Y. 239. The particular words v. Tliein, 47 Minn. 278. published and not their purport or 3 Robinson v. Hatch, 55 How. Pr. 55. substance must be set forth. Church- ^ gmith v. Rodecap, 31 N. E. Rep. ill V. Kimple, 3 O. 409; Rock v. Mc- 479 (Ind.. 1892); Townshend, S. & L. Clarron, 95 Ind. 412 : Sparts v. Pound- (4th ed.) 68. See 6 L. R A. 680. note. It stone, 87 Ind. 522; Smail v.' Fisher, should be stated that they were pub- 2 Ind. App. 426. The words must be lislied maliciously. Hovey v. Pencil proved substantially as charged. San- Co., 57 N. Y. 119; Kendall v. Stone, ford V. Geddes, 15 111. 228 ; Welborn 5 N. Y. 14 ; Dial v. Holter, 6 O. S. 228. V. Odell, 29 111. 457 ; Ranson v. Mc- Evidence of slanderous statements Curley, 31 N. E. Rep. 119. And it other than those set forth in the pe- must state that they were spoken tition may be introduced as bearing concerning the plaintiff. Joseph v. on the question of malice. Enoss v. Christie, 8 W. L. B. 190. And where Enoss, 135 N. Y. 609. the words have a provincial meaning, ^Orth v. Featherly, 87 ^lich. 315; that meaning must be averi-ed as a Commercial Gazette Co. v. Grooms, substantive fact Seller v. Jenkins, 21 W. L. B. 292. 97 Ind. 430. 6 Crist v. Bradstreet, 17 W. L. R 2Wormouth v. Cramer, 3 Wen 1. 138; Bishop, Non-Cont. Law, sec. § 754.] LIBEL AND SLANDER. 723 for libelous statements classed as privileged communications, of which rule there are many illustrations; for example, state- ments in an answer honestly made under advice of coun- sel, without malice;' or by a witness testifying in a judicial proceeding; - or by an attorney for words spoken in the course of a judicial proceeding;' or in a communication addressed to a court pertaining to the character of an applicant for ad- mission to the bar;^ or in fact any statements made in plead- ings or court proceedings, though maliciously and falsely made.* If words are not actionable per se, special damages should be averred ; ^ or they may be shown to be slanderous by an allegation that at the time and place they were spoken they had an actionable meaning.'' It has been held that a petition which alleges that " all of said words were false and defam- atory, and fhat by reason of speaking said false, slanderous and defamatory words the plaintiff has been greatly damaged," is sutficient as against a demurrer.^ In charging injury to one in his vocation it is not necessary to allege that the plaintiff was in receijit of emolument,^ though it should be averred that the words were used in reference to his profes- sion.^" When an action is brought for slanderous words spoken at different times, each set of words constitutes a sep- arate cause of action and should be separately stated and numbered. ^^ Though a seller of a newspaper containing a libelous article is not liable unless he had knou'ledge of the 306 ; Railway Co. v. Richards, 73 & Bartlett v. Christhilf, 30 W. L. B. Tex. 575; Campbell v. Bostick, 23 193. See p. 734, note 3. S. W. Rep. 838 (Tex., 1893). " Basil v. Elmore, 65 Barb. 637. 1 Lanning v. Christy, 30 O. S. 115 ; ^ Emmerson v. Marvel, 55 Ind. 365 ; Hill V. Miles, 9 N. H. 13 ; Kidder v. Work v. Stevens, 76 Ind. 181 ; Logan Parkhurst, 3 Allen, 393 ; Marsh v. v. Logan, 77 Ind. 558. Ellsworth, 50 N. Y. 311. 8 Born v. Rosehovv, 84 Wis. 630 ; 54 -' Hunckel v. Voneiflf, 20 W. L. B. N. W. Rep. 1088 (1893). 186 (Md.) ; Townshend on L. & S., sec. 9 Hayner v. Cowden, 37 O. S. 293. 233 ; Lies v. Gaster, 43 O. S. 631 ; 10 Van Epps v. Jones. 50 Ga. 238 ; Cooley on Torts, 311; Lanning v. Barnes v. Trundy, 31 Me. 331 ; Bloss Christy, 30 O. S. 115. v. Tobey, 2 Pick. 320; Starkie on 3 Maulsby v. Reifsnlder, 20 W. L. B. Slander, 109, 106. 189 (Md.). iiSwinney v. Nave, 22 Ind. 178; i Wilson V. Whitacre, 4 O. C. C. Fleischraan v. Bennett, 87 N. Y. 231. 15; Bigelow on Torts, pp. 52, 84. See ante, sec. 28, n. 11. 72-1 LIBEL AND SLANDER. [§ 755. article, yet it is not necessary to allege knowledge on his part, as that is matter of defense.^ It is not essential that the plaintiff in stating his cause of action plead good character, and the prevailing doctrine is that he is not allowed in the first instance to give evidence to show that fact. It is only necessary for him to prove good character when it has been assailed by the defendant.- While the defendant is permitted to show the general bad character of the plaintiff he is not allowed to prove any spe- cific act.3 An allegation in the petition that the plaintiff's character is good and a denial thereof in the answer does not raise a material issue.* Sec. 755. Petition for libel — Illustrating use of innu- endo. — Plaintiff avers that the said defendants, and each and both of them, well knowing the good name, character, and reputa- tion of the said plaintiff at said village, county and state afore- said, for the purpose, and with malicious and wicked intent, to injure plaintiff in his good name, character and reputation, and to bring him into public scandal, infamy and disgrace with and among his neighbors and other good citizens of said county and state, and to cause it to be believed by said neigh- bors and citizens aforesaid that the plaintiff was guilty of the crime and offense of falsely and fraudulently procuring and obtaining the names and signatures of the said defendants, and each and both of them, to certain valuable written orders and contracts by false and fraudulent pretenses, did on or about the day of , 18—, at , in the county of , and state" of Ohio, aforesaid, falsely, wilfully, ma- liciously and wickedly write, compose and pubhsh, and did then and there cause to be written, composed and published, of and concerning this plaintiff, a certain false and malicious libel in a certain newspaper called " The Independent," printed and published at said , county, Ohio, which has a large and general circulation therein, and which said false and malicious libel, so written, composed and published by said 1 Street v. Johnson, 80 Wis. 455 ; dence. 3 Sutherland on Damages, S. C, 14 L. R. A. 637. 655 ; Shroyer v. Miller, 3 W. Va. 158. 2 Blakeslee v. Hughes, 50 O. S. 490 ; 3 vick v. Whitfield. 2 O. 222 ; De Newell on Def. & S., pp. 771-823. Witt v. Greenfield, 5 O. 225; Fitz- The law presumes plaintiff's charac- gerald v. Stewart, 53 Pa. St. 343. ter to be good (1 Hilliard on Torts, * Stafford v. Morning Journal sec. 63), though some courts and Ass'n, 23 N. Y. S. 1 008 ; Chapman v. writers maintain that plaintiff may Pickersgill, 2 Wils. 145; Townshond confirm this presumption by evi- on S. & L. (4th ed.) 313, 314. § 755.] LIBEL AND SLANDER. 725 defendants and each and both of them, of and concerning the said plaintiff, is in the words and figures following, to wit; \_Copy puhlication entire^ using innuendo if necessary, as fol- lows:^^ Illustration of use of innuendo: WARNING — W^ARNING. We (meaning thereby the residents and citizens of IT.) have in our village (meaning thereby the village of H.) one J. B. (meaning thereby the ])laintiff), who is now and has been for some time past traversing our county (meaning thereby the county of D.), etc., etc. Some time ago B. (meaning the plaint- iff), etc. Afterw^ards (meaning after the said defendants had signed said order) this man B. (meaning thereby plaintiff), etc. The said plaintiff further avers that said defendants and each and both of them caused the above and foregoing false and malicious libel of and concerning plaintiff to be published and printed in the newspaper aforesaid, at the place and time aforesaid, with the intent and for the purpose of thereby wilfully and maliciously injuring plaintiff in his good name, character and reputation, and did thereby greatly injure plaintiff in his good name, character and reputation. The plaintiff further says that said defendants, each and both of them, wrote, composed and caused said libel to be published and printed as aforesaid, of and concerning said plaintiff, for the purpose and with the malicious and wicked intent of thereby causing it to be believed and suspected among the people and citizens of said village, county and state aforesaid, generally, that the said plaintiff had falsely and fraudulently, and by false pretenses and fraudulent representations, ob- tained and procured the names and signatures of the said defendants, and each and both of them, to certain orders and contracts, evidences of indebtedness, for the Personal Memoirs of U, S. Grant, of great value, viz., of the value of dol- lars each, with intent to defraud the said defendants and each of them. Plaintiff further avers that by reason of the writ- ing, composing and publishing of said false and malicious libel by said defendants, and each and both of them, of and concerning this plaintiff, he has sustained damages in the sum of dollars. Wherefore plaintiff prays for judgment against the said defendants for the said sum of dollars, his damages so as aforesaid sustained. T. & F. and H. & C, Attorneys for Plaintiff. Note. — Changed from Blakeslee v. Hughes, 50 O. S. 490. In this case the petition contained a lengthy averment as to residence of plaintiff and as to his good character. Evidence was given in chief of plaintiff's good character, for which action the trial court was reversed. So that allega- tions of good character should not be made. See ante, sec. 754. Damao's are nominal when there is no injury iu fact. Rollins v. Pen- nock, 5 W. L. IM. 154. Pecuuiaiv ability to pay defendant may be cou- 726 LIBEL AND SLANDEK. [§§ 756, Y57. siderorl. Alpin t. Morton, 21 O. S. 536. Loss of business, Van Ingen v. Newton, 1 D. 482. While courts liave permitted evidence of defendant's wealth on the question of actual damages, some have recognized the dan- ger, and have siiown a disposition to retract if not altogether reject it Randall v. Evening News Ass'n, 56 N. W. Rep. (Mich., 1893); Case v. Marks, 20 Conn. 248; Watson v. Watson, 53 Mich. 176; 18 N. W. Rep. 605. Malice: The malice of the editor of a paper is tlie malice of the corpora- tion publishing the same. Allen v. News Pub. Co., 81 Wi.s. 120; 50 N. W. Rep. 1093. Limitation: Action for slander must be commenced in one year. R. S.. sec. 4983. This provision is strictly construed, and the limitation will com- mence to run from the speaking of the words, not from the time plaintiff first had knowledge of them. Pearl v. Koch, 32 W. L. B. 52 (1894). Sec. 756. Petition for libel charging dishonesty in busi- ness. — Plaintiff states that he has been engaged in the business of [state husiness] in the city of • , county of , Ohio, for years )3ast. That the degree of success or prosperity of plaintiff in said business, in a large measure, is dependent upon his reputation for truth and honesty among the citizens of said C, and upon the credit given and confidence reposed in him by the general public and those with whom he deals, and particularly his customers. That the defendant is now and was on the day of , IS — , the publisher and proprietor of a certain newspaper called , published in said city of , and having a large circulation therein. That defendant on the day of , IS — , with the in- tent and for the purpose of wilfully and maliciously injuring plaintiff in his good name, character and reputation in his said business, did write and cause to be published of and concern- ing plaintiff in his said business the following false and libel- ous matter, to wit: [Cojjy libelous matter.'] I That by reason of the said false and malicious publication of said libel of and concerning plaintiff in his said business, he has been damaged in the sum of $ , for which sum he asks judgment against said defendant. Note. — See Dial v. Holter, 6 O. S. 228; Van Ingen v. Newton, 1 Disn. 482; Mitchell v. Bradstreet Co., 22 S. W. Rep. 358; Brown v. Vannaman, 85 Wis. 451 ; 55 N. W. Rep. 183. The words must be clearly shown to have been spoken of plaintiff in his business. Carroll v. White, 33 Barb. 615. Sec. 757. Petition charging slander in speaking words actionable per se. — [Captio7i^ etc.'] Plaintiff states that the defendant, maliciously intending to injure and slander plaintiff in his good name, on the day of , 18 — , at , in a certain conversation which said defendant then had with certain persons, citizens of the city of , in the state of Ohio, did wickedly and maliciously § 758.] LIBEL AND SLANDER. 727 speak, in the presence and hearing of said persons and citizens of the cit}^ of aforesaid, certain false and slanderous words of and concerning plaintiff, which are as follows, to wit : You (meaning plaintiff) are a robber; you (meaning plaintiff) are a damned robber; I (meaning said defendant) believe you are a robber and a thief ; you (meaning plaintiff) are a counter- feiter (meaning that the said plaintiff had been guilty of coun- terfeiting money, or some evidence of debt, or some papers executed for a valuable consideration) ; I (the said defendant meaning) believe you are a counterfeiter [or set forth in lil'e manner the other dandelions words, e. (/.,yo\i (meaning the said plaintiff) are perjured]. That by reason of the speaking, publishing and uttering of said false, scandalous and malicious words the said plaintiff has been greatly prejudiced in his good name, fame and repu- tation, and also greatly injured in his business [set forth special damage, if any]. Plaintiff therefore says that he is injured and has sustained damages to the amount of dollars, for which he asks judgment. Note. — Words charging venereal disease are actionable per se. Kaii- cher V. Bliuu, 29 O. S. 62. Sec. 758. Petitiou cliargiug slander by uttering words indirectly charging a crime. — [Caption.'] Plaintiff says that the defendant contriving to injure him, and to bring him into public ridicule, did, on the da}'- of , 18 — , falsely and maliciously speak and publish of and concerning plaintiff and of and concerning the theft of certain goods and chattels, to wit [specify what], of one E. F., of the value of $ , which had been theretofore felonioush'^ stolen, taken and carried awa^^ to wit, at , on or about the day of , 18 — , the false and malicious words fol- lowing, to wit : He (meaning the said plaintiff) had a hand in the affair (meaning the said theft of the said goods and chat- tels), and thereby then and there meaning that tiie said jilaint- ifl had been and was guilty of [feloniously stealing, taking and carrying away of the said goods and chattels], insomuch that many of the persons, neighbors and citizens, to whom the innocence and integrity of the said plaintiff in the prem- ises were unknown, have, on account of the speaking and pub- lishing of which said several false, malicious and defamatory words by said defendant as aforesaid, from thence hitherto sus))ected and believed, and still do suspect and believe, the said plaintiff to have been and to be a person guilty of theft so as aforesaid charged upon and imputed to iiim by the said defendant, and have, by reason thereof, wholly refused, and still do refuse, to have any business transaction or conver- sation with plaintiff, as they were before used and accustomed 728 LIBEL AND SLANDER. [^§ 759, 760. to have, and also \_siate special damages] ; and also, by means of the premises, the said plaintiff has been o^reatly injured and damaged in the sum of dollars, for which amount he asks for judgment. Note. — Where the words, if true, would subject the person to an indict- ment, they are actionable per se. Alfele v. Wright, 17 O. S. 238. See Cheadle v. Buell, 6 O. 67. Charging a man with sodomy is not actionable without special damages. Davis v. Brown, 27 O. S. 326. And there liiust be a special allegation. Melvin v. Weiant, 36 O. S. 187. Sec. 759. Petition in slander charging perjury. — That at the term, 18 — , of the court of common pleas in county, Ohio, in a certain action then pending therein between A. B. as plaintiff and C. D. as defendant, said court having jurisdiction of the subject-matter of said suit, upon the trial thereof the plaintiff, being duly sworn in said cause, testified as a witness touching certain matters material to the issue therein. Thereafter on the day of , 18 — , defendant, wick- edly intending to injure plaintiff, and to cause it to be believed that plaintiff had been guilty of perjury, in a certain conver- sation which defendant then had of and concerning plaintiff, in the presence and hearing of different persons, did mali- ciously and falsely speak and publish of and concerning plaint- iff, and of and concerning his testimony aforesaid, the follow- ing false and defamatory words, to wit: "He," meaning the plaintiff, " has forsworn himself," thereby meaning that the plaintiff in his testimony given at the trial of said action had committed the crime of perjury, by reason of which the plaint- iff has been brought into public scandal and disgrace, and greatly injured in his good name, to his damage in the sum of $ , for which plaintiff asks judgment. Note. — As to charging perjurv, see Boyd v. Sell, Tapp. 11 ; Willis v. Patter- son, Tapp. 276; Brown v. Kincaid, W. 37; Wilson v. Oliphant, W. 153. It is not slander to charge perjury as to a matter which would not in fact be perjury. Waggoner v. Richmond, W. 173. Sec. 760. Petition for libeling an attorney — with innu- endo. — That the defendant on or about the dav of , 18 — , wickedly and maliciously intending to injure the plaintiff in his good name, credit and fame, and to injure him in his pro- fession and business as an attorne}^ and counselor of this court, and to bring him into disrepute and contempt among all his neighbors and other good and worthy citizens, and to cause it to be believed and suspected by his said neighbors and other citizens that the plaintiff had been and was guilty of malprac- tice in the practice of his profession, and was incompetent to properly discharge the im])ortant duties of his profession, and especially of his position as attorney and counsel to the board § 7bl.J LIBEL AND SLANDER. 729 of trustees of the village of O., and to vex, harass and oppress him, the defendant did on the day of , 18 — , afore- said, at O., , falsely, wickedly and maliciously cora])ose and publish, and cause and procure to be published, in hand- bills, a copy of which is as follows: [co2)y\ and circulated and cause to be circulated extensively in the village of O. and vicinity, of and concerning him, the said plaintiff, a false, scandalous and defamatory libel, containing, among other things, the false, scandalous, malicious, defamatory and libel- ous matter following, of and concerning the said plaintiff, that is to say: "Make Burr Mattice attorney for the village so that every person that gets spanked on the ice will be able to obtain a judgment of from $ to S against the vil- lage," meaning thereby to charge plaintiff with want of skill and care, as the attorney for the village of O. in defending certain suits against said village, and meaning to charge thereby and did charge plaintiff with neglect in the care and management of suits against the said village, antl with wrong- ful and dishonest conduct in his professional dealings as the attorney of said village. That by reason of the aforesaid premises the plaintiff has been and is greatly injured in his reputation aforesaid, and has been greatly vexed, harassed and impoverished, and has lost and been deprived of divers and great gains and profits which would otherwise have accrued to him in his profession and business, to his damage in the sum of $ , for which he asks judgment. Note.— From Mattice v. Wilcox, 24 N. Y. S. 1060. To charge that an attorney has never been admitted to tlie bar and is an impostor is actionable per se. Goldrick v. Levy, G W. L. B. 20. See Goodenow v, Tappau, 1 O. 60. Sec. 761, Petition for slander in charging nnchastity of female. — That the defendant, during the months of and , 18 — , and on other days, contriving and wickedly and mali- ciously intending to injure plaintiff in her good name, fame and credit, and to bring her into public scandal, infamy and disgrace with and among all her neighbors and other citizens, and to cause it to be suspected and believed by those neigh- bors and citizens that the plaintiff had been and was guilty of the offenses and misconduct hereinafter mentioned, to have been made and charged npon her by said defendawt, and to vex, harass and oppress her, the said defendant did, at the time aforesaid, at , in a certain conversation Avhich the defendant then and there had in the presence and hearing of various citizens, falsely and maliciously speak and declare of and concerning plaintiff, in respect to her profession and busi- ness, the false and scandalous, malicious and defamatory words 730 LIBEL AND SLANDER. [§§ 7t2, 763. followino;', that is to say : Miss D. is a common street-runner, etc. \_Continuing xoitli charges made.'] That by reason of the commission of said several grievances by said defendant as aforesaid plaintiff has been and still is greatly injured in her profession and business as a teacher in the common schools of the [state where\ and brought into public scandal, infam}'- and disgrace with and amongst all her neighbors and other citizens, to the damage of the plaintiff in the sum of % . Note. — Words charging a woman with unchastity are actionable per se. Alfele V. Wright 17 6. S. 238. See Murray v. Murray, 1 C. S. C. R 290. Charging a woman with receiving gentlemen callers late at night does not impute unchastitv. Hemmens v. Nelson, 138 N. Y. 517. See McMahon v. Hallock, 48 Hun, 617 ; Indianapolis Journal v. Pugh, 33 N. E. Rep. 991. Words charging a woman with sleeping with a man not her husband are actionable per se, Barnett v. Ward, 36 O. S. 107. Sec. 762. Slander of title. — An action for slander of title will lie against one who falsely and maliciously disparages the title to property of another, thereby causing special damages. Words so spoken are not actionable of themselves; but it is necessary to sustain the action that special damages be averred and proved, and should therefore be distiucth^ and particu- larly set forth in the petition.^ There are three essential ele- ments to an action for slander of title, namely: false words, maliciously published, resulting in a pecuniary loss or injury.^ Where a cloud is cast upon the title to land, the petition should contain an averment of malice or the want of probable cause;' and where the damage resulting consists in defeating a person in securing a loan upon the property, or defeats the sale thereof, the name of the person who refused to make the loan or purchase should be given.* Sec. ?63. Petition charging slander of title. — [Caption.] Plaintiff was on the day of , 18 — , the owner of and seized in fee-simple, by good and sufficient title, of the follow- ing described premises situate in the city of , county of , and state of Ohio, to wit : [Description?^ 1 Linden v. Graham. 1 Duer, 670 ; Stone, 2 Sandf. 269 ; Like v. McKin- Swan V, Tappan, 5 Cush. 104; Addi- strey, 41 Barb. 186; Newell on Def. & son on Torts, 25 ; Kendall v. Stone, S. 202. 5 N. Y. 14; Like v. McKinstrey, 41 3 Duncan v. Griswold, 92 Ky. 546; Barb. 186. 18 S. W. Eep. 354 (1892) ; Stark v. 2 Linden v. Graham, 1 Duer, 670 ; Chitwood, 5 Kan, 141. Hill V. Ward, 13 Ala, 310 ; Kendall v. < Linden v. Graham, 1 Duer, 6'/0. f^ 764.] LIBEL AND SLANDER. 731 That on the day of , 18 — , plaintiff caused the said ])remises to be put upland offered at public sale, and the de- fendant, contriving and falsely and fraudulently intending to injure plaintiff, and to cause it to be suspected and believed that plaintiff liad no title, estate or interest of, in and to said land, with its appurtenances, and to hinder and prevent plaintiff from selling or disposing of the same, and to otherwise injure ])laintiff and put him to expense and trouble, falsely and mali- ciously caused and procured a certain person, to wit, one W. M., to attend and be present at and upon said sale, and, before the said estate and interest had been sold and and disposed of, falsely and maliciously caused and procured the said AY. M. to assert and represent, and the said W. M. did then and there ac- cordingly, in the presence and hearing of divers citizens of said county then and there present, of and concerning the plaintiff [and of and concerning the said G. II., so being said auctioneer as aforesaid], and of and concerning the said land and appur- tenances and the plaintiff's said estate and interest therein, falsely and maliciously speak and publish the following words in the presence and hearing of those then and there present, viz.: {Copy loords loith proper innuendoes?^ That by reason of the speaking of the said defamatory words by said defendant at said sale, in the presence of the several persons there present for the purpose of bidding u]ion said premises, and especially J. K., who was then and there about to bid for and would otherwise have purchased the same, were then and there prevented from bidding for and becoming the purchasers thereof, and from thence hitherto have wholly declined to purchase the same; and thereby the said plaintiff has not only lost and been deprived of all the emoluments and advantages which he might and would have derived and acquired from the sale thereof, but has been forced to pay and expend large sums of money, to wit, the sum of dollars, in and about said exposure to sale and the expenses incidental thereto. Wherefore the plaintiff says he has been damaged in the sura of dollars, for which he prays judgment. Sec. 764. Libel and slander — The answer.— The defend- ant may allege in his answer the truth of the matter charged as defamatory; and in all cases he may prove every mitigat- ing circumstance to reduce the amount of damages.^ AVhere 1 O. Code, sec. 5094 ; Wesley v. Ben- that slanderous words were pnvi- nett, 6 Duer, 688; Steiber V. Weusel, leged and true is a justification. •19 Mo. 513; Carson v. Mills, 69 N. C. Etchison v. Pergerson, 88 Ga. 620. '122. See, also, Van Ingen v. New- The jury may in such cases reduce /ton, 1 Disn. 458 ; Shields v. Moore, 2 the damages to a nominal sum. AV. K M. 437. A defense alleging Commercial Gazette Co. v. Healey, 732 LIBEL AND SLANDER. [§ 764^ tho truth of the charge is relied on as a defense, the particu- lars must be alleged ; ^ and it must also be shown that it was accompanied with the intent imputed.^ An answer, however, pleading the truth in justification, which relates only to parts of a publication, is insufficient, unless pleaded specifically as a partial defense. The justification should be as broad as the charge, and should relate to the identical charge attempted to be justified.^ "Where the words charge a crime, a defend- ant pleading the truth thereof need not prove it beyond a reasonable doubt,* Where the charge in the petition is sought to be justified, it is incumbent upon the defendant to specially ])lead all the facts constituting the justification,^ and he must also admit the speaking of the words charged.* A justifica- tion should not be broader than the charge, and it need go no further than to justify so much of the defamatory matter as is actionable." It is held by some courts that a plea of justification in slander, if not fully sustained by proof, is of it- self an aggravation of damages.^ But in Ohio and other states the doctrine is adopted that the truth of the words spoken, pleaded in good faith under an honest belief in their truth, and with reasonable ground therefor, will not entitle the plaintiff to exemplary damages in case of failure to sus- tain the same.® Under a general denial matter in mitigation only and not in bar may be given in evidence.^** So w^here the words oon- 21 W. L. B. 93 ; Van Derveer v. Sut- ard v. Printiog, etc. Co., 32 N. E. phin, 5 O. S. 293 ; Halstead v. Rep. 929 (Ind., 1893). Schempp, 6 W. L. B. 271. 8 Fero v. Roscoe, 4 N. Y. 162; Wil- 1 Robinson v. Hatch, 55 How. Pr. son v. Nations, 5 Yerger, 211; Jack- 55. See Commercial Gazette Co. v. son v. Stetson, 15 Mass. 48 ; Farley Healy, 21 W. L. B. 93. v. Rauch, 3 W. & S. 556. If made in 2 Gage V. Robinson, 12 O. 250. bad faith the jury may consider it 3 Sawyer v. Bennett, 20 N. Y. S. Tobin v, Sykes, 24 N. Y. S. 943. 45 ; s. C, 20 N. Y. S. 835 ; Townshend, 9 Rayner v. Kinney, 14 O. S. 283 ; S. & L. (3d ed.), sec. 312, and cases Seeley v. Blair, W. 683; Distin v. cited; Fero v. Roscoe, 4 N. Y. 162. Rose, 69 N. Y. 122; Klinck v. Colby, 4 Bell V. McGinness, 40 O. S. 204. 46 N. Y. 427. 5 Duval V. Davey, 32 O. S. 604 ; i" Smith v. Rodecap, 5 Ind. App. 78 ; Sunman v. Brewin, 52 Ind. 140; 31 N. E. Rep. 479 (1892); Duval v. Boaz v. Fate, 43 Ind. 60. Davey, 32 O. S. 604 ; Swinney v. <> Davis V. Mathews, 2 O. 257. Nave, 22 Ind. 178 ; McCoy v. McCoy, 7 Heilman v. Shanklin, 60 Ind. 242 ; 106 Ind. 492 ; Wilson v. Noonan, 35 Townshend, S. & L., sec. 213 ; Wolf- Wis. 321. § 764.] LIBEL AND SLANDP^K. 733 sisted in calling another a thief, it cannot bo shown that they related to a transaction which was not of itself larceny,^ or where the slander consists in imputing the want of chastity of •a female, specific acts of intercourse cannot be given.^ But a defendant cliarged with having spoken slanderous words against the wife of another may show under a general denial that the wife and an unmarried man had lived together alone in a house," or he may give in evidence any facts tending to show that he spoke the words under a mistaken construction placed 'Upon the conduct, which was in fact no justification,* or any particular facts calculated to have induced mistake or to have misled the party may be admitted.^ But it is no defense that a defendant did not intend to use the words in a libelous sense.^ A defendant in an action for libel may claim the privilege of being excused from answ^ering interrogatories if his answers would criminate himselfJ In an action of libel upon a publication charging a person with crime, it cannot 'be set up by way of defense that the matters complained of were published by a proprietor of a newspaper in his capacity ■of journalist, concerning the conduct of a public officer, upon information and with an honest belief in their truth.^ A de- fendant who admits the publication of what is set forth in the petition should, by way of defense or mitigation, plead the remainder of the article, if it modifies what is set forth in the petition, in order to give it a meaning not libelous or less libelous than it appears to have, when it is severed from its •context.' That an article was published charging a person 1 Sherman v. Rogers, 24 N. Y. S. if the accused uttered the words on -'590 (1893). the authority of another whose name 2 Duval V. Davey, 33 O. S. 604. he gave. Sexton v. Todd, W. 316 ; 3 Reynolds v. Tucker, 6 O. 516; Young v. Slemmons, W. 604. But it Blue V. Hoke. 3 W. L. M. 100. is not a defense tliat a communication 4 Haywood v. Foster, 6 O. 88. was privileged if it appears that the * Van Derveer v. Sutphin, 5 O. S. same was false and malicious. How 293. V. Bodman, 1 Handy, 528. «Van Ingen v, Newton, 1 Disn. ' Globe Rolling Mill v. King, 2 C. a 458, 482. It is held that an answer C. R 21. to an allegation of intent or innuendo 8 Wahle v. Cincinnati Gazette Ca, in the petition should deny the slan- 4 W. L. B. 61. derous intent imputed to him in the ^Biethen v. Stewart, 41 Minn. 205; use of words in order to raise a ma- Oleson v. Journal Printing Co., 47 terial issue. Wilkin v. Tharp, ry5 Ta. Minn. 300. 009. It is considered a good defense 734 LIBEL AND SLANDEK. [§§ 7G5-7G7. with a crime upon information of others and without malice is no defense.* It is the well-settled doctrine that judges, counsel, parties and witnesses are absolutely exempted from liability for statements for which they would be liable if spoken elsewhere, if made in the progress of a cause, and are perti- nent and material to the case.^ Sec. 765. Answer to charge of perjury.— Defendant says that the plaintiff herein was a witness in a certain cause heard in the court of common pleas of county, Ohio, being styled A. B., plaintiff, against 0. D., de- fendant, numbered on the dockets of said court. De- fendant was duly sworn according to law and testified in said cause to the following matters material in said cause, to wit [set testimony out, as:'] Said defendant falsely and maliciously testified that [state false testimony and follow with allegation of trutli\. Plaintiff therefore alleges that the words contained and set forth in said petition are true, and asks to be dismissed witb his costs. Note.— R. S., sec. 5094. Sec. 766. Answer in mitigation of libel.— [CaptionP\ Defendant says that said supposed libelous article was, oit the day of , IS—, published in the , a news- paper published in the city of , state of Illinois, and was afterwards copied and published by the defendant as a matter of juiblic news, the defendant believing the same to be true, and the same was not published maliciously nor with intent to injure the plaintiff. Note.— While this is not a defense it may be shown in mitigation of damages. See R. S., sea 5094. Sec. 767. Answer claiming jnstification.— Defendant admits uttering the words set forth in the peti- tion, but avers that the same are true; [or add:'] that before the supposed defamatory words were uttered, to wit, on or about the day of , 18—, the plaintiff did feloniously steal [name property stolen], the property of this defendant, of the value of $ . Note.— R. S., sec. 5094. » Heyler v. N. Y. News Pub. Co., 24 Carroll. 43 N. Y. 161 ; Smith v. How- N. Y. S. 499 (1893). ard, 28 la. 51 ; Barnes v. McCrate, 32 2 See ante, sec. 754, p. 723; Rice v. Me. 442; Hoar v. Wood, 3 Met. 19:3. Coolidge. 121 Mass. 393; White v. §§ 768, 769.] LIBEL AND SLANDER. 735 Sec. 768. Answer of want of chastity, — \^Captio7i.'\ Defendant admits that he spoke the words alleged in the petition, but says that on the day of , 18 — , the plaintiff committed adultery with one U. F., who was not her husband; defendant therefore says the words charged in the petition are true, and asks to be dismissed. Note.— R. S., sec. 5094. Specific acts to be shown must be pleaded. Duval V. Davey, 33 O. S. 604. The general reputation of plaintiff for chastity may be shown. Id. ; Foulkard's Starkie on Slander, sees. 714, 539 ; Turner v. Fox- all, 2 Cranch C. C. 324. It may be shown under the general issue that the plaintiff aud married man had lived together alone in one house. Rey- nolds V. Tucker, 6 O. S. 517. If there is evidence of want of chastity, it'is error to refuse to charge that, if she " was a woman of disparaged reputa- tion, then that nmst be taken into consideration," unless some equivalent instruction is given. Nellis v. Cramer, 56 N. W. Rep. 911 (Wis., 1893). Sec. 769. Answer that defamatory matter was printed as part of judicial proceedings. — Defendant says that on the day of , 18 — , there was pending in the court of common pleas of county, (^hio, a certain action entitled . That during the progress of said cause one E, F., who was the attorney in said cause for the plaintiff C. D., made an argument which the defendant published in his paper as part of the judicial proceedings of said action, and that said pub- lication was not made with any malicious intent, nor did de- fendant endeavor thereby to injure the character or reputa- tion of plaintiff. Note. — Mitigating circumstances may be shown. R S., sec. 5094. Tes- timony of a witness in court is generally privileged. Hutchinson v. Lewis, 75 Ind. 55 ; 30 W. L. B. 186. CHAPTER 55. LIENS. Sec. 770. Mechanic's lien — Parties. 771. Mechanic's lieu — Petition to enforce. 773. Petition by contractor to foreclose mechanic's lien against owner. 772a. Petition by subcontractor to foreclose lien against owner. 773. Petition to foreclose lien on railroad. Sec. 774. 775. 776. 777. 778. 779. Mechanic's lien — The an- swer. Forms of answers. Vendor's lien. Petition to enforce vendor's lien. Petition by judgment cred- itor to marshal liens. Petition to marshal liens where prior lienholder has lien on other prop- erty. Sec. 770. Mechanic's lien — Parties. — The statutory lien of a mechanic or material-man is assignable, and the assignee thereof may in his own name maintain an action for its en- forcement.^ A petition to foreclose a lien may be sustained by two persons who have performed labor or furnished ma- terial for their common benefit in the erection of a house upon the land of another.^ It is not necessary in all cases to join the contractor as a party plaintiff.' Contractors are proper parties to an action by material-men to enforce their liens, though not necessary parties.* They are not necessary parties to an action where the lien sought to be enforced is for ma- terials furnished after they have abandoned their contract.^ A subsequent purchaser or incumbrancer is a proper party to an action brought to enforce a specific lien for material.® Nor is a prior lienholder a necessary party unless the plaintiff seeks to impeach or set aside the lien held by such prior holder or claims priority over it.' ITuttle V. Howel, 14 Minn. 145; Rogers v. Hotel Co., 4 Neb. 54. And the assignment of the account car- ries with it tlie lien. Ritter v. Ste- vens, 7 Cal. 388. 3GofiFs V. Papin, 34 Mo. 177. * Yancy v. Morton, 94 Cal. 558. 5 Green v Clifford, 94 Cal. 49. 6 Rice V. Ilall, 41 Wis. 453. '' Sullivan v. Decker, 1 E. D. Smith, 2 Rockwood v. Walcott, 3 Allen, 458. 699. § Y71.] LIENS. 737 Sec. 771. Mechanic's lien — Petition to enforce. — In an action to recover under the lien law it is important that the petition should show a compliance with all the particulars specified by statute as essential in obtaining a lien thereunder.^ It being a creature of statute, one seeking to avail himself of it must strictly comply with its terms.^ It should be averred that the times for delivery, performance and payment are within the several periods named in the statute.' The petition should also contain a specific allegation that the materials were furnished for the particular building against which the lien is sought to be enforced.* And where the work was per- formed and material furnished under contract with the owner of the premises, the petition must aver that fact, setting forth the terms and facts sufficient to create a lien.^ If the con- tract provides that the certificate of the architect shall be conclusive evidence of the builder's right to final judgment, which is produced and not impeached, there is no reason to deny foreclosure of the lien.^ It must also be shown that the contract was made with some one having an estate or interest in the land,^ and that the defendant is the owner of the prop- erty;^ and a description of the premises, with a statement that the materials were furnished and labor performed on ac- count of the owner, must be given.^ An action to enforce a mechanic's lien and to charge the estate with an incumbrance is in the nature of a proceeding in rem as well as a personal action.'" The holder of a lien may therefore bring a separate action to obtain personal judgment upon his account, in which case the lien is continued until the action is determined and 1 Chapman v. Raunefels, 3 W. L. M. fordsville v. Brundige, 57 Ind. 262 ; 142; Railway Co. v. Cronin, 38 O. S. Crawfordsville v. Lockhart, 58 Ind. 122; Railroad Co. v. McKay, 30 477 ; Hill v. Sloan, 59 Ind. 181 ; Ogg Ark. 682 ; Kechler v. Stumnie, 36 v. Tate. 52 Ind. 159. N. Y. Super. 387 ; Cronkright v. 5 Chapman v. Bolten Steel Co., 4 Thompson, 1 E. D. Smith. 661 : Fos- O. C C. 242. See Rockel & White's ter V. Poillon, 2 E. D. Smith, 556. Ohio Lien Laws, p. 166. 2HoflEinan v. Walton, 36 Mo. 613- ^Snaith v. Smith, 25 N. Y. S. 513. 615. "^ Porter v. Tooke, 35 Mo. 107 ; Clark »Cook V. Rofiuot. 21 111. 437. v. Raymond, 27 Midi. 4o6. 4 Crawford v. Crocket. 55 Ind. 220; 8 Hicks v. Murray, 43 Cal. 515. Crawfordsville v. Barr. 45 Ind. 258; 9 Shaw v. Allen, 24 Wis. 563. Hill V. Braden, 54 Ind. 72 ; Craw- i" Shaw v. Allen, 24 Wis. 56a 47 738 LIENS. [§ 772. judgment satisfied;^ and a personal judgment maybe ren- dered against the defendant even though the plaintiff fails to establish his lien.* The petition by a subcontractor ^ must show that the labor and material were furnished ; that the claim was filed as re- quired by statute;* that it is not disputed, or, if disputed, that it was settled by arbitration, and that subsequent to so filing his claim a payment fell due from the owner to the head con- tractor, and that the owner did not pay his claim when the payment fell due or within ten days thereafter, and subse- quent to the expiration of the ten days he took the necessary steps to obtain the lien.^ The remedy by an action for money had and received is the only one as between a subcontractor and the owner.^ A judgment cannot be rendered against an owner personally for work or materials furnished to a con- tractor.'' The holder of a lien cannot have an erroneous state- ment as to the time when the first material was furnished cor- rected in the action, so as to bring it ahead of a mortgage.^ The amount of land which may be made subject to a lien is an issuable fact which may be determined under appropriate averments.* Where a plaintiff in an action to enforce a me- chanic's lien is also the assignee of several other lienholders, it is necessary to state the cause of action upon each in a sep- arate count.^" Sec. 772. Petition by contractor to foreclose mechanic's lien against owner. — 1. Plaintiff says there is due him from the defendant the sum of $ with interest from the day of , 18 — , J Ambrose V. Wood mansee, 27 O.S. See Rockel's & White's Ohio Lien 14g. Laws, p. 166. 2 Haight V. Church, 6 Kan. 193. 6 Dunn v. Kanmacher, 26 O. S. 497. Where personal judgment and the See Stephens v. Stock Yard Co., 29 enforcement of a mechanic's lien are O. S. 227. asked, the case is not appealable. ' Cronkright v. Thompson, 1 E. D. Mitchell V. Drake, 7 O. C. C. 308. A Smith, 661. right to trial by jury upon the ques- 8 Wetmore v. Royal, 56 N. W. Rep. tion of fact arises on a counter-claim 594 (Minn., 1893). for damages. Deeves v. Met Realty » Williamette S. IL Co. v. Kremer, Co., 26 N. Y. S. 23. 94 Cal. 205. As to setting aside a 3 R. s., sec. 8202. lien for loose description, consult rays judgment for the sum of $ , and that his claim be declared a lien on the premises, and that § 773.J LIENS. 741 the same be ordered sold and the proceeds derived there- from be applied to the payment of plaintiff's claim, and for all proper and equitable relief. NoTE. — Hints on securing lien by subcontractor: By recent enactment a principal contractor and a subcontractor are on same footing as to their right to secure a lien. A person who performs labor or furnishes material at the instance of an owner, his ag;ent, trustee, contractor or subcontractor, may acquire a lieu. R 8., sec. 3184 ; 91 O. L. 135. The principal contractor becomes an agent of the owner so far as con- cerns the right of the subcontractor to a lien. The latter may only secure a lien when there is a valid contract existing between the owner and the principal contractor. Any subcontractor who has performed labor or furnished material, or who is furnishing material or machinery, or who is about to perform labor or furnish material or machiuerj^ for the construction, improvement or repair of any public improvement provided for by contract between any board or officer and a principal contractor, and under a contract between any such subcontractor, material-man, laborer or mechanic and a principal contractor or subcontractor, may, at the beginning to perform such labor or furnish such material or machinery, or at any time thereafter not exceed- ing ninety days from the completion of the labor or the delivery of ma- chinery or material, file with the board or officer, if for a public improve- ment, a sworn and itemized statement of his account. R. S.. sec. 3193. The lien is acquired only on the fund. In the amendment of this provision it is made to apply only to the construction, improvement or repair of a turn- pike or other public improvement. But the same statement must be served upon a private owner. Upon the filing of the notice, subsequent payments must be detained. R S., sec. 3194. Such subcontractor must also file a copy with the recorder of the county in order to notify his fellow-contractors ; if he fails m this, he can have no preference. R. S., sec. 3195. The lien of a subcontractor cannot exceed the amount of the price agreed upon between the owner and the original contractor. R S., sec. 3185a. There is no priority between the liens acquired by persons performing labor. R S., sec. 3188. Disputed claims must be settled by arbitration, which is conclusive on the parties. R S., sec. 3200. Sec. 773. Petition to foreclose lieu on railroad. — 1. That on the day of , 18 — , the defendant was the owner in fee-simple of a right of way for a railroad extending from the cit}'- of , in the state of , through the follow- ing counties of the state of Ohio, to wit: \71ame the counties]^ to the cit}'^ of , in the state of . That on said day the plaintiff was employed by the defend- ant to grade, build embankments and make excavations for the track of a railroad upon said right of way from the city of , in the state of Ohio, to the city of , in the state of Ohio, a distance of miles, and which part of said right of way lay within the counties of and , in said state [and also was employed by the defendant to build and furnish the material for all bridges, trestle-work and works of masonry necessary for said part of said track on said right of way be- tween said cities of and ],atand for the sum of 742 LIEN3. [§ T74:. dollars [a copy of which said contract is hereto attached, marked "Exhibit A."] That the plaintiff performed said contract, in all respects performing all the conditions thereof, and furnished all the materials and completed said work on the day of , 18 — , and the sum of dollars, with interest from the day of , 18 — , now remains due and unpaid on said contract. Second cause of action. [Formal averments.'] That on the day of \ 18 — , and within forty days from the time of completing said work and furnishing said materials, he filed in the recorder's office of said county, where said labor was performed and said material furnished, an affidavit con- taining an itemized statement of the labor ])erformed, and the kind and amount of materials furnished, with the amounts charged for each item, with all credits and payments thereon, which said affidavit and lien was recorded in vol. , page , Records of 'Liens of said county. That within ten days after filing said lien with the recorder of said county, he served a notice of such filing upon the secretary of said company. Plaintiff's claim therefore became a valid and subsisting lien on said defendant's railroad on the day of , 18 — . Plaintiff therefore prays judgment against the defendant for the sum of dollars with interest from the day of , 18 — , and costs of suit, and that so much of the right of way of the defendant as lies within the state of Ohio be sold, and the proceeds thereof applied to the payment of said judgment, interest and costs, and for such other and further relief as may be just and equitable. Note.— R. S., sees. 3207-3209 : Rockel & White's Lien Laws, p. 191 et seq. Sec. 774. Mechanic's lien — The answer.— A defendant in an action to foreclose a mechanic's lien may deny all knowl- edge of the furnishing of materials, or that notice was given of tho lien, and may claim as a counter-claim that the lien- holder guarantied that he would build the house in a work- manlike manner and complete it by a certain time, claiming damages for his failure so to do.^ Where the petition alleges that the defendant has or claims an interest in the land which is subject to the lien, a general denial will not amount to a disclaimer of such interest, but only puts in issue the fact that it was subject to the lien.^ It is a good defense by the owner that there were liens on the premises prior to that of the plaintiff, and exceeding the amount due from the owner.^ To 1 McAdow V. Ross, 53 Mo. 199. 3 Lehretter v. Coffman, 1 K D. 2 Elder v. Spinks, 53 Cal. 293. Smith, 664. § 775.] LIENS. 743 entitle a person to a lien, the materials must be furnished or the labor performed within the state. Goods consigned from another state to a head contractor do not entitle the con- signor to a lien for the goods so furnished by him to the head contractor as a material-man.* In an action against the owner to recover an amount due upon an account for labor performed in the construction of a building, and to have the same declared a lien thereon, where it is less than the balance unpaid or due upon the contract, the owner cannot be allowed to set oS a claim against the contractor, not arising out of the contract, but which is acquired by him after the labor has been performed, although his claim is so acquired before notice that the mechanics had not been paid.^ If labor be performed or material furnished with an understanding or agreement, either express or implied, that no lien will be as- serted, then the right is waived, and a lien cannot be enforced against a subsequent purchaser or lienor.' A lien will also be waived where a note is given and received as payment for the materials furnished,* though not unless the note is in fact received as payment.^ In a controversy between a holder of a mechanic's lien and a mortgage, a note given before the taking out of the lien does not discharge the same, but only suspends its operation.^ Sec. 775. Forms of answers. — [Captio7i.'\ [Payment.'] That before the bringing of this action A. B., the contractor for the construction of said dwelling-house mentioned in the petition, and wh(j contracted for the material of the plaintiff, fully paid the plaintiff therefor. [Or, lohen personal judgment is claimed: That the defend- ant, prior to the fihng of the plaintiff's notice of said lien, and without notice or knowledge of his claim, purchased said prop- erty from the defendant JR. F. for the sum of dollars, which he then paid.] [_0r, That this defendant is the owner in fee-simple of said land, receiving a deed therefor from said R. F. on the 1 Bendor v. Stettimier, 19 W. L. B. » Bursdorff v. Hardwey, 7 O. G C. 168. 378. * Bullock V. Horn, 44 O. S. 420. 6 Victoria Building Ass'n v. Kel- 3 Iron Co. V. Murray. 38 O. S. 323. sey, 11 W. L. B. 38. * Crooks V. Finney, 39 O. S. 57. 744: LIENS. [§ 776. day of , IS — , an J before any part of said building was erected thereon, which deed was duly recorded in the re- corder's office of said county on the day of , 18 — .] [Or, That after said material Avas furnished, and before the plaintiff's notice of lien was filed, this defendant purchased said property from the defendant E.. F. for a valuable consid- eration, which he then paid in full. That before purchasing said property this defendant applied to the plaintiff and stated to him that he was about to pur- chase the same, and requested to know whether he had or would maiie any claim against the same by way of mechanic's lien or otherwise, and the plaintiff then and there stated to this defendant that the materials furnished by him for said building had been fully paid for b}'^ U. Y., the contractor ; and that he had no claim on said property, and would make none. That this defendant (was ignorant of the facts, and believed and relied upon said representations, and was) induced thereby to purchase said property and pay the cost therefor. That said R. F., from whom this defendant purchased said property, is insolvent, and if this defendant is compelled to pay the plaintiff's claim he will lose the same.] Sec. 776. Yeudor's lien, — The general rule is that a vend- or's lien is purely personal and cannot be assigned or enforced by another,^ It is founded upon an implied trust between the vendor and purchaser. The latter is held to be a trustee of the former, receiving the conveyance for the use of the vendor until the purchase-money is paid. This trust attaches to the land and follows it into the hands of any subsequent purchaser with notice.^ But there are exceptions to the general rule that the lien cannot be enforced by one other than the vendor. Upon the death of the vendor it may be enforced by his personal representative. Creditors and legatees in mar- shaling the assets of the vendor may also enforce it, as well as a judgment creditor in an action to subject purchase-money due the latter to the payment of the judgment.' The lien will not arise where the vendor takes security for the ])ayment of the consideration,"* but is not affected or extinguished by taking a mortgage to secure the payment of the purchase- 1 Edwards v. Edwards, 24 O. S. 2 jacknian v. Hallock, 1 O. 318. 402 ; Brush v. Kingsley, 14 O. 20 ; 3 Edwards v, Edwards, supra. Taylor v. Foote, W. 356 ; Jackman v. •» Mayham v. Coombs, 14 0. 428 ; Hallock, 1 O. 818; Tiernau v. Beam, Williams v. Roberts, 5 O. 35. 2 O. 383 ; Williams v. Roberts, 5 O. 35. §§777,778.] LIENS. 745 money.^ A person advancing money to a purchaser to buy land cannot claim a vendor's lien.^ Sec. 777. Petition to enforce vendor's lien. — That on the day of , 18 — , the plaintiff was the owner in fee-simple of the following described real estate situ- ate in the county of , and state of Oliio, to wit: [Desc/'ibe premises.'] On said day plaintiff sold and conveyed said premises by deed of general warranty to the defendant, for the sum of $ , of which sum said defendant paid plaint- iff, at the time of the delivery of the deed, $ , and made and executed his promissory note for the remainder thereof, to wit, the sum of $ , which said note became due and pay- able on the day of , 18 — . That at the time said note became due the plaintiff requested payment thereof, which was refused, and no part thereof has been paid, and there is now due from the defendant to the plaintiff thereon the sum of $ . [That the defendant has no other property subject to exe- cution.] Plaintiff therefore prays judgment against the defendant for the sum of $ , with interest thereon from the day of , 18 — , and in case said defendant fails to pay said judgment by a day to be named by the court, that said prem- ises may be sold, and so much of the proceeds as are required may be applied to the payment of said judgment. Sec. 778. Petition by judgment creditor to marshal liens, [Caption.'] 1. Plaintiff says that on the day of , 18 — , by the consideration of the court of common pleas of county, Ohio, said plaintiff recovered a judgment against said defend- ants, P. M. W. and J. S., in the sum of $ , with interest at the rate of per cent, per annum from the day of , 18 — , also his costs taxed at $ , which judgment is wholly unsatisfied and unpaid. 2. And said plaintiff for second cause of action against said defendants, J. S. and P. M. W., says [formal averments] that on the day of , 18 — , by the consideration of the court of common i)leas of county, Ohio, he recovered a judgment against said defendants, P. M. W. and J. S., in the sum of $ , and also his costs therein taxed at $ , which judgment is wholly unsatisfied and unpaid, and draws interest at the rate of per cent, per annum from the day of , 18-. And that on the day of , 18 — , an execution was duly issued on said judgment of $ , and, for want of goods » Boos V. Ewing, 17 O. 500 ; Elliott 2 Stansel v. Roberts, 18 0. 14a V. Plattor, 43 O. S. 198. 746 LIENS. [§ 778. and chattels of said defendants whereon to levy, was on the day of , 18 — , duly levied on the following described real estate belonging to said P. M. W., which levy still sub- sists, situate in the county of, etc. : {^Description of real estate.'] And that on the day of , 18 — , an execution was duly issued on said judgment aforesaid, and, for want of per- sonal property whereon to levy, was on said day duly levied on the following described real estate belonging to said de- fendant J. S., which levy still subsists, situate in the county of : {DescrijAion of real estate.'] And that on the day of , 18 — , an execution was duly issued on said judgments aforesaid, and, for want of goods and chattels whereon to levy, was on the same day duly levied on the following described real estate owned by P. M. W., which levy still subsists, situate in the county of and state of Ohio, being in township, bounded and described as follows, to wit : {Description of real estate.] 3. Plaintiff, for third cause of action against said defendant P. M. W., says : {Formal averments^] That there was duly levied according to law, on said first tract of land described in this petition, taxes for the years and amounts as follows: For the year 18 — , % , e^tc. Which amounts were due and payable from the said P. M. W. as provided by law, and which amounts said defendant neglected and refused to pay, and allowed the same to become delinquent. That a portion of said amounts was paid by D. F. B., and the lien as held by him was duly transferred to this plaintiff for a valuable consideration by said B., and that since said transfer said plaintiff has made the balance of payments due on said premises as taxes, and is now the legal and true holder of said tax lien, and that no part of the taxes, interest or pen- alties has been repaid him by said P. M. W. ; and that interest, penalty and taxes on said tract now amount to the sum of $ ,"^and said plaintiff asks the court to decree the same to be the first and best lien upon said described premises. Said plaintiff says that A. W., S. K and W. S., defendants, claim to have some lien on the premises described in this pe- tition, by reason of which claims said plaintiff is unable to effect a sale of said premises under execution. Wherefore said plaintiff prays and asks that said claimants be compelled to set up their claims, if any they have in said property, or be forever barred, and that the court will adjust the pro rata thereof and of plaintiffs said liens, and that said real estate ma}'' be ordered sold and the proceeds distributed among the claimants according to law, and their pro rata as the same shall be settled by court. S. & H., Plaintiff's Attorneys. Note. — From Harvout v. Willis, error to circuit court of Ashland county. Supreme Court, unreported, No. 1806. §779.] LIENS. 747 Sec. 779. Petition tp marshal liens where prior lien- holder has lien on other property. — That on the day of , 18 — , the plaintiff recovered a judgment in the court of common pleas of county, Ohio, against II. T. for the sum of $ ; that on the day of , 18 — , an execution was issued on said judg- ment, and, for want of goods and chattels of said H. T. whereon to levy, was levied upon the following described real estate, to wit: [describe premises], as the property of said H. T. That H. T., at that time, was doing business as a merchant at R., and on the day preceding that on which the judgment was rendered gave a mortgage on certain household goods to secure the payment of said sum. That these mortgages were given as claimed by the defend- ants to secure them against the acceptance of two drafts, each for the sum of $ , drawn on H. T. on said defendants in favor of H. & Co., of , which drafts were drawn on the day of , 18 — , and were due and payable on the day of , 18 — , and to secure certain moneys amount- ing to tiie sum of $ advanced by said defendants to H. T. That on the day of , 18 — , H. T. sold his stock of goods to for the sum of % , and, as part of the consideration therefor, received two notes, payable respect- ively in and months, which notes, on the day of , 18 — , were by said H. T. assigned to the defendants as security for said debt. That said H. T. then was and now is insolvent, as said de- fendants well knew ; yet on or about the day of , 18 — , and since the levy of said execution, said defendants, for the purpose of defrauding the plaintiff by depriving him of his lien on said land, fraudulently redelivered to said H. T. said promissory notes. That the personal pro]ierty of said H. T. mortgaged to said defendants is of the value of $ , and said notes redelivered by them to H. T. were of the value of % , being more than sufficient to satisfy the claim of the defendants against said II. T., and the ])remises levied upon under the execution of the plaintiff are not more than sufficient to satisfy the plaintiff's judgment. Plaintiff therefore prays that, inasmuch as the defendants have a security upon two funds, they may be required to apply said personal property so secured by mortgage and said notes to the payment of their claim, and that said real estate be subjected to the plaintiff's lien alone, and a))plied to satisfy the same, and for such other relief as justice may require. Note.— Based on Fassett v. Traber, 20 O. 540, CHAPTER 56. MALICIOUS PROSECUTION. Sec. 780. Malicious prosecution— The petition. 781. Petition for maliciously causing a person to be in- dicted. 783. Petition for malicious civil suit before justice. Sec. 783. Petition for malicious crim- inal prosecution before justice. 784. Petition for malicious at- tachment. 785. Malicious prosecution — ^The answer. Sec. 780. Malicious prosecution — The petition.— An ac- tion for malicious prosecution abates upon the death of either party.' Two or more persons cannot unite in a joint action for malicious prosecution.* The action generally lies for the prosecution of a criminal action; and while there are author- ities which hold that an action will not lie for maliciously and without probable cause prosecuting a mere civil action,^ the modern settled American doctrine is, that an action for the malicious prosecution of a civil action may be maintained whenever the defendant therein has been deprived of his per- sonal liberty, or of the possession or enjoyment of property.* It will lie for maliciously and without probable cause prose- cuting an action of forcible entry and detainer,' as well as for man, 10 Johns, 106 ; White v. Ding- ley, 4 Mass. 433 ; O'Neill v. Johnson, 55 N. W. Rep. 601 (Minn., 1893) ; Mc- Pherson v. Runyon, 41 Minn. 524; s. c, 43 N. W. Rep. 392 ; Burton v. Railway Co., 38 Minn. 189 ; & G, 22 N. W. Rep. 300 ; Rachelman v. Skin- ner, 46 Minn. 196; s. G, 48 N. V/. Rep. 776 ; Dempsey v. Lepp, 52 How. Pr. 11; Lawton v. Green, 64 N. Y. 331. It will lie if unaccompanied by arrest or seizure of property. Springer v. Wise, 3 Disn. 891. See Boone on Pldg., sec. 167, note 27. 5 Pope V. Pollock, 46 0. S. 367. 1 0. Code, sec. 5144 2 Rhodes v. Booth, 14 la, 575. 8 2 Addison on Torts, 752 ; Ely v. Davis, 111 N. C. 24-26; O'Neill v. Johnson, 55 N. W. Rep. 601 (Minn., 1893); McPherson v. Runyon, 41 Minn. 524; 48 N. W. Rep. 392; Rachelman v. Skinner, 46 Minji. 196 ; 48 N. W. Rep. 776. 4 Newark v. Upson, 40 O. S. 17 ; Newell on Mai. Pros., p. 32, sec. 23, and cases cited, and pp. 35, 36 ; Pope v. Pollock, 46 O. S. 367; Whipple v. Fuller, 11 Conn. 581; Closson v. Staples, 42 Vt. 209 ; Coxe v. Taylor, 10 B. Mon. 17 ; Vanduzor v. Linder- § 780.] MALICIOUS PEOSKCUTION. 749 procuring an attachment auxiliary to a civil action, maliciously and without probable cause, even though there be a just debt ; and it is not necessary to aver that the attachment has been discharged or otherwise terminated adversely to the party employing its aid.^ And a suit will lie for instituting an action in replevin and taking goods therein,^ or for the malicious in- stitution of an inquest of lunacy against another.* The action will lie against one who maliciously and without probable cause procures the arrest of a person upon a crim- inal charge,* though, to render the person making the com- plaint liable, it must be alleged that his conduct was inspired by malicious motives, and was without probable cause, or a statement of facts must be made, which, if proved, will estab- lish a want of probable cause.* An allegation of the falsity iFortman v. Rottier, 8 O. S, 548; Sperry v. Warner, 9 O. 103 ; King v. Montgomery, 50 Cal. 115; Tomlinson V. Warner, 9 O. 104 ; Weatherell v. Springley, 43 la. 41 ; Beyersdbrf v. Sump, 39 Minn. 495. 2 Brownstein v. Lahlein, 20 N. Y. S. 2ia 3 Lockenour v. Sides, 57 Ind, 360. 4 Search-warrant : Oleson v. Tvete, 46 Minn. 225; Carey v. Sheets, 67 Ind. 375 ; Whitsome v. May. 71 Ind. 269; Miller v. Brown, 3 Mo. 127. Bastardy proceedings: Coffey v. Myers, 84 Ind. 105. 5 Dreyfus v. Aul, 29 Neb. 191 ; s. C 45 N. W. Rep. 282 ; Vennum v. Huston, 56 N. W. Rep. 970 (Neb., 1893) ; Crane V. Buchanan, 30 W. L. B. 120; Ben- jamin V. Garee, W. 450; Burnett V. Nicholson, 79 N. C. 548 ; Barfield V. Turner, 101 U. S. 357 ; Ely v. Davis, 111 N. C. 24; Anderson v. Buchanan, W. 725 ; Dennehey v. Woodsum, 100 Mass. 195.' Probable cause is a rea- sonable ground of suspicion sup- ported by circumstances sufficiently strong in themselves to warrant a cautious man in his belief that a per- son accused is guilty of the offense of which he is charged. Anderson V. Howe, 116 N. Y. 336; Carl v. Ayers, 53 N. Y. 14; Johnson v. Cor- rigan, 3 W. L. B. 1140. The finding of a magistrate that an offense has been committed, and that there was probable cause to believe the defend- ant guilty, is only prima facie evi- dence of probable cause in an action for malicious prosecution. Ross v. Hixon, 46 Kan. 550 ; 26 Am. St. Rep. 123. See, also, Newell on Mai. Pros., sees. 9, 10 ; Newman v. Davis, 58 Iowa, 447 ; Bauer v. Clay, 8 Kan. 389; Sweeny v. Perney, 40 Kan. 102. It is well settled that a private corpora- tiou is liable for malicious prosecu- tion. Morton v. Insurance Co., 103 N. Y. 645 ; Bank v. Graham, 100 U. S. 699; Railway Co. v. Harris, 122 U. S. 597; Reed v. Bank, 130 Mass. 443 ; Jordon v. Railroad Co., 74 Ala. 85; Carter v. Machine Co., 51 Md. 290 ; Williams v. Insurance Co., 57 Miss. 759. In an action for mali- cious prosecution evidence as to the plaintiff's good reputation and the defendant's knowledge thereof may be given for the purpose of showing want of probable cause. Funk v. Amor, 4 O. C. C. 271. 750 MALICIOUS PKOSECDTION. [§ 780. of the charge is not equivalent to an averment of the want of probable cause.^ The petition need not allege that the de- fendant falsely, as well as maliciously and without probable cause, made the accusation.^ Nor is it always essential to allege that a warrant was issued — the averment that the affi- davit was made and filed maliciously and without probable cause being sufficient.' Malice is a fact to be pleaded, and in doing so it is improper to set forth the evidence necessary to establish it.* An action for maliciously and without probable cause suing out a writ of attachment need not allege the termination of such suit.^ But to sustain an action for the malicious pros- ecution of a criminal charge, it must be shown that the pros- ecution has ended, and that the defendant therein was ac- quitted.^ Mere omission to prosecute will not of itself furnish sufficient foundation for an action. But where there has been a voluntary discontinuance, the defendant in the action for malicious prosecution must show the necessity for causing the arrest.' Where the proceedings were had before a court hav- ing no jurisdiction, the remedy is for false imprisonment and not malicious prosecution.^ And a cause of action for malicious prosecution may be changed to one for false imprisonment by striking out the averment of " want of probable cause," and alleging that the arrest was " illegally made with force." ' 1 Scotten V. Longfellow, 40 Ind. 23. 10 N. Y. 236 ; Heyne v. Blair, 63 N. «Ziegler v. Powell, 54 Ind. 173. Y. 19; Thaule v. Krekeler, 81 N. Y. 8 Coffey V. Myers, 84 Ind. 105; 428; Anderson v. Howe, 116 N. Y. Ruston V. Biddle, 48 Ind. 515 ; Mc- 336; Merriam v. Morgan, 7 Oreg. 68. Carthy v. Kitchen, 59 Ind. 500. Termination is sufficiently shown if < O'Neill V. Johnson, 55 N. W. Rep. it appears that no further proceed- 601 (Minn., 1893); White v. Tucker, ing can be taken. Robbins v. Rob- 16 O. S. 468 ; Hahn v. Schmidt, 64 bins, 133 N. Y. 597. Contra, Haye& Cal. 284; Thaule v. Krekeler, 81 N. v. Blizzend, 30 Ind. 457; Gorrell v, Y. 428. Snow, 31 Ind. 215 ; McCulloch v. 6 Fortman v. Rottier, 8 O. S. 548. Rice, 59 Ind. 580 ; Atwood v. Beirne, SFortraan v. Rottier, 8 O. S. 550; 26 N. Y. S. 149. Sayles v. Briggs, 4 Met 421 ; Stone " Burnhans v. Sanford, 19 Wend. T. Crocker, 24 Pick. 87 ; Parker v. 417 ; Gilbert v. Emmons, 42 111. 143 ; Farley, 10 Cush. 279; Crane v. Bu- Kinsey v. Wallace, 86 Cal. 402. chanan, 30 W. L. B. 120 ; Benjamin 8 Painter v. Ives, 4 Neb. 122 ; Bixby V. Garee, W. 450 ; Anderson v. Bu- v. Brundridge, 2 Gray, 129 ; Marshall' chanan, W. 725 ; Wheeler v. Nesbitt, v. Betner, 17 Ala. 832. 24 How. Pr. 544 ; Bessen v. Southern, 9 Spice v. Steinruck, 14 O. S. 213. §§ 781, 782.] MALICIOUS pkosecution. 751 In an action for malicipus prosecution the plaintiff may show his good reputation as a peaceable and quiet citizen.^ A petition which states that the defendant without cause falsely and maliciously made a complaint before a magistrate charging the plaintiff with embezzling letters intrusted to his care as mail-carrier, and procured a warrant to be issued for his arrest, upon which charge he was tried and acquitted, states a good cause of action.'^ Sec. 781. Petition lor maliciously causing a person to be indicted. — Plaintiff states that on the day of , 18 — , the de- fendant appeared before the grand jury sitting at the term of 18 — of the court of common pleas of county, Ohio, and then and there wilfully and maliciously, and with- out probable cause, gave and furnished to said grand jury cer- tain false information against plaintiff, and thereby maliciously, and without probable cause, caused and procured plaintiff to be by said grand jury indicted for the offense of [state offense]. That defendant did further wickedly, maliciously^ and with- out probable cause, prosecute and assist in the prosecution of plaintiff upon the indictment so rendered by said grand jury against him at the term of said court, , 18 — . That plaintiff was by the malicious and wilful conduct of defendant compelled to defend himself against said false charge so made in the indictment against him, and said plaint- iff was tried upon said charge of according to due course of law by a jury of said county, and was by said jury on the day of , 18 — , duly acquitted of the said charge so made against him. That by reason of the premises plaintiff was compelled to expend large sums of money in employing counsel and in de- fending himself against said charge, to wit, the sum of $ , and was by reason of said charge imprisoned in the county jail of said county for the period of , and was by reason of said imprisonment and of said trial prevented from trans- acting his business, and otherwise injured in reputation, in the sum of % , for which he asks judgment against said defendant. Sec. 782. Petition for malicious civil suit before justice. [Caption and formal averments^ That on the day of , 18 — , the said defendant, without just and probable cause of action against plaintiff, did wrongfully, wilfully and maliciously cause plaintilf to be sum- 1 Funk V. Amor, 7 O. C. C. 419 ; 2 Tilton v. Morgaridge, 12 O. S. 98. S. c, 4 O. C. C. 271. 752 MALICIOUS PROSECUTION. [§§ 783, 784. raoned to appear before F. G., Esq., one of the justices of, etc., to answer [state actioii]. That on the day of , 18 — , when said cause came on for hearing, plaintiff appeared before said justice but said defendant did not appear, but suffered said cause to go by default, and the same was dismissed b}^ said justice for want of prosecution, and because said defendant had no cause of ac- tion against this plaintiff, as he well knew. That plaintiff was compelled to and did pay the sum of $ for necessary traveling expenses, and the sum of $ for retaining counsel in said cause. That plaintiff has therefore sustained damages by reason of the wrongful and malicious conduct of said defendant herein stated, in the sum of % , for which he asks judgment. Sec. 783. Petition for malicious criminal prosecution be- fore justice. — \Caption and formal avermeiits.'] That on the day , 18 — , said defendant falsely and maliciously, and without reasonable or probable cause there- for, filed an affidavit against the plaintiff before R L., a justice of the peace of , county of , Ohio, charging him with [state offense in the words of the affidavii], and thereupon caused said justice to issue a warrant for the arrest of plaint- iff, and falsely and maliciously, and without probable cause therefor, caused plaintiff to be arrested on said charge so made by defendant, and to be imprisoned in the jail of county for the period of days then next following. That said cause was on the day of , 18 — , duly heard and tried by said justice, and said defendant was acquit- ted and discharged of said crime so made against him, and said prosecution is now ended. That by reason of the premises plaintiff has been greatly injured [state extent of injury], and has been compelled to ex- pend the sum of % in defending himself against said charge, and has sustained damages in the sum of % -. Note. — A justice in deciding upon the suflSciency of a complaint and causing the arrest acts judicially. Vennutn v. Huston, 56 N. W. Rep. 970 (Neb., 1893). A prosecuting witness is not hable unless he acted maliciously and without probable cause. Dreyfus v. Aul, 29 Neb. 191 ; Vennum v. Hus- ton, supra. Sec. 784. Petition for malicious attachment. — [Ca2)tion and formal averrnents.'] On the day of , 18 — , defendant maliciously and without probable cause filed an affidavit before A. B,, a jus- tice of the peace in township, in the county of , Ohio, for the purpose of obtaining an attachment against the goods and chattels of plaintiff, charging in said affidavit that [here state the ground for attachment contained in the affidavit]. i§ 785.] MALICIOUS PROSKCUTION. 753 That thereupon, upon said false and malicious aiRdavit so made and filed by said defendant, the said A, B., justice of the peace, issued a writ of attachment and placed the same in the hands of a constable, and plaintiff's goods and chattels were wrongfull}' taken from the possession of plaintiff. Tliereafter said goods were by due course of law sold and were wholly lost to plaintiff. That the ground stated in said affidavit, upon which said attachment was sued out, was false in this [state hoid]. That by reason of the premises plaintiff has sustained dam- ages [state damages]. [PrayerJ] Sec. 785. Malicious prosecution — The answer. — It mat- ters not how malicious the motives of a defendant were in prosecuting a person on a criminal charge, if there is reason- able cause to believe him guilty.^ Malice and want of prob- able cause being ingredients of the plaintiff's case, a general denial is therefore sufficient to enable the defendant to put in evidence such facts as show the presence of probable cause and absence of malice, as that he acted upon the advice of counsel.^ It is generally held that a defendant may show that in making a complaint he acted upon the advice of the magis- trate and is thereby protected from liability.^ He may show that at the time he made the complaint he stated all the facts upon which it was based, and that upon the assurance of the magistrate that a crime had been committed he institutetl the •Sanders v. Palmer, 55 Fed. Rep. Hotchkiss, 62 111. 107; Eastman v. 217; Green V. Cochran, 43 la. 544. Keasor, 44 N. H. 518; Paddock v. 2 Folger V.Washburn, 137 Mass. 60; Watts, 116 Ind. 146. But this rule Sparling v. Conway, 75 Mo. 510; does not prevail where the counsel White V. Tucker, 16 O. S. 468 ; Hunter himself is interested. White v. Carr, V. Mathis, 40 Ind. 356 ; Rost v. Harris, 71 Me. 555. There are other author- 12 Abb. Pr. 446. See John v. Bridg- ities which hold that the advice of man, 27 O. S. 22. magistrates who are not counsel- 'Ash V. Harlow, 20 O. 119; Mon- ors at law affords no protection, aghan v. Cox, 155 Mass. 487 ; 01m- Strouse v. Young, 36 Md. 246 ; Cole- stead V. Partridge, 16 Gray, 381; man v. Hurick, 2Mackey, 189; Brobst Allen V. Codman, 139 Mass. 136 ; Don- v. Ruff, 100 Pa. St. 91 ; Gee v. Culver, nelly v. Daggett, 145 Mass. 314 ; Stew- 12 Greg. 228 ; Gilbertson v. Fuller, 40 art V. Sonneborn, 98 U. S. 187; Ber- Minn. 413; MacLeod v. MacLeod, 73 nar V. Dunlap, 94 Pa. St. 329 ; Cooney Ala. 42. See and compare Mark v. V. Chase, 81 Mich. 203 ; Wicker v. Hastings, 13 So. Rep. 297 (Ala., 1893). 43 754 MALICIOUS PROSECUTION. [§ 785. prosecution.^ He cannot be held liable for an affidavit as to facts which a magistrate erroneously believes constitute a crime.'^ A justice of the peace in deciding upon the sufficiency of a complaint acts judicially, and if he acts in good faith, without malice and within his jurisdiction, he cannot be held liable for errors of judgment.^ A person claiming protection because he acted upon advice of counsel or others must show that he acted in good faith, belie vine: he had a good cause of action, and did not seek to procure information merely to shelter himself. He must show that he made a full and honest disclosure of all material facts within his knowledge or belief.^ If he purposely, care- lessly or negligently failed to give such full statement, the advice of counsel will not afford protection.* Nor will it shield a defendant where it appears that the prosecution was pursued for the sole purpose of enforcing the collection of a debt,* or where he does not believe the accused guilty.^ A defendant may state such facts as will tend to show probable cause, and if he fails it should be taken advantage of by de- murrer.^ To constitute a defense to an action for malicious prosecution, if the facts stated in the complaint do not con- stitute a crime, they must nevertheless be true.^ An answer claiming that an attachment was not sued out wrongfully, maliciously or vexatiously, or without reasonable or probable cause, presents a substantial defense to the action.^*' A de- 1 White V. Tucker, 16 O. S. 468. 22 W. L. B. 380 (Pa., 1889); Mark v. 2Hahn v. Schmidt, 64 Cal. 284 Hastings, 13 So. Rep. 297; Jordan v. 3 Vennuni v, Huston, 56 N. W. Rep. Railroad Co., 81 Ala. 227; Learid v. 970 (Neb., 1893). Davis, 17 Ala. 27. 4 Ash V. Marlow, 20 O. 119 Wicker v. Hotchkiss, 62 111. 107 Monaghan v. Cox, 155 Mass. 487 Scotten V. Longfellow. 40 Ind. 23. Rep. 913 (III., 1893). The adviser should be learned in the 7 Johnson v. Miller, 82 la. 693. law and of such training and expe- 8 Wilson v. Ferrari, 1 Disn. 579. rience that he may safely be pre- 9 Dennis v, Ryan, 63 Barb. 145; sumed to give wise and prudent Forrest v. Collier, 20 Ala. 175; An- counsel, and must act under a sense derson v. Buchanan, 8 Ind. 132; An- of responsibility. Monaglian v. Cox, derson v. Buchanan, W. 725. 155 Mass. 487. See, also. Smith v. i" Marshall v. Bctner, 17 Ala, 832. Davis, 3 Mont 109 ; Smith v. Walter, 5 Scotten V. Longfellow, 40 Ind. 23. 6 Neufuld V. Rodeninski, 33 N. E. § 785. J MALICIOUS PKOSECUTION. 755 fendant cannot be relieved upon the ground that the com- plaint in the criminal proceedings, for want of proper allega- tion, did not legally set out any criminal offense, when he attempted to accomplish such a purpose and did cause an arrest and trial.* » Finn v. Frink, 84 Me. 261 ; a c, 4 AtL Rep. 85t CHAPTER 57. MALPRACTICE. Sec. 786. Malpractice — The petition. 787. Petition against physician. Sec. 788. Petition for damages against a surgeon. 789. Malpractice — The answer. Sec. 786. Malpractice — The petition.— A statutory pen- alty is prescribed for practicing medicine or surgery without the necessary qualifications; 1 and an empiric is liable to a civil action for damage as well as for the statutory pen- alty.2 The remedy to enforce the statutory penalty is by a civil action in the name of the state.^ Physicians and sur- geons are required to use not the highest, but ordinary skill and diligence. The implied liability, in the absence of an ex- press contract as to compensation, extends no further than that he will indemnify his patient against injurious conse- quences resulting from his want of a proper degree of skill, care or diligence. He is liable if he is wanting in either.' There can be no recovery- for negligenth'' reducing a fracture 1 R S., sees. 6992, 4403. 2 Musser v. Chase, 29 O. S. 577. 3 State V. Cliandler, 7 W. L. B. 97; R S., sec. 2120. 4 Craig V. Chambers, 17 O. S. 253; Peck V. Hutchinson, 55 N. W. Rep. .511 (la., 1893); O'Hara v. Wells. 14 Neb. 403. The question of a physician's skill is a material one. Carpenter v. Blake, 50 N. Y. 696 ; Hewitt v. Eisen- bart, 55 N. W. Rep. 252 (Neb., 1893) ; Rowe V. Lent. 17 N. Y. S. 131 ; Becker V. Janiski, 15 N. Y. S. 674; Van- hoover V. Berghoff, 90 Mo. 487 ; Burn- ham V. Jackson, 28 Pac. Rep. 250 (Colo., 1893); Sanderson v. Holland, 39 Mo. App. 234. In absence of con- tract, physicians and surgeons im- pliedly contract that they possess the reasonable and ordinary qualifica- tions of their profession. Landon v. Humphrey, 9 Conn. 209; Kendall v. Brown. 74 111. 231 ; Small v. Howard, 128 Mass. 131; .Ballou v. Prescott, 64 Me. 305; Leighton v. Sargent, 31 N. H. 119; Ely v. Wilbur, 49 N. J. Law, 685 ; 10 Atl. Rep. 385, 441 ; Pot- ter V. Warner, 91 Pa. St. 362; Ha- thorn V. Richmond, 48 Vt. 557 ; Gates V. Fleischer, 67 Wis. 504 ; 30 N. W. Rep. 674. This skill is measured by the general line of practice. Utley V. Burns, 70 111. 162; Almond v. Nugent, 34 la. 300. Regard must be had for the advanced state of the profession. Smother v. Hanks, 34 la. 286; Nelson v. Harrington, 72 Wis. 591. § 78G.] MALPRACTICE. T57 where there is no evidence of the want of ordinary skill.^ Failure to use ordinary skill in discovering a serious rupture, after repeated examinations for the purpose, is such negligence as will render a physician liable to damages,'^ Where the act to be done depends upon the skill of the agent, and the opera- tion of causes over which he has no control, a promise to cure will not be implied from an undertaking to cure.^ Nominal damages only can be recovered, unless the plaintiff shows in- jury resulting from negligence or want of due skill.* Although physicians are bound to the universally accepted methods of cure, yet where there is a difference of opinion among prac- tical and skilful surgeons, they may exercise their best judg- ment and cannot be held liable for mere error therein.* He is not a warrantor of a cure unless he makes a special con- tract to that effect.^ Nor is an attorney at law liable for neglect of his professional duty where the negligence com- plained of in its legal effect does not work any injury to his client.^ But an attorney is liable for malpractice where a client or a third person has been damaged by his negligence.* A physician may be sued either for tort or upon a contract express or implied existmg between himself and patient ;^ and if upon contract, the petition should show who requested the serv- ice and with whom the contract was made.^" If the facts stated do not suflBciently show a contract and a breach, the action 1 Winner v. Lathrop, 22 N. Y. S. ' Harter v. Morris, 18 O. S. 492. 516. sjjoosac Tunnel Dock, etc. Co. v. 2 Lewis V. Dwinell, 84 Me. 497. O'Brien, 137 Mass. 424-427; Looff v. 3 Bliss V. Long, W. 351, 352; Gal- Lawton, 97 N. Y. 478. See Weeks lagher v. Thompson, W. 460. on Attorneys, sec. 132 ; State v. Chap- 4 Craig V. Chambers, 17 O. S. 253. man, 11 O. 430. 5Pittigrew v. Lewis, 46 Kan. 78; 9 Glad well v. Steggall, 5 Bing. N. G 26 Pac. Rep. 458 (1891) ; Burnhara v. 733; Pippin v. Sheppard, 11 Price, Jackson, 28 Pac. Rep. 250 (Colo., 1891) ; 400 ; Lane v. Boiscourt, 128 Ind. 420 ; Vanhooser v. Borghoflf, 90 Mo. 488. S. G, 27 N. K Rep. 1111. As to The test of the treatment is governed waiver of tort, see De Hart v. Haun, by the general doctrine of the school 126 Ind. 378 ; Globe v. Dillon, 86 Ind. to which the defendant belongs, and 337 ; & G, 44 Am. Rep. 408. An ac- not by any other. Patten v. Wiggin, tion for negligence in reducing a dis- 51 Me. 594; Force v. Gregory, 27 Atl. located arm sliould ordinarily be an Rep. 1116 (Conn., 1893). action in tort. McCrory v. Skinner. •> Burnham v. Jackson, supra; Pat- 2 W. L. M. 203. ten V. Wiggin, 51 Me. 59G. lo Scudder v. Crosson, 43 Ind. 34a. 758 MALPEACTICE. [§ 787. will be considered one in tort.* An action for unskilfully per- forming an operation may be joined with one for malicious!}'- pretending that he would effect a cure, with intent to defraud.^ An action may be maintained against two physicians who are in partnership for the malpractice of one of them.' The peti- tion should allege the specific things concerning which neg- ligence is imputed.* In an action against a physician for malpractice, proof that he was a cancer doctor, having skill and experience in the cure and treatment of cancers, is not a variance.* The action may be maintained by the personal representative of a person whose death occurs by reason of the negligence of a physician.* Sec. 787. Petition against physician. — Plaintiff complains of the said J. M., defendant, for that the plaintiff, before and at the time of the retainer of the de- fendant hereinafter mentioned, had a small tumor on her nose, the precise nature of which she did not know, and that after- wards, to wit, on or about the day of , 18 — , the said plaintiff, at the special instance and request of the said defendant, employed and retained him, said defendant, as a physician to treat and cure the same for a reasonable fee and reward to be by her to him paid ; and the said defendant undertook and entered upon such retainer and employment; yet the said defendant, not regarding his duty in the premises, so carelessly, negligently and unskilfully treated said disease, and nursed'^and attended to said plaintiff for the cure of said tumor, that the plaintiff, by reason of such unskilfulness, care- lessness and negligence, has wholly lost her nose ; that she has been greatly injured and rendered unfit to follow her lawful business, which is that of a school teacher, and became thereby sick and continued sick and unable to attend to her said busi- ness and work for a long period, to wit, , and during said period suffered and was in great bodily pain, and was put to great expense in and about the cure of her nose, so that by the defendant's carelessness and unskilfulness plaintiff has suffered damages in the sum of $ . [Prayer.] J. P. B., Attorney. Note.— From Musser v. Chase, 29 O. S. 577. Proof that the physician accepted the employment will sustain the allegation that he was employed at his special instance and request Id. 1 De Hart v. Haun, 126 Ind. 378. Ind. 225 ; Fletcher v. Ingram, 46 Wis. 2 Cadwell v. Farrell, 28 111. 438. 191 ; Taylor v. Jones, 43 N. H. 25. 3 Hyrne v. Erwin, 23 S. C. 226 ; S. C, * Hawley v. Williams, 90 Ind. 160. 55 Am. Rep. 15 ; Hess v. Lowrey, 122 & Musser v. Chase, 29 O. S. 577. 6 Chase v. Nelson, 39 111. App. 53. §§ 788, 789.] MALPRACTICE. 759 Sec. 788. Petition for damages against surgeon. — [Caption and formal avermejits.] That on the day of , 18 — , plaintiff met with an accident in which his left hip was dislocated, and on the day of , 18 — , for a reasonable fee, he employed the de- fendant A. B., who was then and is now a practicing physi- cian and surgeon in the city of C, who makes a specialty of the practice of surgery, and holds himself out to the public as possessing special skill in this branch. That said defend- ant thereupon undertook such employment and did set plaint- iff's said hip, but, disregarding his duty in the premises, he did so negligently and unskilfully set plaintiff's hip that by rea- son thereof [state damages sustained]. That by reason of the aforesaid negligence of said defend- ant plaintiff has sustained damages in the sum of $ , for which he asks judgment against said defendant. Sec. 789. Petition for malpractice in wrongfully diag- nosing disease. — Defendant has for several years prior to , 18 — , been engaged in the practice of medicine and surgery in the city of , holding himself out to the public as a physician, at- tending to all diseases or ailments of the human body. That on or about the day of , 18 — , the plaintiff T. N. was afflicted with a disease of his right hip, and on or about that date called the said defendant in to attend and treat him for said disease; that defendant thereupon under- took to attend plaintiff and treat said disease, but that, disre- garding his duty, defendant wrongfully and carelessly failed to make a proper examination of plaintiff, such as a physician of ordinary skill would have done, and pronounced said disease to be rheumatism, when in fact it was a disease of the hip- joint, which said disease has well-known, peculiar signs and symptoms which a physician of ordinary skill and care would at once detect. That the defendant, disregarding his duty as a physician, negligently and unskilfuU}' treated the plaintiff for rheuma- tism, and not hip-joint disease, and continued to so treat him until , 18—. That on or about the day of , 18—, plaintiff began to entirely lose the use of his said leg, and called in other phy- sicians, when by careful and thorough treatment plaintiff par- tially recovered the use of his said limb, but that he will be, by reason of said defendant's negligent treatment, ])erma- nently crippled. That if defendant had exercised due care and skill in the treatment of plaintiff, he would have speedily and completely recovered. [Set out any special damages.] [Prayer.] Note. — If the gravamen of the action against a physician is in failing to make pro])er diagnosis and to prescribe proper remedies, tiie action is in 760 MALPRACTICE. [§ 789cJ. tort ;md not contract If the action is upon contract, the special contract milst be set out. Wood v. Railroad Co., 33 Wis. 398; Nelson v. Harrington. 72 Wis. 591. Sec. 789a. Malpractice — The answer. — A patient whose own neglect or carelessness concurs with the maltreatment of the physician in causing injury cannot recover;^ and so if the injury be caused by the careless treatment of the patient's parents or others having charge,^ The negligence to consti- tute a defense must have concurred in producing the injury.' 1 Becker v. Janiski, 15 N. Y. S. 675 ; 2 Sanderson v. Holland, 89 Ma Gramui v. Boener, 56 Ind, 497 ; Hib- App. 284. bard v. Thompson, 109 Mass. 286 ; 3 Cooley on Torts, p. 683, Jones V. Angell, 95 Ind., 376; Lower V. Franks, 115 lud. 834. fc^