AND STATION KB, X 613 CLAY STREET, Sa:t !', THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW PRACTICE, PLEADING AND FORMS IX ACTIONS BOTH LEGAL AND EQUITABLE. FORMS IN ACTIONS, IN SPECIAL PROCEEDINGS, IN PRO- VISIONAL REMEDIES, AND OF AFFIDAVITS, NOTICES, ESPECIALLY ADAPTED TO THE PRACTICE IN THE STATES OF CALIFORNIA, OREGON, NEVADA AND THE ' TERRITORIES. AXD APPLICABLE ALSO TO THE PRACTICE IN NEW YORK, OHIO, INDIANA, IOWA, AND OTHER -STATES WHICH HAVE ADOPTED A CODE. BY MORRIS M. ESTEE, COUNSELOR AT LAW. IN THREE VOLUMES. VOL. II. SAN FRANCISCO: H. H. BANCROFT & C O M'P A N Y, 1870. Entered, according to Act of Congress, in the year of our Lord one thousand eight hundred and sixty-nine, by MORRIS M. ESTEE, In the Clerk's Office of the District Court of the United States, for the District of California. F. CLARKE, Printer, Presses of BACON & Co. 411 Clay Street. 536 Clay Street. D. HICKS & Co., Bookbinders, 643 Clay Street. CONTENTS. ' Vol. II. FORMS OF COMPLAINTS. Subdivision Fifth. FOR DAMAGES UPOX WRONGS. Part First For Injuries to the Person. Chapter I. FOR ASSAULT AND BATTERY. FOBM PAGE No. 324, Common Form, 1 Notes and Authorities, 1 " 325, The Same, Short Form, 4 " 326, With Special Damages, 5 " 327, Against Corporation, for Damages Caused by an Assault and Forcible Ejection from a Car, 5 Notes and Authorities, . 6 " 328, Assault and False Imprisonment, with notes, 8 ' ' 329, Fuller Form, 9 Chapter n. FOR FALSE IMPRISONMENT. FORM PAGE No. 330, Common Form, 10 Notes and Authorities, 10 G675C8 IV CONTENTS. FORM For False Imprisonment. PAGE No. 331, The Same, Another Form, 12 Special Damages, 13 Chapt3r HI. LIBEL AXD SLAXDER. FORM PAGE No. 332, For Libel, The Words being Libelous in Themselves, 13 Notes and Authorities, 14 " 333, The "Words not being Libelous in Themselves, 22 Notes and Authorities, 22 " 334, By an Attorney at Law, 27 " 335, By a Physician, 28 " 326, Charge of Dishonesty, etc., in Business, 29 By Corporation, 29 " 337, For Charge of Crime, Words not Libelous on their Face, .' 30 " 338, Accusing Plaintiff of Perjury in his Answer to a Complaint, 30 " 339, For Composing a Libel not Directly Accusing the Plaintiff of Perjury, 31 " 340, For a Libel not Directly Accusing the Plaintiff of Larceny, .... 32 " 341, For Libel by Signs, 33 " 342, For Slander, The Words being Actionable in Themselves, 3 Notes and Authorities, o4 " 343, Words Spoken in a Foreign Language, 40 Notes, 40 ' ' 344, The Words not being Actionable in Themselves, 41 Notes and Authorities, . 41 " 345, Kespecting Plaintiffs Trade, 43 Notes and Authorities, ' . . 43 " 346, Charging a Criminal Offense, 45 Actionable Language, 46 " 347, The Same Several Causes of Action, " 348, Slander For words Directly Charging Perjury, 46 Notes, 48 " 349, The Same, Containing Special Inducements, . 4i CONTENTS. Chaptsr IV. MALICIOUS PROSECUTION. FOKM PAGE No. 350, Common Form 50 Notes and Authorities, 51 " 351, The Same, Fuller Form, 56 ' ' 352, For Procuring Plaintiff to be Indicted, 57 ' 353, The Same For Obtaining Indictment on which a Prosequi was afterwards Entered, .... 58 " 354, Where Judgment of Acquittal was Rendered, . . . . 61 Note, 62 " 355, For Malicious Arrest in a Civil Action, >>'2 Notes and Authorities, 63 Chapter V. FOR PERSONAL IXJURY CAUSED BY NEGLIGENCE. FOBM PA OK No. 356, For Injuries Caused by Collision of Vehicle Driven by Servant, 65 Notes and Authorities, 6(> " 357, Against Common Carriers, for Overturning Stage Coach, Notes and Authorities, 723 " 591, Marriage of Defendant 723 Notes and Authorities, 723 " 592, The Same After the Contract and Before the Action, . . . 724 Notes and Authorities, 724 " 593, Misjoincler of Parties, 725 Notes and Authorities, 725 " 594, Misnomer, 726 Notes and Authorities, 726 " 595, Mistake, 727 : ' 596, Non-Joinder of a Necessary Party Plaintiff, 727 Note, 727 " 597, Of Owners in Actions Between Tenants in Common, 728 " 598, Of a Co-Administrator, 728 Notes and Authorities, 728 CONTENTS. XX111 FORM PAGE No. 599, Of One who was a Party to the Contract, 730 " 600, Payment, 730 Notes and Authorities, : 730 " 601, Payment by Note, 733 Note 733 " 602, Payment by Bill Accepted in Discharge, which Plaintiff has Lost, 734 Notes and Authorities, 734 " 603, Payment in Services, 735 " 604, Release, 735 Notes and Authorities, 735 " 605, Statute of Frauds, 737 Notes and Authorities, 737 " 606, Statute of Frauds Another Form 739 Note, 739 Agreement not to be Performed Within a Year, .... 739 " 607, Another Form 739 " 608, Agreement in Consideration of Marriage, 740 " 609, Ultra Vires Corporation, -. 740 " 610, Statute of Limitations, 741 Notes and Authorities, 741 " 611, Tender, 746 Notes and Authorities, ' 746 " 612, Payment as to Part, and Tender as to Residue, 747 " 613, Denial as to Part, and Tender as to Residue, 748 " 614, Want of Capacity Alien Enemy, 748 Notes and Authorities, 749 " 615, Assignment, , 749 Notes and Authorities, 749 " 616, Denial of Plaintiff's Corporation, 751 Notes and Authorities, 751 " 617, Denial of Trusteeship, 755 Notes and Authorities, 755 .." 618, Denial of Official Capacity, 756 " 619, Partnership of Plaintiff, 756 Note, 756 " 620, Partnership of the Defendant, 757 " 621, Want of Consideration Common Form, 757 Notes and Authorities, 757 " 622, The Same That the Debt was for Money Lost at Play, .. 758 " 623, The Same That Note was Given to Compound a Felony, 759 XXIV CONTENTS. FORM PAGE " 624, "Want of Jurisdiction of the Person, 759 Notes and Authorities, 760 No. 625, The Same By a Foreign Corporation, 761 " 626, Want of Jurisdiction of the Subject, 762 Notes and Authorities, 762 Chapter IV. COUNTER CLAIM. * FOEM PAGE No. 627, Counter Claim Alone, 763 Notes and Authorities, 763 Chapter V. SEVERAL DEFENSES. FOEM PAGE No. 628, Demurrer and Answer, 769 Notes and Authorities, 769 " 629, Several Defenses and a Counter Claim, 771 Notes and Authorities, 772 " 630, Several Defenses Another Form, 772 Notes and Authorities, 773 FORMS OF ANSWERS. Subdivision First. IN ACTIONS FOR DEBT. Chapter I. ANSWERS ON ACCOUNT. FOEM PAGE No. 631, Plea of an Account, 776 Notes and Authorities, 776 CONTENTS. XXV Chapter n. ANSWERS ox AWARDS. FOBM PAGE No. 632, Invalidity of an Award, 779 Notes and Authorities, 779 Denial of Award, 779 Denial of Parol Submission 779 Denial of Performance by Plaintiff, 779 Denial of Revocation by Defendant, 780 Performance by Defendant, 780 Chapter III. ANSWER ON EXPRESS PROMISES. FORM PAGE No. 633, Denial of Promise, , 780 Note, 780 Chapter IV. ANSWERS FOR GOODS SOLD AND DELIVERED. FOEM PAGE No. 634, Controverting Plaintiffs Title, . 780 " 635, Reducing Value, and Pleading Payment, 781 Notes and Authorities, 781 " 636^ Agreement to Take Note in Part Payment 782 Notes and Authorities, 782 " 637, Articles Furnished Defendant's Wife not Necessary 783 Note, . , . 784 I Chapter V. ANSWERS ox GUARANTY. FOEM PAGE No. 638, General Form, 784 Note, 784 " 639, The Same Departure from Guaranty, 785 % Notes and Authorities, 785 XXVI CONTENTS. Chapter VI. ANSWERS ON INSURANCE. FORM PAGE No. 640, Denial of Policy, 786 " 641, Denial of Plaintiff's Interest, 786 " 642, Denial of Loss, 786 Note, 787 " 643, Policy Obtained by Misrepresentations, 787 Notes and Authorities, 787 " 644, Transfer without Insurer's Consent, 788 " 645, Unseaworthiness of Vessel, 789 Notes and Authorities, 789 Chapter VII. ANSWERS ON JUDGMENTS. FOBM PAGE. No. 646, Denial of Judgment, 790 Notes and Authorities, 790 " 647, Invalidity of a Foreign Judgment, 794 Notes and Authorities, 794 " 648, Invalidity of Judgment against Non-Resident, 795 " 649, The Same Fraud in Obtaining Judgment, 795 Note, 796 Chapter VIH. I ANSWERS. ON THE MONEY COUNTS. FORM PAGE No. 650, Denial of Eeceipt, 796 ' ' 651, The Same Accounting and Payment, 796 Notes and Authorities, ..... 797 " 652, For Money Lent Denial of Loan, 797 " 653, For Money Paid Denial of Request by Defendant, 798 Notes and Authorities, m 798 CONTENTS. XXV11 Chapter IX. ANSWER FOR SERVICES, WORK, AND LABOR. FOEM PAGE No. 654, Accounting and Payment, 799 Notes and Authorities, 800 Chapter X. ANSWERS FOR USE AND OCCUPATION. FOEM PAGE No. 655, Denial of Indebtedness, 803 Note, 803 " 656, Denial of Use and Occupation, 803 " 657, Denial of Hiring, 803 Notes and Authorities, 804 " 658, The Same Denial by Assignee, 804 Note, 804 " 659, The Same Assignee's Assignment to Third Person, .... 804 Note 805 " 660, The Same Eviction, '. . 805 Notes and Authorities, 805 " 661, The Same Surrender, 807 " 662, The Same Defense to one Installment, 807 Chapter XI. ANSWERS UPON WRITTEN INSTRUMENTS FOR THE PAYMENT OF MONEY ONLY. FORM PAGR No. 663, Bills of Exchange Denial of Acceptance, 807 ' ' 664, That Acceptance was Unauthorized, 808 " 665, Denial of Presentment, 808 Notes and Authorities, 808 " 666, That Acceptance was for Accommodation, 809 Notes and Authorities, 809 ' ' 667, Denial of Acceptance, Presentment, and Protest, 810 " 668, Controverting Excuse for Non-Presentment, 811 Note, 8.11 " 669, . Payment Before Indorsement, 811 Note, . ... 811 XXV111 CONTENTS. FOBM PAGE No. 670, Promissory Note, Denial of Note, 812 Notes and Authorities, 812 " 671, Denial of Indorsement, 819 Notes and Authorities, 819 " 672, That Defendant Indorsed as Agent, 820 Note, 821 " 673, Denial of Presentment, 821 Note, 821 " 674, Denial of Notice of Dishonor, 822 " 675, Alteration of Instrument, 822 Note, 822 " 676, Usury as a Defense upon a Note, 823 Notes and Authorities, 823 " 677, That the Note was for Goods Sold by Means of Deceit, . . 825 " 678, Illegal Interest in Note 825 Note, 826 " 679, Fraud Note Procured by Fraud, 826 Notes and Authorities, 827 " 680, That the Note was for Goods Sold on a False Warranty, . . 828 Note, 829 " 681, Eecoupment for Breach of Warranty, 829 Notes and Authorities, 830 " 682, That the Note was for Accommodation, and was Misapplied, 830 Notes and Authorities, 831 FORMS OF ANSWERS. Subdivision Second. Ox BREACHES OF CONTRACTS. Chapter I. Ox BUILDING CONTRACTS. FOEM PAGE No. 683, Work not Finished, and Architect's Certificate not Obtained, ... 833 Notes and Authorities, 833 CONTENTS. XXIX Chapter n. Ox CHARTER PARTIES. FOEM PAGE No. 684, Denial of Offer to Perform, 834 Note, ..834 Chapter in. Ox COVENANTS. FOEM PAGE No. 685, Denial of Covenant, 835 Note, 835 " 686, Denial of Breach, . 835 Notes and Authorities, 836 Chapter IV. Ox EMPLOYMENT. FOBM PAGB No. 687, Denial of Contract, ' 837 " 688, Denial of Plaintiffs Performance, 837 " 689, Performance by Defendant, 837 " 690, Excuse for Non-Performance, 838 Note, 838 Chapter V. Ox INDEMNITY. FOBM PAGE No. 691, Denial of Performance, 839 Notes and Authorities, 839 Chapter VI. Ox PROMISE OF MARRIAGE. FOEM PAGE No. 692, Denial of Promise, 840 " 693, Denial of Plaintiffs Readiness and Offer to Marry, 840 XXX CONTENTS. FORM PAGK No. 694, Denial of Breach, 841 " 695, That Plaintiff was of Bad Character, 841 " 606, Another Form, 841 Misconduct, 842* Chapter VH. Ox SALE AXD DELIVERY OF CHATTELS. FOBM PAGE No. 697, Explaining Contract, and Showing a Breach as to Delivery, 842 Notes and Authorities, 842 " 698, The Same Breach of Warranty by Plaintiff, 843 " 699, The Same, as to Quality, 844 Notes and Authorities, 844 Chapter VIII. Ox SALE OF REAL PROPERTY. FORM PAGE No. 700, Denial of Agreement, 845 " 701, Denial of Plaintiff's Performance, 846 Note, 846 " 702, Breach of Warranty by Plaintiff, 8i6 Chapter IX. Ox UxDERTAKIXGS, BOXDS, ETC. FOBM PAGE No. 703, Failure of Consideration, 847 Notes and Authorities, 847 CONTENTS. XXXI FORMS OF ANSWERS. Subdivision Third. INJURIES TO THE PERSON. Chapter I. ASSAULT AND BATTERY. FOBM PAGE No. 704, General Denial, 852 " 705, Denial of Battery, 852 Notes and Authorities, 852 " 706, Self Defense, 853 Notes and Authorities, 854 " 707, Acts Done to Preserve the Peace 854 " 708, Defense of Possession of Dwelling 855 " 709, The Same Resistance of Entry, 855 " 710, Justification by Captain of Vessel, 856 Notes and Authorities, 856 " 711, Justification of Removing Plaintiff from Railroad Car on Non- Payment of Fare, 857 Notes and Authorities, 858 Chapter II. FOR FALSE IMPRISONMENT. FOEM PAGE No. 712, Denial of Arrest, 858' Note, '. 859 " 713, Denial of Want of Proper Cause, 859 Notes and Authorities, 859 " 714, Justification of Arrest on Suspicion of a Felony, 860 Notes and Authorities, 860 " 715, The Same Of Arrest under Criminal Process, 861 Note, 86 " 716, Justification by Officer, 862 XXX11 CONTENTS. Chapter m. LIBEL AND SLANDER. FORM PAGE No. 717, Denial of Inducement, ' 863 Notes and Authorities, 863 " 718, Justification Truth of Publication, where Charge is Specific, .. 867 " 719, Where Charge is General, 868 Notes and Authorities, 868 " 720, Justification and Denial of Malice in Charge of Larceny, 869 Note, 870 " 721, Answer Setting up Defense and Mitigating Circumstances, 870 " 722, Privileged Publication, 871 Note, 872 " 723, Another Form, 872 " 724. Another Form, 873 Note, '. 873 Chapter IV. INJURIES CAUSED BY NEGLIGENCE. FOEM PAGE No. 725, Denial of Ownership and Possession, 874 " 726, Plaintiffs own Negligence, 874 Notes and Authorities, 875 " 727, Denial of Possession of Vicious Dog, 875 Note, 875 " 728, Denial of Scienter, 876 FORMS OF ANSWERS. Subdivision Fourth. IN ACTIONS FOR INJURIES TO PROPERTY. Chapter I. BAILEES. FOEM . PACK No. 729, Denial of Bailment, 877 Notes and Authorities, 877 CONTENTS. XXX111 Chapter II. COMMON CARRIERS. FORM PAGE No. 730, Denial of Being a Common Carrier, 878 Note, 878 " 731, Denial of Employment, 879 Note, 879 " 732, Denial of Eeceipt of Goods, 879 if 733, Of Loss, 880 " 734, That Contract was Special, 880 Notes and Authorities 880 " 735, Damage by Plaintiffs Fault, 881 Chapter III. BY AGENTS, EMPLOYEES AND OTHERS, FOR NEGLIGENCE. FOEM PAGE No. 736, Denial of Negligence in Sale, 882 Note, 882 " 737, Denial of Negligence in Giving Credit 883*. " 738, Denial of Injury, 883 " 739, Denial of Injury from Collision, 883 Notes and Authorities, 884 Chapter IV. SLANDER OF TITLE. FOEM PAGE No. 740, Answer in Action for Slander of Title, 886 Chapter V. TRESPASS. FORM , ( PAGE No. 741, Trespass on Land Denial of Plaintiff's Title, 886 Notes and Authorities, 887 " 742, Denial of Plaintiff's Possession, 887 Notes and Authorities, 887 iii XXXIV CONTENTS. FOBM PAGE No. 743, Justifying Trespass Fences Defective, 889 Note, 889 " 744, Justification of Rebuilding Fence, , 889 Note, 890 " 745, Leave and License, 890 Notes and Authorities, 890 " 746, Trespass on Chattels Denial of Eight of Possession, 891 " 747, Benial of Breaking, 891 " 748, Denial of Taking, 891 Notes and Authorities, 892 " 749, Justifying Trespass by Virtue of Requisition of Claim and De- livery, 893 Notes, 893 " 750, Justification under Execution, 894 " 751, Justification of Breaking Plaintiff's House, by Virtue of Search Warrant, 895 Notes, . 897 FORMS OF ANSWERS. Subdivision Fifth. FOR THE POSSESSION OF SPECIFIC PROPERTY. Chapter I. PERSONAL PROPERTY. FOEM PAGE No. 752, Conversion Denial of Plaintiff's Ownership, 898 Note, 898 " 753, Denial of Bailment, ' 899 Note, 899 " 754, ien upon Goods Detained, 899 Note, 899 " 755, Lien for Services 900 Notes and Authorities; 900 " 756, Claim and Delivery, ' 902 Notes and Authorities, 902 CONTENTS. XXXV FORM PAGE No. 757, Title in Another than Plaintiff, 905 Notes and Authorities, 905 " 758, Defendant Part Owner, 906 Note, 906 Chapter n. EJECTMENT. FOBM PAGE No. 759, Answer Containing Special Denials, 907 Notes and Authorities, 907 " 760, Denial of Title, 911 Note, 911 " 761, Answer Containing Several Defenses, 911 Notes and Authorities, 912 " 762, By One of Several Tenants Charged as Joint Tenant, 919 Notes and Authorities, 919 " 763, Estoppel, 922 Notes and Authorities 922 " 764, Equitable Estate in Defendant, 925 Notes and Authorities, 925 " 765, Adverse Possession, 927 Notes and Authorities, 927 FORMS OF ANSWERS. Subdivision Sixth. IN ACTIONS CONCERNING REAL PROPERTY. Chapter I. FORECLOSURE OF MORTGAGES AND LIENS. FOBM PAGE No. 766, Denial of Mortgage, 932 Notes and Authorities, 932 " 767, Mortgage not Recorded, 935 " 768, Mortgage not Assigned, 936 " 769, Non-Joinder of Assignee of Mortgagor 936 XXXVI CONTENTS. FORM PAGE No. 770, No Equitable Assignment, 936 " 771, Equity of Redemption not Assigned, 937 " 772, Answer Setting up a Judgment, 937 Chapter II. NUISANCES. FOBM PAGE No. 773, Denial of Plaintiff's Title, 938 " 774, Denial of Nuisance, 938 Notes and Authorities, . 938 Chapter HI. PARTITION. FORM PAGE No. 775, Pendency of Partnership, 940 Notes and Authorities, 940 Chapter IV. ANSWERS IN ACTIONS TO QUIET TITLE. FOBM PAGE No. 776, Containing Special Damage, Plea of Statute of Limitations, and Cross Complaint, : 941 Notes and Authorities, 944 " 777, Disclaimer, . 945 Chapter V. ANSWERS FOR WASTE. FOKM PAGE No. 778, Denial of Waste, . . 945 CONTENTS. XXX Vll FORMS OF ANSWERS. Subdivision Seventh. Ix ACTIONS FOR SPECIFIC RELIEF. Chapter I. ANSWERS IN CREDITORS' SUITS. FOBM PAGE No. 779, Specific Denials, 947 Notes and Authorities, 947 " 780, Bona Fide Purchaser, 948 Notes and Authorities, 949 Chapter H. ANSWERS IN DISSOLUTION OF PARTNERSHIP. FOEM % PAGE No. 781, That the Term is not Expired, 950 Note, 951 " 782, Overdrawing Done by Plaintiff's Assent, 951 Note, 952 Chapter ELT. ACTIONS FOR DIVORCE. FOKM PAGE No. 783, General Denial, 952 Note, 952 " 784, Denial of Adultery, and Counter Claim, 953 Notes and Authorities 953 " 785, Condonation, 955 Note, 955 Chapter IV. ANSWERS FOR FRAUD. FOBM PAGE No. 786, Denial of Fraud, 955 " 787, Of Mistake, . , 956 XXXV111 CONTENTS. Chapter V. ANSWERS IN Quo WARRANTO. FOKM PAGE No. 788, General Denials 956 Notes and Authorities, 956 Chapter VI. ANSWERS IN SPECIFIC PERFORMANCE OF CONTRACTS. FOBM PAGE No. 789, Denials, 957 " 790, Of Delivery of Possession 958 " 791, Of Keadiness to Convey, 958 " 792, Performance, 958 " 793, Denial of Part Performance, 959 " 794, Demand Before or After Plaintiff* Tender, 959 Notes and Authorities, 959 " 795, Rescission of Contract, 960 Note, 960 FORMS OF ANSWERS. Subdivision Eighth. IN STATUTORY ACTIONS. Chapter I. ANSWERS IN FORCICLE ENTRY AND UNLAWFUL DETAINER, POEM PAGB No. 796, For Forcible Entry and Detainer, 961 Notes and Authorities 961 PLEADING AND FORMS COMPLAINTS SUBDIVISION FIFTH. For Damages upon Wrongs. PART FIRST FOR INJURIES TO THE PERSON. CHAPTER I. FOR ASSAULT AND BATTERY. No. S24. i. Common Form. [TITLE.] The plaintiff complains, and alleges: I. That on the day of , 187., the defendant violently assaulted the plaintiff, and struck him [state wkere~\ several blows, and also tore the clothes from the plaintiff's person \_describe the violence used, and its consequences^. Wherefore the plaintiff demands judgment for dollars damages. 1. Abatement of Action. Actions for assault and battery can only be brought in the name of the party immediately injured, and if he die the remedy determines, (i Chitt. PI. 60.) This is the rule at common law, but is changed by the statutes of many of the states. And for injuries committed on the wife by battery, husband and wife must join; and if she die before judgment the suit abates, (i Chitt. 73.) But if the wife dies after judgment, the judgment survives to the husband. 12 Serg. <5f Rawle, 76. I 2 FORMS OF COMPLAINTS. 2. Assault Defined. An assault is an unlawful attempt, coupied with a present ability, to commit a violent injury on the person of another. (Gen. Laws of Cal. ^[ 1,451.) An assault is an offer to strike, beat, or commit an act of violence on the person of another, without actually doing it or touching his person. Johnson v. Tompkins, i Bald. 571, 600. 3. Assault Instances. Striking at a person with the hand or with a stick, or by shaking the fist at him, or presenting a gun or other weapon within such distance as that a hurt might be given, or drawing a sword and brandishing it in a menacing manner, provided the act is done with intent to do some corporal hurt. (United States v. Ortega, 4 Wash. C. Ct. 534; United States v. Hand, 2 Wash. C. Ct. 435.) The drawing of a pistol on another, accompanied by a threat to use it unless the other immediately leave the spot, is an assault, although the pistol is not pointed at the person threatened. (People v. McMakin. 8 Cal. 547.) Cocking and raising a gun, and threatening to shoot a person, when the act indicates an intention to shoot. (United States v. Kierman, 3 Cranch C. Ct. 435.) Or raising a club over the head of a woman within striking distance, and threatening to strike her if she opens her mouth, are assaults. (United States v. Richarson, 5 Cranch C. Ct. 348.) To double the fist and run it at another, saying: " If you do that again I will knock you down." (United States v. Myers, i Cranch C. Ct. 310.) So, the mere taking hold of the coat or laying the hand gently on the person of another, if done in anger, or in a rude and insolent manner, or with a view to hostility, amounts not only to an assault but to a bat- tery. United States v. Ortega, 4 Wash. C. Ct. 534. 4. Assault and Battery. Assault and battery is the unlawful beating of another. Gen. Laws of Cal. \ 1,453. 5. Assault and Slander. A plaintiff may aver in his com- plaint all that took place at the time, though a part constitute an assault, and part a slander, and recover damages which he has sus- tained, for the compound injury. Brewer v. Temple, 15 How. Pr. 286. 6. Avoiding Injury. To recover damages for an assault and battery, it is not necessary that the plaintiff should have fled to avoid the injury, if he used ordinary care to prevent injury, and it ensued from the wrongful act of the defendant. 6 Ind. 82; 6 Black/. 185. 7. Battery Denned. A battery is the touching or commission ASSAULT AND BATTERY. 3 of any actual violence on the person of another in a rude and angry manner. Johnson v. Tompkins, i Bald. 571, 600. 8. Damages. In cases of aggravated assaults, the jury are per- mitted to give exemplary or punitive damages. 28 ///. 486; 3 Scam. 373; 2.435; 6 ^27.466; 18 Mo. 71; 6 Tex. 266; % Rich. (S.C.) 144; 4 Harr. 321; Wilsons. Middleton, 2 Cal. 54. 9. Malice. The language of the defendant while committing the assault is admissible in evidence, for the purpose of characterizing the act as bearing on the question of malice. McDougall v. Maguire, 35 Cal. 274. 10. Married Woman, Allegation of Assault by. That on the .... day of , 187 . , the defendant C. E., she being then, as now, the wife of the defendant E. F. \continue as in preceding form.} 11. Master of VesseL A master or commander of a vessel is in general, not liable to an action for assault and battery, for chastise- ment inflicted upon a seaman or marine, where he acted under a sincere conviction that it was necessary to enforce discipline or compel obedience to orders, and not from passion or revenge. (Dinsman v. Wilkes, 12 How. U.S. 390. Morris v. Cornell, Sprague, 62; Sheridan v. Furbur, i Blatchf. 6f H. 423; compare United States v. Freeman, 4 Mass. 505; Thompson v. Busch, 4 Wash. C. Ct. 338; Thorne v. White, Pet. Adm. 168.) So, where a master, believing there is immediate danger of mutiny, makes use of a dangerous or deadly weapon to reduce a seaman, actually in mutiny, to obedience, he is not liable. (Roberts v. Eldridge, Sprague, 54; United States #. Colby, Id. 119; United States v. Lent, Id. 31 1,) As to what will justify corporal punish- ment of seamen, see Morris v. Cornell, Sprague, 62; Payne v. Allen, Id. 304; Sheridan v. Furbur, i Blalchf. & H. 423. 12. Master, when Liable. Seamen are generally entitled to recover damages from an assault and battery from the officer of a ship: First, Where a personal violence is inflicted wantonly, and without provocation or cause; Second, Where there was provocation or cause, but the punishment was cruel or excessive; Third, Usually where the punishment is inflicted with a dangerous or deadly weapon. (Forbes v. Parsons, Crabbe, 283; compare Dinsman v. Wilkes, 12 Hoiv. Pr. 390.) For the law governing such liability, see 4 U.S. Stat at L. 115; i Bright. 210. 4 FORMS OF COMPLAINTS. 13. Principal. One who is present and encourages an assault and battery is a principal. 2 Comst. 517; 5 Ohio, 250; United States v. Rickets, i Cranch C. Ct. 164. 14. Provocation. No words of provocation will justify an assault, although they may constitute a ground for the reduction of damages. Cushman v. Ryan, i Story, 9 1 . 15. Where Action Lies. Assault and battery will lie against a steamboat, for an assault and battery committed by the mate or other officer of the boat, on the person of a passenger, while such boat is being navigated on the rivers within or bordering on the State (28 ///. 412.) Assault and battery lies for injury to the relative, as for .beating wounding, and imprisoning a wife or servant, by which the plaintiff has sustained a loss; (9 Co. 113; 10 Co. 130; i Chitt. 167;) when not under the color of process, (n Mod. 180; 36 Barb. 495.) So, where the battery, imprisonment, etc., were in the first instance lawful, but unnec- essary violence was used, i Chitt. PL 167; 3 Day, 485; 2 Wend. 497; 7 Dana, 453; 15 Mass. 347-465; 25 Wend. 371. 16. Willful, Malicious. It is not necessary in an action for a simple assault and battery to charge in terms that it was "willful" or "malicious," to entitle the plaintiff to maintain his action. Andrews v. Stone, 10 Minn. 72; see Ante, Vol. i., p. 145, Note 100. JVo. ii. The Same Short Form. [TITLE.] The plaintiff complains, and alleges: I. That on the day of , 187., at , the defendant assaulted and beat him. {Demand of Judgment^ ASSAULT AND BATTERY. 5 JVo. 326. m. The Same With Special Damages. [TITLE.] The plaintiff complains, and alleges : I. That on the ..... day of ......... , 187., at ........ , the defendant assaulted and beat the plaintiff, until he became insensible. II. That the plaintiff was thereby disabled from attending to his business for weeks thereafter, and was compelled to pay ........ dollars for medical attend- ance, and has been ever since disabled [from using his left arm; or otherwise state the damage, as the case may be.~\ [Demand of Judgment, .] JVo. iv. Against a Corporation, for Damages Caused by an Assault and Forcible Ejection from a Car. [TITLE.] The plaintiff complains, and alleges: I. That at the times hereinafter mentioned, the defendant was, and now is a corporation, duly organized under and pursuant to the laws of this State, and was the owner of a certain railroad, known as the ....... Railroad, with the track, cars, and other appurtenances thereunto belonging, and was a common carrier of passengers from ........ to ......... II. That on the ..... day of ......... , 187., at ........ , the defendant with unnecessary violence 6 FORMS OF COMPLAINTS. assaulted the plaintiff and forcibly ejected him from one of its cars. III. That the plaintiff was thereby disabled from attending to his business for weeks thereaf- ter, and has ever since been disabled from using [his left foot or otherwise], and was compelled to pay dollars for medical attendance. [Demand of Judgment '.] 17. Conductor of Car. The right of a car conductor on a rail- road to expel a passenger for non-payment of the fare, must be exer- cised in such a manner as is consistent with the safety of the passenger's life. He must first stop the car, and if he attempts to eject him with- out stopping the car, the passenger has the same right to repel the attempt that he has to resist a direct attempt to take his life. (See San- ford v. Eighth Av. R.R. Co., 23 N.F. 343.) Although a person may be wrongfully upon the cars, the conductor must use reasonable care and prudence in removing him. Kline v. C. P. R. R. Co., Cal. Sup. Ct., Apl T., 1869. 18. Corporations. An action of trespass for assault and battery will lie against a corporation, if it has power to authorize the act done, and has done so; and a servant of the company may be joined as defendant. Brokam v. N.J. R. and T. Co., 3 Vroom, 328. 19. Damages. In cases of injury to the person from negligence of the conductor of a car, the law does not prescribe any fixed or defi- nite rule of damages, but from necessity leaves their assessment to the good sense and unbiased judgment of the jury. Aldrich v. Palmer, 24 Cal. 413; cited in Wheaton v. N. B. and M. R.R. Co., Cal. Sup. Ct., Oct. T., 1868. 20. Exemplary Damages. A railroad company may be charged with exemplary damages for injuries done with force or malice to a passenger by a conductor of said company. Baltimore and Ohio R.R. Co. v. Blocher, 27 Md. 277. 21. Master and Servant. The master is liable for the ser- ASSAULT AND BATTERY. 7 vant, if he acts within the scope of his authority. (Kline v, C. P. R. R. Co., Cal. Sup. Ct., Apl. T., 1869.) The relation of conductor on a car and the company for whom he is acting as conductor is that of master and servant, and the relation being established, all else is mode and manner, and as to that the master is responsible. Kline v. C. P. R. R. Co., Cal Sup. Ct., Apl. T., 1869. 22. Forcible Ejection. If a person be of mature years, the mere words of the driver, ordering him to get off, could not be regarded as a forcible ejection of the plaintiff from the car at a time when it was dangerous to leave it; but if a child of ten years of age was so ordered, his obedience would be naturally expected, without regard to the risk he might incur, and in respect to a child so young the command would be equivalent to compulsion. (Lovett v. Salem and South Danvers R.R. Co., 9 All. (Mass.) 561; cited in Kline v. Central Pacific R.R. Co. of Cal., Cal. Sup. Ct., Apl. T., 1869;) where it goes on to state: "We have no doubt that in case a show or demonstration of force suffi- cient to impress a reasonable person with the belief that it will be employed, must he held to be the equivalent of actual force." Kline v. Central P. R.R. Co., Id. 23. Mutual Negligence. If the plaintiff be in the wrong, yet if his wrong or negligence is remote that is, does not immediately accompany the transaction from which his injury resulted the defend- ant cannot excuse himself on the score of mutuality, nor absolve himself from his obligation to exercise reasonable care and prudence in what he may do. (Kline v. C. P. R.R. Co., Cal. Sup. Ct., Apl. T., 1 869.) So, the entry on a car, if an accomplished fact, is only a remote cause of the injury inflicted by a subsequent ejection from the car; nor did it absolve the conductor from the duty of observing reasonable care and prudence in putting him off the train. (Id.) Mutual or co- operating negligence, which deprives one party of any right of action against the other, is when the act which produced the injury would hot have occurred but for the combined negligence of both. But where the negligence of one party would produce injury in any event, with or without the negligence of the other, then it becomes a mere question of adjustment of damages. (Thomas v. Kenyon, Daly, 132.) Where negligence exists on both sides, that of the plaintiff must have contributed to the injury, or it will not excuse the defendant. Haley v. Earle, 30 N.Y. 208. 24. Removing Trespassers. A man cannot lawfully push 8 FORMS OF COMPLAINTS. another off from his land, without first requesting him to get off. (Thompson v. Berry, i Crunch C. Ct. 45.) But mechanics in charge of a house which they are building have a right to remove gently persons coming into the building without authority. United States v. Bartle, I Cranch C. Ct. 236.) The abuse of legal authority which will make a person a trespasser ab initio, is the abuse of some special and particular authority -given by law; and the doctrine does not apply to the case of an agent in a factory who uses improper force in ejecting a disorderly person employed there. Esty v. Wilmot, 15 Gray. 168. No. 328. v. Assault and False Imprisonment Short Form. [TITLE.] The plaintiff complains, and alleges: I. That on the .... day of , 187., the defendant assaulted and beat the plaintiff, and imprisoned him for hours. {Demand of Judgment^ 25. Arrest. The circumstances of the arrest should not be set out in the complaint. If so set forth, they may be striken out upon motion. Eddy v. Beach, 7 Abb. Pr. 17; Shaw v. Jayne, 4 How. Pr. 119. 26. Circumstances.* Allegations of the circumstances in detail on a charge of false imprisonment and assault, in connection with an illegal combination and conspiracy, were allowed in a great measure to stand^ Moloney v. Dows, 15 How. Pr. 261. ASSAULT AND BATTERY. 9 No. 329. vi. The Same Fuller Form. [TITLE.] The plaintiff complains, and alleges: I. That on the .... day of ,187., the defendant assaulted the plaintiff, and gave him into the custody of a policeman, and forced and compelled him to go to a police-station, and there caused him to be imprisoned, and caused him to be kept in prison for a long time, until he was afterwards brought in custody before one of the police magistrates of , and the defendant then again charged him with the said offense; but the said magistrate dismissed the said charge, and caused him to be discharged out of custody. II. That the plaintiff thereby suffered damage in the amount of . . .' dollars. [Demand of Judgment, ,] CHAPTER II. FOR FALSE IMPRISONMENT. No. 330. i. Common Form. [TITLE.] The plaintiff complains, and alleges : I. That on the day of , 187 ., at , the defendant imprisoned him for .... days [or hours, as the case may be], without probable cause. [State special damage, if any.~\ [Demand of Judgment^ 1. Arrest "without Proof. A person who without bad faith has, upon oath or otherwise, merely stated his case to a magistrate having jurisdiction of the offense supposed to have been committed, and of the person accused, is not liable to an action for false imprisonment upon the consequent arrest of the accused, although such arrest is not warranted by the law or the facts in the case. Von Latham v. Libby, 38 Barb. 339; citing 10 A. & E. (N.S.) 18; i C. 6f M. 330; 3 M. & W. 418; 6 Mann. G. . Andrews, 6 Barb. 43; McCombs v. Tuttle, 5 Blatchf. 431; Van Cleef v. Lawrence, 2 City Hall Recorder, 41. 22. Satire. The distinction between the satirist and the libeler is that the one speaks of the species, the other of the individual. {Joseph Andrews, Vol. ii. p. 5.) So, an action for libel will only lie upon words concerning distinguishable persons, and cannot be brought upon words which relate to a class or order of men. Sumner v. Buell, 12 Johns. 475; Ryckman v. Delavan, 25 Wend. 186; reversing White v. Delavan, 17 Id. 50. '23. Special Damages. Those damages which are not the necessary consequence of the language complained of must be specially alleged in the complaint. (Squier v. Gould, 14 Wend. 159; Strang z>. Whitehead, 12 Id. 64; Birch v. Benton, 26* Miss. 155; Johnson v. Robertson, 8 Port. 486; Barnes v. Trundy, 31 Me. 321; Bostwick v. Nicholson, Kirby, 65; Bostwick v. Hawley, Id. 2 go; Shipman v. Bur- rows, i Hall, 399; Harcourt v. Harrison, Id. 474; Geave v. Britton, Bull. N.P. 7; Wilson v. Runyon, Wright, 651.) But a complaint in an action for words in writing charging insanity need not allege special damage. (Perkins v. Mitchell, 31 Barb. 461.) So, in an action by one of several partners. (Robinson v. Merchant, 7 Q. B. 918.) An action cannot be maintained by an author for a publication disparaging his copyright work, without an allegation of special damage. Swan v. Tappan, 4 Cush. (Mass.) 104. 24. Wrongs Remedies. Slander or libel is an infringement of the absolute rights of persons. (Parker v. Russell, 4 How. Pr. 235.) And the character of persons is undoubtedly one of their absolute and personal rights. Holt on Lib. 15. 22 FORMS OF COMPLAINTS. JVo. 333. ii. For Libel The Words not being Libelous in Themselves. [TITLE.] The plaintiff complains, and alleges : I. That the plaintiff is, and was, on and before the .... day of , 187., a merchant, doing busi- ness in the City of II. That on the .... day of ,187., at , the defendant published in a newspaper called the [or in a letter addressed to E. F., or otherwise show hwv piiblished~\ the following words concerning the plaintiff: [' ' A. B. , of this City, has modestly retired to foreign lands. It is said that creditors to the amount of dollars, are anxiously seeking his address."] III. That the defendant meant thereby that [the plaintiff had absconded to avoid his creditors, and with intent to defraud them]. IV. That the publication was false. [Demand of Judgment. \ Form. This form is from the New York Code Comm'rs Book of Forms. 26. Ambiguous Article. It may be averred of an ambiguous article that it was published with a particular intent, and was so under- stood by its readers, and this averment may be proved on the trial. (Gibson v. Williams, 4 Wend. 320.) This is more strictly correct than to employ an innuendo for the same purpose, as was permitted in Blaisdell v. Raymond, 4 Id. 446. 27. Capacity must be Averred. When the words charge LIBEL AND SLANDER. 23 bear relation to the plaintiff in his business or official capacity, such capacity should be averred in a traversable form in the complaint. (2 Green!. Ev. 412; Carroll v. White, 33 Barb. 615.) And the fact of his being engaged in such business or profession at the time the words were spoken should be alleged. (Carroll v. White, 33 Barb. 615.) In such an action special damages need not be alleged. (Butler v. Howes, 7 Cal. 87.) As to the responsibility of an editor in respect to comments upon the manager of a theater, see Fry v. Bennett, 3 Bosw. 200; Id., 5 Sandf. 54; 9 L. 0. 330; i C. R. (N.S.) 238; Id., 4 Duer, 247. 28. Construction. Where the words alleged in a complaint for libel are fairly susceptible of a construction which would render them libelous, the complaint will be sustained upon demurrer, although the words may also be interpreted so as to be innocent. (Wesley v. Ben- nett, 5 Abb. Pr. 498.) Where, in an action for libel, the words com- plained of are not per se libelous, what the defendant intended and understood them to mean, by those to whom they were published, con- stitutes a proper subject of averment in pleading and proof on the trial, and if what was so intended and understood by the defendant, and understood by those to whom the words were published, was libelous, the words are actionable. Maynard v. Fi. Fund Ins. Co., 34 Cal. 48. 29. Extrinsic Facts. Where the actionable quality of language depends upon the capacity of the plaintiff, and the language itself does not disclose that he is in such capacity or occupation, an averment that plaintiff is of such a trade or profession will be sufficient. But where the language is actionable of the plaintiff as an individual also, it is not necessary to allege an inducement. Townshend on Stand, and Lib. 400 ; Gage v. Robinson, 12 Ohio, 250. 30. Extrinsic Matter. When the words used by the defendant do not of themselves convey the meaning which the plaintiff would at- tribute to them, and such meaning results only from some extrinsic matter or fact, such extrinsic matter or fact must be alleged in the com- plaint, and proved on the trial. It is therefore, necessary for the plaintiff in such a case distinctly to aver the extrinsic fact upon which he relies to make the publication libelous. (Caldwell v. Raymond, 2 Abb. Pr. 193; see, also, 33 Vt. 182; 16 Pick, i.) Where the publication is not defamatory on its face, the existence of extrinsic facts rendering it de- famatory must be alleged. (Pike v. Van Worner, 5 How.Pr. 171; 6 Id. 99; Fry v. Bennett, 5 Sand. 54; i Code Rep. (N.S.) 247; Dias v. Short, 1 6 How.Pr. 322; Blaidsell v. Raymond, 4 Abb. Pr. 446; Carroll 24 FORMS OF COMPLAINTS. v. White, 33 Barb. 615; Culvers. Van Anden, 4 Abb. Pr. 375; Hallock v. Miller, 2 Barb. 630.) But where it is not essential, such statement would be mere surplusage. (Townshend on SI. and Lib. 397.) By the statute, it is no longer necessary to state an inducement. So in New York. (Ante, Note 13.) So in Missouri, (Strieber v. Wensel, 19 Mo. 513;) and Wisconsin. (Van Slyke v. Carpenter, 7 Wis. 173.) So, also, in Massachusetts, where " a distinct averment in regard to the person spoken of, and a clear reference of the calumnious words to that person, is all that is required." Miller v. Parish, 8 Pick. 383; Stark, on Slan. 390. 31. Innuendo. The office of an innuendo is to explain; not to ex- tend, what has gone before; and it cannot enlarge the meaning of words, unless it be connected with some matter of fact expressly averred. (2 Gilm. 720; 5 Johns. 211.) Nor can it change the ordinary meaning of language. (Hays v. Mitchell, 7 Blackf. 117.) Nor introduce new matter, (i Chip. 275; 16 Vt. 83; 6 Ala. 88 1.) It is only a link to ..attach together facts already known to the Court. (Cooke on Defamation, 94.) It cannot attribute to words a meaning which renders them action- able (Holton v. Muzzy, 30 Vt. 365), without a prefatory averment of extrinsic facts which makes them slanderous. 2 Dev. 115; 2 Shep. 317; 8 N.H. 256; 8 B. Monr. 486; 16 Pmn. 204; 6 Gratt. 334; 2 Bibb. 319. 32. Innuendo, Office of. The use of innuendoes is in part retained and in part dispensed with under our system of pleading. If the words used are not libelous, per se, but are made sd by some extrinsic matter alleged by way of inducement, innuendoes are necessary to show the connection of such words with the intrinsic facts. So also, where the publication is made libelous by reference to extrinsic matter not necessary to be alleged. In such case, the extrinsic fact should be suggested by an innuendo. Where words are not libelous per se, the extraneous facts must be stated in the introduction or inducement; as an innuendo cannot extend, but only apply the words. (Nichols v. Packard, 16 Vt. 83; Brown v. Brown, 2 Shepley, 317; Harris v. Burley, 8 N.H. 256; Linville v. Early wine, 4 Blackf. 469; Tappan v. Wilson, 7 Ohio, 190, Part i.) The employment of the innuendo will be indulged where the convenience of pleading demands it, though in some cases it ma not be strictly proper. See Blaisdell v. Raymond, 4 Abb. Pr. 446 Contra v. Raymond, 2 Id. 193. 33. Innuendoes, when not Essential. When the language LIBEL AND SLANDER. 25 is not in itself applicable to the plaintiff, no innuendo can make it so. ( TmvnsKend's Slan. and Lib. 114, 426.) But if the plaintiff is designated by another name in the libel, his real name may be designated by an innuendo. (Hays v. Brierly, 4 Watts, 392.) Where it is desired to connect the words charged with the colloquium, or to show the meaning imputed to words libelous per se, we consider that innuendoes may be dispensed with; and it will always be unsafe to rely on an innuendo, un- supported by a distinct prefatory averment, to show a libelous meaning not evident from the words used. As to proof of libelous meaning by extraneous evidence, and as to sufficiency of innuendo drawn, see Wachter v. Quenzer, 29 N.Y. 547; Butler v. Wood, 10 How. Pr. 222. 34. Letter. A complaint which alleges that defendant sent a letter to plaintiff, and the same was, by means of such sending thereof, received and re'ad by plaintiff, and thereby published by the plaintiff, is not good ; for the letter is presumed to be sealed, and sending a letter is not publication. (Lyle v. Clason, i Cat. 581.) But reading aloud a letter containing libelous matter amounts to publication. Snyder v. Andrews, 6 Barb. 43. 35. Libelous Imputations. Imputations which are libelous: An imputation of the receipt of money for procuring a public appoint- ment is said to be libelous. An imputation of insanity. (Perkins v. "Mitchell, 31 Barb. 461.) Corruption against a member of the Legislature. (Littlejohn v. Greeley, 13 Abb. Pr 9 . 41.) A statement by the keeper of an intelligence office, reflecting on the business capacity of the partners of a mercantile firm. Taylor v. Church, 4 Seld. 452; Giraud v. Beach, 4 E. D. Smith, 337; see, further, Townshend's Slan. and Lib. 36. Libelous Intent and Meaning. Where a complaint only averred a libelous intent and meaning on the part of the defendant, in the composing and publishing of the words, without averring that they were so understood by those to whom they were published : Held, that a demurrer to the complaint, on the ground that the written and published words set forth do not constitute a libel, was properly sustained. Maynard v. F. F. Ins. Co. 34 Cal. 48. 37. Special Damage. When the words are in the natural and obvious construction, injurious, some damage is to be presumed, and it is not essential to allege special damage; (Perkins v. Mitchell, 31 Barb. 26 FORMS OF COMPLAINTS. 461;) but when the Court can discern no injurious meaning in the plain and natural purport of the publication itself, the plaintiff must aver and prove special damage. Caldwell v. Raymond, 2 Abb. Pr. 193; Stone v. Cooper, 2 Den. 299; Bennett v. Williamson, 4 Sandf. 60. 33. Of and Concerning Plaintiff Although inducement may be necessary to explain the matter alleged to be libelous, it is enough to state in the declaration that the publication was " of and concerning " the plaintiff. ( Townshend Sland. and Lib. 4p6.) The Court assumes the words complained of do in fact refer to the plaintiff. (Wesley v. Ben- nett, 5 Abb. Pr. 498.) By Section sixty-two of our Civil Practice Act, the averment that the same was published concerning the plaintiff sup- plies the place of all averments of extrinsic facts, which might other- wise be necessary to show the application of the words charged to the plaintiff. This averment is essential, and cannot be supplied by an innuendo. See Ante, Note 30. 39. Reputation Character. Reputation is the estimate in which an individual is held by public fame in the place where he is known. (Cooper v. Greely, i Den. 347.) And it is not necessary to prefix the word general. (French v. Millard, 22 Ohio R. 50.) The words "character" and "re- putation," though often used synonymously, are in fact not synonymous. (20 Ohio, 18; 22 Id. 50.) That they are the same, see (3 Serg. <5f R. 337.) That character is a term convertible with common report, (Id.} And that general character is the estimation in which a person is held in the community where he resides, see (Douglass v. Tonsey, 2 Wend. 354.) It is the result of general conduct. (Sharp v. Scoggin, HolfsN. P.C. 541; 3 Am. Law J. (N.S.) 145.) While "chaste character" means actual personal virtue not mere reputation. Carpenter v. The People, 8 Barb. 603; Crozier v. The People, i Park. Cr. 453; Safford v. The People, Id. 474. 40. Special Damages. Where the words are actionable per se, special damage need not be alleged. Hicks v. Walker, 2 Greene (Iowa), 440. 41. Words with a Covert Meaning. Words which on their face appear to be entirely harmless, may, under certain circum- stances, convey a covert meaning wholly different from the ordinary and natural interpretation usually put upon them. To render such words actionable, it is necessary for the pleader to aver that the author of the libel intended them to'be understood, and that they were in fact LIBEL AND SLANDER. 2 7 understood by those who read them in their covert sense. (Maynard v. Fireman's Fund Ins. Co., 34 Cal 48; see, also, 7 Barb. 260; 5 Abb. Pr. 498; and Carroll v. White, 33 Barb. 618.) And when a hidden defamatory meaning is sought to be attributed to words in themselves innocent, and on their face containing no such sense, by extrinsic facts outside and independent of the publication itself, the knowledge of such facts must be shown, by averment, to have existed in the breast of the defendant at the time of the publication. Smith v, Ashley, 1 1 Met. 367; Dexter v. Spear, 4 Mass. 115. No. 334- i\\. The Same By an Attorney at Law. [TITLE.] The plaintiff complains, and alleges : I. That the plaintiff was, on and before the .... day of , 1 87 . , an attorney at law of the several courts of record of the State of , duly admitted as such to practice therein, as such attorney, and had practised, and still continued to practise as such attorney at law, in the several courts of record in said State of , and had always, as such attorney at law, conducted and demeaned himself with honesty and fidelity, and had never been guilty, or suspected to have been guilty, of any misconduct or malpractice, in his said capacity and profession of an attorney at law. II. That on the .... day of , 187., at , the defendant published in a newspaper called the , the following words concerning the said plaintiff, and of and concerning him in his said capacity and profession of an attorney at law: \_setforth the words usecT\. III. That the defendant meant thereby that [slate innuendo\. 28 FORMS OF COMPLAINTS. IV. That said publication was false, and by means thereof the plaintiff hath been and is greatly injured and prejudiced in his reputation aforesaid, and has also lost and been deprived of great gains and profits, which would otherwise have arisen and accrued to him in his said profession and business. \Demand of Judgment. \ No. 335. iv. The Same by a Physician. [TITLE.] The plaintiff complains, and alleges : I. That at the time hereinafter mentioned the plaintiff was a physician, practising as such at II. That on the day of , 187., the defendant published in a newspaper called the , the following words concerning the plaintiff [set forth the words used~\. III. That said publication was false, and by means thereof the plaintiff was injured in his reputation, and in his said good name and credit as a physician, and in his practice as such. \Demand of Judgment^ LIBEL AND SLANDER. 2 9 No. 336. v. For Libel Charge of Dishonesty, etc., in Business. [TITLE.] The plaintiff complains, and alleges: I. That at the times hereinafter mentioned, the plaintiff was a corporation existing by or under the laws of this State, was engaged in business in the City of , as a banker and stock broker. II. That the business of this plaintiff as a has always depended largely on the good reputation and credit of this plaintiff, and on the trust reposed in it, and by their shareholders and the public, in con- sequence thereof. III. That the defendant was, at the times hereinafter mentioned, the publisher and proprietor of the , a newspaper published in the City of IV. That the defendant, well knowing the premises, did, on the .... day of , 187 . , compose and publish in said newspaper, concerning the plaintiff, and concerning the premises, the false and defamatory matter following, to wit: [here insert words of libel, innuendoes, etc.~\ IX. That by reason of the premises the plaintiff has been injured in its reputation and credit, to its damage dollars. [Demand of Judgment. ~\ 41. Corporations Special Damage. Incorporated panics established for the purpose of transacting business, e.g., corn- banks, 3O FORMS OF COMPLAINTS. may maintain actions for libel, the same as individuals, for. words affecting their business or property, and without alleging special damages. Shoe and Leather Bank v. Thompson, 23 How.Pr. 253. No. 337. vi. For Charge of Crime Words not Libelous on their Face. [TITLE.] The plaintiff complains, and alleges: I. That at the time hereinafter mentioned, the [dwelling house] of the defendant had been burned down, and it was suspected that it had been feloniously set on fire. II. That on the .... day of , 187 . , at , the defendant published in a newspaper called the , the following words concerning the plaintiff: " One A. B. kindled the fire, and I can prove it." III. That the defendant meant thereby that the plaintiff had feloniously set fire to said house. IV. That the said publication was false. [Demand of Judgment.] No. 33S. vii. For Accusing Plaintiff of Perjuryin his Answer to a Complaint. [TITLE.] The plaintiff complains, and alleges : I. That before the committing of the grievances hereinafter mentioned, the plaintiff had filed his answer in a certain action then pending against him in the Dis- LIBEL AND SLANDER. 3! trict Court of the Judicial District of the State of , wherein the defendant herein was plaintiff; and which said answer was verified by this plaintiff. II. That on the day of , 187 ., at , the defendant, well knowing the premises, published, and caused and procured to be published, in a newspaper called the , concerning the plaintiff and his said answer, the following words : [here state the libelous matter\ and in a certain other part of the said libel, the following words : \liere state libel- ous matter\. III. That said publication was false. [Demand of Judgment. \ No. 339. viii. For Composing a Libel not Directly Accusing the Plaintiff of Perjury. [TITLE.] The plaintiff complains, and alleges : I. That before the committing of the grievances by the defendant hereinafter mentioned, a certain action had been pending in the District Court of the Judicial District of the State of ...-....., wherein one A. B. was plaintiff and one C. D. was defendant, and which action had been then lately tried in said Court, and on such trial the plaintiff herein was examined on oath, and had given his evidence as a witness in behalf of the said A. B. II. That on the day of , 187 ., at , the defendant published in a newspaper called the , the following words concerning 32 FORMS OF COMPLAINTS. the plaintiff and the said action, and concerning the evi- dence given by the said plaintiff upon the said trial as such witness, that is to say: "He," (meaning the plaintiff) "was forsworn on the trial" (meaning the said trial), and that he, the said plaintiff, in giving his evidence as such witness on said trial, had committed willful and corrupt perjury. II. That said publication was false. [Demand of Judgment '.] JVo. 340. ix. For a Libel not Directly Accusing the Plaintiff of Larceny. [TITLE.] The plaintiff complains, and alleges: I. That before the committing of the grievances hereinafter mentioned, a certain horse of the defend- ant had been feloniously stolen by some person or per- sons \pr state that the defendant "was possessed of a horse, and had asserted that his horse had been feloni- ously stolen," or "it had been asserted that his said horse had been feloniously stolen."] II. That on the day of , 187., at , the defendant, well knowing the premises, published in a newspaper called the , the following words concerning the plaintiff and the said horse: "He is the person who took my horse from the field." III. That defendant meant thereby that the plaintiff had feloniously stolen his said horse. IV. That the said publication was false. [Demand of Judgment '."] LIBEL AND SLANDER. 33 JVo. 341. x. For Libel by Signs. [TITLE.] The plaintiff complains, and alleges : That on the .... day of , 1 87 . , at , the defendant, contriving to injure the plaintiff in his reputation, and to bring him into public contempt, dis- grace, and ridicule, did, in the public street of said , wrongfully and maliciously make, and cause to be made, an effigy or figure intended to represent the person of the plaintiff, and hung up and caused to be hung up the said effigy, in the view of the neighbors of the plaintiff and of the public then and there assem- bled, by means of which the plaintiff has been greatly injured in his reputation. [Demand of Judgment.] Note. A caricature may be libelous. See Viele v. Gray, 18 How. Pr. 550; 10 Abb. Pr. i. JVo. 342. \. For Slander The Words being Actionable in Themselves. [TITLE.] . The plaintiff complains, and alleges: I. That on the day of , 187., at , the defendant spoke, in the hearing of A. B. [or sundry persons'], the following words concerning the plaintiff : [" He is a thief."] II. That the said words were false. [Demand of Judgment.] 3 34 FORMS OF COMPLAINTS. 1. Statement of Action. By the common law, actions of tort die with the person, and this rule applies to actions for slander and libel, except in those states where a different rule is prescribed by the statute. Towns hend on Slander and Libel, 389; see i W. Saund. 316; 5 Cush. 543, 544; Waif or d on Parties, 1,392, 1,449. 2. Ambiguous Words. Where words are ambiguous and uncertain in their meaning, the complaint must allege such circum- stances as will show that they were uttered with a slanderous meaning. Pike v. Van Wormer, 5 How. Pr. jyi; 6 Id. 99. 3. Averments in Complaint. The New York Code has changed the common law rule of pleading in actions of slander in one particular: that is, although it may be uncertain to whom the words were intended to apply, it is no longer necessary to insert in the complaint any aver- ments showing they were intended to apply to the plaintiff. (Pike v. Van Wormer, 6 How. Pr. 99.) A complaint which avers that defend- ant spoke certain words of and concerning the plaintiff, and setting forth the words, which appear actionable per se, sufficiently states a cause of action. Malone v. Stilwell, 15 Abb. Pr. 442. 4. Chastity. Ordinarily, and in the absence of any statutory pro- vision, words published orally charging a woman with want of chastity are not actionable per se. (Townshend on Slan. and Lib. 175, etseq.) Want of chastity, special damage being averred, as to unmarried female, (Fuller v. Fenner, 16 Barb. 333.) As against a man, (Ter- williger v. Wands, 17 N.F. 54.) Or a married woman, Wilson v. Goit, 17 N.F. 442; Olmstead v. Brown, 12 Barb. 657; Klein v. Hentz, 2 Duer. 633. 5. Construction. In a declaration in slander, the words laid as the slanderous charge will be understood by the Court in their natural and popular sense. Tuttle v. Bishop, 30 Conn. 80. 6. Continuando. In complaint for slander, the words spoken should not be alleged with a continuando. Slanderous words spoken at one time constitute one cause of action. The same or other slan- derous words spoken at other times constitute other causes of action, but if relied on they should be separately pleaded, in separate paragraphs. Swainey v. Nave, 32 Ind. 178. 7. Counts in Complaint. It is actionable to include in the same declaration divers distinct words of slander of different import. LIBEL AND SLANDER. 35 (Hall v. Nees, 27 ///. 411.) But a new count for another slander can- not be added after the right of action has been barred by the Statute of Limitations. (Smith v. Smith, 45 Penn. Stat. R. 403.) Under the old rule the plaintiff was held to strict proof of the words as charged in the declaration; and to meet this rule, it was necessary to state the words in a variety of counts, adapted to the evidence relied on. See Olm- stead v. Miller, i Wend. 506; Aldrich v. Brown, n Id. 596; Keenholts v. Becker, 3 Den. 346; Fox v. Venderbeck, 5 How. Pr. 513; Howard v. Sexton, ^N.Y. 157; Rundell v. Butler, 7 Barb. 260. 8. Damages. In an action for slander, where words are charged to have been spoken of and concerning a plaintiff, as a clerk or trades- man, which it is alleged was his profession, it is unnecessary to allege special damages. Butler v. Howes, 7 Cal. 87. 9. Disease. With respect to the charge of having a disease, it is actionable to charge having certain diseases, but it has been held not actionable to charge one with having had such diseases. ( Townshend on Stand, and Lib. 184.) That a married woman has (in the present tense) a venereal disease. (Williams v. Holdridge, 22 Barb. 396; Pike v. Van Wormer, 5 How. Pr. 171.) That a man has a venereal disease. Hewitt v. Mason, 24 How. Pr. 366. 10. Entire Conversation. A count of a petition in an action for slander, which sets out the entire conversation in which the slander was spoken, contains only one cause of action, although the conversa- tion consists of several parts, each of which is actionable. (Craeraft v. Cochran, 16 Iowa, 301.) A complaint in an action for slander which states that the words contained therein are those which the defendant spoke concerning the plaintiff, is good, although the style of such words* is unusual for a conversation. Hull v. Vreeland, 45 Barb. 534. 11. Essential Averments. In an action for slander, it should be alleged that the defendant spoke the words in the presence and hearing of divers persons. To allege a speaking merely is not suffi- cient. (Style, 70; Stark. Slan. 360.) But in Indiana, by statute, it is sufficient merely to allege the speaking. (Girard v. Risk, n Ind. 156.) Or it is sufficient to allege, "in the hearing of certain persons," naming them; (Burbank v. Horn, 39 Me. 233;) or of certain persons named, and divers others, not naming the others. Bradshaw v. Perdue, 12 Geo. 510; Ware v. Cartledge, 24 Ala. 622. 36 FORMS OF COMPLAINTS. 12. Husband and Wife. By the statute of New York of 1860 and 1862, a married woman may sue alone and without her husband for slander or libel; and so in Pennsylvania. (Rangier v. Hummell, 37 Penn. 130.) But that a wife cannot sue her husband for slander, see (Freethy v. Freethy, 42 Barb. 641; Tibbs v. Brown, 2 Grant's Cas. (Penn.} 39;) but if there be no statutory provision to govern such actions, the action should be brought in the name of both husband and wife. (Stark, on Slan. 349; 3 Binn. 555; 8 Sc. N. R. 26; 4 M. & W. 5; Sayre, 33; 3 Mod. 120; 4 Barr. 29.) And if the husband dies, the action survives to the wife; but if the wife dies before verdict, the action abates. (12 S. & R. 76; Str. 977; 3 T. R. 627; see Style, 138.) If the words concerning a married woman are actionable because of special damage to the husband, the husband must sue alone; (Cro. J. 538; 22 Barb. 396; n Cush. 10; Bull, N. P. 7; i Nev. & M. 254; 4 B.&Adol. 514; i Sid. 387; Str. 977; 8 Mod. 26; 4 Barr. 29; Stark. Slan. 351; Fort. 377; i Lev. 140; 2 Duer, 633-;) even if the husband and wife live apart under a deed of separation. (2 Hill, 309; see Towns/lend on Slan. and Lib. 390.) So, for a charge of joint larceny, the husband should sue alone. (20 Penn. 159.) Where the language published concerns both husband and wife, the husband may sue alone for the injury to him, and the husband and wife may sue jointly for the injury to the wife. (Id.) For a publication by a married woman, the action must be against her and her husband. 5 Carr. & P . 484; 2 Wils. 227; Style. 349; 2 W. Saund. 117. 13. Joinder of Actions. A cause of action against the hus- band for the wrongful act of his wife cannot be joined with a cause of action against him for his own wrongful act. Thus, the com plaint in an action against husband and wife stated a cause of action for slander- ous words of the wife, and a further cause of action for slanderous words of the husband : Held, that the two causes of action were improp- erly joined. Malone v. Stilwell, 15 Abb. Pr. 421. 14. Jurisdiction. The Court has jurisdiction in an action of slander, although the slanderous words were spoken in another state. Hull v. Vreeland, 42 Barb. 534. 15. Language in Part Slanderous. Where the complaint sets out language used on a single occasion, a part of which is slanderous and the rest is not, the latter portion will not be stricken out as irrele- vant. Though it may not be necessary to allege in the complaint all LIBEL AND SLANDER. 37 that was said at the time, it is proper to do so. (Deyo v. Brundage, 13 How. Pr. 221; Root v. Lowndes, 6 Hill, 518.) Plaintiff was not bound, however, to prove all the words charged. If he proved some of them, and those proved were actionable, it was enough. (Loomis v. Swick, 3 Wend. 205; Purple v. Horton, 13 Id. 9; compare, also, Dioyt v. Tanner, 20 Id. 190; Genet v. Mitchell, 7 Johns. 120.) And different sets of words importing the same charge, and laid as spoken at the same time, might, under the former practice, be included in the same count. (Rathbun v. Emigh, 6 Wend. 407;- Milligan v. Thorne, Id. 412.) If any of the words are actionable, judgment must be for plaintiff. Edds v. Waters, 4 Cranch C. Ct. 170. 16. Of or Concerning Plaintiff It is sufficient to aver sub- stantially that the words were spoken of plaintiff. An express averment of the fact is not necessary. Brown v. Lamberton. 2 Binn. 34; Brashen v. Shepherd, Ky. Dec. 294; Nestle v. Van Slyke, 2 Hill, 282; but see Titus v. Follett, 2 Hill, 318; Tyler v. Tillottson, 2 Hill, 508; Cave v. Shelor, 2 Munf. 193; Harper v. Delp, 3 Ind. 225; Rex v. Marsden, 4 M. 6* S. 164; Baldwin v. Hildreth, 14 Gray (Mass.) 221. 17. Place and Time. The place (n East. 226) or time of speaking the words (22 Barb. 87; 29 ///. 115) are not material; but it must be prior to the commencement of the action. Taylor v. Sur- gingger, 2 Rep. Con. Ct. 3.67. 18. Presence and Hearing. The words used must be alleged as having been spoken of and concerning the plaintiff, in the presence and hearing of some per son or persons. Anonymous, 3 How.Pr. 406; Wood v. Gilchrist, i Code R. 117. But plaintiff may amend on the trial, if defendant is not misled. Id. 19. Presence and Hearing. How Alleged. It is a sufficient allegation, in a complaint in an action for slander, to show that the words were spoken in the presence and hearing of some person or persons; to state that in certain conversations or discussions defendant did publish, declare, etc., as these words sufficiently imply the presence of hearers, and indicate that the declarations were public and notorious. Kurd v. Moore, Oregon Rep. 1866, p. 65. 20. Presumption of Malice. Where the occasion upon which the words for which an action of slander is brought were spoken repels any presumption of malice, and proof of it is necessary to main- . 38 FORMS OF COMPLAINTS. tian the action, it is sufficient to aver that they were spoken maliciously, without setting forth in the complaint the facts and circumstances which show the existence of malice. Viele v. Gray, 10 Abb. Pr, i. 21. Published. " Published ex vi termini" imports a speaking in the presence of a third party. (Dael v. Agan, i Code R. 134.) And this averment held sufficient, without averring specially in the presence of others, (Burton v. Burton, 3 Iowa, 316.) That the words were spoken would be sufficient, if accompanied by an averment implying publication to a third person. Taylor v. How, Cro. Eliz. 86 1. 22. Several Liability. As a general rule, an action of slander will not lie against two persons; as every speaker must be sued separately. (Malone v. Stillwell, 15 Abb. Pr. 421;) although it seems that where the words are alleged to have been uttered in pursuance of ^conspiracy between two or more defendants, the action may be main- tained. Chitty's Pleading, 74; Bui. N.P.^; Johns. R. 32; Forsyth v. Edmiston, 2 Abb. Pr. 430. 23. Slander Defined. Slander is the imputation: First, Of some temporal offense, for which the party may be indicted and punished in the temporal courts. Second, Of an existing contagious disorder, tending to exclude the party from society. Third, Of an unfitness to perform an office or employment of profit, or want of integrity in an office of honor. Fourth, Words prejudicing a person in his lucrative profession or trade. Fifth, Any untrue words occasion- ing actual damage; (i Milliard on Torts, ch. vii. 33;) slander being an unwritten or unprinted libel. (Id. 32.) It is also defined to be "the publishing of words in writing or by speaking, by reason of which the person to whom they relate becomes liable to suffer some corporal punishment or to sustain some damage. (Bac. Abr.) Slander is a private wrong or tort, cognizable by the common law, the remedy for which is a civil action, formerly known as an " action on the case for words," and now as "an action, or the action of or for slander." Townshend on Slander and Libel, 22. 24. Special Damages. The loss which ensues as a necessary consequence is termed damage; the loss which ensues as a natural and proximate consequence is termed special damages. (Townshend on Sland. and Lib. 148.) Special damages consist in the loss of marriage, loss of consortium of husband and wife, loss of emoluments, profits, customers, employment, or gratuitous hospitality, or by being subjected LIBEL AND SLANDER. 39 to any other inconvenience or annoyance occasioning or involving a pecuniary loss. (Id. 227.) Mere apprehension of loss is not such special damage as will maintain an action. (Id. 230; Terwilliger v. Wands, 17 K.Y. 54; Wilson v. Goit, Id. 442; Alsop v. Alsop, 5 Hurl. 6" Nov. 534; Bedell v. Powell, 13 Barb. 183.) Mental distress, phys- ical illness and inability to labor, occasioned by the aspersion of words not in themselves actionable, are no grounds for special damages. The case of Bradt v. Towsley, 13 Wend. 253; and Fuller v. Fenner, 16 Barb. 333; overruled, Tervvilliger v. Wands, Court of Appeals, Jan. 1859; Wilson v. Goit, Id.; see Post, Note 45. 25. Special Damages must be Alleged. Special damages or those damages which are not the necessary consequence of the language complained of, must be specially alleged in the complaint. (Townshend on Slander and Lib. 428, citing various authorities.) A pecuniary loss must be shown to entitle the plaintiff to a remedy. (Beach v. Ranney, 2 Hill, 309; Herrick v. Lapham, 10 Johns. 291; Hallock v. Miller, 2 Barb. 630; Hersh v. Ringwalt, 3 Yeates, 508.) The objections that allegations of special damage e. g., in an action for slander are not sufficiently specific, cannot be raised by demurrer, but only by motion to make more specific. Hewitt v. Mason, 24 How. Pr. 366. 26. Subsequent Usage. In slander, allegations of a subsequent usage of the words complained of are inadmissible. A repetition may be proved without such allegation. (Gray v. Nellis, 6 How Pr. 290.) If, after a recovery has been had in an action for slander or libel, special damage occurs, no action can be maintained therefor. The first recov- ery is a bar to any subsequent action. ( Townshend on Sland. and Lib. 231; Cooke Defam. 24; Fittler v. Veal, Cas. K. B. 542.) Ordinarily, the repetition of language by another than the first publisher is not a natural consequence of the first publication, and therefore, except in certain cases, the loss resulting from such repetition does not constitute special damage. Townshend on Sland. and Lib. 233. 27. Specific Words. The specific words in which slander is conveyed must be set forth in the petition in an action of slander; and it is not sufficient to state the effect of the words merely, or to allege that the defendant charged the plaintiff with a particular crime. Tay- lor v. Moran, 4 Met. (Ky.) 127. 40 FORMS OF COMPLAINTS. JVo. ii. For Slander Words Spoken in a Foreign Language. [TITLE.] The plaintiff complains, and alleges: I. That on .... day of ........ , 1 87 . , at ....... , the defendant, in the presence and hearing of divers persons who understood the [German] language, spoke concerning the plaintiff the following words in the said [German] language: \_Here set forth the words in the German or foreign language] and which said words signified, and were understood to mean, in the English language: \_Here set forth a correct translation of the words in English"] and the said German words were so understood by the said persons in whose presence and hearing they were spoken. II. That the defendant meant thereby \_set forth innuendo~\ . III. That the said pnblication was false. IV. That in consequence, \_state special damage"]. [Demand of Judgment^ 28. Foreign Tongue. Where the slanderous words were spoken in a foreign tongue, they should be set out in the complaint in the original language, accompained by an averment of their meaning in English, and it should also be alleged that the persons present under- stood the language used. (Keenholts v. Becker, 3 Den. 346; Wor- month v. Cramer, 3 Wend. 395; Lettman v. Ritz, 3 'Sandf. 734; Amann v. Damm, 8 C. B. (N.S.) 592.) The complaint is, however, amendable in this respect, upon terms. 3 Sandf. 734. 29. Foreign Words. In the case of foreign words, it must be alleged that the persons present understood them. (Wormuth v. Cramer, 3 Wend. 394; Stark. Slan. 360; Cro. Eliz. 396; Cro. Jac. 39; LIBEL AND SLANDER. 41 Cro. Car. 199; Nov, 57; Golds. 119; Zerg v. Ort, 3 Chand. 26; Amann z>. Damm, 8 Com. B. (N.S?) 597.) But in Ohio, it is held where words are spoken in German in a German county, it will be presumed they were understood. Bechtell v. Shatler, Wright, 197. NO. 344- iii. For Slander The Words not being Actionable in Themselves. [TITLE.] The plaintiff complains, and alleges: I. That on the .... day of , 1 87 . , at the defendant said to one C. D., concerning the plaintff: [" He is a young man of remarkably easy conscience."] II. That the plaintiff was then seeking employment as a private secretary to the said C. D., and the defend- ant meant by the said words that the plaintiff was not trustworthy as a private secretary. III. That the said words were false. IV. That in consequence of the said words [the said C. D. refused to employ the plaintiff as private secre- tary]. [Demand of Judgment. \ 30. Innuendo. Where the words themselves are ambiguous, and do not necessarily impute a crime, the innuendo cannot enlarge the meaning of the words spoken beyond the averment of the intention by which the speaking of the words is introduced. (Weed v. Bibbins, 35 Barb. 315; and see Fiy v. Bennett, 5 Sandf. 54.) As to the office of the innuendo as employed prior to the Code, consult (Pelton v. Ward, 3 Cat. 73; Mott v. Comstock, 7 Cow. C. 54; Id. 658; Tyler v. Tillotson, 2 Hill, 507; Butler v. Wood, loHozv. Pr. 222; Tillotson v. Cheatham, 3 Johns. 56; Van Vechten v. Hopkins, 5 Id. 211; Lindsey v. Smith,' 7 Id. 359;Vanghan v. Havens, 8 Id. 109; Foy v. Bennett, 5 Sandf. 54; Andrews v. Woodmansee, 15 Wend. 232; Cornelius v. Van Slyck, 21 42 FORMS OF COMPLAINTS. Id. 70; Creswell v. Wood, 25 Id. 621.) It may be averred that the defendant, by means of the words, insinuated and meant to be under- stood by the hearers as charging the plaintiff with the crime imputed. (Rundell v. Butler, 7 Barb. 260.) But if the words are unambiguous, such averment is unnecessary. (Walrath v. Nellis, 17 How. Pr. 72.) And where the innuendo extends the meaning, the excess in meaning may be disregarded. Carroll v. White, 33 Barb. 621; Weed v. Bibbins, 32 Id. 315. 31. Tenor, Import, and Effect. It is bad pleading to aver in the complaint that defendant uttered " certain false and defamatory words and statements, of the following tenor and import, and to the following effect, that is to say," etc., though an allegation of their "substance" might be sufficient. (Forsyth v. Edmiston, 2 Abb. Pr. 430; Maitland v. Goldney, 2 East, 427; Cook v. Cox, 3 Man. & S. no; Wardz>. Clarke, 2 Johns. 10; Finnerty v. Barker, 7 N.Y. Leg. Obs. 316.) Of the former rules of pleading and evidence in actions of slander, and their operation, Bisbey v. Shaw, 2 Kern. 67. 32. What Words are Actionable. Although words spoken o * a party do not necessarily import anything injurious in themselves, yet they may when taken in connection with other charges made against the party at the same time. The whole being spoken of the party as a merchant, and with intent to affect his credit, have a very different meaning from their ordinary one, and so taken may sustain an action. Beardsley v. Tappan i Blatch. 588. 33. Words of Disgrace. Mere words of disgrace, unless written and published, are not actionable. Johnson v. Brown, 4 Cranch c. a. 235. 34. Words not Per Se Slanderous. In actions of slander for words not in themselves actionable, the right to recover depends upon the question whether they caused special damage, and the special damage must be fully and accurately stated. (Linden v. Graham, i Duer, 672; Hallock v. Miller, 2 Barb. 630; Evans v. Harris, i H. & N. 251; Hartley v. Herring, 8 T. R. 130; Harrison v. Pearce, F. & F. 570. LIBEL AND SLANDER. 43 No. 345. iv. For Slander Respecting Plaintiff's Trade. [TITLE.] The plaintiff complains, and alleges: I. That at the time of the commission of the griev- ances hereinafter mentioned, the plaintiff was engaged in business as merchant [or as the case may oe], and had always maintained a good reputation and credit as such [merchant]. II. That on the .... day of , 187., the defendant, in the presence and hearing of a number of persons, maliciously, and with intent to cause it to be believed that the plaintiff kept false and fraudulent books of account in his said business, published the following words concerning this plaintiff, and concerning his said business: " He keeps false accounts, and I can prove it" [or state the words complained of~\. III. That the said words were false. IV. That in consequence of said words a number of persons, and in particular [name the persons referred to~\, who had theretofore been accustomed to deal with the plaintiff in his business aforesaid, ceased to deal with him, and the plaintiff was thereby deprived of their cus- tom, and of the profits which he would otherwise have made by a continuance of such dealing, and was other- wise injured in his reputation. \_Demand of Judgment, .] 35. Clerk or Tradesman. In an action for slander, where words are charged to have been spoken of and concerning a defendant, 44 FORMS OF COMPLAINTS. as a clerk or tradesman, which it is alleged was his profession, it is unnecessary to* allege special damage. Butler v. Howes, 7 Cal. 87. 36. Dishonesty. Imputations charging dishonesty against an individual in connection with his business are slanderous per se. Fowler v. Bowen, 30 N.Y. 20. 37. Ignorance and Want of Skill. Gross ignorance and want of skill in his profession, as against a physician. Secor v. Harris, 1 8 Barb. 425; Carroll v. White, 33 Barb. 615. 33. Insolvency. An imputation of insolvency against a petty trader is actionable. Carpenter v. Dennis, 3 Sandf. 305. 39. Mechanical Trade. Words imputing to a mechanic want of skill or knowledge in his craft, are actionable per se, if they are clearly shown to have been spoken with reference to the plaintiffs occupation, and the employment is one requiring peculiar knowledge and skill. Fitzgerald v. Redfield, 51 Barb. 484; S.C., 36 How. Pr. 97. 40. Physician. Where words are actionable only because spoken of the plaintiff in his business or profession, averments by way of induce- ment and colloquium should be inserted. If a physician brings an action for the speaking of words which are disgraceful to him in his profession, he must aver in his complaint that he was a practising phy- sician at the time the words were uttered, and that they were spoken of and concerning him in his profession; otherwise it is demurrable. Carroll v. White, 33 Barb. 615. 41. Special Averment Discharge from Employ. That by reason, etc., one A. B., who had theretofore retained plaintiff in the capacity of , for , afterwards, on , dis- charged the plaintiff from his employ. 42. Special Averment Refusal to Deal. That by reason of the committing of the said grievances by the defendant, E. F., G. H. [etc., who had theretofore dealt with the plaintiff in his trade of a , by him then and since carried on], afterwards declined to have any dealings with the plaintiff. 43. Special Averment Refusal to Employ. That by reason of said slander, one E. F., who before was about to employ, and would have employed the plaintiff as his servant for certain wages, LIBEL AND SLANDER. 45 afterwards, and before the commencement of this suit, refused to employ the plaintiff in his service ; and the plaintiff from thence remained out of employment for months. 44. Special Averment Refusal to Retain in Employ . That by reason [etc.] , one , who otherwise would have retained the plaintiff in the capacity of , in his business of , for wages, afterwards declined so to do; whereby the plaintiff lost [etc.], which would otherwise have accrued to him [etc.] 45. Special Averment Refusal to Sell. That by reason [etc.], one A. B., who would otherwise have sold to the plaintiff certain goods, to wit: [mention goods], on credit, afterwards refused so to do; whereby, etc. 46. Special Damages. In an action for slander for words spoken of the plaintiff in his trade or business, with a general allegation of loss of business, jury may assess damages for a general loss or decrease of trade. As a general rule, the customers so lost should be named. (Mayne on Damages, 278, 317; 2 Phil, on Ev. 248; Feise v. Linder, 3 B. & P. 372; Tobias v. Harland, 4 Wend. 537; Halleck v. Miller, 2 Barb. 630.) The loss of a customer is special damage, although if the dealing had taken place, the plaintiff would have lost by it. (Storey v. Challands, 8 C. & P. 234.) For cases on the subject of averring special damages in actions of slander, see (Hallock v. Miller, 2 Barb. 630; Keenholts v. Becker, 3 Den. 346; Beach v. Ranney, 2 Hill. 309; Herrick v. Lapham, 10 Johns. 291; Olmsted v. Miller, i Wend. 506; Sewall v. Catlin, 3 Id. 291; Williams v. Hill, 19 Id. 305; Shipman v. Burrows, i Hall, 399; Harcout v. Harrison, Id. 474.) For averments of special damages, see Turner v. Foscall, 2 Cranch C. Ct. 324; see Ante, Note 24. No. 346. v. For Slander Charging a Criminal Offense. [TITLE.] The plaintiff complains, and alleges: I. That at the time of the commission of the grievances hereinafter mentioned, the plaintiff sus- 46 FORMS OF COMPLAINTS. tained a good name and character among- his neighbors and acquaintances, for moral worth and integrity, and was never suspected of the crime of forgery. II. That on the .... day of , 187 . , the defendant, in the presence and hearing of a number of persons, spoke the following words concerning the plaintiff: " He is a forger." III. That the said words were false. IV. That in consequence of the said words the plaintiff has been greatly injured in his good name and character. \Demand of Judgment^ 47. Actionable Language. When language imputes a charge which, if true, will subject the party charged to an indictment for a crime involving moral turpitude, or subject him to an infamous punish- ment, it is actionable per se. (Townshend on Slan. and Lib. 152.) And this rule has been .followed in most of the states. (See Brooker v. Cof- fin, 5 Johns. 188; Young v. Miller, 3 Hill, 22: Widrig v. Oyer, 13 Johns. 124; see, also, 36 Barb. 438; 2 E. D. Smith, 388; 13 Johns. 275; 17 Id. 219; 19 Id. 367; 5 Cow. 503; 6 Id. 88; 4 Barb. 504; 9 Wend. 141; 23 Conn. 590; 3 Serg. & R. 255; \oSerg. & R. 18; 2 Harrison (N.J.) 12; i Dutcher, 118; 4 Ga. 360; 3 Iowa, 316; 3 Rich. 242; 3 Harr. 77; Minor, 93, 138; 2 Slew. & Por. 395; 9 Por- t gr > 5 2 5> J Doug. (Mich.} 67; 21 Penn. 522; 7 Vt. 439; 2 Halst. 426; I Am. Lead. Cas. 113 ($d Ed.) In some of the states it seems that all oral language which imputes an indictable offense, or an offense punishable at law, is actionable per se; (Foe v. Grever, 3 Sneed, 666; Dunnell v. Fiske, n Metcf. 552; Edgerley v. Swanie, 32 N.H. 481; Tenney v. Clement, 10 N.H. 57;) or an indictable offense; (Kinney v. Hosea, 3 Harr. 77;) while in some other states, to be actionable they must impute not only an indictable offense, but such for which corporal punishment may be inflicted as the immediate penalty. (Birch v. Ben- ton, 26 Miss. 153; Billinger v. Wing, 7 Vt. 144.) Words which impute, trespass, assault, battery, and the like are not actionable per se, and yet those offenses are punishable by indictment. Smith v. Smith, LIBEL AND SLANDER. 47 2 Sneed, 478; Dudley v, Horn, 21 Ala. 379; Billings v. Wing, 7 Vt. 144; see Note 49. 48. Words Subjecting Plaintiff to Criminal Prosecu- tion. Words imputing to plaintiff an act subjecting him to a criminal prosecution, must also impute moral turpitude, or something infamous or disgraceful, detracting from the character of the offender as a man of good morals. Quinn v. O'Hara, 2 E. D. Smith, 388; Pike v. Van Wormer, 5 How. Pr. 171; Dias v. Short, 16 How. Pr. 322; Weed v. Bibbins. 32 Barb. 315. No. 3 47. vi. For Slander Words Directly Charging a Criminal Offense Several Causes of Action. [TITLE.] The plaintiff complains, and alleges: I. That on the .... day of , 1 87 . , at , the defendant, in a certain discourse which he had with one A. B., in the presence and hearing of divers per- sons, spoke the following words concerning the plaintiff: \_set forth the words. ~\ II. That on the .... day of ,187., at , the defendant, in a certain other discourse which he then had in the presence and hearing of divers other persons, spoke concerning the plaintiff the follow- ing other words : [set forth the words.~\ III. That all said words were false. IV. That in consequence of said words, etc. [Demand of Judgment^ 49. Words Charging Offenses. Words charging a burning amounting to arson, whether by common law or by statute, are action- able. So of a general charge of forgery. So of a general charge of being a murderer. So of a general charge of being a thief. So of a 48 FORMS OF COMPLAINTS. charge oflarcen", or a taking animo furandi, the personal property of another. Or imputations charging a person with being a receiver of stolen goods. (Diasz'. Short, 16 How. Pr. 322.) As to the imputations of stealing goods, when and where not slanderous per se, and to what extent, see (Coleman v. Playstead, 36 Barb. 26; Mayoeez'. Fisk, 42 Barb. 326; Wilbur v . Ostrom, i Abb. Pr. (N.S.) 75.) So of a direct charge of perjury. (See Townshend on Slan and Lib. 165, et seq.; and the cases there cited.) So of an imputation of willful perjury in a suit pending. Walrath v. Nellis, 17 How. Pr. 94; Baker v. Williams, 12 Barb. 529. No. 348. vii. Slander For Words Directly Charging Perjury. [TITLE.] The plaintiff complains, and alleges: I. That on the day of , 187 ., at , the defendant, in a certain discourse which he then had concerning the plaintiff, in the presence and hearing of divers persons, spoke and published con- cerning the plaintiff the words following: "You per- jured yourself." II. That said words were false. III. That in consequence of the said, words the plaintiff is greatly injured in his good name and reputa- tion, and has been rendered liable to prosecution for perjury. [Demand of Judgment.'] 50. Construction of Words. In an action for slander, in charging the* plaintiff with perjury, if it appears that the words used to express the charge are such, in the sense in which they would naturally be understood, as to convey to the minds of those to whom they are addressed the impression that the plaintiff had committed perjury, and that the defendant intended to be so understood by those who heard him, such words will of themselves warrant a verdict for the plaintiff, in case LIBEL AND SLANDER. 49 the jury find that they were uttered with the intention above stated, and were so understood; and it is not necessary to give additional evidence that the suit was in a court of competent jurisdiction, or that the plaintiff swore falsely, with a corrupt intent. Kern v. Towsley, 51 Barb 385. 51. Perjury in Another State. In a declaration for slander, in charging the plaintiff with perjury in another state, it must be averred that, by the laws of such other state, perjury is an offense to which is annexed an infamous punishment. (Sparrow v. Hayward, 8 Jones L. (A r .C.) 195.) As to the charge of false swearing, and the extent of the responsibility of the defendant, see Wilbur v. Ostrum, i Abb. Pr. (N.S.) 275. JVo. 349. viii. Slander For Words Charging Perjury, and Containing Special Inducements. [TITLE.] The plaintiff complains, and alleges : I. That on the .... day of , 187 . , at , a certain action was pending before A. B., a justice of the peace in and for the County of , wherein C. D. was plaintiff, and E. F. was defendant, and in which suit the plaintiff was duly sworn before the said Justice, and gave his evidence as a witness, on the trial of said action, and testified that he " did not know that one M. had run away;" the fact whether the said M. had run away or not being material in said action. II. That on the .... day of ,187., at , the defendant, in a discourse which he had in the presence and hearing oftsundry persons, spoke and published of and concerning the plaintiff, and concern- ing the said trial and testimony of the plaintiff as a witness in relation to said M., the words following: "H swore to a lie at , in the suit between C. D. and 4 5O FORMS OF COMPLAINTS. E. F.; he said he did not know that M. had run away, and it was a lie, for he did know it;" meaning that the plaintiff, at the trial of the action aforesaid, had, as a witness, sworn falsely, and committed willful and cor- rupt perjury. III. That the said words were false. IV. That in consequence of said words, etc. [as in preceding form\ . [Demand of Judgment '.] CHAPTER IV. MALICIOUS PROSECUTION. No. 350. i. Common Form. [TITLE.] The plaintiff complains, and alleges : I. That on the .... day of ...-....., 187., at . . '. , the defendant obtained a warrant of arrest from [a police justice of the said city, or as the case may 6e~], on a charge of , and the plaintiff was arrested thereon, and imprisoned for days [or hours], and gave bail in the sum of dollars to obtain his release. II. That in so doing the defendant acted maliciously and without probable cause. III. That on the day of , 187 ., the said Justice dismissed the complaint of the defendant, MALICIOUS PROSECUTION. 51 and acquitted the plaintiff [or the grand jury of the County of ignored the bill against the plaintiff, or otherwise show a termination favorable to him\. IV. That many persons, whose names are unknown to the plaintiff, hearing of the said arrest, and supposing the plaintiff to be a criminal, have ceased to do business with him [or that in consequence of the said arrest, the plaintiff lost his situation as clerk to one A. B.] [Demand of Judgment '.] 1. Causes of Action not Assignable. Causes of action aris- ing out of personal torts which do not survive to the personal represent- atives of a party, are not assignable. (2 Kern. 262; 3 Kern. 322; 36 Barb. 270; i Seld. 347; Boyd v. Blankman, 29 Cal. 1 9 ; Comegys v. Vesse, i Pet. 193.) So, a cause of action for a malicious prosecution is not assignable. Lawrence v. Martin, 22 Cal. 173. 2. Conspiracy. When two or more persons are sued for a joint wrong done, it may be necessary to prove a previous combination between them in order to secure a joint recovery; but it is not necessary to aver this previous combination in the complaint, and if averred, it is not to be considered as of the gist of the action. (Herron v. Hughes, 25 Cal. 560.) An allegation that the defendants have fradulently confederated and conspired together for the purpose of harrassing the plaintiff, by prosecuting separate suits against him for the same cause, and that such suits have been commenced, and are prosecuted in pur- suance of such conspiracy, is not sufficient to sustain an action, or uphold an injunction, when the defendants claim adversely to each other, as well as to the plaintiff, and no direct fraud is charged; the plaintiff merely averring his belief of such conspiracy, because the defendants have brought separate actions for the same cause, and by the same attorney. Fraud, in such a case, is not to be presumed ; and the conspiracy should be distinctly averred. McHenry v. Hazard, 45 Barb. 657. 3. Conspiracy, Averments in Action of. In an action for a 52 FORMS OF COMPLAINTS. conspiracy, the rule is to allow a great latitude insetting out in the com- plaint the particular acts from which the conspiracy is to be inferred, even so far as to allow the individual acts of the conspirators to be averred. (Mussina v. Clark, 17 Abb. Pr. 188.) So far as the allegations of such acts are scandalous, they should be stricken out, unless they appear to relate to the foundation of the plaintiffs action. Id. 4. Conviction. The fact that the plaintiff was convicted by a jury is conclusive; and, if apparent in the complaint, will be fatal to the suit for damages. (Miller v. Deere, 2 Abb. Pr. i.) Nor will a reversal, for error of law, prevent the application of the rule. The only exception is when fraud in obtaining a conviction, by means which prevented the plaintiff from setting up his defense, is set up and proved. In a complaint of this nature, an averment* of matter tending to show the defendant's motive was held not to be irrelevant, in (Brockleman v. Brandt, 10 Abb. Pr. 141.) Nor does suffering default have this effect, where probable cause existed at the first. Gordon v. Upham, 4 E. D. Smith, 9. 5. Corporation. An action for malicious prosecution will lie against a corporation, if it has power to authorize the act done, and has done so. (Vance v. Erie Railway Co., 3 Vroom, 334; see " Assauli and Battery" Note 18.) That a corporation is not liable to such an action, but may be sued in trespass for false imprisonment, see Owsley v. Montgomery R. R. Co., 37 Ala. 560; see Ante, Vol. i. Note 30, P--275- 6. Damages. The jury are the proper judges of the amount of damages to be allowed in actions for malicious prosecution. Chapman v. Dodd, 10 Minn. 350. 7. Defective Complaint. In an action for a malicious issuing and prosecution of a writ of attachment, a defect if any in the complaint, in not alleging that it was issued without probable cause, and stating instead that it was issued out of wantonness, is cured by verdict, when the defect was not pointed out. Levey v. Fargo, i Nev. 415. 8. Essential Averments. In an action for malicious prosecu- tion, the plaintiff must aver and must prove an entire want of probable cause for the accusation, and actual malice of the defendant in pre- ferring it that is, malice in fact, as distinguished from malice in law. (Bulkeley v. Smith, 2 Duer, 261; n L. Q. 200; Besson v. Southard, 6 MALICIOUS PROSECUTION. 53 Seld. 236.) Both malice and want of probable cause are essential, and must be stated and proved; also, that the prosecution is at an end. and how it was concluded. (Brown v. Chadsey, 39 Barb. 253; Hull v. Vreeland, 42 Barb. 543; 18 Abb. Pr. 182; McKown v. Hunter, 30 N.Y. 625.) An averment that the prosecution was without probable cause is indispensable, and its omission fatal. (Lohrfink v. Still, 10 Md. 530.) The want of probable cause being the primary question in such actions. (Grant v. Moore, 29 Cal. 644.) For, though malicious, the defendant is not liable unless there be a want of probable cause. (Payson v. Caswell, 9 Shopley, 212; Wood v. Wier, 5 B. Monr. 544 ; Leidig v. Rawson, i Scam. 372.) The necessity of the concurrence of all three of the above elements, i.e., want of probable cause, malice in fact, and actual determination in favor of the plaintiff, is maintained in Van- derbilt v. Mathis, 5 Duer, 304; see, also, as to pleading, 8 N.H. 157; 6 Watts. & Serg. 336; 3 Hill. 195; 5 Black/. 428; 3 Monr. 208. 9. Facts only must be Alleged. In an action for malicious prosecution, only the substantial matter constituting the action, that is, facts, and not the evidence of facts, need be set out. (Dreux v. Domec, 18 Cal. 83.) The point of inquiry in suchan action is whether there was in fact probable cause for the prosecution, and not whether the defendant had probable cause to believe there was. Hickman v. Griffin, 6 Mo. 37. 10. Gist of Action. The action lies against several defendants, and the gist, of the action is the malicious prosecution. Dreux v. Domec, 18 Cal. 83. 11. Indebtedness. The averment of no indebtedness may be omitted, and a suit maintained for malicious suing out an attachment. Tomlinson v. Warner, 9 Ohio, 103. 12. Joint Agency Allegation of. In suit against three defendants for malicious prosecution, the complaint averred that "de- fendants, contriving and maliciously intending to injure the plaintiff," etc., falsely, maliciously, and without probable cause, procured him k> be indicted for murder: Held, that the complaint sufficiently avers a joint agency on the part of defendants in instituting the prosecution. Dreux v. Domec, 18 Cal. 83. 13. Malice. Malice and falsehood are essential ingredients in an action for malicious prosecution. (Platt^. Niles, I Edm. 230.) Malice, 54 FORMS OF COMPLAINTS. as well as want of probable cause, is necessary to sustain an action for malicious prosecution. (Riney v. Vanlandingham, 9 Mo. 807; Fris- sell v. Relfe, Id. 849.) Malice, in its legal sense, means a wrongful act, done intentionally, without just cause or excuse. (Maynard v. Fi. Fund Ins. Co., 34 Cal. 48.) Malice cannot be presumed in a prosecu- tion where the defendant has incurred all the moral guilt of the charge, although he may have evaded the penalty of 'the law. (Sears v. Hathaway, 12 Cal. 277.) Malice, like fraud, is to be inferred from facts and circumstances. (Lyon v. Hancock, 35 Cal. 376.) A petition which omits to state that the prosecution was malicious, and that the plaintiff was acquitted, is insufficient. (Mavey v. Kennett, 19 Mo. 551.) Public policy and security require that prosecutors should be protected by the law from the civil liabilities, except in those cases where the two elements of malice in the prosecutor and want of probable cause for the prosecution both occur. (Porter v. Seal, 8 Cal. 217.) If one person arrests another for the commission of a crime, under the belief that the person arrested has committed the crime, the person making the arrest cannot be said to act maliciously, although he may act unlawfully. Lyon v. Hancock, 35 Cal. 372. 14. Motive. In an action for malicious prosecution, the com- plaint may aver matter tending to show the defendant's motive e. g. , a malicious publication by him procured to be made concerning the prosecutor such as would be proper to prove at the trial as showing special injury. Such averments should not be striken out on motion, as the plaintiff cannot be deemed aggrieved by them. Brockleman v. Brandt, 10 Abb. Pr. 141. 15. Names of Customers Lost. As a general rule, the names of persons who have refused to deal with the plaintiff must be stated. (Linden v. Graham, i Duer, 672.) But if it is in the nature of things impracticable for him to know them, he may prove general loss of business.' (Evans v. Harries, i Hurl. & N. 251.) It is properly a question of evidence, which cannot be settled before the trial. 16. Probable Cause. Probable cause may be defined as a sus- picion, founded upon circumstances sufficiently strong to warrant a reasonable man in the belief that the charge is true. (Porter v. Scale, 8 Cal. 217; Hall v. Hawkins, 5 Humph. 357; Farris v. Starke, 3 B. Monr. 4; 3 Mo. 37; 9 Shepley, 212; 2 Id. 362; n Id. 566; 4 Dana, 1 20.) It is a reasonable ground for suspicion, supported by circum- stances sufficiently strong in themselves to warrant a cautious man in MALICIOUS PROSECUTION. 55 the belief that the person accused is guilty of the offense charged. (Ross v. Innis, 35 ///. 487.) The question of probable cause does not depend upon whether an offense has been committed, nor upon the guilt or innocence of the accused, but upon the prosecutor's belief of the truth of the charge made by him. If circumstances are shown sufficient to warrant a cautious man in the belief of the truth of the charge he makes, it is enough. (Scanlan v. Cowley, 2 Hilt. 489.) And from the want of probable cause, malice may be inferred; (Grant v. Moore, 29 Cal. 644;) and is a mixed question of law and fact. (Id.} It is a question for the Court, but the jury must decide upon the facts. Brant v. Higgins, 10 Mo. 728. 17. Probable Cause, when it Exists. If the defendant had a cause of action in the case alleged, although for a much less amount than claimed, there was probable cause, and the Court should grant a nonsuit. (Grant v. Moore, 29 Cal. 644.) So, a judgment against the plaintiff after trial on the merits, is sufficient evidence of probable cause, though subsequently reversed not however conclusive, if impeached for fraud. (Palmer v. Avery, 44 Barb. 400.) Where two actions have been abandoned, by the plaintiffs failure to appear at the adjourned day, and a new action has been commenced before another justice for the same demand, which is still pending, the litigation is not terminated, and want of probable cause cannot be inferred solely from the discon- tinuance of the former suits. (Palmer v. Avery, 41 Barb. 490.) A committal to await the action of the grand jury is not conclusive evidence of probable cause. Haupt v. Pohlman, 16 Abb. Pr. 301. 18. Privileged Charges. As to the remedy by action for mali- cious prosecution, for false and malicious charges preferred in legal proceedings and deemed privileged from an action for defamation, see Perkins v. Mitchell, 31 Barb. 461. 18. Special Damages. Expenses of counsel, made necessary by a malicious prosecution, are to be specially alleged. Strand v. Whitehead, 12 Wend. 64. 20. Vigilance Committee. For a complaint in an action against a vigilance committee, see Moloney v. Dows, 2 Hilt. 247. 21. What must be Shown. To sustain an action for mali- cious prosecution, the plaintiff must show affirmatively that the prosecution was malicious, and without probable cause, both concurring. Cook v. Walker, 30 Ga. 519. 56 FORMS OF COMPLAINTS. 22. When Action will Lie. An action for a malicious prosecution will lie where an affidavit for a search warrant is made before a justice, maliciously, and without probable cause, although the magistrate refuse to issue the warrant. Miller v. Brown, 3 Mo. 127. 23. When Action -will not Lie. Such an action does not lie where the alleged malicious suit was founded on a just claim, although such claim was smaller than that for which the suit was brought, when it does not appear that property was attached to a greater value than the amount of such claim. Grant v. Moore, 29 Cal. 644. No. 351. ii. The Same Fuller Farm. [TITLE.] The plaintiff complains, and alleges: I. _That on the .... day of , 187., at , the defendant appeared before , a justice of the peace of said County [or the Police Judge of said City], and charged the plaintiff, before said Justice, with having [feloniously stolen a certain of the defendant] ; and procured said Justice to grant a war- rant for the arrest of the plaintiff upon said charge. II. That in so doing the defendant acted maliciously and without probable cause. III. That the said Justice issued said warrant accord- ingly, and the plaintiff was arrested and imprisoned under the same for [days or hours, and gave bail in the sum of dollars to obtain his release]. IV. That on the .... day of , the plaintiff was examined before the said Justice for the said supposed crime, and the said Justice adjudged him not guilty, and fully acquitted him of the same; and that MALICIOUS PROSECUTION. 57 since that time the defendant has not further prosecuted said complaint, but has abandoned the same. V. That the said charge and the arrest of the plaintiff thereunder were extensively published in several public newspapers, among others the , as the plaintiff believes, through the procurement of the defendant. VI. That by means of the premises the plaintiff was injured in his person, and prevented from attending to his business, and paid dollars costs, counsel fees in defending himself, and in obtaining bail; and he lost his situation as servant of ; and 'many persons, whose names are unknown to the plaintiff, hearing of the said arrest, refused to employ him. [Demand of Judgment.'] JVo. 352. Hi. For Procuring Plaintiff to be Indicted. [TrTLE.J The plaintiff complains, and alleges: I. That on the day of , 187 ., at , the defendant caused and procured the said plaintiff to be indicted by the grand jury, then and there impanneled and sworn by the Court, in and for the County of , to inquire of crimes within and for the said County, and prosecuted and caused to be prosecuted the said indictment against the said plaintiff. II. That in so doing the defendant acted maliciously and without probable cause. 58 FORMS OF COMPLAINTS. III. That afterwards, to wit : at the term of the said Court, begun and held on the .... day of , 187,, at the Court House in ; . , in the said County of , the said plaintiff was in due manner and by due course of law, acquitted of the said premises in the said indictment charged upon him, by a jury of the said County of ; whereupon it was then and there adjudged by the said Court that the said plaintiff go hence thereof without day, and the said plaintiff was then and there discharged of and from the premises in said indictment specified, as by the record and proceeding thereof remaining in said Court appears. IV. \_State special damages^ [Demand of Judgment, ,] 24. For Procuring Plaintiff to be Indicted. For the law on this subject, see i Saund. 228; 9 East, 361; i T. R. 493; Ander- son v. Buchanan, Wright, 725; Morris v. Scott, 21 Wend. 281; Wil- liams v. Hunter, 3 Hawks. 545. No. 353. iv. The Same For Obtaining Indictment on which a Nolle Prosequ was Afterwards Entered. [TITLE.] The plaintiff complains, and alleges : I. That on the day of , 187., at , the defendant procured C. D., then the Dis- trict Attorney in and for the County of , in this State, to issue subpoenas for the purpose of compelling and procuring the attendance of witnesses, among others, one A. B., at the Court, held on the day MALICIOUS PROSECUTION. 59 last mentioned at , in said County, before the grand jury and persons serving as grand jurors at such term of the Court, for the purpose of procuring an indictment to be found against the plaintiff, as here- after more fully stated. II. That in so doing the defendant acted maliciously and without probable cause, and intended thereby to injure the plaintiff in his good name and credit, and to bring him into public disgrace, and to cause him to be imprisoned, and to impoverish and injure him. III. That the defendant, at said term of the Court, complained of the plaintiff before the grand jury, and falsely, and maliciously, and without any reasonable or probable cause whatsoever, charged the plaintiff to the grand jury with having [state charge preferred^. IV. That said charge was and is wholly false and untrue, which the defendant then and at all times since well knew. V. That defendant falsely and maliciously, and with- out probable cause, procured the grand jury aforesaid to find and present to the said Court an indictment against the plaintiff for said alleged [state pretended charge~\. VI. That the defendant falsely and maliciously, and without probable cause, procured a bench warrant, directed to the Sheriff or any constable of the said County of , for the arrest of the plaintiff upon the aforesaid indictment, to answer the charges therein made against him as aforesaid, to be issued by the Court of said County of ; and after wards, on or about the .... day of , 187 . , caused the plaintiff to be arrested and to be kept in 6O FORMS OF COMPLAINTS. custody, restrained of his liberty for the space of months, and to give bail in the sum of dollars to obtain his release. VII. That the plaintiff did appear at the said term of said Court, ready and willing to then and there stand trial upon the aforesaid indictment against him, pursuant to and as required by said bond. Whereupon the aforesaid District Attorney, after consulting and advising with the defendant, and at his request, and by his instructions, did then and there move the said Court that the plaintiff be discharged out of custody, and be fully discharged and acquitted of the said indictment and of the supposed offense therein charged against him, and be no further prosecuted thereon; whereupon the said Court, having heard and considered all that the said defendant and the people, by the aforesaid District Attorney, could say or allege against the plaintiff touch- ing and concerning the said supposed offense, did then and there adjudge, order, and determine that the plaintiff be discharged out of custody, and be fully dis- charged and acquitted .of the said indictment, and be not further prosecuted thereon. VIII. That the said indictment, complaint, and prose- cution, are, and each of them is wholly ended and determined in favor of this plaintiff. IX. \_Special damage, if any, as in other cases. ,] [Demand of Judgment.} 25. Dismissal. An immediate dismissal by a magistrate of a prosecution when commenced, is, it would seem, prima facie proof of the want of probable cause. Gould v. Sherman, 10 Abb. Pr. 441. MALICIOUS PROSECUTION. 6 1 26. Nolle Prosequi. Entry of nolle prosequi was held insuffi- cient for that purpose. Bacon v. Townsend, 2 C.R. 51 ; Hall v. Fisher, 20 Barb. 441. JVo. 354. iv. The Same Where Judgment of Acquittal was Rendered. [TITLE.] The plaintiff complains, and alleges : I. That on the .... day of .. , 187., at , the defendant caused and procured to be sued out of the ........ Court, in and for the County of , a certain writ of attachment, in a certain action then and there pending, wherein the said A. B. was plaintiff, and the plaintiff herein was defendant, directed to the Sheriff of said County, commanding said Sheriff \_here state substance of the said writ\, and delivered, the same to the said Sheriff, and caused and required the said Sheriff to levy said writ of attach- ment on the store of goods, wares, and merchandise of the said plaintiff, and took the same into his possession, and the said defendant afterward applied to the said Court, [or to Hon. C. D., Judge of said Court], and obtained an order from said Court [or Judge] for the sale of said goods and merchandise, and caused said Sheriff to sell the same at a great sacrifice. II. That in so doing the defendant acted maliciously and without probable cause, and unjustly contrived and intended to injure the said plaintiff and break up his business he the said plaintiff, then being engaged in the business of a merchant. III. That the said action of the said defendant after- 62 FORMS OF COMPLAINTS. ward came on for trial at the term of said Court, 187 . , and was tried, and a verdict and judgment rendered in favor of the said plaintiff; to the damage of the said plaintiff dollars. [Demand of Judgment. ,] 27. Acquittal Essential. An action for malicious prosecution cannot be maintained until the plaintiff has been acquitted, or the prosecution is finally terminated in his favor. The determination of the prosecuting officer never to bring the indictment to trial, for the reason that he deems fhe charge entirely unsupported, is not sufficient. (Grant v. Moore, 29 Cal. 644; Thomason v. Demotte, 9 Abb. Pr. 242; 1 8 How. Pr. 529.) The plaintiff's acquittal must be alleged. An allegation that he has been discharged is not sufficient. (Morgan v. Hughes, 2 T.R. 225; Bacon v. Townsend, 2 Code R. 51.) It is not enough to aver that the prosecuting officer declared the complaint frivolous, and refused to try it. (Thomason v. Demotte, 9 Abb. Pr. 242.) The rule that the prosecution must have terminated favorably to the plaintiff, does not apply in case of an attachment against his property, sued out in his absence, and which he had no opportunity to defend. Bump v. Betts, 19 Wend. 421. No. 355. vi. For Malicious Arrest in a Civil Action. [TITLE.] The plaintiff complains, and alleges : I. That on the .... day of , 187., the defendant, maliciously intending to injure the plaintiff, made affidavit, and procured one A. B. to make an affi- davit, in an action brought against this plaintiff by , in which he alleged \setforth the grounds of the false arres\\ and that upon said affidavits the MALICIOUS PROSECUTION. 63 defendant caused to be issued an order of arrest against this plaintiff, under which the plaintiff was arrested and imprisoned for the space of , and compelled to give bail in the sum of dollars. II. That in so doing the defendant acted maliciously and without probable cause. III. That on the .... day of ......... 187 ., said order was vacated by said Court, upon the ground that \_set forth the grounds on which it was vacated~\. [Or III. That on the day of , 187., such proceedings were had in such action, that it was finally determined in favor of this plaintiff, and judgment was rendered for him therein,] IV. \_Special Damage, .] That many persons, whose names are unknown to plaintiff, hearing of the arrest, etc. [as in Form No. 350]. [Demand of Judgment.} 28. Jurisdiction. But if a complaint shows that the arrest was without jurisdiction, it may be good as alleging a trespass, without aver- ring a determination in favor of plaintiff. Steel v. Williams, 18 Ind. (Kerr.) 161; Searll v. McCracken, 16 How. Pr. 262. 29. Malice. If one person arrests another for the commission of a crime, under the belief that the person arrested has committed the crime, the person making the arrest cannot be said to act maliciously, although he may act unlawfully. Lyon v. Hancock, 35 Cal. 373. 30. Several Causes of Action United. An action for malicious arrest and prosecution, or either of them, may be united with an action for either an injury to character or to the person; (Pr. Act, 64;) as for libel or slander. Watson v. Hazzard, 3 Code R. 218; Martin v. Mattison, 8 Abb. Pr. 3. 31. When Action will Lie. Where a complaint charged a 64 FORMS OF COMPLAINTS. crime, and the prosecution was instituted before a tribunal having jurisdiction, and a warrant regular upon its face was issued, and the defendant was arrested, an action brought by him for malicious prose- cution will be sustained, although the complaint was not signed by the complainant. (Chapman v. Dodd, 10 Minn. 350.) An action for malicious prosecution will lie against a creditor who effected the arrest and imprisonment of his debtor by alleging that the demand was greater in a/nount than it truly was, so as to hinder the debtor from getting bail. It is true that in order to sustain an action for malicious prose- cution the law requires that the proceedings which form the subject of complaint should have been maliciously instituted, and carried on without any reasonable or probable cause; but there would ordinarily be but little difference in the injury produced to the defendant, whether the unfounded prosecution was carried on without any demand what- ever to justify it or whether it was coupled with a claim of real merit. Phil on Ev. 261; 3 Barn. & Cress. 139; 5 Barn. 6f A. 313; 7 Eng. Com. Law, 177; i Q. & B. 152; 6 Eng. L. and Eq. R. 200; 4 Serg. 6f R. 19; 13 Id. 54; Brown v. Mclntyre, 43 Barb. 344. 32. When Action -will not Lie. An action in a case for malicious prosecution will not lie for causing a person to be arrested on a criminal warrant, charging an act which is not a crime but merely a trespass, as the warrant was void, and the proper remedy for an arrest on such a warrant is trespass. Kramer v. Lott, 50 Penn. 495. CHAPTER V. FOR PERSONAL INJURY CAUSED BY NEGLIGENCE. No. 356. \. For Injuries Caused by Collision of Vehicle Driven bv Servam. [TITLE.] The plaintiff complainsr and alleges: I. That on the day of , 187 . , the plaintiff was driving along the public highway, in the City of , in a carriage drawn by one horse. II. That the defendant was then the owner of a wagon and two horses, which were then being driven along said highway, in the possession of defendant [or of defendant's servant\. III. That defendant [or that said servant] so care- lessly drove and managed said horses and wagon, that by reason of his negligence said wagon struck the plaintiff's carriage and overthrew the same, and threw the plaintiff out of his carriage upon the ground [or describe the accident\, whereby the plaintiff was bruised and wounded, and was for . days prevented from attending to his business, and was compelled to expend dollars for medical attendance and nursing, and dollars for the repair of his said carriage. [ Demand of Judgment. ] * 5 66 FORMS OF COMPLAINTS. 1. Carrier's Contract. Passenger carriers bind themselves to carry safely those whom they take into their coaches or cars, as far as human care and foresight will go, that is, for the utmost care and dili- gence of very cautious persons. (Story on Bailments, 601.) The words " care, diligence, and foresight " implies a relation to future events. Wheaton v. N. B. and M. R.R. Co., CaL Sup. C/., Oct. T., 1868. 2. Damages. If by the negligent driving of defendant's servant his vehicle runs into another which is driven with due care, and causes the horse of the latter to take fright and run away, and said horse runs into the plaintiff's vehicle and injures him when he is using due care, the damage is not too remote to be recovered. (McDonald v. Snelling, 14 AH. 290.) In a case of simple negligence in which the ele- ments of fraud, malice, or oppression do not enter, only actual damages can be recovered. (Moody v. McDonald, 4 CaL 297; Sedg. on Measure of Dam. 39; Keen v. Lazard, 8 La. Rep. 0. T. 390.) In actions of this character, all the circumstances in the case may be taken into considera- tion in making up the estimate of damages, and the jury are not confined to the actual damages sustained, and where the stage at the time was driven by the servant or agent, the principal is liable only for simple negligence, and exemplary damages cannot be imposed. (Citing 3 Wheat. 546; Wardrobe v. Cal. Stage Co., 7 Cal. 1 20.) The only damages which can be recovered in such actions are such as are commensurate with the injury alleged to have been sustained, or actual damages. 2 Greenl. on Ev. 253; Whetmore v. Cutter, i.Gall. 438; Bateman v. Goodyear, 12 Conn. 580; Dain v. Wycoff, 3 Seld. 193; Southard v.. Rexford, 6 Cow. 264. 3. Defect of Vehicle. A carrier of passengers for hire does not warrant that the carriage in which the passenger travels is road- worthy. He is bound to use all vigilance to insure safety, but is not liable for a defect which could not be detected, and which arises from no fault of the manufacture. Redhead v. Medland Railway Co., L. R. 4 Q. B. 379; 2 Q. B. 412; 2 Am. Law. R. 107. 4. Inability for Negligence. If a child under four years of age is injured by the negligence of third persons in the street of a city, traversed constantly by cars and other vehicles, his father cannot recover for loss of service if he has knowingly suffered such child to be in the street unattended. (Glassey v. Hestonville R. R. Co., 57 Pmn. 172.) Otherwise of an action by the child itself, although the negligence of a volunteer undertaking to interfere for the child's benefit contributed to PERSONAL INJURY BY NEGLIGENCE. 67 the injury. (North Perm. R. R. Co. z>. Mahoney, 57 Penn. 187.) One who sells gunpowder to a child eight years old, knowing that he is unfit to be trusted with it, is liable if the child, using the care of which he is capable, explodes it, and is burned by the same, and a license to sell gunpowder is no defense. (Carter v. Towne, 98 Mass. 576.) As to what constitutes negligence, see Ante, Vol. i., p. 239, Note 242. 5. Master and Servant General Doctrine. The general doctrine maintained that the master of employer is responsible for act or omission of servant of employee within scope of his employment or authority. (New York and New Haven Railroad Co. v. Schuyler, 34 N.F. 30; Chapman v. New York Central Railroad Co., 33 Id. 569; Drew v. Sixth Avenue Railroad Co., 26 Id. 49; Lannen v. Albany Gas Light Co., 46 Barb. 264; Carman v. Mayor of New York, 14 Abb. Pr. 301; Annette. Foster, i Daly, 502; Meyer v. Second Avenue Rail- road Co., 8 Bosw. 305; Merrick v. Brainard, 38 Barb. 574, not affected by partial reversal, 34 N. Y. 208. ) One whose servant negli- gently throws a keg out of a window and injures a person passing through a passageway below, is liable, although such person was there only by license. (Corrigan v. Union Sugar Refinery, 98 Mass. 577.) But the employer held not responsible for willful injury committed by employee, (Garvey v. Dung, 30 Hmv. Pr. 315.) For injury by negligence, both employer and employee may be sued together. Phelps v. Wait, 30 N.Y. 78. No. 357. ii. Against Common Carriers For Injuries Caused by Overturning Stage Coach. [TITLE.] The plaintiff complains, and alleges : I. That on the .... day. of , 187., the defendant was a common carrier of passengers for hire by stage coach between and II. That on that day,. as such carrier^ he received the plaintiff upon his coach, to be carried from to , for the sum of dollars, which was then and there paid by the plaintiff to the defendant. 68 FORMS OF COMPLAINTS. III. That while he was such passenger at [or near * , or between and ], the said coach was, by and through the carelessness and negligence of the said defendant, overturned and thrown down, with the plaintiff therein, as aforesaid, by means whereof the said plaintiff was greatly injured, and one of the legs of said plaintiff was broken, and fractured, and bruised? and the said plaintiff was other- wise greatly injured, wounded, and cut, insomuch that the said plaintiff then became sick, lame, and sore, and so continued for the space of months thence next ensuing, and was during all that time prevented from attending to his business and carrying on the same ; and the said plaintiff was forced to expend, and did expend, the sum of dollars for medical attend- ance and business. {Demand of Judgment. \ 6. Essential Averments. It is only necessary to prove the overturn and the injuries sustained. The presumption of law is that the overturn occurred through the negligence of the defendant. Boyce v. Cal. Stage Co., 25 Cat. 460. 7. Form. In an action on the case for an injury sustained by the upsetting of a stage coach, the declaration alleged that the plaintiff, at the special instance and request of the defendants, became a passenger in a certain coach, to be carried safely, and for certain rewards to the defendants; and that thereupon.it was their duty to use due and proper care that the plaintiff should be safely conveyed. The breach was well assigned, showing the neglect and consequent injury sustained. Held, that the defect, if any, was cured by 32 of the Judiciary Act, which provides that no litigant shall lose his right in law for want of form. Stockton v. Bishop, 4 How. U.S. 155; see, also, Washington i>. Ogden, i Black. 4150. 8. Material Averments. In an action for an injury sustained PERSONAL INJURY BY NEGLIGENCE. 69 by the oversetting of defendant's stage coach, plaintiff alleged that he paid for his passage the sum of ten dollars: Held to be a material allega- tion. Harris v. Rayner, 8 Pick. 541. 9. Overturning Plaintiff's Carriage. A case for personal injuries caused by plaintiff's horse being frightened by two loud, sudden and sharp whistles from defendant's engine, and upsetting his carriage : Held, that whether or not the above was a proper signal in the use of ordinary care was for the jury. A verdict for the plaintiff was upheld. Hill v. Portland R.R. Co., 55 Me. 438. 10. Paid Fare. Carriers cannot protect themselves from liability for gross negligence, by contract. (Illinois Cent. R.R. Co. v. Adams, 42 HI. 474; see Adams Exp. Co. v. Haynes, Id. 89, 93.) Otherwise when the passenger is carried free. Kinney v. Cent. R.R. Co, 3 Vroom, 407; but see Penn. R.R. Co. v. Butler, 57 Penn. 335. 11. Railroad Company. An action lies against a city railroad company for the negligence of their driver in respect to stopping the car and assisting young and infirm persons on. Drew v. Smith Avenue R.R. Co., 3 Keyes, 429. 12. Stock Running at Large. Plaintiff was driving in the highway, using due care, when defendant's hog running at large, contrary to the statute, frightened plaintiff's horse, and his minor daughter was in- jured in consequence. Held, that defendant was liable, although he did not know that the hog was at large. Jewett v. Gage, 55 Me. 538. 13. Who Liable. Where one owning a carriage hires horses and driver of B., for an injury resulting from the carelessness of the driver B. alone is liable. (Quarman v. Burnett, 6 M. & W. 497; Rapson v. Cubit, 9 Id. 709; Hobbitttf. N. W. R.R. Co., 4 Welsh, Hurst. & Gord. 254; Allen v. Haywood, 7 Adol. & Ellis (N.S.) 960.) A muni- cipal corporation is liable for injuries ensuing from neglect of its employees or officers. (Loyd v. Mayor of N.Y., i Seld. 369.) The fact that the driver of the carriage and horses was their owner/was con- clusive in establishing that the relation of master and servant did not exist; and so far as the defendant's liability rested upon the existence of such relation he was not responsible for the injury which the plaintiff received through the negligence of the driver. Boniface v. Relyea, 5 Abb. Pr. (N.S.) 259; see, further, Ante, Note i, at the head of this chapter. 7O . FORMS OF COMPLAINTS. JVo. 358. iii. Against a Railroad for Injuries by Collision. [TITLE.] The plaintiff complains, and alleges: I. That on the .... day of , 187., the defendant was a corporation duly incorporated under the laws of this State, and was the owner of a certain railroad, known as the Railroad, together with the track, rolling stock, and other appurtenances thereto belonging; and was a common carrier of pas- sengers thereupon for hire, between and , in the State of II. That on that day the plaintiff was a passenger in one of the cars of the defendant from said to , for the sum of dollars paid to the defendant by the plaintiff. III. That while he was such passenger, at [or near the station of , or between the stations of and ], a collision occurred on the said railroad, caused by the negligence of the defendant and its servants, whereby the plaintiff was much injured \_statethe special damage, if any\. IV. That the defendant and its servants, in managing said cars in which plaintiff was a passenger, were so careless and negligent that it was unsafe for him to remain in one of them; and that, in order to free him- self from the danger, he was obliged to leap from the car, and in doing so was injured [state injury accord- ing to the fact}. [Demand of Judgment. ] PERSONAL INJURY BY NEGLIGENCE. 71 14. Degrees of Negligence. Degrees of negligence are matters of proof and not of averment; and a general allegation of negligence, want of care and skill, etc., is sufficient in an action for injuries caused by such negligence, whether the defendant is liable for ordinary or gross negligence. (Nolton v. Western R.R. Co., 15 N.Y. 444.) And an averment of malice does not vitiate the pleading. Winterson v. Eighth Ave. R.R. Co., 2 Hilt. 389; and see Robinson v. Wheeler, 25 N.Y. 252. 15. Diligence. The same diligence is not required from a rail- road company toward a stranger as toward a passenger. The care re- quired is that which experience has found reasonable and necessary to prevent injury to others in like cases. (Baltimore and Ohio R.R. Co. v. Breinig, 25 Md. 378; see Philadelphia W. and B. R.R. Co. v. Kerr, Id. 521.) A railroad company is not liable for injuries received by a passenger while voluntarily and unnecessarily standing on the platform of a car in motion although by the express permission of the conductor and brakeman. Hickey v. Boston and L. R.R. Co., 14 All. 429. 16. General Averment of Negligence. Ordinarily a gen- eral averment of negligence is sufficient to admit proof of the special circumstances constituting it: Thus, in an action against a railroad company for running over a child, evidence is admissible under such a general averment that there were no suitable brakes or guards in front of the car where the driver was stationed. Oldfield v. N. Y. and Har- ie m R.R. Co., 14 N.Y. 310. 17. Negligence Generally, and also Specific Acts. Under a complaint alleging negligence generally, and also specifying particular acts of negligence, evidence of any other kinds of negligence is admissible, the general allegation being sufficient, the particular charges, being surplusage, should not affect the reception of evidence. (Edgerton v. N.Y. and Harlem R.R. Co., 35 Barb. 389.) Negligence is a question of fact, or mixed of law and fact; and in pleading it is only necessary to aver negligence generally, not the specific facts con- stituting the negligence. McCauley v. Davidson, 10 Minn. 418. 18. Particular Facts. The complaint in an action against a railroad company, for running over a person with an engine, need not show the particular facts constituting negligence on the part of the de- fendant, if it charges such negligence in a general way. Such complaint must show that there was no fault on the part of the person run over. Indianapolis etc. R.R. Co. v. Keeley's Adm'r, 23 Ind. 133. 72 FORMS OF COMPLAINTS. 19. Several Acts of Negligence. If the plaintiff would rely on several acts of negligence as the cause of one injury, he may allege all the acts of negligence in one count, and aver that they were the cause; and if he prove upon the trial that any one of them was the cause, his complaint is sustained. Dickens v. N.Y. Central R.R. Co., 13 How. Pr. 228. 20. Sufficient Averment of Negligence. In an action against a railroad company for injuries caused by a collision with its cars, a complaint which alleges that the defendant, with carelessness and with gross negligence, caused one of its engines to run upon the track, etc., sufficiently charges negligence. Ohio etc. R.R. Co. v. Davis, 23 Ind. 553. 21. Without the Bounds of the State. An action cannot be maintained for an injury occurring without the bounds of the State. Mahler v. Norwich and N.Y. Transportation Co., 45 Barb. 226. Wo. 359. iv. The Same By Car Running off Track. [TITLE.] The plaintiff complains, and alleges: I. That on the .... day of , 187 . , the defendant was a common carrier of passengers, by rail- road, between and II. That on that day the plaintiff was a passenger in one of the carriages of the defendant on said road. III. That while he was such passenger, at , the said defendant, not regarding its duty in that behalf, did, by its servants and agents, so carelessly, negligently, and unskillfully conduct the running of said cars and railroad, that, on the day and year aforesaid, by the carelessness, negligence, and default of its said agents and servants, and for want of due care and attention to PERSONAL INJURY BY NEGLIGENCE. 73 its duty in that behalf, the said car was run off the track of said railroad, and thrown down the embankment thereof, whereby the said plaintiff was greatly cut, bruised and wounded, so that he, the said plaintiff, became and was sick, lame, and unable to walk, and was wholly unable to attend to the transaction and performance of his usual and necessary business, and so continued from thence hitherto; and said plaintiff has been put to great expense, to wit, to the amount of dollars, in endeavoring to cure his said wounds, bruises and fractures. \Demand of Judgment.'] No. 360. v. For Injuries Caused by Negligence on a Railroad, in Omitting to give Signal. [TITLE.] The plaintiff complains, and alleges: I. That on the .... day of , 187 . , the defendant was a corporation duly incorporated under and pursuant to the laws of this State, and was the owner of a certain railroad, known as Rail- road, together with the track, rolling stock, and other appurtenances thereto belonging. II. That on that day the plaintiff was traveling in a carriage along the public highway, from to , which public highway crosses the railroad aforesaid at ; and as the plaintiff had reached said crossing, the defendants carelessly and negligently caused one of their locomotives [with a train of cars attached thereto] to approach said crossing, and then 74 FORMS OF COMPLAINTS. and there to pass rapidly over the track of said railroad, and negligently and carelessly omitted their duty while approaching said crossing, to give any signal, by ring- ing the bell or sounding the steam-whistle, by reason whereof the plaintiff was unaware of their approach. III. That in consequence thereof the. locomotive struck the plaintiffs horse, and overset the plaintiff's carriage, and plaintiff was thrown out upon the ground with such force as to fracture his left arm [or other injuries^. IV. That thereby the plaintiff was put to great pain, and was and still is prevented from going on with his business as , and is, as he believes, permanently injured, and was otherwise greatly injured, and was compelled to expend dollars for medical attendance and nursing. [Demand of Judgment J] Omission of Duty. The facts which are relied on as raising a duty must be alleged where the negligence consists in the omission of a duty. (City of Buffalo v. Holloway, 7 N.Y. (3 Seld.} 393; affirming S.C., 14 Barb. 101; Taylor v. Atlantic Mutual Ins. Co., 2 Bosw. 106; Congreve v. Morgan, 4 Duer. 439; Seymour v. Maddox, 16 Q. B. 326; S.C., 71 Eng. Com. L. R., 326; and see McGinity v. Mayor etc., 5 Duer, 674.) An existing duty or obligation is an essential and neces- sary prerequisite or predicate of an affirmation of neglect or failure to perform. Eustace v. Jahns, Cal. Sup. Ct.,Jul. T., 1869. PERSONAL INJURY BY NEGLIGENCE. 75 No. 361. vi. By Steamboat Explosion. [TITLE.] The plaintiff complains, and alleges: I. That at the time hereinafter mentioned, the defendants were common carriers of passengers for hire, between and , and were the pro- prietors of a steamboat, named the , employed by them in carrying passengers and merchandise on the river, from to , for hire. II. That on the .... day of . . . , 187., the defendants received the plaintiff and his wife and daughter into said boat, for the purpose of safely con- veying them therein as passengers, from to , for dollars, paid to them by the plaintiff. III. That the defendants so negligently and unskill- fully conducted themselves, and so misbehaved in the management of said boat, that, through the negligence and unskillfulness of themselves and their servants, the steam escaped from the boiler and engine, and burned and scalded \pr otherwise state injury, according to the facts], the plaintiff, and his wife and daughter. IV. That in consequence thereof the plaintiff and his said wife and daughter became, and for a long time remained ill; the plaintiff was deprived, and for a long time to come will be deprived, of the assistances and services of his wife and daughter, and was compelled to and did expend . dollars in attempting to cure 76 FORMS OF COMPLAINTS. himself and his wife and daughter, and was for months prevented from pursuing his business, and was otherwise greatly injured. [Demand of Judgment. .] 22. Condition of Boiler. The certificate of an inspector does not discharge the liability of the owner of a boiler to the party injured by its bursting. Swarthout v N.J. Steamboat Co., 46 Barb. 222. 23. Master and Servant. The owner of water craft is not liable for the injury willfully committed by the master or pilot running her. Turnpike Co. v. Vanderbilt, i Hill, 480. 24. Negligent Delay. As to liability of a transportation com- pany to passenger for injury occasioned by negligent delay, see Van Buskirk v. Roberts, 31 N.Y. 66 1. 25. Negligence in Navigating Water Craft. The plaintiff in an action for damages for injuries caused by. negligence in sailing water craft, must show that he used ordinary care. Barnes v. Cole, 21 Wend.-i88; 4 McLean, 286; Rathburn v. Payne, 19 Id. 399; United States v. Mayor, 5 Mo. 230; Simpson v. Hand, 6 Whart. 311; Logan v. S. B. Clipper, 18 Ohio, 375. 26. Rule of Damages. Where the collision occurs without negligence of either party, each must bear his own loss. Stainbach v. Roe, 14 How. U.S. 532; Williamson v. Barrett, 13 How. U.S. 101; Halderman v. Beckwith, 4 McLean, 286; Barrett v. Williamson, Id. 589; 4 Harring. Rep. 228; I Tex. 30. 27. Rules of Navigation. Steam vessels are bound to keep clear of sailing vessels; they are treated as having wind in their favoi. St. John v. Paine, 10 Hozv. U.S. 581; Nanton v. Stebbins, 10 Id. 586; The "Lady Anne," I Eng. L. and Eq. 670; The "Europa," 2 Id. 557; "Western Belle" v. Wagner, n Mo. 30. PERSONAL INJURY BY NEGLIGENCE. 77 No. 362. vii. For Injuries to Engineer of a Railroad Company, Caused by a Collision. [TITLE.] The plaintiff complains, and alleges : I. That on the .... day of , 187 ., the defendant was a corporation, duly incorporated under and pursuant to the laws of the State of California, and was owner of a certain railroad known as Railroad, together with the track, cars, and locomotives thereto belonging. II. That one of said locomotives, and the rtrain thereto attached, ran from to , and back again, each day; and another thereof ran from to said , and back again, each day; which said locomotives, with their respective trains, were used and accustomed to meet, and safely pass each other, at III. That the said plaintiff was employed by the said defendant as an engineer upon one of said locomo- tives, at and for a certain hire and reward agreed upon by the parties in that behalf, and was accustomed to stop the said last mentioned locomotive at aforesaid, under the instruction by him received from the said defendant, and there to pass the said other locomotive as aforesaid. IV. That by reason of the premises it became the duty of the said defendant to give the said plaintiff due notice of any change in the place of meeting and pas- sing of the said locomotives and their respective trains, yet the said defendant, not regarding its said duty, did, 78 FORMS OF COMPLAINTS. on the .... day of , 187 . , change the place of meeting and passing of said locomotives, with their respective trains, from said , to said , and did direct said change to be carried into effect on the .... day of , 187.. V. That the said defendant wholly neglected and failed to give the said plaintiff notice of the said change in the place for the passing of said locomotives with their respective trains, and whilst the said plaintiff was proceeding, in his capacity of engineer as aforesaid, on one of said locomotives, with the train thereto belonging, according to the directions before that time given to the said plaintiff by the said defendant, between ... 1 .... and aforesaid, the other locomo- tive with its train, coming from .to , ran against it, and violently crushed the same. VI. That by reason thereof the plaintiff was severely scalded, bruised, burnt and wounded, and became sick, sore, lame and disordered, and so remained for the space of . . months, and was compelled to expend the sum of dollars for medical attendance; and was prevented from attending to his ordinary busi- ness, and lost all the wages he otherwise would have earned, to wit, the sum of dollars. [Demand of Judgment. \ 28. Company, when not Liable. The fact that a railroad company's servant was r.Y a higher grade than another servant of said company, injured through his negligence, does not make the company liable. Shanck v. Northern Central R.R. Co., 25 Md. 462; Cumber- land Coal and Iron Co. v. Scally, 27 Md. 589. 29. Employer, when Liable. If injury to the employee results PERSONAL INJURY BY NEGLIGENCE. 79 from fault or negligence on the part of the employer, the employer is liable. (Ryan v. Fowler, 24 N.Y. 410; Conolly v. Poillon, 41 Barb. 366.) But if such injury results from defects in machinery, etc., notice of such defect must be brought home to the employer. Kunz v. Stew- art, i Daly 431; Loonam v. Brock way, 28 How. Pr. 472. 30. Joinder of Parties. Master and servant may be joined as defendants in an action to recover for the negligence of the servant. Montford v. Hughes, 3 E. D. Smith, 591. 31. Mutual Negligence. The rule that the plaintiff cannot recover if his own wrong as well as that of the defendant conduced to the injury, is confined to cases where his wrong or negligence has immediately or approximately contributed to the result. (Kline v. C. P. R.R. Co., Cal. Sup. O., Apl. T., 1869; citing Needham v. San Fran- cisco and SJ. R.R. Co., decided at the same term.) A slight want of care on the part of the plaintiff will not excuse gross negligence by the defendant. Bequette v. People's Trans. Co., 2 Or. 200. 32. That Plaintiff did not Contribute to Injury. In an action against a railroad company by one of its servants to recover for injuries received through the negligence of another servant, the com- plaint must allege, either expressly, or by stating facts from which it clearly appears, that the plaintiff did not by his own fault or negligence contribute to the injury. Evansville R.R. Co. v. Dexter, 24 Ind. 411. 33. Want of Ordinary Care. It is not necessary for the plaintiff to allege in his complaint that the injury happened without any want of ordinary care on his part; except where the facts alleged are such as to raise a presumption of such fault in him. Johnson v. Hud- son River R.R. Co., 5 Duer, 21; 20 N.F. 65; Wolfe v. Supervisors of Richmond, n Abb. Pr. 270; S. C., 19 How. Pr. 370; Burdick v. Worral, 4 Barb. 596. 8O FORMS OF COMPLAINTS. JVo. 363. viii. For Injuries to Engineer of a Railroad Company Said Company having Used a Condemned Locomotive. [TITLE.] The plaintiff complains, and alleges: I. That on the day of , 187 ., the defendant was a corporation, duly incorporated under ' and pursuant to the laws of the State of , and was the owner of a certain railroad, and of a locomotive propelled by steam on said railroad, and by said defend- ant used and employed in carrying and conveying pas- sengers and goods [or hauling trains of cars containing passengers and goods], upon and over the said railroad of the said defendant, from to II. That the said plaintiff on the day and year afore- said, at aforesaid, and at the time of the committing of said grievances, was in the employ of the said defendant, as engineer upon said locomotive, so moved and propelled by steam as aforesaid; and that it then and there became and was the duty of the said de- fendant, to procure a good, safe, and secure locomotive, with good, safe, and secure machinery and apparatus, to move and propel the same as aforesaid. III. That the said defendant conducted itself so care- lessly, negligently and unskillfully, that, by and through the carelessness, negligence and default of the said defendant and its servants, it provided, used, and suf- fered to be used, an unsafe, defective, and insufficient locomotive, of which it had notice. IV. That for want of due care and attention to its duty in that behalf, on the said day of , PERSONAL INJURY BY NEGLIGENCE. 8 1 187., at aforesaid, and whilst the said loco- motive was in the use and service of the said defendant, upon said railroad, and whilst the said plaintiff was on the same, in the capacity aforesaid, for the said defend- ant, the boiler connected with the engine of the said locomotive, by reason of the unsafeness, defectiveness, and insecurity thereo'f, exploded; whereby large quan- tities of steam and water escaped therefrom, and fell upon the said plaintiff, by which he was greatly scalded, burnt, and wounded, and became sick, sore, and disor- dered, and so remained for the space of months, and was compelled to expend the sum of dollars for medical attendance, and was prevented from attending to his ordinary business, and lost all his wages he otherwise would have earned, to wit: the sum of dollars. [Demand of Judgment^ 34. Company Liable for Acts of Servants. It has also been held in a case where men are in the employ of a manufacturing company, that where an injury is suffered through the gross carelessness of the agent of the company, the company is liable in damages. (Albro v. Agawam Canal Co., 6 Cush. 75.) It has heen the opinion in a large number of cases very similar to those above referred to, that the inquiry should be made: "Did the accident happen through the fault of the company, or the fault of its sen-ants;" and if through the fault of the servants, and without any fault on the part of the company, then it would not be liable. As in the above case, so in the case of (Keegan v. Western Railroad Corporation, 4 Seld. Rep. 175), it was Mdthat the defendant was liable, on the ground that the neglect was that of the corporation, and not of its servants, and so did not come within the principle established in (Coon v. S. and U. R.R. Co., i Seld. Rep. 492.) The locomotive in this case had been reported as insufficient by the engineers, but the corporation continued to use it; hence it was the fault of the corporation, and not of its servants. 6 82 FORMS OF COMPLAINTS. 35. Form. The above form is partially taken from Nash's Pleadings and Forms, and is here given, although, as stated in the last above note, there are many of the profession who entertain grave doubts about an action lying against the rail- road company in a case of that character. This action was, how- ever, sustained by the Supreme Court of the State of Ohio, in (Stevens v. Little Miami Railroad Co., 20 Ohio R. 415.) And a like doctrine has since been maintained by the courts of New York, Massachusetts, and in England. (Coon v. S. and U. R.R. Co., i Selden, 92; Hays v. W. R.R. Co., 3 Gushing, 270; Skip v. Eastern R.R. Co., 24 Eq. & L. Rep. 396; Wigmore v. Jay, 5 Exch. Rep. 354.) But it seems our own Supreme Court in (McGlynn v. Brodie, 31 Cal. 376), holds to a differ- ent doctrine. 36. Liability of Master. A master is bound to use reasona- ble care and diligence to prevent accident or injury to his servant, in the course of his employment, and is responsible in damages for failure to do so. (Hallower v. Henley, 6 Cal. 209.) A common employer is not responsible for the injury to one servant, occasioned by the negli- gence of another, in the course of their common employment, unless he himself was in fault. (Wrights. N.Y. Central R.R. Co., 25 N.Y. 562; Treadwell v. Mayor of N.Y., i Daly, 123; Kunz v. Stuart, Id. 431.) A railroad company having employed competent persons to supervise and inspect its road, bed and bridges, is not liable for an injury to one of its servants, caused by the falling of a bridge, in conse- quence of a latent defect. Warner v. Erie Railway Co., '39 N.F. 468 37. Risk of Employee. In the recent case of (McGlynn v, Brodi, 31 Cal. 376), it is held that, " if an employee works with or near machinery which is unsafe, and from which he is liable to sustain injury, with a knowledge, or means of knowing of its condition, he takes the risk incident to the employment in which he is thus engaged, and cannot maintain an action for injuries sustained arising out of accident, resulting from such defective condition of the machinery." See McGatrick v. Wason, 4 Ohio St. R. 569; Hayden v. Smithville Mfg. Co., 29 Conn. 558; William v. Clough, 3 Hurl. & Norm. 258; Griffiths v. Gidlow, 648; Dyman v. Leach, 40 Eng. L. & E. 492; Skipp v. Eastern Co. Railway Co., 9 Ex. 223; 6 Ed. of Story on Agency, Sec. 453, and Notes; Hallower v. Henly, 6 Cal. 210. PERSONAL INJURY BY NEGLIGENCE. 83 Wo. 364. i. By Executor or Administrator, against a Railroad Company, for Injuries Causing Death. [TITLE.] The plaintiff complains, and alleges: I. That on the.... day of , 187., the defendant was a corporation duly organized by [or under] the laws of this State, and was a common carrier of passengers for hire, by railroad, between and II. That on that day said defendant received one A. B. into its cars, for the purpose of conveying him therein as a passenger from to [for dollars paid to them by said A. B.] III. That while he was such passenger, at , a station on the line of the said railroad, a collision occurred, by which [the cars of the said railroad were thrown from the track, and the car in which the said A. B. then was, was precipitated down an embankment, and the said A. B. was thereby killed, or as the case .may be], which was caused by the negligence of the defendant and the defendant's servants. IV. That on the .... day of , 187 ., let- ters of administration upon the estate of the said A. B. were duly issued by the Probate Court of the County of to the plaintiff, by which he was appointed administrator of all the goods and credits belonging to the said A. B. at the time of his death, and he thereupon was qualified and entered upon his duties of such administration. [Demand of Judgment^ 84 FORMS OF COMPLAINTS. 28. Conflict of Laws. An administrator appointed in one state cannot maintain an action there, on the statute of another state, which gives to the personal representatives of a person killed by wrongful act, neglect, or default, a right to maintain an action for damages in respect thereof, notwithstanding the death, for the benefit of the widow or next of kin, against the party that would have been liable if death had not ensued. Richardson v. N.Y. Cent. R.R. Co., 98; Mass. 85. 39. Damages. Damages ensuing from bodily pain need not be alleged specially in the complaint. (Curtis v. Rochester and Syracuse R.R. Co., 20 Barb. 282; affirmed, 18 N.Y. (4 Smith] 534.) But funeral expenses are not recoverable, except as special damages, if recoverable at all, and must be specially pleaded. (Gay v. Winter, 35 Cal. 153.) As to measure of damages in case of the death of a woman having children, see (Tilley v. Hudson River R.R. Co., 29 N.Y. 252; S.C., 24 N.Y. 471; Mclntyre v. N.Y. Cent. R.R. Co., 43 Barb. 532.) As to the rule for pleading special damages, see Ante, Vol. i., p. 238-9, Notes 114-116. 40. Liability for Causing Death. Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if the death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. Gen. Laws of Cal. 12,325. 41. Limitation of Action. In California, every action for the death of a person by wrongful act shall be commenced within two years after the death of such deceased person. Gen. Laws of Cal. \ 2,327. 42. Negligence. The complaint alleged that a car -of the defendant, in charge of their servant and agent, was wrongfully driven over a child, whereby, etc., and that the defendants, by negligence of themselves and their agents, ran over the child and caused her death. Held, that evidence was admissible of any facts of negligence, on the part of the defendants, in the construction of the cars, which would have aided in causing such injury. Oldfield v. New York and Harlem R.R. Co., 3 E. D. Smith's C. P. R. 103. PERSONAL INJURY BY NEGLIGENCE. 85 43. Parties Plaintiff A father, or in case of his death or deser- tion of his family, the mother may maintain an action for the injury or death of a child; and so may a guardian for the injury or death of his ward. (Cat. Pr. Act, 1 1 ; see Parties, Ante, Vol. i., p. 80.) An action may be maintained by a father as administrator of unmarried infant son, and it is not indispensable that deceased should leave a widow and next of kin. (McMahon v. Mayor of N.Y., 33 N.F. 642.) A husband cannot maintain an action for the instantaneous killing of his wife through the negligence of defendant. The well settled common law rule that no damages can be recovered by action for injuries resulting in immediate death applies to actions brought by a husband for injury to his wife. The loss of society and assistance do not alter the case; and the New York Statute of 1847 nas not extended the remedy to such an injury. (Greene v. Hudson River R.R. Co., 2 Keyes; affirming 28 Barb. 9.) An action in Pennsylvania against a railroad company, for negligence in causing the death of a father, is properly brought in the name of all the children. The recovery is for the benefit of all, the amount to be distributed as in case of intestacy. North Penn. R.R. Co. v. Robinson, 44 Penn. State R. 175. 44. Parties Defendant. It seems that the decisions of the New York Court of Appeals in (Charman v. New Haven R.R. Co., 19 N. K 341; and Colegrove v. New York and New Haven R.R. Co., 20 New York, 492) to the effect that a passenger in a vehicle or rail- road car, injured by its collision with another vehicle or car, resulting from the concurrent negligence of the owners of such vehicles or cars, or their employees, may maintain a joint action against both, are in a great measure overruled by the later case of Brown v. New York Central R.R. Co., 32 N. Y. 597; Mooney v. Hudson River R.R. Co., 5 Rob. 548. 45. Personal Representatives. Every action for the death of a person, caused by wrongful act, neglect, or default of a person or corporation, shall be brought by and in the names of the personal representatives of such deceased person. (Gen. Laws of Cal. 2,327.) The provision of the Louisiana statute, that the cause of action for the wrongful death of a person shall survive to the personal representatives for the space of one year from the death, is a legal subrogation in favor of the persons designated to the right of action of the deceased; and in case of a suit under that subrogation the plaintiff should allege that his cause of action was derived from deceased under 86 FORMS OF COMPLAINTS/ the statute, and a neglect to do this will be fatal. Earhart v. New Orleans etc. R.R. Co., 17 La. An. 243. 46. Special Damage. In an action for death by the wrongful act of a person, it is not necessary to allege or prove special damage. Keller v. N.Y. Cent. R.R. Co., 24 How. Pr. 172; Mclntyre v. N.Y. Cent. R.R. Co., 43 Barb. 532; see Ante, Vol i., pp. 238-9, Notes 114-116. 47. What must be Shown. To maintain an action for caus- ing by wrongful acts the death of or injury to a person, two things must be shown: First, An obstruction in the road by the fault of the defendant: Second, No want of ordinary care on the part of the plaintiff or party injured. The gravamen of the action is the negligence of the defendant, and plaintiff cannot recover where it appears that the negligence of the deceased or person injured contributed in any degree to the death or injury sustained. (Gay v. Winter, 34 Cal. 153.) But in cases where the negligence of the defendants is affirma- tively shown, and there is no proof of the conduct of the deceased or person injured, the jury are at liberty to infer ordinary care and diligence on his part, taking into consideration his character and habits as proved, and the natural instinct of self preservation. (Gay v. Winter, 34 Cal. 153.) In such actions, if the plaintiff makes a case which does not charge the deceased or the person injured with neg- ligence, the case should be permitted to go to the jury, under ap- propriate instructions. Gay v. Winter, 34 Cal. 153. 48. Widow and Next of Kin. It was held in the Superior Court (N.Y.), that a complaint of this kind must expressly allege that there is a widow, or next of kin, giving their names, and alleging that they had sustained pecuniary injury. (Safford v. Drew, 3 Duer, 641.) But the doctrine of this case is entirely inconsistent with the later cases of (Chapman v. Rothwell, Ellis Bl. and E. 168; Quin v. Moore, 15 N.Y. 436; Oldfield v. New York and Harlem R.R., 14 N.Y. 316; Dickens v. New York Central R.R. 28 Barb. 41; Keller v. New York Central R.R. 17 How. Pr. 102.) The first of these cases expressly decides that no allegation of damage to the next of kin is necessary; and though the whole doctrine of Safford v. Drew is not overruled in terms, yet it is in effect, and that nominal damages, at least, may be recovered on the above complaint, with liberty to prove actual damage. In Cal- ifornia, however, the statute especially provides for this class of actions. See Gen. Laws of Cal. 2,325-2,327. PERSONAL INJURY BY NEGLIGENCE. 87 JVo. 365. ii. Against a Municipal Corporation, for Injuries Caused by Leaving the Street in an Insecure State. [TITLE.] The plaintiff complains, and alleges: I. That the defendant is a municipal corporation, duly organized under the laws of this State. II. That, among other things, it is by their charter made their duty to keep the streets in said City in good order, and at all times properly to protect any excava- tions made in said streets, by placing lights and signals thereat to indicate danger. III. That a certain street in said city, known as , was and is a common thoroughfare, and used by the citizens thereof and others; and that the duty of said defendants as to said street was, and became at the time hereinafter mentioned, a matter of public and gen- eral concern. IV. That on or about the .... day of , 187 ., a deep and dangerous excavation [hole or trench] was dug in said street [or an obstruction was placed in said street, and negligently left therein], and suffered by the defendant, during a night on or about said day, to remain open, exposed, and without proper protection, and without any light or signal to indicate danger. V. That the plaintiff on the night aforesaid was lawfully traveling on said street, and was wholly unaware of danger, and was accidentally, and without fault or negligence on his part, precipitated into said excavation [hole or trench], whereby he received great 88 FORMS OF COMPLAINTS. bodily injury, and was made sick and sore, and was thereby kept to his bed, and detained from business for days, and was in consequence thereof com- pelled to expend dollars for medical attendance and nursing, and has been made permanently lame. [Demand of Judgment^ 50. Cause of Death. Whenever the death of any person shall be caused by an injury received in falling through, or by drowning after having fallen through any opening or defective place, in any side- walk, street, alley, or wharf, in any city or incorporated town, the death shall be deemed to have been caused by the wrongful neglect and default of the person or persons, corporation or company, firm or asso- ciation, whose duty it was at the time said person received such injury to have kept in repair such sidewalk, street, alley, or wharf, or who was or were at that time liable to have been ordered or notified to make, or to have been assessed for the expenses of making the repairs on such sidewalk, street, alley, or wharf where the injury to such person occurred. (Gen. Laws of Cal. 2,326; Eustace v. Jahns, Cal. Sup. Ct., Jul. T., 1869.) The responsibility in cases of a personal injury from falling through a defective sidewalk is upon him who has the control and management of the work. Boswell v. Laird, 8 Cal. 469; Faujoy v. Seales, 29 Cal. 343; followed in Du Pratt v. Lick, Cal. Sup. Ct., Jul. T., 1869. 51. Corporation, Liability of. A city having the power and duty of lighting its streets is liable for injuries or death caused by a party's falling off a bridge, opened for the passage of a vessel, in conse- quence of its being insufficiently lighted. (Chicago v. Powers, 42 ///. 1 79 ; see as to sidewalks, Bloomington v. Bay, Id. 503.) As to the liability of corporations for the neglect to have proper precautions taken for the safety of the public, see Grant v. City of Brooklyn, 41 Barb. 381; Davenport v. Ruckman, 10 Bosw. 20. 52. Defect in High-ways. Plaintiff was injured owing to* a defect in a highway, but would not have been if the horse had not been vicious. He had never driven the horse before, and did not know of its viciousness. Held, that plaintiff could recover substantia PERSONAL INJURY BY NEGLIGENCE. '89 damages. Driving a vicious horse is uprima facie evidence of negli- gence. Daniels v. Saybrook, 34 Conn. 377. 53. Defective Pier. As to the liability of the owners or lessees of a defective pier, see Moody v. Mayor of New York, 43 Barb. 282; Cannavan v. Conklin, i Daly, 509. 54. Drover, Liability of. The law governing the liability of persons for driving cattle through the street of a city, for damages caused by injuring a person lawfully in the street, without any fault on his part, is the same as that by which the carriers of passengers are gov- erned. Ficken v. Jones, 28 Cal. 618. 55. Dug, Opened and Made. In a suit caused by a person's falling into an area in a public sidewalk, a declaration charging that the defendant "dug, opened and made" the area, is sustained by proof that he formed it partially by excavation, and partially by raising walls. Robbins v. Chicago City, 4 Wallace U.S. 657. 56. Foundation of Action. The foundation of this action is the personal tort of the defendant, and not of his testators. The defect in the street from which the injury resulted to plaintiff is not alleged to have existed anterior to the death of such testator; hence no obligation was incurred by the testator in his lifetime in respect thereto, which could serve as a basis for a valid claim against his estate, or a right of action against the administration of his estate. Eustace v. Jahns, Cal. Sup. Ct., July T., 1869. 57. Non-Repair of Premises. A complaint against the owner of premises leased to a third person, to recover damages sustained by plaintiff by the falling of a part of a building through want of repairs, is bad on demurrer, unless it states facts from which the Court can say that the owner was bound to keep the premises in repair. A mere general allegation that defendant was bound to keep the premises in repair is insufficient. Casey v. Munn, 5 Abb. Pr. 91; S.C., 14 How. Pr. 162; see Brown v. Harmon, 21 Barb. 508. 58. Respondeat Superior. The responsibility, in cases of per- sonal injuries, is upon him who has the control and management of the work, and the relation of respondeat superior has no application where the relation of master and servant does not exist. (Fanjoy v. Scales, 29 Cal. 243; the doctrine approved in Du Pratt v. Lick, Cal. Sup. Ct., Oct. T., 1869.) Where there is no power of selection or direction, there can gO FORMS OF COMPLAINTS. be no superior, and where a man is employed to do the work with his own means and by his own servant, he has the power of selection and direction, and he, and not the person for whom the work is principally done, is the superior. Fanjoy v. Scales, 29 Cat. 243; cited and fol- lowed in Du Pratt v. Lick, Cal. Sup. C/., Oct. T., 1869. 59. Street Contractor, Liabilities. The responsibility in cases of repairs in public streets made by a contractor rests upon him who has control and mangement of the work. The doctrine of re- spondeat superior has no application where the relation of master and servant does not exist; but where a man is employed to do the work with his own means and by his own servants, he and not the person for whom the work is being primarily done is the superior. Boswell v. Laird, 8 Cal. 469; the doctrine recognized in Fanjoy v. Scales, 29 Id. 243; and followed in the late case of Du Pratt v. Lick, Cal. Sup. C/., Oct. T., 1869. 60. Street Contractor Primarily Liable. The law does not impose upon the owner of a lot fronting on a street of an incorporated city, the duty to repair a defect in . Wilcox, 19 Wend. 343.) Hence it is, the principal is never liable for the unauthorized or willful or malicious acts of his servants or agents, done without his authority, and not subsequently adopted by him. Turnery. N. B'. and M. R.R. Co., 34 Cal. 599; see, also, Phil, and Redding R.R. Co. v. Derby, 14 How. U.S. 486; Hagan . Prov. and Wore. R.R. Co., 3 R.I. 88, 486; Wells v. N.Y. Cent. R.R. Co., 24 N.F. 183, 184; Weed v. Pan. R. Co., 17 N.Y. 362; South- wick v. Estes, 7 Cush. 385; Mill, and Miss. R.R. Co. v. Finney, 10 Wis. 388. 25. Measure of Damages. In case of the refusal of a con- ductor to receive a passenger on the street cars, plaintiff is entitled to nominal damages, even in the absence of proof of any actual damage. (Pleasants v. N. B. and M. R.R. Co., 34 Cal. 586.) Where no special damage was alleged or proved by the plaintiff for breach of a railroad passenger contract, and the evidence was only that he was put out of the car at a point about twelve miles from his destination, and five miles from the place of departure : Held, that a verdict of five hundred dollars damages was greatly disproportionate to the injury proved within the rule of Aldrichz;. Palmer, 24 Cal. 513; Tarbell v. C. P. R.R. Co. 34 Cal. 6 1 6. 26. Refusing Baggage. A railway company refused to carry free of charge a " spring horse" (substitute for a rocking horse,) weigh- ing 78 pounds, and being forty- four inches long, for a passenger who was entitled to take with him 112 pounds weight of "ordinary" or IO8 FORMS OF COMPLAINTS. " personal" luggage. Held, that the company had a right to make an additional charge. Hudston v Midland R.R. Co., L. R. 4 Q. B. 366. 27. Surrender of Ticket. If a passenger refuses to surrender his ticket to the conductor of a train when called for, as required by the rules of the company, he may be put off at any place not selected as dangerous or inconvenient, and this although the company is forbidden by statute to expel a passenger for non-payment of fare except at a reg- ular station. Illinois Cent. R.R. Co., v. Whittemore, 43 ///. 420; see Chicago and Alton R.R. Co. v. Flagg, Id. 364. 28. Tender of Fare. In an action to recover damages against a common carrier for refusal to carry a passenger, it is not necessary to allege a tender of the fare. It is sufficient to allege that plaintiff was ready and willing to pay the defendant such sum of money as it was legally entitled to charge. Tarbell v. Cent. P. R.R. Co., 34 Cal. 616. 29. Ticket Issued for Previous Day. Plaintiff was ejected from a car for refusing to pay for his passage except by a ticket issued on a previous day, and marked "good for this day only;" he then showed a good ticket, and attempted to enter the car, which he was forcibly prevented from doing: Held, that his exclusion was justifiable. State v. Campbell, 3 Vroom, 309. COMPLAINTS SUBDIVISION FIFTH. For Damages upon Wrongs. PART SECOND FOR INJURIES TO PROPERTY. CHAPTER I. BAILEES. No. 3 7 8. i. Against a Bailee Common Form. [TITLE.] The plaintiff complains, and alleges: I. That on the .... day of , 187 ., the defendant received from the plaintiff certain goods, and the defendant thereupon gave to the plaintiff a receipt for the same, of which the following is a copy: \_Copy receiptl\ II. That on the ...... day of , 187 ., the plaintiff demanded of the defendant that he deliver said goods, but he refused to do so. [Demand of Judgment. \ 1. Bailee is not used in the limited sense "to keep, to transfer, or to deliver," as in yist Section of the Act of 1850, concerning crimes and punishments. People v. Poggi, 19 . Steamer "New World," i Cal. 348. The rule seems to be different in Minnesota. A complaint which alleges a delivery of goods to a common carrier, and acceptance by him to be conveyed by him without reward, the loss of the goods occasioned by the gross negli- gence of the defendants, together with the value of the goods and the amount of the loss of the bailor, states a ground of action. (McCauley v. Davidson, 10 Minn. 418.) All bailments, with or without compen- sation to the bailee, are contracts founded on a sufficient considera- tion. Id. JVo. 390. ii. Against Common Carrier, for Loss of Goods. [TITLE.] The plaintiff complains, and alleges: I. That at the times hereinafter mentioned, the defendant was a common carrier of goods, for hire, between the places hereinafter mentioned. II. That on the .... day of , 1 8 . . , at , in consideration of the sum of , then paid \or as the case may be~\ to him by the plaintiff, the defendant agreed safely to carry to , and there deliver to , or order [or otherwise, according to the facf\, certain goods, the property of the plaintiff, of the value of dollars, consisting of \here describe the goods], which the plaintiff then and there delivered to the defendant, who received the same upon the agree- ment and for the purposes before mentioned. 128 FORMS OF COMPLAINTS. III. That the defendant did not safely carry and deliver the said goods pursuant to said agreement, but on the contrary, the defendant so negligently conducted and so misbehaved in regard to the same, in his calling as carrier, that they were wholly lost to the plaintiff. [Demand of Judgment.] 24. Act of God. The expression, "act of God," as used in the law of carriers, includes those losses and injuries which are occasioned exclusively by natural causes, such as could not be prevented by human care, skill, and foresight. (21 Wend. 190; 31 Barb. 38; 3 Esp. 127; I T. R. 27; I Harp. 468; 4 Harr. 448; 4 Bing. 607; 4 Zabr. 697; Edw. on Bail. 454; Ang. on Carr. 156; Michaels v. N.Y. Cent. R.R. Co., 30 N.Y. 564.) Those acts are to be regarded in a legal sense as the acts of God which do not happen through human agency, such as storms, lightnings and tempests. (Polack v. Pioche, 35 Cal. 416.) The elements are the means through which God acts, and damages by the elements are damages by the act of God. See Note i. 25. Date, Amount. A complaint which does not state the date of the draft, which was lost by a common carrier, the amount for which it was drawn, the time when it was payable, or to whom payable, is insufficient. Zeigler v. Wells, Fargo & Co., 23 Cal. 179. 26. Liability. The law adjudges a common carrier responsible for loss of goods, irrespective of any question of negligence or fault on his part, if the loss does not occur by the act of God or the public enemies. Merritt v. Earle, 29 N.Y. 115. 27. Rule of Damages. In an action against carriers, the rule of damages is the value of the goods at the port of delivery, and not the invoice price, or the value at the port of shipment. Briggold v. Haven, i Cal. 108. AGAINST COMMON CARRIERS. 129 No. 391. iii. For Loss of Baggage. [TITLE.] The plaintiff complains, and alleges : I. That on the .... day of , 18 . . , the defendant was a common carrier of passengers and their baggage, by [stage coach], from to , for hire. II. That on that day he received into his [coach] the plaintiff with his baggage, to wit [designate baggage] , of the value of dollars, to be carried from said to , for dollars then paid to the defendant [or for him\. III. That the defendant did not use proper care therein, but, by the negligence and improper conduct of him and his servants, said baggage was wholly lost. [Demand of Judgment '.] 28. Acceptance of Goods. To charge a carrier, there must be an acceptance of the goods, either in'a special manner as by " check- ing," or according to the usage of their business. Story on Bailm. 533 ; Ang. on Carr. 140; i Ld. Raym. 46; 5 Esp. 41 ; 7 Hill, 47; 2 Man. & S. 172; 3 Taunt. 264; 2 Shaw, 128; Ball v. N.J. Steamboat Co., i Daly, 491. 29. Baggage. The baggage of a passenger entrusted to one whose business it is to transport persons and their baggage, and with whom the owner has embarked, is under the same protection as the goods are which are entrusted to a common carrier of goods. (Mer- rill v. Grinnell, 30 N.F. 594.) As to the duty of carriers by water with respect to baggage of passengers, Merrill v. Grinnell 30 N.Y. 594; Chamberlain v. West. Trans. Co., ^.Barber, 218; Mudgettz>. Bay State 9 I3O FORMS OF COMPLAINTS. Steamboat Co., i Daly 151; Glasco v. N.Y. Cent. R.R. Co., 36 Barb, 557; Gulhooly v. N.Y. and Savannah S.N. Co., i Daly, 197. 30. Baggage, what is. The jury are to determine what con- stitutes baggage under the circumstances. A sum of money reasonably necessary to defray the expenses of the journey is properly baggage; this depends upon the length of the journey, and to some extent the wealth of the traveler, and it includes such an allowance for accident or sickness, and for sojourning by the way, as a reasonable, prudent man would consider it necessary to make. It should be limited to money for traveling expenses, properly so called. (Merrill v. Grinnell, 30 N.Y. 594.) And the carrier is responsible for the loss of money in a passenger's trunk to the extent of reasonable traveling expenses. (Mer- rill v. Grinell, 30 N.Y. 394.) But not for jewelry belonging to a third person. Richards v. Wescott, 4 Bostv. 9. 31. Baggage, Retaining Custody of. The carrier of pas- sengers by steamboat is not exonerated from responsibility for the per- sonal baggage of a passenger, by the fact that the passenger deposits it in the stateroom occupied by him, of which he has the key, and from which it is stolen. (19 Wend. 236; 8 Cow. 33; 4 Man <5f S. 310; 7 Hill, 47; Mudgett v. Bay State Steamboat Co., i Daly, 151.) So, a mere supervision of one's baggage, will not relieve from responsibility 2 Bos. &. P. 416; i Sir. 694. 32. Money Stolen. The owners of a steamboat are not liable for money stolen from the pockets of a passenger, when in bed and asleep, it not being proved it was stolen by persons employed on board. Abbott . Broadstreet, 55 Me. 530. 33. Route. It is not deemed necessary to state the whole route of the defendants. That they were carriers between and , is sufficient. See Clark v. Faxon, 21 Wend. 153. 34. Vehicle. A common carrier is absolutely bound, irrespec- tive of negligence, to provide road worthy vehicles. Alden v. N.Y. Cent. R.R. Co., 26 N.Y. 102. AGAINST COMMON CARRIERS. No. 392. iv. Against Carrier by Water, for Negligence in Loading Cargo. [TITLE.] The plaintiff complains, and alleges : I. That on the .... day of ........ , 1 8 . . , at ........ , the plaintiff, at the request of the defendant, caused to be delivered to him [designate the goods] of the plaintiff, of the value of ........ dollars, to be by the defendant safely and securely loaded on board a cer- tain vessel, at ........ , for the plaintiff, for a reasona- ble compensation to be paid said defendant therefor; and the defendant then received the goods for that purpose. II. That the defendant afterwards, by himself and his servants, conducted so carelessly and improperly the loading of the said goods on board the said vessel, that by their negligence and improper conduct the goods were broken and injured, and a part thereof wholly destroyed, to the damage of plaintiff in ........ dollars. [Demand of Judgment.} 35. Steam Tugs. The towing a vessel out to sea by a steamer is the transportation of property, so as to bring the case within the law of common carriers. (White v. Tug " Mary Ann," 6 Cal. 462.) And the fact that the owner of the ship lost while being towed out to sea was the agent of the owners of the steam tug, does not relieve the latter from the obligations under which they contract with others. (Id.) Defendant undertook to tow plaintiff's schooner and a Spanish bark from New Orleans to the Gulf of Mexico. In consequence of the bad steering of the bark by its own men, it broke loose from the tow boat and damaged the schooner. Held, that defendants were liable as car- riers. Clapp v . Stanton, 20 La. An. 495. 132 FORMS OF COMPLAINTS. No. 393. v. Against Carrier for not Regarding Notice to Keep Dry. [TITLE.] The plaintiff complains, and alleges : I. That on the .... day of , 1 8 . . , at , at the port of , the defendant was master and commander of a certain vessel known as the , then lying at said port, and the plaintiff caused to be shipped on board said vessel certain [describe thegoods\, the property of the plainiiff, of the value of dollars, which said goods were then in good order and condition; in consideration whereof, and of the sum of dollars then and there paid by the plaintiff to the defendant, the defendant then and there promised carefully and safely to carry and transport said goods to , and there safely to deliver them to , danger of the seas only excepted, and then and there received said goods for that purpose. II. That the plaintiff then and there caused due notice to be given to the defendant that it was neces- sary to the preservation of said goods that they should be kept dry. III. That the defendant failed to take care of or safely to carry said goods; but, on the contrary, not regarding his said promise, so negligently and carelessly carried the same that they became wet, and thereby entirely destroyed [or otherwise state injury, according to thefacts~\\ which injury was not occasioned by reason of any danger of the seas, but wholly through the neg- AGAINST COMMON CARRIERS. 133 ligence of the defendant and his servants, by reason whereof the plaintiff was injured, to his damage dollars. [Demand of Judgment. \ 36. Damage to Cargo. In a case of damage to cargo, where the libel alleges the fault of the master to be : First, That he falsely represented his vessel to be tight, staunch, and seaworthy; and, Second, That the danger resulted from the master's carelessness, negligence, and improper conduct; the libelant cannot claim another specific ground of complaint not set up in the libel, e.g., that the damage was caused by the fault of the master in not putting into some other port to repair his vessel, and take measures to preserve his cargo. Soule v. Radocanachi, i Newb. 504. 37. Notice in Writing If the carrier have notice, by wrfting on the article or package, of the need of peculiar care, he is bound to comply with such directions. See Baxter v. Leland, i Abbott's R. 348; Hastings v. Pepper, n Pick. 41; and Sager v. Portsmouth etc. R.R. Co., 31 Maine, 228. No. 394. vi. For Loss in Unloading. [TITLE.] The plaintiff complains, and alleges : I. [As in Form Noi 393.] II. \_As in Form No. 393.] III. That said vessel afterwards safely arrived at .-. , and no \excepted perils'] prevented the safe carriage or delivery of the goods. IV. That the defendant did not deliver the said goods to the plaintiff; and for want of due care in the defend- ant and his servants in unloading and delivering said goods from said vessel, they were broken and injured, and were wholly lost to the plaintiff. [Demand of Judgment^ 134 FORMS OF COMPLAINTS. 38. Mixing Goods. Where defendant, without notifying the con- signees, unloaded coal upon the bare ground, and so carelessly that dif- ferent sorts were mixed together with the soil, the defendant's liability did not cease until he had unloaded the coal with due care, and put it in a reasonably safe place. Rice v. Boston and Worcester R.R. Co., 98 Mass. 212; see Chicago and Alton R.R. Co. v. Scott, 42 ///. 132. No. 395. vii. Against Common Carrier, for Failure to Deliver at Time Agreed. [TITLE.] The plaintiff complains, and alleges : \. That the defendant is a corporation duly organized under and pursuant to the laws of this State, and at the times hereinafter mentioned was a common carrier of goods, for hire, between and II. That on the .... day of , 18. ., at , the plaintiff delivered to the defendant [de- scribe goods\, of the value of dollars, the property of the plaintiff, which the defendant, in con- sideration of a reasonable compensation to be paid it by the plaintiff, agreed safely to carry to , and there deliver to the plaintiff, on or before the .... day of III. That the defendant did not fulfill its agreement safely to carry the same, and to deliver them in on said day; but, on the contrary, although the period between the said \day when received by defendant^ and said \_day when they should have been deliver ed~\ was a reasonable time for carrying the same from to , yet the defendant so negligently and care- lessly conducted, and so misbehaved in regard to the same, in its calling as common carriers, that it failed to AGAINST COMMON CARRIERS. deliver the same in until the . . . , 18... IV. That the market value of said goods in \_placc of delivery^ on the [day agreecT\ was . . dollars, but on the [day of actual delivery^ was only dollars; and that by reason of the premises the plaintiff was damaged in dollars. [Demand of Judgment.} 38. Breach of Contract. A common carrier becomes charged on his contract immediately upon his failure to carry and deliver as agreed. Jones v. Wells, Fargo & Co., 28 Cal. 259. 39. Delivery. The fact that the consignee's business address was stated in the bill of lading does not oblige the shipper to depart from his known and usual place of delivery, and deliver a cargo at a piec more contiguous to the consignee's place of business. 2 Hilt. 150; 15 Johns. 39; ijWend. 305; Western Trans. Co. v. Hawley, i Daly, 327. 40. Delivery to Wrong Person. Delivery of goods by a carrier to a wrong person by mistake, or by gross imposition, will not discharge his responsibility to the owner for the value of the goods. Adams v. Blackenstein, 2 Cal. 413. 41. Demand. Where a demand is necessary to perfect plaintiffs title, it must be averred. Bristol v. Renssalaer and Saratoga R.R. Co., 9 Barb. 158. No. 396. viii. Against Carrier on Special Contract for Loss of Goods. [TITLE.] The plaintiff complains, and alleges: I. That the defendant is a corporation created by and under the laws of this State, and at the times herein- 136 FORMS OF COMPLAINTS. after mentioned, being such corporation, was a common carrier of goods for hire between and II. That on the day of . . . , 1 8 . , at , the plaintiff delivered to the defendant, being such corporation, certain goods, the property of the plaintiff, to wit [describe the goods~\, of the value of dollars, and in consideration of the sum of dollars paid defendant by the plaintiff, the defendant then and there entered into an agreement with the plaintiff, in writing, subscribed by the defend- ant thereunto lawfully authorized by its agent, of which agreement the following is a copy: \Copy agreement.] III. That the defendant did not safely carry and de- liver said goods pursuant to its said agreement; but so negligently and carelessly conducted and misbehaved in regard to the same, that the said goods were wholly jost to the plaintiff. [Demand of Judgment J] 42. Beyond the Limits. Railroad companies, as common carriers, may make valid contracts to carry passengers or freight beyond the limit of their own road, either by land or water, and in this way be- come liable for the acts and neglects of other carriers which are in no sense under their control. Wheeler v. S. F. and A. R.R. Co., 31 CaL 46. 43. Common Carriers and Forwarders. The liabilities of common carriers and forwarders, independent of any express stipulations in the contract, are entirely different. (Hooper v. Wells, 27 Cal. u.) Where the defendants, being both carriers and forwarders, took goods in pursuance of a previous oral agreement to carry, and gave a receipt for the goods, expressing that they were received "to be forwarded.-" Held, that they were liable as carriers. Blossom v. Griffin, 13 N.Y. 569; and see McCotter v. Hooker, 8 N.Y. 497. 44. Contract Special. A carrier may contract against loss from AGAINST COMMON CARRIERS. 137 fire not caused by his own negligence. (N. O. Mut. Ins. Co. v. N. O. J. and G. R.R. Co., 20 La. An. 302.) By a contract for carriage of live stock, the owner took the risks of a damage ' ' in unloading, con- veyance, and otherwise, whether arising from negligence, or otherwise." The bottom of the car dropped out. Held, that if the car was unfit the carrier was liable. Hawkins v. Great West. R.R. Co., 17 Mich. 57. 45. Contract Construction. Restrictions on the common law liability of a common carrier, inserted for his benefit in a receipt drawn by himself, and signed by him alone, for goods intrusted to him in such capacity, are construed most strongly against the common carrier. (Hooper v. Wells, Fargo & Co., 27 Cal. n.) The words, ",not to be responsible except as forwarder," in a common carrier's receipt, do not exempt him from liability for loss of goods occasioned by the carelessness or negligence of the employees of a steamboat, owned and controlled by other parties than the carrier, but ordinarily used by him in his business of carrier as a means of conveyance. Id. 46. Contract, Effect of. When a special contract is made with a carrier, he becomes as to that transacton an ordinary bailee and a private carrier for hire, i i f N.Y. 490; Moriarty v. Harnden's Express, i Daly, 227. 47. Intention must be Unequivocal. The common carrier's liability for loss occasioned by negligence in the agents he employs will not be restricted, unless the intention to thus exonerate him is expressed in the instrument in plain and unequivocal terms. Hooper v. Wells, Fargo & Co., 27 Cal. n. 48. Joint Contract. If the action is upon the contract, a joint contract by all the defendants must be proved. As to when one carrier may be held for a loss occurring on the route of another with whose business he was connected, see 2 Green!, on Ev. 208, and cases cited; Hart v. Rensselaer and Saratoga R.R. Co., 8 N.Y. 37; Campbell v. Perkins, Id. 430; Wright v. Boughton, 22 Barb. 561. 49. Power of Common Carrier to Qualify his Respons- ibility. As to power of common carrier of goods to limit his respons- ibility by special contract, see Price v. Hartshorn, 44 Barb. 655; Lee v. Marsh, 43 Barb. 102; 28 How. Pr. 275; Meyer v. Harnden's Express Co., 24 How.Pr. 290; Heinmen v. Grand Trunk R.R. Co., 31 How. Pr. 430; Moriarty v. Harden's Express Co., i Daly, 327. 138 FORMS OF COMPLAINTS. 50. Sunday Contract. In Massachusetts, a contract made in violation of the Lord's day is void, and no subsequent rati- fication will sustain an action upon it. (Day v. McAllister, 1 5 Gray (Mass.) 433.) But the rule as laid down in New York does not exempt the carrier from his liability for the loss upon a contract under the Sunday laws of New York, because it is made on Sunday. To render it invalid) it is necessary that the contract should require the work or labor agreed for, to be performed on Sunday. To entitle the plaintiff to recover against the carrier, it is immaterial whether the contract is good or bad. The liability of the carrier is imposed by law, and does not rest on his contract. Edw. on Bailm. 466; 2 Wend. 338; 19 Id. 239; i Chitt. R. i; Merritt v. Earle, 29 N.Y. 115. CHAPTER III. AGAINST AGENTS, EMPLOYEES, AND OTHERS, FOR NEGLIGENCE. No. 397. i. Against Agent, for not Using Diligence to Sell Goods. [TITLE.] The plaintiff complains, and alleges: I. That on the day of , 18 . . , at , the defendant agreed with the plaintiff, as his agent, and for compensation to be paid by plaintiff, to sell for him certain goods, to wit \_describe tkem~\, of the value of dollars; and thereupon received the same from him for that purpose. II. That the defendant did not use due diligence to sell the same, but unreasonably delayed so to do; and FOR NEGLIGENCE. 139 by reason thereof the same were afterwards sold by the defendant for the plaintiff, and produced dol- lars less than the same would have produced had the defendant used due diligence in selling the same; and whereby plaintiff incurred dollars expenses in warehousing the same, to his damage in dollars. [Demand of Judgment.] 1. Ferryman. It is the duty of the ferryman to see that the teams are safely driven on board the boat, and if he thinks proper he may drive himself, or unharness the team, or unload the wagon, to get them safely on board. (May v. Hanson, 5 Cal. 360.) But if the ferryman permits the party to drive himself he constitutes him quoad hoc his agent. Id. 2. Negligence of Sheriff! The mere omission of a deputy to inform the sheriff of having process in hand is not such negligence as to charge the sheriff in case a writ last in hands was executed first. Whitney v. Butterfield, 13 Cal. 335. 3. Pledgee as Agent. A party by pledging negotiable securities transferable by delivery, loses all right to the securities when transferred by the pledgee in good faith to a third party. The pledgee in such a case should be treated in the transaction as the agent of the owner, and the owner should be bound by his acts in the premises. Coit v. Hum- bert, 5 Cal. 260. 4. Powers of Agent. In an action by a principal against his agent, charging him with an abuse of his powers, it is necessary to allege that the defendant acted as agent. ^Etna Ins. Co. v . Sabine, 6 McLean, 393- 5. Unauthorized Act of Agent. The ratification by a princi- pal of an unauthorized act of an agent has a retroactive efficacy, and, being equivalent to an original authority, an allegation of due authority is sustained by proof of such ratification. Hoyt v. Thompson, .19 N.Y. 218. I4O FORMS OF COMPLAINTS. No. 398. ii. Against Agent, for Carelessly Selling to an Insolvent. [TITLE.] The plaintiff complains, and alleges: I. That on the day of , 1 8 . . , at , the defendant undertook with the plaintiff, as his agent, and for compensation to be paid by him, to sell for him goods of the plaintiff, to wit [designate goods], of the value of dollars, and thereupon received the same from him for that purpose. II. That the defendant did not use due diligence to sell or in selling the same, but negligently sold the said for the plaintiff to a person in embarrassed circumstances, then well knowing said person's financial embarrassments, without receiving the price therefor, or taking security for the payment thereof; whereby the plaintiff has hitherto lost and is likely wholly to lose the price. [Demand of Judgment, ,] JVo. 399. iii. Against Agent, for Selling for a Worthless 'Bill. [TITLE.] The plaintiff complains, and alleges: I. That on the .... day of , 1 8 . . , at . , the defendant undertook with the plaintiff, as his agent, and for a compensation to be paid by him, to sell for him [state whaf\, for cash or an approved bill or note, at thirty days or less, and not otherwise [or state the fact]. FOR NEGLIGENCE. II. That the defendant did not use due diligence in selling the same, but negligently and without exercising ordinary business care, sold the same for a bad and insufficient bill of exchange, for dollars, having months to run, and which is worthless and of no value to the plaintiff; and although the same became payable before this action, it is still unpaid, to the dam- age of the plaintiff dollars. [Demand of Judgment. ,] l No. 400. iv. Against an Auctioneer, for Selling below the Owner's Limit. [TITLE.] The plaintiff complains, and alleges: I. That on the day of . . . . , 1 8 . . , at , the defendant was engaged in the business of an auc- tioneer, and in consideration that the plaintiff would deliver to him [describe the goods~\, to be sold by him for the plaintiff for a compensation, undertook, as such auctioneer, at the time and place aforesaid, to sell the same, at and for no less money than the sum of dollars, and not to sell them otherwise. II. That the plaintiff delivered said goods to the defendant for that purpose. III. That the defendant, without the knowledge or consent of the plaintiff, sold said goods for less than the sum to which he was so limited as aforesaid, to wit, for dollars. {Demand of Judgment. \ 142 FORMS OF COMPLAINTS: JVo. 401. v. Against an Auctioneer, for Selling on Credit against Orders. [TITLE.] The plaintiff complains, and alleges : I. That on the day of , 1 8 . . , at , the defendant was engaged in the business of an auctioneer, and in consideration that the plaintiff would deliver to him \_describe goods\, to be sold by him for the plaintiff for a compensation, undertook as such, at the time and place aforesaid, to sell the same for cash, and not otherwise. II. That the plaintiff delivered said goods to the de- fendant for that purpose. III. That the defendant afterwards sold said goods on credit without the plaintiff's consent, and that the parties to whom such sale was made are and then were wholly insolvent, and the debt is of no value. [Demand of Judgment. \ No. 402. vi. Against Auctioneer or Agent, for not Accounting. [TITLE.] The plaintiff complains, and alleges: I. That on or about the .... day of , 1 8 . . , at , the plaintiff shipped from the port of , consigned to the defendant, then his agent, kt , to sell for cash [describe the goods~\, of the value of dollars, and gave notice of said con- FOR NEGLIGENCE. 143 signment to the defendant, which agency, f(fr a valuable t consideration, he undertook and entered upon. II. That he received said goods, and thereafter sold the same, or some part thereof, on account of the plaintiff, for dollars. III. That a sufficient and a reasonable time has elapsed since said goods were received and sold by de- fendant, yet he has neglected and refused, and still neglects and refuses to render to the plaintiff a just and true account of such sale, and of the proceeds thereof, and has also neglected and refused to pay over the proceeds to the plaintiff. [Demand of Judgment^ 6. Agent. In an action against an agent for not accounting, a request to account and pay over must be alleged in the complaint and proved at the trial. Bushnell v . McCauley, 7 Cal. 421. No. 403. vii. Against Forwarding Agent, for not Forwarding Goods as Agreed. [TITLE.] The plaintiff complains, and alleges: I. That at the time hereinafter mentioned, the defend- ant was a forwarding agent, and keeper of a warehouse, at , for the reception of goods intended to be forwarded by him, for hire, from to II. That on the .... day of , the plaintiff delivered to the defendant certain merchandise, to wit [designate the same], the property of the plaintiff, of the value of dollars, which the defendant re- 144 FORMS OF COMPLAINTS. ceived and undertook, for hire, to forward in a reasonable- time from to , by a vessel, and mean- while to store and safely keep the same. III. That after the defendant received said goods, such a vessel did, within a reasonable time then follow- ing, to wit, on or about the .... day of , 1 8 . , sail from said to , and the defendant might and ought to have delivered the said goods to the master of such vessel for the purpose aforesaid. IV. That the defendant, not regarding his duty in that respect, did not do so, or otherwise forward said goods within a reasonable time, but kept and detained the same in his said warehouse, for a long and unreason- able time, to wit, four months, whereby the said goods perished. [Demand of Judgment.] 1. Forwarders are not Insurers. Forwarders are not in- surers, but they are responsible for all injuries to property while in their charge, resulting from negligence or misfeasance of themselves, their agents, or employees. Hooper v. Wells, Fargo & Co., 27 Cal. u. No. 404. viii. Against an Attorney, for Negligence in the Prosecution of a Suit. [TITLE.] The plaintiff complains, and alleges: I. That the defendant is, and at the times hereinafter mentioned was an attorney of the Supreme Court of this State; that the plaintiff on or about the month of , 1 8 . . , retained and employed him, as such attorney, to prosecute and conduct an' action in the FOR NEGLIGENCE. 145 District Court of the Judicial District, State aforesaid, on behalf of this plaintiff, against one A. B., for the recovery of dollars, due from him to this plaintiff, and the defendant undertook to prosecute said action in a proper, skillful, and diligent manner, as the attorney of the plaintiff. II. That the defendant might, in case he had prose- cuted said action with due diligence and skill, have ob- tained final judgment therein for this plaintiff before the .... day of , 1 8 . . , but he so negligently and unskillfully conducted said action, that by his negligence, delay, and want of skill, he did not obtain judgment until the .... day of , 1 8 . . , and that meanwhile said A. B. had become insolvent; whereby the plaintiff was hindered and deprived of the means of recovering said sum "of money, and that the same nor any part thereof has not been recovered or made by plaintiff. [Demand of Judgment '.] 8. Attorneys, Liabilities of. An attorney is liable to his client only for want of care, skill and integrity. As to the law of Illinois regu- lating the liabilities of attorneys, see (Peterborough's PL and Pr. 517.) A declaration against an attorney for negligence must aver the payment of fees. Covilland v. Yale, 3 Cal. 108. 9. Aver Generally that he -was Retained... In declaring against an attorney for negligence, it is only necssary to aver generally that he was retained. But if it be alleged that he was retained in con- sideration of certain reasonable fees and rewards to be paid him, and no future time is agreed upon for the payment of such fee, the declara- tion must aver payment, and the omission of this is error. Covilland v. Yale, 3 Cal. 108. 10. Case pecided. Where in a suit a question has been made and decided by the Supreme Court, counsel carlnot be charged with IO 146 FORMS OF COMPLAINTS. negligence in acting upon that decision as the law of the case. Has- tings v. Halleck, 13 Cal. 203. Wo. 405. ix For Negligent Defense. [TITLE.] The plaintiff complains, and alleges: I. That the defendant is, and at the times hereinafter stated was an attorney at law, and that the plaintiff, in the month of , 1 8 . . , at , retained him as such to defend on behalf of this plaintiff an action brought against him by A. B., then pending in the Court of said State, for the recovery of dollars, and the defendant undertook to defend said action in a proper, skillful, and diligent manner, as the attorney of the plaintiff. II. That such proceedings were had in such action that on or about the .... day of , 1 8 . . , it became the duty of the defendant as the attorney of this plaintiff to interpose an answer on his behalf to the complaint therein, but he wholly neglected so to do, and by reason thereof, and through his neglect, judg- ment by default was obtained against the plaintiff in said action, and by reason thereof this plaintiff was com- pelled to pay to the said A. B dollars, the sum so recovered by him, and was put to costs and charges in his endeavor to defend such action, amount- ing to the sum of dollars, and lost the means of recovering the same back from said A. B. [Demand of Judgment '.] FOR NEGLIGENCE. 147 11. Existence of Facts. To charge an attorney with negli- gence, in failing to set up a defense based upon certain facts commu- nicated to him by his client, he must show by evidence the existence of such facts, and that they were susceptible of proof at the trial, by the exercise of proper diligence on the part of his attorney. Hastings v. Halleck 13 Cal. 203. JVo. 406. x. For Negligence in Examining Title. [TITLE.] The plaintiff complains, and alleges: I. That at a time hereinafter mentioned, the plaintiff made a contract with one A. B. for the purchase from him of certain real property \_describe the premises^ for the sum of dollars, which property said A. B. assumed to have power to convey in fee, and clear of all incumbrances. II. That the defendant was an attorney, and the plaintiff at , in the month of , 1 8 . . , employed him as such to examine the title of A. B. 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. III. That the defendant negligently and unskillfully conducted such examination, and did not use endeavors to cause or procure a good and sufficient title, in fee clear of incumbrances, to be conveyed to the plaintiff; but wrongfully advised and induced the plaintiff to pay said A. B. the sum of ......... dollars, being said pur- chase money of the premises, when in fact said A. B. 148 FORMS OF COMPLAINT'S. had no title thereto [or when said property was subject to incumbrances, specifying them 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]. [Demand of Judgment!} 12. Examining Title. In an action against an attorney for negligence in examining title, it is not sufficient to allege that the property was encumbered. The declaration must show how the prop- erty was incumbered. Elder v. Bogardus, Hill & D. Supp. 116. No. 407. Against a Contractor, for Leaving the Street in an Insecure State, Whereby Plaintiff's Horse was Injured. [TITLE.] The plaintiff complains, and alleges: I. That at the times hereinafter mentioned, the defendant had contracted with , to lay down pipes in and under the highway known as Street, in , for the purpose of supplying the said with gas, and to make the proper trenches for the purpose; and when such pipes were laid down, to fill up properly the said trenches, and to put and leave the said highway clear and in a reasona- bly secure condition. II. That the defendant and his servants, on the ... day of , 1 8 . . , took up part of the said highway, and made trenches and holes therein, and laid down said pipes, and displaced the earth and materials of the said highway, and carelessly and negli- FOR NEGLIGENCE. 149 gently left the said highway in a dangerous and improper state, in consequence whereof a horse of the plaintiff, of the value of dollars, which he was then and there lawfully driving along the said highway, fell into and sunk therein, and was wounded and lamed, and rendered of no value. [Demand of Judgment^ 13. Acceptance of Work. After acceptance of the work or construction by the person for whom it was built, the owner becomes liable for subsequent injuries, and the liability of the contractor ceases. Boswell v. Laird, 8 Cal. 469. No. 408. Against Municipal Corporation, for Damage done by Mob or Riot. [TlTLE.J , The plaintiff complains, and alleges: I. That at and before the times hereinafter mentioned the plaintiff was the occupant of [state the building\, and therein he conducted a business as [state business]. II. That on the .... day of , 1 8 . . , a mob of disorderly and riotous persons collected together in said city and created a riot. III. That on said day the rioters broke into the plaintiff's said premises, and carried away therefrom and destroyed his goods and merchandise. IV. That the said defendants, though having due notice of the said riot immediately upon its breaking out, did not themselves protect the plaintiff's property, but neglected so to do. 150 FORMS OF COMPLAINTS. V. That the value of his said goods and chattels so destroyed or injured by the said rioters was dollars, and he also sustained great damage by the breaking into his premises, and injury to the building, and the breaking up of his business for weeks thereafter, by reason of the destruction of his stock of goods. [Demand of Judgment.] 14. Action Against City and County. In an action against a city or county for damage to property caused by a mob or riot, an averment of the facts and the damage sustained by the plaintiff will be sufficient to sustain the action, and it is unnecessary for the plaintiff to negative negligence or carelessness on his own part. Wolfe v. The Supervisors of Richmond Co., 19 How. Pr. 370; u Abb. Pr. 270. As to liability of city and county, see Darlington v. Mayor of N.Y., 28 How. Pr. 352; Moody v. Supervisors of Niagara Co., 46 Barb. 659; Sceiellein v. Supervisors of Kings Co. 43 Barb. 490; Blodgett v. City of Syracuse, 36 Barb. 526. , 15. Conflagration. The constitutional provision that requires payment for private property taken for public use does not apply in the case of destroying a house to stop a conflagration. This right belongs to the State in virtue of her right of eminent domain. (Surocco v. Geary, 3 Cal. 69.) A city is not liable for the destruction of a building to prevent the spread of a fire, whether by private individuals, or by order of the city authorities assuming to act officially. McDonald v. City of Redwing, 13 Minn. 38. 16. Damages, Rule of. For damages in actions for injury to property, created by riots or motis,, the Statute of 1868, p 418, merely gives a right of action, without prescribing any rules by which the amount of damages are to be assessed. For the measure of damages therefor in such actions we must look to the common law. (Cal. Sup. C/., Jul. T., 1869.) The statute provides for damages for the destruction or injury of corporeal property only, not for injury to the "good will," i.e., of a newspaper. 17. Public Duty. An action will not lie in behalf of an individ- FOR NEGLIGENCE. 151 t ual who has sustained special damage from the neglect of a public cor- poration to perform a public duty. Pray v. Mayor of Jersey City, 3 Vroom, 394. No. 409. Against a Railroad, for Killing Cattle. [TITLE.] The plaintiff complains, and alleges: I. That at the time hereinafter mentioned, the de- fendant was a corporation duly organized under the laws of this State, and was owner of a certain railroad, known as the Railroad, together with the track, cars, locomotives, and other appurtenances thereto belonging. II. That on the day of , 1 8 . . , the plaintiff was the owner and possessed of certain cattle, to wit, five cows and two oxen \pr any other stock, as the case may be], of the value of dollars, and which cows and oxen casually, and without the fault of said plaintiff, strayed in and upon the track and ground occupied by the railroad of the said defendant at III. That the said defendants, by their agents and servants, not regarding their duty in that respect, so , carelessly and negligently ran and managed said loco- motives and cars, that the same ran against and over the said cows and oxen of the said plaintiff, and killed and destroyed the same. [Demand of Judgment.} 18. Allegation of Place. A complaint in an action against a railroad company, to recover the value of animate killed on its track, 152 FORMS OF COMPLAINTS. which alleges that at the place and time when said animals were killed by the defendant's locomotive and cars the same was not securely fenced as required by law, sufficiently alleges that the railroad was not securely fenced at the place the cattle entered upon the track. (Indianapolis etc. R.R. Co. v. Adkins, 23 Ind. 340.) A complaint against a railroad company, for stock killed by the machinery of the company, is bad, even after verdict, if it fail to aver negligence, or that the road was not fenced. Indianapolis etc. R.R. Co. v. Brucey, 21 Ind. 215. 19. Co-Operating Negligence. It has been held in New York that a railroad company is not liable for negligently running its engine upon and killing domestic animals found upon its road, unless its acts were heedless and wanton. (See Tonawanda R.R. Co. v. Munger, 5 Den. 255.) The reason of this rule is co-operating negligence of the owner of the animals; and the fact of the trespass of the animals on the property of the defendant constitutes a decisive obstacle to any recovery of damages for injury to them. It is strictly speaking damnum absque injuria. (Id.; see, also, Wilds v. Hudson Riv. R.R., 24 N. Y. 430.) The general rule upon which the above decisions are founded, that a plaintiff cannot recover for the negligence of a defendant, if his own want of care or negligence has in any degree contributed to the result com- plained of, was approved in (Gay v. Winter, 34 Cal. 153), for the reason that both parties being at fault, there can be no apportionment of the damages (24 Vt. 494), and not that the negligence of the plaintiff justi- fies or excuses the negligence of the defendant, which would seem to be the true reason in the estimation of the New York courts. Needham v. S.F. and S.J. R.R. Co., Cal. Sup. 67.. Apl. T., 1869. 20. Fence on Line of Road. The provision of the law requiring railroad companies to fence along the line of their road may be waived by adjoining owners. (Enwright v. S. F. and S. J. R.R. Co., 33 Cal. 230.) A railroad is not bound to maintain a fence on the line of its road against cattle unlawfully in a pasture adjoining. (Mayberry v. Concord Railway, 47 JV.//. 391.) A railroad company was required by statute to maintain " fences suitable for the security of the landowner " on both sides of its road. Plaintiffs sheep having been suffered to go unlawfully on land adjoining said road, got through a defective part of the fence upon the road, and were killed by the train. It did not appear that the train was negligently managed. Held, that the company was not liable. (Eames v. Salem and Lowell R.R. Co., 98 Mass. 560; see Toledo, Wabash and W. R.R. Co. v. Ferguson, 42 ///. 449; Price v. FOR NEGLIGENCE. I 53 N.J. R.R. and T. Co. 3 Vroom, 19.) Otherwise, if the company was grossly negligent. Illinois Cent. R.R. Co. v. Wren, 43 ///. 77. 21. Insufficient Barway. If an insufficient barway is placed by a railroad company in a fence on the line of its road, at the request of and for the use of the owner of adjoining land, and he uses the same and does not complain of its insufficiency or notify the company to alter it, the company is not liable for damages for injuries to his cattle, hap- pening in consequence of the barway being too low to turn cattle. Enwright v. S. F. and S. J. R.R. Co., 33 Cal. 230. 22. Must Show Defendant to be in Default. A com- plaint for injury by negligence must show the defendant to be in actual default, or it will not be sustainable. Taylor v. The Atlantic Mutual Insurance Co., 2 Bosw. 106. 23. Negligence Defined. Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. It is not absolute or intrinsic, but always relative to some circumstance of time, place, or person. {Broom's Leg. Max. 329; Richardson v. Kier, 34 Cal. 63.) Negligence is a violation of the obligation which enjoins care and caution in what we do; but this duty is relative, and where it has no existence between particular parties there can be no such thing as negligence in the legal sense of the term. Tonawanda R.R. Co. v, Munger, 5 Den. 255. 24. Negligence, Proximate and Remote. When the neg- ligence of the defendant is proximate, and that of the plaintiff remote, the action can be sustained, although the plaintiff is not entirely without fault. So, in the case of injury to a domestic animal by an engine and train, if the plaintiff were guilty of negligence, or even of positive wrong in placing his horse, on the road, the defendants were bound to the exercise of reasonable care and diligence in the use of their road and management of their train, and if for the want of that care the injury arose, they are liable. (Need- ham v. S. F. and S.J. R.R. Co., Cal. Sup. Ct., * Apl. T., 1869; citing Kirwhacker v. C. C. and C. R.R. Co., 3 Ohio, 172; C. C. and C. R.R. Co. v. Elliott, 4 Id. 474; Bridge v. Grand Junction Railway Co., 3' M. & W. 246; Davies v. Mann, 10 Id. 546; Illidge v. Goodwin, 5 C. &. P. 190; Mayor of Colchester v. Brooke, 53 E. C. L. 376; and 154 FORMS OF COMPLAINTS. see, also, Kline v. C. P. R.R. Co., Cal. Sup. Ct., Apl. T., 1869.) The negligence which disables a plaintiff from recovering, must be a negli- gence which directly, or by natural consequence, conduced to the injury. Richmond v. Sac. Val. R.R. Co., 18 Cal. 351. 25. Negligence, how Alleged. Negligence is a question of* fact, or mixed law and fact; and in pleading it is only necessary to aver negligence generally, not the specific facts constituting negligence. (McCauley v. Davidson, 10 Minn. 418.) Where the negligence con- sists in the omission of a duty, the facts which are relied on must be alleged. City of Buffalo v. Holloway, 7 N.Y. 493; affirming S.C., 14 Barb. 101; Taylor v. Atlantic Mutual Ins. Co., 2 Bosw. 106; Con- greve v. Morgan, 4 Duer, 439; Seymour v. Maddon, 16 Q. B. 326; S.C., 71 Com. Eng. L. R. 326; and see McGinity v. Mayor etc., 5 Duer, 674. 26. New York Rule Discussed. The New York courts seem to ignore all distinction between cases where the negligence of the plaintiff is proximate and where it is remote; and in not limiting the rule of liability, which they announce, to the former. (Needham v. S.F. and S. J. R.R. Co., Cal. Sup. C(., Apl. T., 1869.) The false rea- soning of the New York courts upon this question has been ably discussed by the Supreme Court of Connecticut, in the case of (Isbell v. N.Y. and N.H. R.R. Co., 27 Conn. 404), where it says: A remote fault in one party, does not of course dispense with care in the other. It may even make it more necessary and important, if thereby a calamitous injury can be avoided,or an unavoidable calamity essentially mitigated. So, also, see the Supreme Court of Vermont, in the case of (Trow v. Ver- mont Central R.R. Co., 24 Vt. 494), where the distinction between "proximate" and "remote" negligence is clearly defined. See, also, sustaining these principles, Hill v. Warren, 2 Stark. 377; 7 Met. 274; 12 Met. 415; 5 Hill, 282; 6 Hill, 592; Williams v. Holland, 6 C. 6- P. 23. 27. Parties Plaintiff'. A party in the actual possession of cat- tle at the time of the injury can maintain an action for an injury to them while in his possession. Polk v. Coffin, 9 Cal. 56. 23. Several Acts of Negligence. Where several acts of negligence cause but one injury, the plaintiff may allege all the acts of negligence in one count, and aver that they were the cause, and any FOR NEGLIGENCE. 155 one of them proved upon the trial will sustain his complaint. Dick- ens v. N.Y. Cent. R.R. Co., 13 How. Pr. 228. 29. When Liable. In this State, a railroad company is respon- sible for damages done cattle by running over them on the track, if the * accident could have been avoided by ordinary care and prudence on the part of the company, and this though the owner of the cattle per- mits them to run at large near the line of the railroad. (Richmond v. Sac. Val. R.R., 18 Cal. 351.) But if they could not by ordinary care and prudence avoid the accident, they are not liable. Id. No. 410. For Kindling a Fire on Defendant's Land, whereby Plaintiff's Prop- erty was Burned. [TITLE.] The plaintiff complains, and alleges : I. That on the day of , 18 . . , at , the plaintiff was possessed of about acres of land, in , on which there was an orchard and fences, and also a barn containing tons of hay. II. That the defendant on that day intentionally kindled a fire on his land next adjoining to the plaintiff's, and at the distance of yards there- from, and so negligently watched and tended the said fire that it came into the plaintiff's said land, consumed said barn and hay, of the value of dollars, and also \_state special damage\. {Demand of Judgment.] 30. Against Railroad Companies. The fact that fire was communicated from the engine of defendant's cars to plaintiff's grain, with proof that this result was not probable from the ordinary working of the engine, is prima facie proof of negligence sufficient to go to the 156 FORMS OF COMPLAINTS. jury. (Hull v. Sacramento Val. R.R. Co., 14 Cal. 387.) Under a statute making railroad companies liable for fires "communicated" by their engines, a railroad company is liable for the destruction of woods half a mile from its track, by a fire started by a spark from one of it's engines, and spreading across land of different proprietors, and a highway, in a direct line to said woods. Perley v. Eastern R.R. Co. , 98 Mass. 414; see, also, Illinois Cent. R.R. Co. v. McClelland, 42 ///. 355; Same v. Mills, Id. 407. No. 411. For Chasing Plaintiff' s Cattle. [TITLE.] * The plaintiff complains, and alleges: I. That on the ..... day of ......... , 18 . . , at ........ , the defendant chased and drove about [de- scribe the cattle~\ of the plaintiff. II. That by reason thereof, the said [describe the cattle~\ of the plaintiff, of the value of ........ dollars, were greatly damaged and injured, and ....... of them died, and the residue of them were injured and rendered of no value to the plaintiff,' to plaintiff's damage in ........ dollars. [Demand of Judgment. \ No. For Keeping Dog Accustomed to Bite Animals. [TITLE.] The plaintiff complains, and alleges: I. That at the time hereinafter mentioned the de- fendant wrongfully kept a dog, well knowing him to be of a ferocious and mischievous disposition, and accus- FOR NEGLIGENCE. 157 tomed to attack and bite [sheep and lambs, or as the case may be\. II. That on the day of , 18 . . , at , the said dog while in the keeping of the de- fendant, attacked and bit [or hunted, chased, bit, and worried], [sheep or lambs, or as the case may be\ of the plaintiff. III. That in consequence thereof, the said [sheep and lambs, or as the case may be~\, of the plaintiff, of the value of dollars, died, and became of no value to the plaintiff, and the residue of the said sheep and lambs of the said plaintiff, being also of great value, were injured, and rendered of no value to the plaintiff. [Demand of Judgment^ 30. Joint Action. In New York, a joint action does not lie against the joint owners of dogs, by whom the sheep of a third person have been worried and killed. Van Steenberg v. Tobias, 17 Wend. 562; Auchmuty v. Ham, i Den. 495. 31. Ownership. It is not necessary to prove that the defendant owned the dog. It is sufficient to prove that the defendant kept the dog. Wilkinson v. Parrott, 32 Cal. 102. 32. Vicious Habits. When injury to plaintiffs horse was in- flicted by that of the defendant, whilst trespassing, it was held unneces- sary to make any averment of vicious habits. Dunkle v. Koeker, i r Barb. 387; Popplewell v. Pierce, 10 Cush. 509. 158 FORMS OF COMPLAINTS. No. 413. For Shooting Plaintiff's Dog. [TITLE.] The plaintiff complains, and alleges: I. That on the day of , 1 8 . . , at , the defendant maliciously shot and killed a dog, the property of the plaintiff, of the value of dollars. {Demand of Judgment^ JVo. 414. For Untying Plaintiff's Boat, by Reason of which it was Carried by the Current against a Bridge, and Injured. [TITLE.] The plaintiff complains, and alleges: I. That on the day of , 1 8 . . , the plaintiff was possessed of a fishing boat, called \_etc.~], of the value of dollars. II. That the defendant maliciously untied said boat, and it therefore floated with the steam against a bridge, and was thereby broken and destroyed. [Demand of Judgment.} 33. Collision. In case of collision occasioned by the fault of a vessel under compulsory pilotage, in going at too great speed, where no contributory negligence on the part of the master or crew is proved, the owners of the vessel are not liable. (G. S. N. Co. z>. B. and C. S. N. Co., L. R. 4 Exch. 238.) When a vessel is properly in charge FOR NEGLIGENCE. 159 of a licensed pilot, the owner is not responsible for damages which may ensue from the negligence or misconduct of the pilot. Griswold v. Sharpe, 2 Cal. 17. No. 415. For Flowing Water from Roof on Plaintiff's Premises. [TITLE.] The plaintiff complains and alleges: I. That on the .... day of , 1 8 . . , the plaintiff was lawfully possessed of a dwelling house and premises, in the County aforesaid, and in which the plaintiff and his family then lived. II. That the defendant wrongfully erected a building near the said dwelling house of the plaintiff, in so careless and improper a manner, that by reason thereof, on said day, and at other times afterwards and before this action, large quantities of rainwater ran from said building upon and into the said dwelling house and premises of the plaintiff, and the walls, ceilings [or otherwise state damage done, according to the facf\, and other parts thereof were thereby wet and damaged, and became not fit for habitation, to the damage of plaintiff in . dollars. {Demand of Judgment^ l6o FORMS OF COMPLAINTS. JVo. 416. For Negligence of Mill Owners, whereby Plaintiffs Land was Overflowed, [TITLE.] The plaintiff complains, and alleges: I. That on the .... day of , 18 . . , the plaintiffs were, and still are the owners of a valuable mining claim [or otherwise designate the proper ty\, situated at , upon which they had bestowed great labor in putting the same in working order. II. That at the same time the defendants were the owners of [or were possessed of and using] a reser- voir situated on , wherein they collected a large body of water which would otherwise have flowed down the said stream, and were engaged in furnishing such water to miners and others, by means of a ditch or canal. III. That afterwards, on the ... day of , 1 8 . . , the plaintiffs were engaged in their work as aforesaid, and the defendants' said reservoir, by reason of some defect in its construction, or insufficiency for the purpose for which it was constructed, broke away, discharging an immense and unusual body of water, which they had collected in said reservoir; which said water so discharged flowed in and upon plaintiffs' mining claim [or as the case may be\, filling the same with large quantities of earth, stone, and rubbish, to the damage of plaintiffs in dollars. [Demand of Judgment. ] FOR NEGLIGENCE. l6l 34. Avoidance of Injuries. The fact that plaintiffs could have prevented the damage by pulling off a board from defendant's flume is no defense, because they were not obliged to avoid the injuries com- plained of by committing a trespass. Wolfe v. St Louis Ind. Wat. Co., 15 Cal. 319. 35. Construction of Water Ditch. The question of negli- gence in the management of a water ditch, and the degree of it, must necessarily depend in a great measure upon the surrounding facts, such as the existence and exposure of property below the dam. (Wolfe v. St Louis Indepen. Water Co., 10 Cal. 541.) The owner of a dam is bound to see to his own property, and to so govern and control it that injury may not result to his neighbors. (Fraler v. Sears Union Water Co. 12 Cal. 555.) In consequence of the negligent construction of a cut made by the defendants, the waters of a neighboring river flooded the adjoining land. The plaintiff owning land east of the cut closed the culvert to prevent his land being flooded; but the owners on the west, re-opened it and the plaintiff's land was flooded in consequence. Held, that defendants were liable for the whole damage, whether the opening was right or wrong. Collins v. Middle Level Comm'rs, L. R. 4 C.P. 279. 36. Defect in Construction of Dam. In an action for dam- ages for breaking defendants' dam and flooding the plaintiffs' mining claim, where the complaint is in one count, and charges that "the de- fendants' said reservoir, by reason of some defect in its construction, insufficiency for the purpose for which itVas constructed, or careless- ness and mismanagement on the part of the said defendants, broke away," etc.: Held, that the complaint is insufficient. (Hoffman v. Tuolumne County Water Co., 10 Cal. 413.) Whether such negligence arose from the want of care in constructing the dam, or want of care in letting off the water, is not sufficiently material under our system of pleading, to require separate counts. Id. 37. Degree of Care Necessary. In an action to recover damages for an alleged injury to plaintiff's land, resulting from the care- less management of defendant's water ditch, which traversed the land : Held, that the defendant was bound to exercise no greater care to avoid, the alleged injury to the adjoining lands than prudent persons would employ about their own affairs, under similar circumstances. Camp- bell v. B. R. and Aub. W. and M. Co., 35 Cal 679. 1 1 1 62 FORMS OF COMPLAINTS. 38. Form of Complaint. A complaint which alleges that the plaintiffs were, on a certain day, the owners and proprietors of a certain valuable water ditch for the purpose aforesaid, and that afterwards, on the same day and year, at, etc., aforesaid, the said defendants' ditch was so badly and negligently constructed and managed, and the water therein so negligently and carelessly attended to, that said ditch broke and gave way, and the water therein flowed over and upon the ditch of plaintiffs, greatly damaging and injuring the same, and carrying down therein and thereon great quantities of rock, stone, earth and rubbish, and breaking said plaintiffs' ditch, and depriving them of the use and profit of the water flowing therein, to said plaintiffs' damage $3,000, and thereof they bring suit, is sufficient. Tuolumne County Water Co. v. Columbia and Stanislaus Water Co., 10 Cal. 193. For Undermining Plaintiff's Land. [TITLE.] The plaintiff complains, and alleges: I. That at the times* hereinafter mentioned, the plaintiff was possessed of certain land, a part of his farm in the Town of, etc. \briefly describe^. II. That in the month of , 18 . . , the defend- ant wrongfully and negligently excavated the land adja- cent to the plaintiff's said land, without leaving proper and sufficient support for the soil of the plaintiff's land in its natural state, whereby it sank and gave way, to the damage of plaintiff in dollars. {Demand of Judgment. \ FOR NEGLIGENCE. 163 No. 418. For Undermining Plaintiff 's 'Building. [TITLE.] The plaintiff complains, and alleges: I. That at the times hereinafter mentioned, plaintiff was possessed of certain land, with buildings thereon, \briefly describe the premises], which were supported by the adjacent land and the soil thereof, and that the plaintiff was entitled to have them so supported. II. That on the .... day of , 187 ., the defendant wrongfully and negligently excavated the land adjacent to plaintiff's said land and buildings, and removed the soil therefrom, without leaving sufficient support for the plaintiff's said land and buildings, by reason whereof the same sank and gave way, and the house fell in and was destroyed, and the furniture of the plaintiff was damaged and broken; and the plaintiff was compelled to pay dollars, in procuring another house, and dollars in removing and repairing his goods, and dollars in removing the ruins of the house and rebuilding the same, to his damage in dollars. \Demand of Judgment. \ 39. Reversioner, Allegation by. That at the times herein- after mentioned, the plaintiff was, and still is owner of certain land \briefly describe the same], which was then in the occupation of A. B., as tenant thereof to the plaintiff. 164 FORMS OF COMPLAINTS. No. 419. For Not Using Due Care and Skill in Repairing. [TITLE.] The plaintiff complains, and alleges: I. That the defendant is a watchmaker, at ........ , and on the .... day of ........ , 1 8 . . , the plaintiff delivered to him as such a gold watch of the plaintiff, of the value of ........ dollars, to be repaired by the defendant, for reward. II. That the defendant then and there undertook said employment, and to use due care and skill in repairing said watch, and to take due care thereof while in his possession, and to re-deliver the same to the plaintiff on request. III. That the defendant did not take proper care of the said watch whilst in his possession, and did not use due care or skill in repairing the said watch, but on the contrary did his work in so careless and unworkman- like a manner that no benefit was derived therefrom, and the said watch was broken and rendered worthless. [Demand of Judgment. .] . 420. Against Watchmaker, for not Returning Match. [TlTL.] The plaintiff complains, and alleges: I. [As in Form 419]. II. [As in Form 419]. III. That after a reasonable time for the repair of FOR NEGLIGENCE. 165 said watch, and on or about the .... day of , the plaintiff requested the defendant to re-deliver the said watch; but he refused so to do. % \_Demand of Judgment. \ CHAPTER IV. SLANDER OF TITLE. No. Common Form. [TITLE.] The plaintiff complains, and alleges: I. That on the .... day of ........ 1 8 . . , he was the owner in fee of \_state what property^ situated in ........ , [describe it particularly]. II. That on that day, at ........ , the defendant, maliciously and without cause, spoke in the presence of A. B. and others [name fhem\, the following words con- cerning the plaintiff and his property [insert the exact language, with innuendoes^. III. That the said words were false. IV. That said A. B. [or others, naming them~\, were there negotiating for the purchase of said premises, and that by reason thereof said A. B. [Brothers], was dis- suaded from making such purchase. V. That by reason of the said words, the said A. B. refused and still refuses to purchase the said property 1 66 FORMS OF COMPLAINTS. from the plaintiff, in consequence thereof, and the plaintiff has bfeen by reason thereof unable to sell the same, and has been otherwise greatly injured thereby. [Demand of Judgment.] 1. Action in General. As to the action for slander of title in general, see (Gerand z>. Dickinson, 4 Coke, 18; Hargrave v. Le Breton, 4 Burr. 2,422; Earl of Northumberland v. Byrt, Cro. Jac. 163; Vaug- han v. Ellis, Id. 213; Smith v. Spooner, 3 Taunt. 246; Pitt v. Dono- van, i Maule & S. 639; 2 Greenl. Ev. 428.) As to what plaintiff must establish, see Like v. McKinstry, 41 Barb. 186; see, also, Townshend on Sland. and Lib. p. 240; and I Stark, on Sland. IQI. 2. Damage. The damage sought to be recovered must be specially alleged in the complaint, and substantially proved on the trial. It must be a pecuniary damage, and must be the natural and legal con- sequence of the wrong.. (Kendall v. Stone, 2 Sandf. 269; 5 N.Y. 14.) When the damages arise from the plaintiffs being precluded from selling or mortgaging the property which is the subject of the slander, it is essential in stating a cause of action to name the person or persons who refused from that cause to loan or purchase. An omission to do so will rAider the complaint demurrable. Linden v. Graham i Duer, 670; N.F. Leg. Obs. 185. 3. Essential Averments. To maintain an action for slander of title to lands, the words must be false, must be uttered maliciously, and be followed as a natural and legal consequence by a pecuniary damage, which must be specially alleged and proved. (Kendall v. Stone, i Seld. 14; reversing S.C., 2 Sandf. 269; see Like v. McKinstry, 41 Barb. 186.) And the name of the person, as above stated, who refused to purchase or make the loan or purchase in consequence of the slander, should be stated in the complaint. 3 Bing. (N.C.) 371 ; Cro. Car. 140; Cro. Jac. 484; 3 Keb. 153; Style, 169; 5 N.Y. 14; 4 Wend. 537; Saund. PI. <&* Ev. 243; i Hall, 399; Linden v. Graham, i Duer, 670; Bailey v. Dean, 5 Barb. 297. 4. False Statement in Regard to Patent and Manufac- tures. For complaint in an action to recover damages for false state- ments made by the defendant, in regard to patent and manufactures of SLANDER OF TITLE. 167 the plaintiff, to the injury of his business, see Snow v. Judson, 38 Barb. 210. 5. Malice. It is error for the Court to instruct the jury that where a person injuriously slanders the title of another, malice is pre- sumed, or that fraud could not be presumed, but may be established by circumstances, but not of a light character; the circumstances must be of a most conclusive nature. (McDaniel v. Baea, 2 Cal. 326.) Malice and damage are both essential requisites to sustain an action for language concerning a thing. To these requisites are usually added a third, that the language is false. Townshendon Sland. and Lib. 239. 6. Probable Cause Special Damages. To sustain an action for slander of title, there must be want of probable cause, and special damages must be alleged, and that circumstantially . A general allega- tion of loss will not be sufficient. Nor will a defendant be responsible for what he says or does in pursuance of a claim of title in himself, provided there be good ground for such claim. (Bailey v. Dean, 5 Barb. 297.) The averment that it was without probable cause is proper. 7. Restriction of Action. The action for slander of title is not restricted to language affecting real property. It lies for slander of title to personal property. Towns hend on Sland. and Lib. 245. 8. Slander of Title Defined. Slander of title is publishing language, not of the person, but of his right or title to something. Townshendon Sland. and Lib. 240. 9. When Action will Lie. When a party is prevented from selling, exchanging, or making any advantageous disposition of lands or other property, in consequence of the impertinent interference of the defendant, he may maintain an action for the inconvenience which he has suffered, but special damage must be shown. i Starkie on Sland. 191. CHAPTER V. TRESPASS. No. 422. i. For Malicious Injury, Claiming Increased Damages under the Statute. [TITLE.] The plaintiff complains, and alleges : I. That on the .... day of , 187 . , the defend- ant maliciously and wantonly destroyed certain orna- mental trees, of the value of dollars, the property of the plaintiff, growing upon his land [or as the case may be], at [by barking and girdling them, or otherwise state nature of injury, if not totally destroyed^, contrary to the form of the statute in such case made and provided. [Demand of Judgment for Treble Damages.] L Abatement of Action. A trespass dies with the trespasser. O'Connor v. Corbitt, 3 Cat. 370. 2. Agent. If the trespass has been committed by one acting as the agent of the defendant, it may be so alleged. (St John v. Griffith, i Abb. Pr. 39.) Where two of the defendants actually committed the act, and a third defendant instigated and employed them to do it, it may be so alleged. Ives v. Humphreys, i E. D. Smith, 196. 3. Assignee. That an assignee in trust for the benefit of credit- ors may maintain an action of trespass against any person who interferes with the assigned property, see (McQueen v. Babcock, 41 Barb. 337.) ( FOR TRESPASS. 169 A claim for damages caused by a trespass on land is assignable, and the assignee may maintain an action to recover the same. More v. Masini, 32 Cal. 590. 4. Co-Trespassers, Allegation of. If it be sought to charge another with the trespass, at whose instigation and request the trespass was committed singly, it may be alleged as follows: "That on the, etc., one A. B., at the instigation and request of the defendant, and being by him employed thereto and assisted therein, broke and entered," etc. Or, if it be sought to make both co-tresspassers, it may be alleged, " That on, etc., the defendant A. B., at the instigation and request of the de- fendant C. D., being by him employed thereto and assistea therein, broke and entered,^' etc. (Ives v. Humphreys, i E. D. Smith, 196.) For "all persons who direct or request another to commit a trespass, are liable as co-trespassers." (2 Milliard on Torts, 293; Herving v. Hop- pock, 15 N.Y. 413.) Where a trespass has been committed by two or more, by joint act or co-operation, they are all trespassers, and liable jointly or severally, even to the extent of exemplary damages. (2 Hill, on Torts, 292; Hair v. Little, 28 Ala, 236.) If they acted in concert, or the act of one naturally produced the act of the other, (Brooks v. Ashburn, 9 Geo, 297; Sutton v, Clark, 6 Taunt. 29.) Where several defendants are declared against jointly, but no joint trespass is proved, the plaintiff can introduce evidence of a several trespass against one of the defendants, and recover against such defendant. Aliter, if a joint tres- pass has been proved. McCarronz;. O'Connell, 7 Cal. 152. 5. Damages, Exemplary and Vindictive. Damages can- not be recovered for a trespass not malicious in its character. (Selden v. Cashman, 20 Cal, 56.) And the rule of damages depends upon the presence or absence of fraud, malice, or oppression. (Dorsey v, Manlove, 14 Cal. 554.) In the absence of such circumstances the rule is compensation merely, and this refers solely to the injury done to the property, and not to collateral or consequential damages resulting to the owner. (Dorsey v. Manlove, 14 Cal. 554.) A party committing a trespass can be made liable for such damages only as are the proxi- mate result of the trespass. (Story v. Robinson, 32 Cal. 205.) The right of the plaintiff to recover damages is not affected by the fact that the trespass was not willful. (Maye v. Tappan, 23 Cal. 306.) Where trespass is committed from wanton or malicious motives, or a reckless disregard of the rights of others, or under circumstances of great hardship or oppression, the rule of mere compensation is not enforced, I7O FORMS OF COMPLAINTS. and punitive or exemplary damages may be enforced. Dorsey v. Manlove 14 Cal. 553. 6. Designation of Land. The lines of a quarter section ot government land, distinctly marked by natural boundaries and by stakes placed at convenient distances, so that the lines can .be readily traced, are sufficient to authorize an action for trespass thereon under the provisions of the Act of April 1 1, 1850. (Taylor v. Woodward, 10 Cal. 90; see the case of Stockton v. Garfrias, 12 Cal. 315.) When two mining claims adjoin each other, the ignorance of the owners of one company of the dividing line will not excuse a trespass upon the land of the ptMer. (May v. Tappan, 23 Cal. 306; see Nevada and Sac. Co. Canal Co. v Kidd, Cal. Sup. Ct., Apt: T., 1869.) Where the town is subdivided intermediate the trespass may be laid to have been done in the original town. Renaudet v. Crocken, i Cat. 167; S. C. Col. & C. Cas. 219. 7. Ditch. A person has no right to run a ditch through the enclosure of another, without his consent. Weimer v. Lorvery, 1 1 Cal. 104. 8. Entry -without Force. When the complaint charges an entry upon and injury to plaintiff's property, and does not charge force, the issue was held to be confined to the actions of the party after the entry, and to .the damages resulting from the same. Turner v. McCarthy, 4 E. D. Smith, 247. 9. Equitable Relief. In an action for trespass, the law and equity must not be inseparably mixed together. The allegations must be separate, distinct, certain. (See Gates v. Kieff, 7 Cal. 124.) But it is not necessary that there should be express words, showing where the declaration in trespass leaves off, and the bill in equity begins. Id. 10. Essential Facts. As to the essential facts to maintain the action, see (Willard v. Warren, 17 Wend. 257.) When a pleader wishes to avail himself of any statutory privilege or right, given by particular facts, those facts which the statute requires as the foundation of the right must be stated in the complaint. Dye v. Dye, u Cal. 163- 11. Estate in Possession, Reversion and Remainder. In New York, any person seized of an estate in possession, remainder, or reversion, may bring an action under the statute, notwithstanding any FOR TRESPASS 171 intervening estate for life or years. Van Dusen v. Young, 29 Barb. 9. 12. Forcible and Unlawful. The acts alleged must be essen- tially acts of trespass forcible and unlawful, but it need not be alleged that the entry was unlawful. Van Deusen v. Young, 29 Barb. 9. 13. Foreign Miners. The fact that parties are foreigners, and have not obtained a license to work in the mines, affords no apology for trespass. Mitchell v. Hagood, 6 Cal. 159. 14. Joinder of Cause. In a complaint for trespass the plaintiff claimed $500, and alleged value of the property destroyed, and $500 damages. Defendant demurred on the ground that two causes of action were improperly joined, and the court below sustained the demurrer. Held, that this was error. (Tendesen v. Marshall, 3 Cal. 440.) In an action of trespass, an allegation of injury to the " site for a dam," and " dam in course of construction thereon," and " site for a canal, and canal thereon projected, surveyed, and commenced," constitutes but a single cause of action. They are land, and for the purposes required must necessarily be connected and continuous. (Nev. Co. and Sac. Canal Co. v. Kidd, Cal.Sup.Ct.,Apl. T. 1869.) But the water right when acquired, although intimately related to and connected with the site for a canal and dam, and canal commenced, etc., give rise to separate and distinct causes of action. (Id.} The owner of land may join in the same complaint, a claim for damages as assignee, caused by a trespass on the land while it was owned by his grantor, and a claim'or an injunction for a threatened injury to the land. (More v. Massnie, 32 Cal. 590.) A party cannot join an action of trespass quare clausam fregit with ejectment, and pray for an injunction. Bigelow v'. Grove, 7 Cal. 133. 15. Joinder of Parties. A plaintiff cannot by mere notice bring in parties not sued in an action of trespass when there is no pretense that they were trespassers. (Pico v. Webster, 14 Cal. 202.) In an action by the parties whose property has been wrongfully taken under legal process, all who join or participate in the trespass are jointly liable as joint trespassers. Lewis v. Johns, 34 Cal. 629; as to parties defendant, see Vol i., p. 115. 16. Jurisdiction. District Courts have jurisdiction of all actions 172 FORMS OF COMPLAINTS. to recover damages for trespass upon lands, regardless of the amount of damages claimed. Cullen v. Daugredge, 17 Cal. 67. 17. Mining Claim. In an action for a trespass upon a mining claim, where the complaint avers that the defendants are working upon and extracting the mineral from the claim, and prays for a perpetual injunction, and the answer admits the entry and work, and takes issue upon the title of the mine, and the jury find in favor of the plaintiffs, the Court should decree the equitable relief sought, and enjoin defendants from future trespasses. McLaughlin v. Celly, 22 Cal. 211. 18. Ouster. No ouster is necessary to maintain an action of trespass. Any unlawful entry is enough. Rowe v. Bradley, 12 Cal. 226. 19. Party Wall. For averments on a complaint for undermin- ing the party wall of plaintiffs house, see (4 Duer. 53.) For averments of complaint for an injunction restraining defendant from excavating to undermine plaintiffs land, see Farrand v. Marshall, 19 Barb. 380. 20. Possession and Right of Possession. In an action of trespass upon real property, the plaintiff may recover upon alleging and showing, in addition to the injury complained of, his possession of the premises; and his right to the possession is not involved unless the defendant tenders an issue upon that fact, and in that case (Holman v. Taylor, 31 Cal. 338) the right of recovery depends both on possession in fact and the right of possession. (Pollock v. Cummings, Cal. Sup. Ci., uct. T., 1869.) Possession in the plaintiff is sufficient to enable him to maintain an action for trespass, and although a higher title may be attempted to be set up, the failure to sustain it will not operate against the right to recover damages. (McCarron v. O'Connell, 7 Cal. 152; Bequette v. Caulfield, 4 Cal. 278; Fitzgerald v. Urton, 5 Cal. 308; Palmer v. Aldridge, 16 Barb. 131, and cases cited; Hall v. Warren, 2 McLean, 332.) The defendant has no right to inquire into the good faith of plaintiffs possession. (Eberhard v. Tuol. Wat. Co. 4 Cal. 308.) To maintain an action of trespass quare clausam fregit, it was formerly held necessary for the plaintiff to establish an actual possession of the locus in quo, but under more modern decisions a constructive possession is held sufficient. (See Nev. Co. and Sac. Co. Canal Co. v. Kidd, Cal. Sup. Cf., Apl. T., 1869.) Actual possession is sufficient to maintain such action against a mere stranger or intruder. That possession by the tenant is possession by the plaintiff sufficient to support this ave FOR TRESPASS. 173 ment, see (Sumner v. Tileston, 7 Pick. 198). It is enough to show possession at the time of the injury. Vowles v. Miller, 3 Taunt. 137. 21. Tearing Down Gate. If the complaint in an action for an alleged trespass avers that defendants unlawfully entered on plaintiff's land, and tore down a gate, the gist of the action is the entry, and the removal of the gate is a mere matter of aggravation, and if the plaintiff fail to prove the gist he cannot recover for the aggravation. Pico v. Colimas, 32 Cal. 578. 22. Tenants in Common. Ordinarily and at common law trespass will not lie by one tenant in common against his co-tenant; but when one tenant in common destroys the subject of the tenacy, trespass will lie at the suit of the injured party. (Co. Litt. 200, a, b; Crabbes Laws ofR.P. 2,318, b; \ Ld. Raym. 737.) But one tenant in common cannot maintain trespass against another for taking in the ordinary course the whole profits of the land. (Jacobs v. Seward, L.R. 4 C. P. 328.) If title is alleged, a general averment will be sufficient, without setting out the source of title. (Daley v. City of St. Paul, 7 Minn. 390.) And the allegation of title sufficiently imports possession in an action of trespass on land. (Cowenhoven v. City of Brooklyn, 38 Barb. 9.) A judgment in trespass does not necessarily determine the title to the property. (Brennan v. Gaston, 17 Cal. 372.) The per- sonal action cannot be made to test the title of the property as between conflicting claimants. Halleck z>.Mixer, 16 Cal. 574; see Nevada Co. and Sac. Canal Co. v. Kidd, Cal. Sup. Ct., Apl. T., 1869. 23. Turning out Cattle. One who commits a trespass by turning cattle out of an inclosure upon the public lands, cannot be made liable to the owner for the loss of the cattle, if the owner has been noti- fied to take care of them. Story v. Robinson, 32 Cal. 205. 24. Unlawful. The acts alleged must be essentially acts of trespass, forcible and unlawful; but it need not be alleged in so many words that the entry was unlawful. Van Deusen v. Young, 29 Barb. 9. 25. Who may Maintain Action. Any person seized of an estate in remainder or reversion may bring an action under it, not- withstanding any intervening estate for life or years. (Van Deusen v. Young, 29 Barb. 9.) The plaintiff is not entitled to recover damages for a trespass quare clausam fregit, alleged in his complaint to have been committed on his own land, when in fact the trespass was com- 174 FORMS OF COMPLAINTS. mitted on another piece of land. (Doherty v. Thayer, 31 Cal. 140.) An action can be maintained by the mortgagee of real estate, to recover damages for wrongful and fraudulent injuries done to the mortgaged property, by which the security of the mortgage has been impared. Robinson v. Russell, 24 Cal. 467. 26. " With Force and Arms," " Broke and Entered." Under our system of pleading, the words, ' ' with force and arms, broke and entered," do not confine the proof to the direct and immediate damages, as in the old action of trespass, and the facts being clearly set out in the complaint, an addition of these words was surplusage. Darst v. Rush, 14 Cal. Si. No. For Damages for Injuring Trees. [TITLE.] The plaintiff complains, and alleges : I. That the defendant, on the .... day of 1 8 . . , entered upon the land of the plaintiff, in the County of , the same being then in the posses- sion of the plaintiff, and did; without the leave of the plaintiff, cut down trees [designate number and kind of trees\, of the value of dollars; whereby the plaintiff lost said trees, and the land belong- ing to the plaintiff was greatly damaged and lessened in value, to the amount of dollars; and thereby the defendant, by the force of Section of the Statute of , forfeited and became liable to pay to the plaintiff treble the amount of said damages. [Demand of Judgment. ~\ 27. Action Can be Maintained as Soon as Timber is Cut. An action may be maintained against a trespasser who is cutting timber, as soon as timber is cut. Sampson v. Hammond, 4 Cal. 184. FOR TRESPASS. 28. Between Tenants in Common. At common law, when one tenant in common destroys the subject of the tenancy, trespass will lie at the suit of the injured party. ( Co. Lift. 200, a, b; Crabbe's Law of R. P., 2,318, b; I Ld. Raym. 737.) If one tenant in common destroy the thing in common as, if he grub up and destroy a hedge, or prevent his co-tenant of a fold from erecting hurdles, trespass lies. {Browne on Actions, 414; Gozv. 201; 8 B. & C. 257.) If one tenant in common enters upon his co-tenant, and ousts him of his premises, trespass quare dausam fregit lies for the injury. (7 Cow. 229.) Hence, an action will lie for injury to trees standing on a line between plaintiffs and defendant's lands, wheth'er the parties be regarded as tenants in common of such trees or not. Dubois v. Beaver, 25 N.Y. 123. 29. Demand. Where trespassers cut wood on land belonging to the plaintiff, and sold it to the defendants, who were bonafide purchasers: Held, that no previous demand was requisite to sustain an action for the recovery of the wood or its value. Whitman G. and S. M. Co. v. Tritle, 4 Nev. 494. No. The Same For Cutting and Converting Timber. [TITLE.] The plaintiff complains, and alleges: I. That on the day of , 1 8 . . , at , the defendant forcibly broke and entered upon the plaintiff's land, [the same being then in posses- sion of the plaintiff], and there cut down and carried away the trees and timber of the plaintiff, and converted and disposed of the same to his own use, contrary to the statute, etc. [Demand of Judgment.} 30. Action Lies. An action for trespass lies for cutting and carrying away timber. (Cal. Pr. Act, 250.) Though the land be not 176 FORMS OF COMPLAINTS. inclosed. Wells v. Howell, 19 Johns. 385; Tonawanda R.R. Co. v. Munger, 5 Den. 255 31. Actual Possession. In actions for damages for injury to real property, title or actual possession at the time of the injury must be shown. Gardners. Heart, i N.F. 528. 32. Broke Plaintiff's Close. It is not necessary to state that defendant broke the plaintiffs close. Wells v. Howell, 19 Johns. 385; and see Tonawanda R.R. Co. v. Munger, 5 Denio, 259. 33. Damages. Triple damages may be assessed for cutting and carrying away trees, etc. (Cal. Pr. Act, 251.) But nothing in Sec- tion 251 of the California Practice Act shall authorize the recovery of more than the just value of the timber taken from uncultivated wood- land, for the repair of a public highway or bridge upon the land, or adjoining it. (Cal. Pr. Act, 252.) The damages should be estimated by all the circumstances and the purpose for which such trees were used. (Chipman v. Hubbard, 6 Cal. 162.) The measure of damages is not the value of such trees, as for wood, but the injury done to the land by destroying them. Id. 34. Damages Treble. To entitle to treble damages under the statute, the complaint must refer to the Act. (Brown v. Bris- tol, i Cow. 176; as to pleading statutes, see Vol. i., pp. 244-7.) ^ n actions for waste, when treble damages are given by statute, the demand for such damages must be expressly inserted in the declaration, which must either cite the statute, or conclude, to the damage of the plaintiff, against the form of the statute. Chipman v. Em eric, 3 Cal. 283; 5 Cal. 239. 35. Executor. Under our statute, an executor may maintain an action for trespass committed upon the real estate of his testator in his lifetime. (Haight v. Green, 19 Cal. 113.) For averments of com- plaint by executors, where third persons wrongfully cut timber, and defendants afterwards entered and removed it, see (Halleck v. Mixer, 1 6 Cal. 574.) Any person or his personal representatives shall have a right of action against the executor or administrator of any testator or intestate, who in his lifetime shall have committed any trespass on the real estate of such person. Stat. of Wash. Ter. 1863, p. 246. 36. Injunction. A complaint which sets out a cause of action in trespass, and concludes with a prayer for an injunction, is correct. (Gates FOR TRESPASS. 177 v. Kieff, 7 Cal. 125.) An injunction will not be dissolved, restraining defendants from felling trees, where the question of boundary is in dis- pute; especially where the defendant's bond will fully protect the defendant for any delay, if it should turn out that they have the right. Buckelew v. Estell, 5 Cal. 108; see "Injunction" Post. . 37. Public Lands. Prior possession of public lands will entitle the possessor to maintain an action against a trespasser. (Grover v. Hawley, 5 Cal. 485.) The right to the use of growing timber on min- eral lands, as between miners and agriculturalists, is to be governed by the rule of privity of appropriation. Rogers v. Soggs, 22 Cal. 444. 33. Public Lands, Occupants of. As between occupants of public lands, neither party can claim the right to the gi owing .timber thereon. The Act of Congress of March 2, 1831, prohibits the cutting or destruction of timber on the public lands. (Rogers v. Soggs, 22 Cal. 44. ) The statute making possessory rights of settlers on public lands for agricultural purposes yield to the rights of miners has legal- ized what would otherwise be a trespass, and the act cannot be extended by implication to cases not especially provided for. (Wemiar v. Lowery, n Cal. 104.) One who claims public lands in California for raising fruit-trees or crops, cannot enjoin miners from digging up the same for mining purposes, unless he can show priority of right before the land was located for mining purposes. Ensmonger v. Mclntire 23 Cal. 593. 39. Who may Maintain the Action. The plaintiff out of possession cannot sue for the property severed from the freehold when the defendant is in possession of the premises from which the property was severed, if he holds them adversely, in good faith, under claim and color of title. (Halleck v. Mixer, 16 Cal. 574.) See Nevada and Sac. Canal Co. v. Kidd, Cal. Sup. O., Apl. -T., 1869; see Maine Boys Tun- nel Co. v. Boston Tunnel Co., Cal. Sup. Ct., Jan. T., 1869. 12 178 FORMS OF COMPLAINTS. No. 425. The Same For Treading down Grain. [TITLE.] The plaintiff complains, and alleges: I. That on the day of , 1 8 . . , at , the defendant entered upon the plaintiff's lot \pr farm], known as , and trod down the grain then* growing thereon, and cut down certain trees [or as the case -may be~\, contrary to the statute, etc. [Demand of Judgment. ,] 41. Gist of the Action. The allegations that the defendant unlawfully and willfully permitted said sheep to be herded, and did herd the same upon the lands of which the plaintiff was then and still is the owner, and in a subsequent paragraph, that defendant herded and permitted said sheep to be herded in and upon the above described barley field, constitute the gist of the action. Logan v. Gedney, Cal. Sup. Ct., Oct. T., 1869; see Walm v. Moss, 12 Cal. 535; Comerford v. Dupuy, 17 Id. 308; Richmond v. Sac. Val. R.R. Co., 18 Id. 355; and the Act of 1861, p. 525. 42. Herding Sheep. The rule of the common law of England that every man was bound to keep his beasts within his own close, under the penalty of answering in damages for all injuries resulting from their ranging at large never was the law of California, the Statutes of 1850, pp. 131-219, being directly in conflict with and repugnant to that rale; so of the other subsequent acts on the same subject. (See Waters v. Moss, 12 Cal. 535; Comerford v. Dupuy, 17 Cal. 308; Richmond v. Sac. Val. R.R. Co., 18 Cal. 355; Logan v. Gedney, Cal. Sup. Ct., Oct. T., 1869.) The Act of 1861, herein con- sidered, neither in terms nor by implication repeats the Act of 1859, nor does it prohibit the free, voluntary ranging at large of sheep over and upon unindosed public or private land. The plain letter, manifest FOR TRESPASS. 179 intent and object of the Act, is to prohibit persons owning or having the charge of sheep from driving them to and collecting them upon uninclosed lands of another person. The acts prohibited are personal, for which a party will be held responsible to the person injured in simple damages to the extent of the injury. Logan v. Gedney, Cal. Sup. Ct., Oct. T., 1869. 43. Lawful Fences. A party cannot recover for injuries done by cattle breaking into plaintiffs close unless the land entered be inclosed by a fence of the character described by statute, or at least by an inclosure equivalent, in its capacity to exclude cattle, to the statutory fence. Comerford v. Dupuy, 17 Cal. 308. No. 426. For Removal of Fence. [TITLE.] The plaintiff complains, and alleges: I. That on the day of , 18 . . , at the defendant forcibly broke and entered upon the plaintiff's land, and took down a fence standing upon said land and removed the same, and also then and there erected another fence on said land, and also then and there disturbed the plaintiff in the use and occupa- tion of said land, and prevented him from enjoying the same as he otherwise would have done. \Demand of ' Judgment. ~\ l8o FORMS OF COMPLAINTS. No. 427. For Trespass on Chattels. [TITLE. 1 The plaintiff complains, and alleges: I. That on the day of , 18 . . , at , the defendant unlawfully took from the pos- session of the plaintiff, and carried away [describe the goods] the property of the plaintiff, and still unlawfully detains the same from the plaintiff \pr where the posses- sion to the property was regained, and unlawfully detained the same from the plaintiff]. [Demand of Judgment.] 44. Averment of Special Damage. That by reason of such unlawful taking and detention of said property, the plaintiff was compelled to pay, and did, on the .... day of , 1 8 . . , at , pay dollars to procure the return of L the same, and, also, dollars for storage, and sustained other injury. JVo. 428. For Malicious Injury to Property. [TITLE.] The plaintiff complains, and alleges: I. That on the day of . . . '. , 18 . . , at , the defendant, willfully and maliciously intending to injure the plaintiff, cut, broke, mutilated, certain [designate what], the property of the plaintiff, FOR TRESPASS. l8l of the value of '. . . dollars, and greatly injured them, so that the plaintiff was compelled to expend dollars in repairing the same. {Demand of Judgment^ No. 429. For Entering and Injuring a House and Goods ' Therein. [TITLE.] The plaintiff complains, and alleges: I. That on the .... day of , 1 8 . . , at ,the defendant, A. B., entered into the plaintiff's house, No , ........ Street, in the City of , in this State, and unlawfully broke and injured the doors and walls thereof [or other injury to house\, and took and carried away \_enumerate articles^ the property of the plaintiff, and converted and disposed of the same to his use, to plaintiff's damage dollars. {Demand of Judgment. \ 45. Abusive Language. For the allegations in a complaint against a person who stops in front of plaintiffs house and uses abusive language towards him, see Adams v. Rivers, 1 1 Barb. 390. 46. Action Transitory and Local. Where the writ men- tions a trespass with force and arms upon the storehouse of the plaintiff, and a seizure and destruction of goods, it covers a transitory as well as a local action. (McKenna v. Fisk, i How. U.S. 211.) Actions of trespass, except those for injury to real property, are transient in their character. Howe v. Wilson, i Den. 181; Cage v. Jeffries, Hempst. 409. 47. Joinder of Parties. It is unnecessary to join as defendants 1 82 FORMS OF COMPLAINTS. in an action for damages for trespass, all persons who unite in commit- ting it; all or any may be sued. Mandlebaum v. Russell, 4 Nev, 551. 48. Officer Without Process. An officer without process who puts a person in possession as receiver commits a trespass. Rowe v. Bradley, 12 Cal. 226. 49. Trespass to the Person. Where a person with a crowd of others entered the premises of plaintiff, knowing that admission had only been obtained by an action of violence by another person in the crowd: Held, that he was liable as a trespasser. Chandler v, Egan, 28 How. Pr. 98. COMPLAINTS SUBDIVISION SIXTH. For the Possession of Specific Property. CHAPTER I. PERSONAL PROPERTY. No. 430. For Conversion Common Form. [TITLE.] The plaintiff complains, and alleges : I. That on the .... day of , 1 8 . . , he owned [one hundred barrels of crushed sugar]. II. That on that day, at , the defendant took the same. Wherefore the plaintiff demands judgment: 1. For the possession of the said' goods, or for dollars, in case such possession cannot be had. 2 . For dollars damages for the detention thereof. 1. Conversion Defined. The rule is that any unlawful inter- ferance with the property of another, or exercise of dominion over it by 184 FORMS OF COMPLAINTS. which the owner is damnified, is sufficient to maintain the action. (10 Wend. 349; Latimerp. Wheeler, i Keyes, 468.) Every unauthorized assumption of dominion over property in hostility to the right of the true owners is a conversion. (Boyce v. Brockway, 31 N.Y. 490.) The principle applied to the case of an infant obtaining goods by fraudu- lent representations as to his age. (Eckstein v. Wauk, i Daly 334;) or to a case of vendor retaking goods after delivery. (Huelet v. Reyns, i Abb. Pr. (N.S.) 27;) or of a factor disobeying instructions of his principal; (Scott v. Rogers, 31 N.Y. 679;) or of a pledgee of stock or goods selling without due notice to pledgor; (Jaroslanski v. Sanderson, i Daly, 232; Brass v. Worth, 40 Barb. 648; Campbell v. Parker, 9 Bosw. 322; Genet v. Rowland, 45 Barb. 560; 30 How. Pr. 360; Clark v. Meigs, 10 Bosw. 337;) or of subsequent sale of shares pur- chased under suspicious circumstances; (Anderson v. Nicholas, 28 N.Y. 600;) or of note deposited by one bank in another for collection, and diverted to payment of antecedent debt; (Potter v. Merchants' Bank, 28 N.Y. 641 ;) or of money intended for payment of notes, and seized by the holder without giving them up; (McNaughton v. Cameron, 44 Barb. 406;) or of property wrongfully intermixed; (Morgan v. Gregg, 46 Barb. 183;) or of property seized under void process; (Kerr v. Mount, 28 A 7 ".! 7 . 659; Hicks v. Cleveland, 39 Barb. 573;) or of prop- erty to be returned if not paid for by a certain time; (Person v. Civer, 29 How. Pr. 432;) or of property obtained by fradulent representa- tions; (Gary v. Hotaling, i Hill. 311; Olmstead v. Hotaling, Id. 317; questioned in Roberts v. Randall, 3 Sandf. 707;) or of property ob- tained in exchange for a void note. Loeschigh, v. Blun, i Daly, 49. 2. Conversion, -what Constitutes. A sale of property by in- sured after an abandonment is a conversion. (Robinson v. United Ins. Co. i Johns. 592.) So, a sale of property by a manufacturer after delivery to the plaintiff is a conversion. (Babcock v. Gill, 10 Johns. 287.) The *mere sale by one tenant in common of the entire chattel, followed by exclusive claim and dominion in the purchaser. (2 Kent's Com. 350; 5 Barn. & A. 395; 6 Verm. 442; 21 Wend. 72; Wilson v. Reed, 3 Johns. 175; Hyde v. Stone, 9 Cow. 230; Mumford v. McKay, 8 Wend. 442.) Where a commission merchant places goods consigned to him for sale in the hands of another for sale, it is a conversion. (Moffat v. Wood, Seld. notes Nos. 5, 14; commented on in Roth v. Palmer, 27 Barb. 652.) Or if a factor pledge the goods of his principal for his own debt. Kennedy v. Strong, 14 Johms. 128; see Henry v. Marvin, 3 E. D. Smith, 71. FOR PERSONAL PROPERTY. 185 3. Conversion by Agent. The omission or refusal to pay over moneys received by a factor, agent, or trustee, in the course of his agency or trust, will not lay the foundation of an action of trover. (Paley on Ag. 79; I Ves. jr. 424; 16^!^ 250; Harris v. Shultz, 40 Barb. 315.) So, a misuse of the property pledged by attempting to sell it before time of forfeiture, is a conversion. (Vincent v. Conklin, i E. D. Smith, 203.) An auctioneer who in the regular course of his business recieves and sells stolen goods, and pays over the proceeds of the sale to the felon, without notice that the goods were stolen, is not liable to the true owner, as for a conversion. (Rogers v. Hine, i Cal. 429.) A mere agreement between two or more persons to convert the property of another without an actual intermeddling with it, does not give the owner a cause of action against the parties to the agreement. Herron v. Hughes, 25 Cal. 555. 4. Conversion, Allegation Sufficient. An allegation in the complaint that defendant converted the property to his own use, is suf- ficient. It is not necessary to state the mode in which the defendant appropriated the property. (Decker v. Mathews, 12 N.Y.$2i; 324.) A declaration in trover fora "tool chest containing divers tools and work- ing utensils," and "trunk containing clothes," held sufficiently certain, (Boll v. Patterson, i Cranch C. Ct. 607. ) A narration reciting all the circumstances attending the seizure and conversion of a bag of gold is immaterial and redundant. (Green v. Palmer, 15 Cal. 411.) It is not necessary to set out the manner in which the defendant converted the property. (Oteroz>. Bullard, 3 Cal. 189; Decker v. Matthews, \2N.Y. 321, 324; Hunter v. Hudson River Iron and Machine Co., 20 Barb. 493; Esmay v. Fanning, 9 Id. 176.) An allegation in the complaint of the place where the property was taken, in, an action to recover pos- session of personal property, is surplusage. (Lay v. Neville, 25 Cal. 545.) That the defendant converted the property to his own use, is unneces- sary. Vogel v. Badcock, i Abb. Pr. 176. 5. Demand. It is a general rule, that when the possession of property is originally acquired by a tort, no demand previous to the institution of the suit is necessary. (Ledley v. Hays, i Cal. 160; Paige v. O'Neal, 12 Cal. 483; Sargent v. Sturm, 23 Cal. 359; Cum- mings v. Vorce, 3 Hill, 283; Pierce v. Van Dyke, 6 Id. 613; Gary v. Hotailing, i Id. 311; Stillman v. Squire, i Den. 327; Zachrisson v. Ahman, 2 Sandf. 68; Pringle v. Phillips, 5 Id. 157.) In an action against the sheriff, for property tortiously taken by him under an 1 86 FORMS OF COMPLAINTS. attachment or execution against some other person, it is not necessary to allege and prove a demand for its delivery prior to the commence- ment of the action. (Ledley v . Hays, iCal. 160.) And all cases since then to the contrary have been overruled in (Bouhvare v. Craddock, 30 Cal. 190; see, also, Sargent v. Sturm, 23 Cal. 359; Wellman v. Peck, Cal. Sup. Ct., Oct. T., 1869); as the only purpose of proving a demand in trover and replevin is to show defendant's possession wrongful. (Whit- man G. and S. M. Co. v. Tritle, 4 Nev. 404.) Thus, if a sheriff, by virtue of an execution, seizes the property of a person other than the judgment-debtor, whether by mistake or design, it is not necessary for the owner of the property thus seized to make a demand on the sheriff before commencing suit. Boulware v. Craddock, 30 Cal. 190; Moore v. Murdock, 26 Cal. 524; see, also, Woodworth v. Knowlton, 22 Id. 164. 6. Demand and Refusal. A demand and refusal are never necessary as evidence of conversion, unless the other acts of the defend- ant are not sufficient to prove it. Nor are they evidence when it was not in the defendant's power to deliver the property when demanded. (Gilmore v. Newton, 9 Allen, 171.) The demand and refusal are only evidence of the conversion. (State v. Patten, 49 Maine, 383; Hunt v. Holton, 13 Pick. 216; Pierce v. Benjamin, 14 Pick. 356; Thurston v. Blanchard, 22 Pick. 18; see i Pick. 397.) To constitute demand and a refusal as evidence of a conversion, it is sufficient that the goods are in the possession of the agent of the defendant, and the latter on demand refuses to permit his agent to deliver them. (Chambers v. Lewis, 28 N.Y. 454; 1 6 Abb. Pr. 433.) A refusal to deliver, retracted before suit brought, ceases to be a conversion. Ward v. Kelsey, 15 Abb. Pr- 53- 7. Demand, when Necessary. Where goods were wrong- fully taken by one person, and came rightfully into the possession of another, a demand upon the latter should be averred. (Barret v. Warren, 3 Hill, 348; Pierce v. Van Dyke, 6 Id. 613; Hunter v. Hud- son Iron and Machine Co. 20 Barb. 493; Ely v. Ehle, 3 N.Y. 506; Tallman v. Turck, 26 Barb. 167.) So in case of a bailee in good faith, and where the goods are subsequently wrongfully detained. (Purves v . Moltz, 5 Rob. 653.) As to cases in which previous demand of goods from holder will be essential to render him liable for their conversion, see (Chambers v. Lewis, 16 Abb. Pr. 433; S.C., 28 N.Y. 454; Hicks v. Cleveland, 39 Barb. 573.) When a demand is necessary, it is sum- FOR PERSONAL PROPERTY. 187 cient to make it upon the one who is in the actual possession, and able to comply with it. Woodworth v. Knowlton, 22 Cal. 164. 8. Election of Remedy. Where personal property is tortiously taken, the party aggrieved may waive the tort and sue in assumpsit for the value of the property. (Fratt v. Clark, 12 Cal. 89.) The election between the right to sue in tort or in contract in respect to the same transaction, is conclusive, and when made must be abided by on trial, and in its after consequences. (Bank of Beloit v. Beal, 34 N.Y. 473; Ransom v. Wetmore, 39 Barb. 104; Wright v. Ritterman, i Abb. Pr. (N.S.) 428; People v. Kelly, Id. 432; Grocers' Nat. Bk. v. Clark, 31 How. Pr. 1 15.) And the complaint must be framed with precise reference to the specific remedy invoked. (Smith v. Knapp, 30 N.Y. 581.) An allegation of contract by way of inducement will not vary the nature of an action sounding in tort. (Person v. Civer, 28 How. Pr. 139.) As to the effect of an election to waive tort and sue in assumpsit, see (Mayor of N.Y. v. Parker Vein S.S. Co., 8 Bosw. 300.) And if no demand is necessary in an action to recover certain specific personal property, no demand is necessary in an action brought to recover its value only. Whitman G. and S. M. Co., v. Sutle, 4 Nev. 494. 9. Gist of the Action. The conversion is the gist of the action, and without conversion neither possession of property, negli- gence, nor misfortune, will enable the action to be maintained. (Rogers v. Huie, 2 Cal. 571.) Defendant must have converted the property to his own use, and if not, then any other act to amount to a conversion must be done with a wrongful intent, either. expressed or implied. Id. 10. Intent. A wrongful intent is not an essential element of the conversion. It is enough that the rightful owner has been deprived of his property by some unauthorized act of another assuming dominion or control over it. i Wils. 328; 6 Wend. 603; n Id. 80; 20 Id. 267; 22 Id. 285; 4 Den. 323; 5 Id. 240; 10 Wend. 349; 10 Johns. 175; 23 Wend. 462; 9 Barb. 242; Boyce v. Brockway, 31 N.Y. 490. 11. Joinder of Parties. All the parties in interest should join in an action of trover, and a failure to join may be pleaded in abate- ment. (Whitney v. Stark, 8 Cal. 514.) In an action by the parties whose property has been wrongfully taken under legal process, all who join or participate in the trespass are joint trespassers. (Lewis v. Johns, 34 Cal. 629.) In case of joint bailees, demand and refusal by one is 1 88 FORMS OF COMPLAINTS. not of itself, as in case of partners, a conversion. Mitchell v. Williams, 4 Hill, 13.) But the refusal by a partner is a conversion, i Camp. 410; 15 Wend. 474; 9 Moore. 41; 21 Sing. 23; Holbrook v. Wright, 24 Wend. 169. 12. Joint Ownership. A complaint which avers that the defend- ant took and carried away "certain goods, chattels and effects, of and belonging to the said plaintiffs," does not necessarily aver a joint ownership of the goods in the plaintiffs. Pelberg v. Gorham, 23 Cal. 349. 13. Jurisdiction. Actions to recover compensation for injuries done to personal property may be maintained wherever jurisdiction of the parties can be obtained. 26 How. Pr. 257; i Chitt. Pi. 243; Com. Dig. Trover, 7; 9 Johns. 67, 69; 2 Hill, 262; Smith v. Butler, i Daly, 508. 14. Liability for Conversion. A wrongful taker of goods is liable for their whole value, although the owner had insured them and has been paid in full. Perrott v. Shearer, 17 Mich. 48. 15. Measure of Recovery. In an action by the pledgee of goods against a stranger for the conversion of pledged property, the rule is that plaintiff is entitled to recover its full value; but if against the owner, or one acting in privity with him, then only for plaintiffs special interest therein as pledgee. (Treadwell v. Davis, 34 Cal. 601.) So, also, as against sheriff for conversion of goods pledged, he will be held liable only for plaintiff's special interest in the goods. (Id.} In Nevada, if personal property is unlawfully seized and converted, the measure of damages is the value of the property at the time of the conversion, and interest from that time to judgment. (Carlyou v. Lauman, 4 Nev. 156. 16. Offer to Restore. And if, before suit is brought, the defendant unconditionally offers to restore the property, the object is attained, and the suit is wholly unnecessary. Savage v. Perkins, 1 1 How. Pr. 17. 17. Ownership. Ownership by the plaintiff must be shown, or a special property with the immediate right of possession. (Clark v. Skinner, 20 Johns. 465; McCurdy v. Brown, i Duer, 101; Dodworth v. Jones, 4 Id. 201.) If the plaintiff claims as owner, an allegation that he is owner is sufficient, without stating other facts to show his FOR PERSONAL PROPERTY. 189 title. (Depew v. Leal, 2 Abb. Pr. 131; Burns v. Robbins, i Code R. 92; Roberts v. Willard, Id. 100; Heine v. Anderson, 2 Duer, 318.) But an equitable title without an immediate right to possession is not sufficient to form ground for this action. (Whitcomb v. Hungerford, 44 Barb. \ 77.) It is unnecessary to allege ownership of the goods, when the complaint alleges a forcible and wrongful taking. (Kissam v. Rob- erts, 6 Bosw. 154, and cases there cited; Bliss v. Cottle, 32 Barb. 322; Heine v. Anderson, 3 Duer, 318). Or a vested legal interest. (Pope v. Tucker, 23 Geo. 484; see Hunt v. Pratt, 7 R.I. 286.) Though either allegation of ownership or possession is sufficient. ^Kuhland v. Sedgwick, 17 Cal. 123.) But an averment that plaintiff is entitled to the immediate possession is insufficient. (Pattison v. Adams, 7 Hill, 126; Bond v. Mitchell, 3 Barb. 304; Pattison v. Adams, Hill & D. Sup. 426.) Or that the goods were his property, by order of several attachments duly issued, etc. (Vandenburgh v. Van Valkinburgh, 8 Barb. 217.) Although the defendant, before suit, has parted with the possession of the property, the action may be sustained. Brockway v. Burnap, 16 Barb. 309; reversing S.C., 12 Id. 347; Savage v. Perkins, ii How. Pr. 17; Drake v. Wakefield, n Id. 106; Ward v. Woodburn, 27 Barb. 346; Van Neste v. Conover, 20 Id. 547; Nichols v, Michael, 23 N.Y. 264. * 18. Parties Plaintiff Bailee. A bailee may sue for conver- sion. Green v. Clark, 2 Kern. 343; Alt v. Weidenberg, 6 Bosw. 176. 19. Consignee. A consignee is in law presumed to be the owner. (Fitzhugh v. Wiman, 9 N.Y. 559.) So of a factor. Goram v. Carey, I Abb. Pr. 285. 20. Factor. So may a factor in charge of goods, and responsible for their value. Gorum v, Carey, i Abb. Pr f 285. 21. Finder. The finder of goods may maintain an action against a wrong-doer who subsequently converts them. Mathews v. Harsell, i E. D. Smith, 393. 22. Husband. A husband in joint possession with his wife of chattels purchased by her, may maintain trover against her mortgagee, on the ground that her contracts were void, and he himself was liable for the price. Switzer v. Valentine, 10 How. Pr. 109. 23. Partner. A partner cannot sustain an action against his FORMS OF COMPLAINTS. co-partner for the delivery of personal property belonging to the partner- ship. Buckley v. Carlisle, 2 CaL 420. 24. Receiver. A receiver of partnership effects cannot maintain an action against a person who had converted the assets of the firm before his appointment; he must sue in the name of the firm in whom was the legal right of action. Meager v. Wallace, 44 Penn. State R. 25. Sheriff A sheriff may hold a party liable for conversion who wrongfully removes goods levied upon. (Barker v. Bininger, 4 Kern. 270.) But such action is only maintainable by him, and not by his deputy. Terwilliger v. Wheeler, 35 Barb. 620. 26. Tenants in Common. One tenant in common of chattels cannot sue another for the appropriation of his share, when capable of severance. (Forbes v. Shattuck, 22 Barb. 568; Tripp v. Riley, 15 Barb. 333; Tinney v. Stebbins, 28 Barb. 290.) But otherwise when the conversion is in fact a destruction of the property. (Benedict v. Howard, 31 Barb. 569.) If the parties were tenants in common, and the defendant sold the chattels held in common, and appropriated the proceeds to his own use, the remedy of the plaintiff is in trover, or by an action for money had and received ; and an action for goods, wares, and merchandise sold and delivered will not entitle him to a judgment. Williams v. Chad bourne, 6 Cal. 559. 27. Parties Defendant Agent. Where the action is brought against ah agent, it is necessary to allege, not only that defendant received the money as agent, but that he converted it in the course of his employment as such. (Porter v. Hermann, 8 Cal. 619; see, also. Sharp v. Whipple, i Bosw. 557.) Trover will not lie against an agent, where the agent, though wanting in good faith, has acted within the scope of his powers. {tfT.R. 260; 10 Johns. 172; Peake's Cas. 49; 4 Esp. 156; 2 Salk. 655; 4 Wend. 613; 2 Bos. & P. 438; i Vent. 223; 4 Camp. 183; McMorris v. Simpson, 2 1 Wend. 610.) A mere omission of duty is not enough. Where goods are detained by an agent, by direction and command of his principal, trover lies against the principal. (Shotwell v. Few, 7 Johns. 302.) So, the principal is liable where he receives the benefit of the act of the agent, i Hill, 318; 7 Bing. 543; Cobb v. Dows, 10 N.Y. 335. 28. Attorney. As to the attorney's liability, see Ford v. Wil- liams, 13 N.y. (3 Kern.) 577. FOR PERSONAL PROPERTY. 19! 29. Carrier. In a count in trover against a carrier, it is unneces- sary to allege his duty as such, if his business is set forth, together with his negligence, and the loss resulting therefrom. Wright v. McKee, 37 Vt. 161. 30. Factor. Where the defendant contracted with a factor, who was in his debt, for certain goods, but before he took them away was informed that a portion of them belonged to another, his taking such portion was an unlawful assumption of ownership, and a conversion of the property. Scriber v. Masten, 1 1 Cal. 330. 31. Infant. An infant may be made liable in trover, although the goods converted be in his possession by virtue of a previous contract. The conversion is still in its nature a tort; it is not an act of omission but of commission,' and is within that class of offenses for which infancy cannot afford protection. Vasse v. Smith, 6 Cranch, 226. 32. Pledgee. Where, without calling on the pledger to redeem, the pledgee sold the pledge, the same being a chose in action, this was a conversion of the pledge, and the pledgee thereby became liable, in an action for the conversion, for the value of the pledge at the time of the conversion in excess of the demand secured by the pledgee, with legal interest thereon from the time of the conversion. Gay v. Moss, 34 Cal. 125. 33. Principal and Agent. The principal is liable for a con- version of goods by his agent. (Chambers v. Lewis, 28 N.Y. 454.) But mere possession by an innocent agent does not of itself constitute a conversion. (Hunt v. Kane, 40 Barb. 638.) The agent actually dis- posing of the goods of another is liable to the real owner, though igno- rant of the fraud conducted by his principal. Dudley v. Hawley, 40 Barb. 397. 34. Trespasser. An action of trover may be maintained against a trespasser who is cutting timber, as soon as the timber is cut. Samp- son v. Hammond, 4 Cal. 184. 35. Warehouseman. Where warehousemen deliver wheat to third persons who bought from the broker for his own debt, on the ground that they held the storage receipt of defendants to one S., who had loaned money to E. & H. on the wheat as collateral, and had en- dorsed the receipt: "Deliver to bearer or E. & H.," the defendants FORMS OF COMPLAINTS. knowing at the time of the delivery that E. & H. claimed the wheat as their property, they are liable to E. & H. for a conversion. Hanna v. Flint, 14 Cal. 73. 36. Possession, and Right of Possession. The action can- not be maintained without a property in the plaintiff, either general or special. (Hotchkiss v. McVickar, 12 John. 403; Sheldon v. Soper, 14 Johns, 352; Taylor v. Howell, 4 Blackf. 317; Barton v. Dunn- ing, 6 Id. 209; Grady v. Newby, Id. 442.) The plaintiff must either have the possession or the immediate right to the posses- sion of the property, to entitle him to recover. (Middlesworth v. Sedgwick, 10 Cal. 392; Redman z> .-Gould, 7 Blackf. 361; Danleyz>. Rector, 5 Eng. 211; Kempz. Thompson, 17 Ala. 9; Purdy v. McCul- lough, 3 Barr. 466; Stephenson z>. Little, 10 Mich. 433.) The right to possession must be present and immediate. (2 Greenl. on Ev. 552, 561 ; Decker v. Matthews, 12 N.Y. 313, and see 321; Redman v. Hen- dricks, i Sandf. 32; Wheeler v. Train, 3 Pick. 255; Sharp v. Whitten- hall, 3 Hill. 576.) Any right to actual possession atthetime of takingis sufficient to form ground of action. (Trost v. Mott, 34 N.Y. 253; Bowen v. Fenner, 40 Barb. 383.) The action does not lie in favor of a lessor of chattels during the lessee's right of possession. (2 Selw. N.P. 1,385.) Possession under a general or even a gratuitous bailment is sufficient evidence of title to entitle the bailee to maintain an action of trover against a stranger who intermeddles with the property. (6 Mod. 334; 2 Taunt. 268; Saund. PI. & Ev. 1,151; Bowen v. Fenner, 40 Barb. 383.) Where M. made a bill of sale of goods then in the pos- session of G. as keeper for the sheriff, as collateral security for a debt due G., and G. subsequently gave back the bill of sale to M. without any liquidation of the debt or change of the possession of the property, and the property was afterwards sold by the defendant as sheriff, M. bringing an action of trover against the defendant to recover the same: Held, that M. had no title to the property which he could recover in such an action, as the mere handing back the bill of sale of M. did not re- vert the title in him. Middlesworth v. Sedgwick, 10 Cal. 392. 37. Possession Averred. An averment in the complaint that plaintiff was in possession, imports that his possession was lawful. Sheldon v. Hoy, n How. Pr. n. 38. Possession by Defendant. In an action to recover the possession of personal property, it is not necessary to show that defend- FOR PERSONAL PROPERTY. 193 ant had possession in fact of the goods at the time the action was brought. If the defendant had been previously in possession, and was present at the time of a demand upon another person and refusal by him at the piaffe where the goods were, he cannot set up a defense of the action that he had parted with the possession to such person. 23 N.F. 364; 9 Mees. & Wels. 19; 5 Carr & P. 346. 39. Property and Possession. It has sometimes been held that trover is founded exclusively on the right of property, (Hastier v. Skull, i Tayl. 152.) The right of property and the right of possession must concur, or the action will not lie. The special property must arise from possession. Hotchkiss v. McVickar, 12 Johns. 403; McCurdy v. Brown, i Duer, 101. 40. Purchase from Agents. If one is entrusted with goods by the owner, with power to sell the same at retail for the owner, as his agent or clerk, and if he then sells the goods in payment of his private debt, to one who has full knowledge of the owner's title and the agent's relation to the goods, the purchase made with this knowledge amounts to a conversion. Herron v. Hughes, 25 Cat. 555. 41. Value. An averment of the value of the property is not material. (Bac. Abr., tit. Tresp., I. 2, and Trov., F. i; Connoss v. Meir, 2 E. D. Smith, 314.) The value of the goods is not of the sub- stance of the issue, and need not be alleged. (Richardson v. Hall, 2 1 Md. 399.) Nor is time a material allegation. (Id.) The wrongful doing of the act is sufficient, without specifying the mode or manner in which it was done. (Id.) In designating the goods, a description which will identify them is sufficient. Root v. Woodruff, 6 Hill. 418. 42. Who Liable. It is a matter of no consequence that some other party took the property first, or that defendants purchased from a party who had no authority to sell; it is still a conversion. Somebody else may be also liable, but this does not relieve the defendants from their liability. Briggs v. Waugenheim, Cal. Sup. Ct., Oct T., 1869. 43. Wrongful and Unlawful. It is not necessary to designate the act as "wrongful" or "unlawful" where the facts show an illegal taking of the goods. Buck v. Colbath, 7 Minn. 310; Adams v. Cor- reston, Id. 456; see Vol. i., p. 132. 194 FORMS OF COMPLAINTS. No. 431. ii. The Same Another Form. [TITLE.] The plaintiff complains, and alleges : I. That on the day of , 1 8 . . , at , he owned certain goods, described in the schedule hereto annexed, marked " Schedule A" \pr the following described goods, describing thent\. II. That on the said day, at , the defendant converted the same to his own use. [Demand of Judgment.] [Annex Schedule, Marked "A."~\ 44. Schedule Annexed. Where the articles are numerous, they may conveniently be enumerated in a schedule or exhibit annexed to the complaint, and referred to as such. It is not necessary to state their value severally. See Root v. Woodruff, 6 Hill, 418. J\To. 432. iii. By Seller, against Fraudulent Buyer of Goods, for Conversion. [TITLE.] The plaintiff complains, and alleges: I. That on the .... day of , 1 8 . . , at , the defendant represented to the plaintiff, that one A. B. was solvent and in good credit, and worth dollars over all his liabilities. II. That the plaintiff was thereby induced to sell to the said A. B. [dry goods], of the value of dollars. FOR PERSONAL PROPERTY. 1 95 III. That the said representations were false, and known by the defendant to be so, and were made by him with intent to deceive and defraud the plaintiff. IV. That the defendant, having so obtained from the plaintiff the possession of said goods, converted and disposed of them to his own use. [Demand of Judgment, .] 45. Allegations against Fraudulent Buyer and his Transferee. That the said [buyer] afterwards transferred said goods to the defendant A. B., who wrongfully detains them from the plaintiff. That on the .... day of , 1 8 . . , at , the plaintift demanded of said A. B. that he deliver the same to him, but the said A. B. refused to do so, to his damage dollars. 46. Fraud of Purchaser. The plaintiff may declare generally, claiming the property as his, and charging that the defendants have become possessed of and wrongfully detain the same, and give the special facts in evidence on the trial to establish the fraud. Bliss v. Cottle, 32 Barb. 322; Hunter v. Hudson River Iron and Machine Co., 20 Barb. 493. No. 433. iv. For Goods Wrongfully taken from Possession of Plaintiff's Assignor. [TITLE.] The plaintiff complains, and alleges : . I. That at the time hereafter mentioned, one A. B. was lawfully possessed of [describe the property\. II. That on the .... day of , 18. ., the defendant wrongfully took said goods from the posses- sion of said A. B., and ever since has detained the same. 196 FORMS OF COMPLAINTS. III. That on the .... day of , 18 . . , said A. B. asssigned and set over to the plaintiff said goods, and also his claim to damages for said taking and detention. [Demand of Judgment. ,] No. 434. v. For Goods Wrongfully taken from Possession of Bailee. [TITLE.] The plaintiff complains, and alleges: I. That at the time hereinafter mentioned the plaintiff was, and still is the owner of [describe the goods], which goods were then in the possession of A. B., with whom the plaintiff had left the same for safe keeping [or otherwise], II. That on the day of , 18 . ., the defendant wrongfully took said goods from the posses- sion of said A. B., and still detains the same from the plaintiff without his consent. III. That before this action, to wit, on the .... day of , 1 8 . . , the time which the said A. B. was safely to keep said goods had expired, and thereupon the plaintiff became entitled to the immediate and exclusive possession of said goods. {Demand of Judgment^ 45. Bailee Holding Lien. The right of possession of a bailee holding a lien does not preclude the owner from maintaining this action against a third person wrongfully taking the goods from the bailee. Either the owner or bailee may bring the action. See Fitzhugh v. Wiman, 9 N.F. 559; Neff v. Thompson, 8 Barb. 213. FOR PERSONAL PROPERTY. 1 97 JVo. vi. For Conversion of a Promissory Note. [TITLE.] The plaintiff complains, and alleges : I. That on the ..... day of ......... , 1 8 . . , at ........ , the plaintiff made his promissory note, of which the following is a copy; which note was made and delivered by the plaintiff to A. B., without consid- eration, and for his accommodation, and with the special purpose and agreement between the plaintiff and said A. B., that [state intended appropriation of the note as the fact was]. II. That said note was thereafter offered by said A. B. to the B^nk of ........ , which refused to dis- count the same, and returned it to the said A. B., whereupon the plaintiff became entitled to the posses- sion thereof \pr state facts as they occurred~\. III. That thereafter, but before the maturity of the note, the defendant C. D., without the knowledge or consent of the plaintiff or of A. B., unlawfully took said note from the possession of A. B., and delivered it to the defendant E. F. ; and that the defendants thereupon converted and disposed of it to their own use, whereby the plaintiff was compelled to pay it. \Demand of Judgment. ~\ 46. Bank Notes. As to the manner in which bank notes may be described in complaint, see Dows v. Bignall, Hill & D. Supp. 407. 47. Value of Note If the plaintiff does not know the exact amount of the note converted, he may state it as "of great value, to 198 FORMS OF COMPLAINTS. wit, the value of," etc., designating a sum. (Bissel v. Drake, 19 Johns. 66.) The amount of the note is prima facie the measure of damages. Ingalls v. Lord, i Cow. 240; Decker v. Mathews, 5 Sand/. 439. No. 436. vii. By Assignee after Conversion. [TITLE.] The plaintiff complains, and alleges: I. That before and until the time hereinafter men- tioned, one A. B. was lawfully possessed of [designate the goods], or was entitled to the immediate possession of [describe*the goods~\, the property of the said A. B. II. That on the day of , 18 . . , the defendant converted the same to his own use. III. That on the .... day of , 18. ., said A. B. assigned to the plaintiff his claim against the defendant for damages for said conversion. [Demand of Judgment.^ 48. Assignment by Married Women. An assignment by married women of certain specified goods and chattels, "as well as all claims and demands for any portion of them," carries the right of action for the previous wrongful taking of any of the assigned goods. Sherman^. Elder, 24 N.Y. 381. 49. Assignment for Benefit of Creditors. A general assign- ment of all property for the benefit of creditors was held to pass a right of action for the conversion of promissory notes. Whittaker v. Merrill, 30 Barb. 389; and see Westcott v. Keelei. 4 Bosw. 564. 50. Consideration of Assignment. It is not necessary to allege the consideration of the assignment. (Vogel v. Badcock, i Abb. Pr. 176.) A general averment of ownership is sufficient in an action by an assignee before the conversion. It is not necessary to set FOR PERSONAL PROPERTY. 199 forth his title in the complaint. Under such an averment, a bill of sale from the former owner may be given in evidence. Heine v. Ander- son, 2 Duer, 318. 51. Conversion bsfore Assignment. Where the complaint charges a conversion of personal property after its assignment to the plaintiff, he cannot recover for a conversion before its assignment. The case is not a variance, but the causes of action are distinct. Whit- taker v. Merrill, 30 Barb. 389. 52. Complaint by Assignees. The complaint averred that defendant wrongfully took and detained from one Johnson certain county warrants owned by the latter; that subsequently Johnson assigned to plaintiff his right in the warrants, and the moneys which might be made by the same; and that, after this assignment, plaintiff demanded the warrants from defendant, who refused to deliver them. Held, that this complaint stated a sufficient cause of action; that as assignee of Johnson, plaintiff was entitled to recover the warrants or their value, with damages for their detention accruing after the assign- ment. Lazard v. Wheeler, 22 Cat. 139. 53. Demand by Assignee. Such a claim will pass by a gen- eral assignment in trust for the payment of creditors. And a new demand by the assignee is unnecessary. McKee v. Judd, 12 N. Y. 622. 54. Power of Owner after Conversion. After the conver- sion of a chattel or an injury to real or personal property, the owner may either sell the chattel itself or assign his right of action for the conver- sion or injury. Hall v. Robinson, 2 Com. 293; Cass v. New Haven R.R. Co., i E. D. Smith, 522; Robinson v. Weeks, i Code Rep. 311; McGinn v. Worden, 3 E. D. Smith, 355; Wilson v. Cook, Id. 252; Howell v. Kroose, 4 Id. 357; 2 Abb. Pr. 167; North v. Turner, 9 Serg.W. R. 244; Hoyt v. Thompson, i Seld. 347; McKee v. Judd, 2 Kernan, 622; see Hicks v. Cleveland, 39 Barb. 537; Waldron z>. Wil- lard, 17 N.y. 436. 55. Right of Action Assignable. A right of action of this nature is assignable, and the assignee may sue in his own name. Gradwohl v. Harris, 29 Cal. 150; Cal. Pr. Act, 4. 2OO FORMS OF COMPLAINTS. JVo. 437. viii. Against One in Possession Innocently^ [TITLE.] The plaintiff complains, and alleges: I. \_Allege ownership]. II. That on the day of , 18. ., at , one A. B. wrongfully took said goods and chattels from the possession of the plaintiff, and unjustly detained the same. III. That thereafter the same came into the posses- sion of the defendant, who refused to deliver them to the plaintiff, although, before this action, to wit, on the .... day of , 1 8 . . , the plaintiff duly demanded of the defendant possession of the same. IV. That the defendant still unlawfully withholds and detains said goods and chattels from the posses- sion of the plaintiff. [Demand of Judgment.\ 56. Assignee. Where the defendant is assignee for the ben- efit of creditors from wrong doer, it is necessary to allege that defendant has refused to deliver it up upon demand. (Fuller v. Lewis, 3 Abb. Pr. 383; see, also, Gurney v. Kenny, 2 E. D. Smith, 132.) But if an actual wrongful conversion of the property is proved, proof of a demand is unnecessary. Davison v. Donadi, 2 E.D. Smith, 121; Pringle v. Phillips. 5 Sanf. 157. FOR PERSONAL PROPERTY. 2OI JVo. 438. ix. By Administrator, after Conversion. [TITLE.] The plaintiff complains, and alleges: I. That before and until the time hereinafter men- tioned, one A. B. was lawfully possessed of, [or was entitled to the immediate possession of describe goods\, the property of the said A. B. II. That on .... day of , 18 . . , the same came into the possession of the defendant, who, from that day until the commencement of this action has detained the same. III. That before the commencement of this action, to wit: on the .... day of , 18. ., the said A. B. [or the plaintiff] demanded the same from the defendant, but he refused to deliver them. IV. That thereafter and before this action, said A.B. died intestate, and bn the .... day of , 1 8 . . , letters of administration upon the estate of said A. B., deceased, were duly issued and granted to the plaintiff by the Probate Court of the County of , of this State, appointing the plaintiff administrator of all the goods, chattels, and credits which were of said deceased, and that the plaintiff thereupon duly qualified as such administrator, and entered upon the discharge of the duties of his said office. [Demand of Judgment^ 57. Action Lies. The administrator may maintain an action for wrongful conversion of the personal estate of the deceased, before 2O2 FORMS OF COMPLAINTS. the issuance of letters. (Jahns v. Nolting, 29 Col. 507.) Such an action may be maintained without the aid of Section 115 of the Probate Act, and such section does not give a new right of action, but merely increases the damages. Id.; consult Vol. i., p. 311, Form No. 57,.Note 35. 53. Allegation of Embezzlement. When the complaint in such an action alleges that the defendant embezzled, alienated, and con- verted to his own use the personal estate of the deceased, and prays for double damages, the plaintiff is entitled to recover double damages if the proof sustains the allegation. Jahns v. Nolting, 29 Cal. 507. 59. Demand of Property. In suit by an administrator, for conversion of the property of the estate under the 1 1 6th Section of the Statute to regulate the settlement of estates, the proof as to the right or title or possession of plaintiff, and the taking or interference by defend- ant being conflicting, it is error to instruct the jury that a mere demand on the defendant, and the refusal by him to surrender the property, W'll charge him with a conversion. Beckman v. McKay, 14 Cal. 250. 60. Essential Averments. A complaint in replevin, by an executor, should show the death of the testator, his leaving a will, the appointment therein of the plaintiff as executor, the probate of the will, the issuance of letters testamentary to the plaintiff, and his qualification and entry upon the discharge of his duties as executor. Halleck v. Mixer, 16 Cal. 575. 61. Ownership. A complaint in replevin, alleging that F. was seized and possessed of certain premises at the time of his death; that the plaintiffs were appointed the executors of his last will and testament, and ever since their appointment have been in the possession of the premises; that certain persons, whose names are not designated, entered upon the same without authority, and cut down timber growing thereon, to the amount of about three hundred cords; that the defend- ant afterwards also entered upon the premises without authority, and removed the wood thus cut, and still detains it from the plaintiffs; that they have demanded the possesion of the same from him, and that he refuses to deliver it to them, to their damage of $1,000, the alleged value of the wood, sufficiently shows plaintiffs' ownership of the wood. Halleck v. Mixer, 16 Cal. 574. FOR PERSONAL PROPERTY. 203 JVo. 439. x. For Conversion of a Bond. [TITLE.] The plaintiff complains, and alleges : I. That on the .... day of , 1 8 . . , at , one A. B. was the owner of a bond, a copy of which is annexed as a part of this complaint, and marked "Ex- hibit A," and by his agent, at the request of the defendant, deposited it with the defendant for the purpose of \_here briefly state purpose for which it was deposited^ II. That after a reasonable time for [state purpose~\ and on the .... day of , 1 8 . . , at , said A. B. demanded from the defendant the said bond, or the value thereof; but the defendant refused either to return it or to pay its value to the said A. B. III. That on the .... day of , 18. ., at , the said A. B. 'duly assigned to the plaintiff the said bond, together with all his right of action against the defendant and all other persons, to recover its value, or its possession, or damages. [Demand of Judgment. \ 62. Bond or Written Instrument. In an action for the con- version -of a bond or written instrument, the plaintiff should name the parties to it, and his declaration should show that it was an instrument in writing, although he cannot be held to an exact description. Pierson v. Townsend, 2 Hill, 550. 2O4 FORMS OF COMPLAINTS. No. 440. Claim and Delivery. [TITLE.] The plaintiff complains, and alleges: I. That on the day of , 1 8 . . , at , the plaintiff was the owner [or otherwise] of the following goods and chattels [of the value of dollars], to wit: \describe goods ^\ II. That the defendant, on the .... day of , 1 8 . . , at the City and County of , without the plaintiff's consent, and wrongfully, took said goods and chattels from the possession of the plaintiff. III. That before the commencement of this action, to wit, on the .... day of ...... . . , 1 8 . . , the plaintiff demanded of the defendant possession of said goods and chattels. IV. That said defendant still unlawfully withholds and detains said goods and chattels from the possession of the plaintiff, to his damage in the sum of dollars. Wherefore the plaintiff demands judgment against the defendant. 1. For the recovery of the possesson of said goods and chattels, or for the sum of ..." dollars, the value thereof [in case a delivery cannot be had~\. 2. For dollars damages, and for costs of suit. FOR PERSONAL PROPERTY. 2 05 63. Action Defined. The "action for " claim and delivery of personal property," under the practice of California, is at least com- mensurate with the action of detinue at common law. (McLaughlin v. Piatti, 27 Cal. 464.) It was formerly the action of replevin. (Pick v. Baker, 31 Duer, 19; DeMott v. Hagerman, 8 Cow. 220.) The primary object of the suit is the recovery of the thing itself. The value is received only in the alternative, that the thing is not returned. (Hunt v. Robinson, n Cal. 277.) And herein lies the difference between this action and the action correspond- ing with the former action of trover, where an offer before suit is not equivalent to a tender. (Savage v. Perkins, u How. Pr. 17.) The remedy afforded by the former action of replevin is not taken away. Nichols v. Michael, 23 N.Y. 264; Savage v. Perkins, n flow. Pr. 17; and see Vogel v. Badcock, i Abb. Pr. 176; McCurdy v. Brown, i Duer, 101. 64. Adverse Possession of Land. The plaintiff out of possession cannot sue for property severed from the freehold, when the defendant is in possession of the premises, from which the property was severed, holding them adversely in good faith under claim and color of title. (Halleck v. Mixer, 16 Cal. 579; affirmed in Page v. Fowler, Cal. Sup. Ct., Apl. T., 1869.) But by the action of claim and delivery, the true owner of land may maintain replevin to recover wood cut on the land by one in possession of the same without color of title. (Kimball v. Lohmas, 31 Cal. 156; Halleck v. Mixer, 16 Cal. 579; Page v. Fowler, Cal. Sup. Ci., Apl. T., 1869.) The common law rule, in relation to the right of the owner of land to recover possession of cord wood cut on the land by one in possession, without color of title, commented on, (Page v. Fowler 28 Cal. 605.) Replevin is the proper remedy to recover a package of gold sealed up in a leather bag. Skidmore v. Taylor, 29 Cal. 619. 65. Allegations Essential. In an action against a Sheriff for the value of a piano seized by him on an execution against the plaintiff, who claimed the same as exempt from execution, an allega- tion in the complaint that the plaintiff was a pianist, and that he had taught music within three months prior to the time when his piano was seized, is not sufficient to show that teaching music was his business at the time of such seizure. Tanners. Billings, 18 Wis. 163. 66. Bailee. Replevin does not lie for goods deposited with the 2O6 FORMS OF COMPLAINTS. plaintiff by a stranger who has no interest in them. Harrison v. Mclntosh, i Johns. 380. 67. Bill in Equity. Where the recovery of the property is the primary object of the suit, as in some cases where damages will not compensate plaintiff, he should frame his bill in equity, specifying the reasons therefor, and then a decree can be made to compel specific delivery. Nickerson v. Chatterton, 7 Cal. 570. 68. Cepit Detinet. The distinction must still be preserved between the wrongful taking and the wrongful detention. If the original taking was lawful the action must be in the detinet. (Randall v. Cook, 17 Wend. 53.) And one who, having possession originally lawful, refuses to deliver, is not liable in the cepit. (Hyman v. Cook, How. App. Cas. 419.) So, the grantee in a sheriff's deed cannot have replevin in the cepit for timber cut by debtor during the period allowed for redemption. (Rich v. Baker 3 Den. 79.) Replevin in the ceipl will Only lie where trespass will lie. (i Wend. 109; 19 Id. 431; 4 Barn. <5f A. 614; Vin. Tresp. (M.) PL n; Bac. Abr. Tresp. (E.} 2; Bro. Abr. Tresp. PL 48; Barrett v. Warren, 3 Hill. 348; Rich v. Baker, 3 Den. 79.) And only where a present right of possession is shown. (12 Wend. 30; 3 Hill. 576; 3 Pick. 255; Redman v. Hendricks, i Sand/. 32.) Replevin in the detinet, as well as in the cepit, will lie upon a tortious taking, for plaintiff may waive the force. (Cummings v. Vorce, 3 Hill. 282; Pierce v. Vandyke, 6 Id. 613; Zachrisson v. Ahman, 2 Sandf. 68.) And in such case, a demand before suit is not necessary. Id.; Stillman v. Squire, i Den. 327. 69. Character or Capacity. It is not necessary to designate a public officer defendant by his official character. He is to be rendered liable in his individual capacity. (Stillman v. Squire, i Den. 327.) The deputy may be joined with principal. Waterbury v. Westervelt, 9 N.Y. 598; King v. Orser, 4 Duer, 431. 70. Claim to Property. It is the privilege of the plaintiff to claim the delivery of the property at any time before the filing of the answer, but it is not compulsory upon him to do so. (Wellman v. English, Cal. Sup. Ct., Oct. T., 1869.) And whether he claims it or not before the answer filed, does not affect the question of ultimate relief. Id. FOR PERSONAL PROPERTY. 2O/ 71. Custody of the Law. In general, goods in the custody of the law cannot be replevied. (6 Johns. 9; 14 Johns. 87; 15 Id. 402; 19 Id. 32; 5 Mass. 283; Willes 672; 2 Sir. 1,184; i Chitt. PI. 160; i Sch. & Lef. 320; 3 Bl. Com. 148; i Wend. 109; Hall #. Tuttle, 2 Jf. Randall, 3 Sandf. 707;) further qualified as meaning that it would lie where trespass might be brought. (Thompson v. Button, 14 Johns. 84; Clark v. Skinner, 20 Id. 465.) Replevin for hay cut on public lands cannot be maintained by a prior possessor against one who was in adverse possession, claiming a pre-emption right, entered when he cut the hay. (Page v. Fowler, 28 Cal. 606; affirmed in Page v. Fowler, Oct. T. 1869.) The action for replevin would not lie for emblements cut and taken by a person who was at the time of the taking in posses- sion of the land. (Rich v. Baker, 3 Den. 79; De Mott v. Hagerman, 2IO FORMS OF COMPLAINTS. 8 Con. 220.) A safe in the possession of McC., belonging to W., F. &.* Co., for whom, as also for plaintiff, he was agent, contained $6,000 in coin. Of this sum four hundred dollars belonged to W., F. & Co., the balance to plaintiff. Defendant, as sheriff, under a writ against McC., seized $1,800 of the money in the safe as his property, and put it in a bag. Plaintiff then claimed the money as his, McC. being present and not objecting. Held, that this amounted to a segregation or the $1,800 from the mass of coin in the safe, so as to sustain replevin by plaintiff. Griffith v. Bogardus, 14 Cal. 410. 83. When Action -will not Lie. If an officer by his mis- conduct induces a sale of property for less than it \vould otherwise have brought, the remedy must be by an action for damages for the loss result- ing from his acts, and not an action to recover the property or its value. Foster v. Coronel, Oct. 7', 1867. 84. Wrongful Detention. This action is based upon a wrong- ful detention of the property; and such wrongful detention must exist at the commencement of the suit. (Savage v. Perkins, 1 1 How. Pr. 17.) But facts must be shown, as the averments in a complaint of "wrongful and unlawful" may be stricken out as surplusage. Halleck v. Mixer, 16 Cal. 574. 85. Wrongful Taking. Alleging that the defendant took the plaintiff's property sufficiently imports a wrongful taking. Childs v. Hart, 7 Barb. 370; compare Reynolds v. Lounsbury, 6 Hill, 534; see Note 40. CHAPTER II. FOR REAL PROPERTY. No. 441- i. Ejectment, Alleging Title in Fee Simple. [TITLE.] The plaintiff complains, and alleges: I. That on the .... day of 18 . . , he was seized in fee of that certain tract of land situated in the County of , State of , described as fol- lows: [description of proper ty.~] II. That while the plaintiff was so seized, the defend- ant afterwards, on the day of , 1 8 . . , entered into possession of the demanded premises, and now unlawfully withholds the possession thereof from the plaintiff, to his damage in the sum of dollars. III. That the value of the rents, issues, and profits of said premises from the said .... day of , 1 8 . . , and while the plaintiff had been excluded therefrom by the defendant, is dollars. Wherefore the plaintiff prays judgment against the defendant: i For the recovery of the possession of the demnded premises. 2. For the sum of dollars, the value of the said rents, issues, and profits, and costs of suit. 212 FORMS OF COMPLAINTS. 1. Color of Title. Color of title is that which in appearance is a title, but which in reality is no title. It is that which the law will con- sider prima facie a good title, but which by reason of some defect, not appearing on its face, does not in fact amount to title. An absolute nullity, as a void deed or judgment, will not constitute a color of title. Bernal v. Gleim, 33 Cal. 668. 2. Conveyance Pending Suit. The conveyance of the de- manded premises by the plaintiff in ejectment pending the suit, to a person* not a party to the action, does not necessarily defeat the action. Barstow v. Newman, 34 Cal. 90. 3. Damages. In Wisconsin, the damages in ejectment which the plaintiff is entitled to recover, include only the rents and profits, and not damages for injuries done to the premises. (Racquette v. Pick- ness, 19 Wis. 219.) It is otherwise in California, where damages may bealso recovered inthesame action. See Post "Rents and Profits." Where damages for withholding are claimed, the plaintiff should state the title of the plaintiff as existing' at some prior date, designating it, and as con- tinuing up to the commencement of the action, and the entry of the defendant at some date subsequent to that of the alleged title as in this form. Payne v. Treadwell, 16 Cal. 220. 4. Constructive Possession. A party who enters into the actual possession of a portion of a tract of land, claiming the whole under a deed in which the entire tract is described by metes and bounds, is not limited in his possession to his actual inclosure or possession, but acquires constructive possession to the entire tract, if it is not in the adverse possession of any other person at the time of his entry; and such person, in an action of ejectment, will prevail against one who enters subsequently upon the uninclosed part, as a mere intruder. (Gunn v. Bates, 6 Cal. 272; Rose v. Davis, n Cal. 133; Baldwin 7. Simpson, 12 Cal. 560; English v. Johnson, 17 Cal. 107; Kean v. Canavan, 21 Cal. 299; Kile v. Tubbs, 23 Cal. 431; Hicks v. Coleman, 25 Cal. 122; Hoag v. Pierce, 28 Id. 187; Davis v. Perley, 30 Cal. 630; McKee v. Greene, 31 Id. 418; Ayres v. Bensley, 32 Id. 620.) Upon the above authorities the doctrine is con- sidered settled. (Walsh v. Hill, Cal. Sup. Ct., Oct. T., 1869.) But there must be some show of good faith, which does not appear in taking a deed from a stranger having no title, and asserting no claim. (Id.) Where a party enters upon land with no higher evidence of title than FOR REAL PROPERTY. 213 that which the law presumes from his possession, and distinctly makes out the extent and boundaries of his claim, his actual possession of a part within these boundaries gives him constructive possession of the whole. Plumer v. Seward, 4 Cal. 94. 5. Deed as Evidence of Title. Parties and privies are bound by the recitals of a deed through which they claim title. (Holmes v. Ferguson, i Or. 220; Graham v. Meeks, Id. 325.) In California, a deed made prior to the passage of the Act concerning Conveyances must be first recorded, in order to have priority over a subsequent deed from the same vendor to a bona fide purchaser for value without notice. Anderson v. Fisk, Cal. Sup. Ct., Oct. T., 1868; citing Call v. Hastings, 3 Cal. 179; Stafford v. Lick, 4 Cal. 479; and Clark v, Troy, 20 Cal. 223. 6. Demise. Though the demise is .a fiction, the plaintiff must count on one which if real would support his action. (Binney v. Chesa- peake and Ohio Canal Co., 8 Pet, 201.) Where the right of entry is by virtue of the title of the wife, the demise may be laid in the name of the husband, or in the names of both husband and wife. Wood- ward v. Brown, 13 Pet. I. 7. Description of Premises. If the description of the de- manded premises does not appear upon the face of the complaint to be insufficient, it is a question of fact for the Court or jury whether the description in the same will apply to the land sought to be recovered. (Moss v. Shear, 30 Cal. 468.) In action for the recovery of real prop- erty, such property shall be described, with its metes and bounds, in the complaint. (Cal. Pr. Ad, 58.) This section of the Practice Act is directory only if the complaint describes the premises sufficiently other- wise to identify them according to the general rules on this subject. The plaintiff may after verdict take judgment, and the Court cannot set it aside on motion of defendant on account of this defect of pleading. Buckman v. Whitney, 19 Cal. 300; Beard v. Fedry, 3 Wall. L7.S. 478. 8. Description Quantity. As respects premises claimed, less certainty of description is required now than formerly. Thus, the lessor of the plaintiff, on a lease for a specific number of acres, may recover any quantity of a less amount. (Barclay v. Howell, 6 Pet. 498.) But he cannot recover more than is described in the complaint. (Patton v. Cooper, I'Cooke, 133.) Where the premises were described as "about 214 FORMS OF COMPLAINTS. fifty acres," etc.: Held, that the description was sufficient. St John v. Northrop, 23 Barb. 25. 9. Description by Designation. Where a complaint in eject- ment describes the land thus: "All that certain tract or parcel of land situated in Xapa County, consisting of a pre-emption claim of one hun- dred and sixty acres of land, commonly known as the Soda Springs, and embracing said springs and the improvements thereto belonging, and being about five miles from Napa City in a northerly direction," it is sufficient. Buckman v. Whitney, 19 Cat. 300. 10. Description by Lines. Monumental lines or points con- trol such as are described by course and distance only. The intention of the parties should be ascertained by a consideration of the entire description. (Piercy v. Crandall, 34 Cal. 334.) A description of real property in a complaint in ejectment, giving one of the lines bounding the premises as running due west to the source of a designated creek, is not so insufficient and indefinite as to sustain a demurrer on the ground of its alleged insufficiency. If there be in fact more than one source of the creek, that fact cannot be taken advantage of by demurrer. It can only be matter for proof on the trial. (Carpentier v. Grant, 21 Cal. 140.) Where the complaint gave a description which embraced noth- ing whatever, it was held that the complaint was bad. Budd v. Bir.g- ham, 1 8 Barb. 494. 11. Description by Indication. By indication, a description is sufficient which indicates and identifies the premises. (Green v. Palmer, 15 Cal. 411; Pane v. Silver, 16 Id. 73; Grady v. Earley, 13 Id. 108.) A complaint in ejectment, describing the premises as "Lot No. i, in Block No. 23, as per plot of the Town of Red Bluff Land Corporation, in 1853, being on the corner of Main and Sycamore Streets, 25 feet on Main by one hundred and fifteen feet on Sycamore, and running back to the alley," and specifying the County in \vhich they are situated by the terms, "in said County," referring to the designation "County of Tehama" in the title of the suit, sufficiently describes the premises. The description by metes and bounds is required only so far as they may be necessary to identify with certainty the property. Doll v. Ful- ler, 1 6 Cal. 432. 12. Description by Name. Where the land is described in the complaint by a certain name, it is sufficient if it can be rendered certain by evidence. (Castro v. Gill, 5 Cal. 40; Stanley v. Green, 12 FOR REAL PROPERTY. 215 Id. 148; Orton z>. Noonan, 18 Wis. 447.) Where the complaint in ejectment avers that the land sued for is known by the name of "La Jota," heretofore granted to plaintiff by the Mexican Government, and the patent issued thereon refers to the grant, the proceedings before the Land Commission, and the United States Court for confirmation, these recitals in the patent support the averment of title through the grant. Yount v. Howell, 14 Cal. 465; see Budd v. Bingham, 18 Barb. 494. 13. Description, Variance in. As to variance between the allegations and the proof respecting the premises, see Kellogg v. Kel- logg, 6 Barb. 116; Wood v. Staniels, 3 Code R. 152. 14. Entry and Right of PoEsession. To entitle plaintiff to recover, he must not only have a right of entry at the time of the trial, but must have had it also when the suit was brought. (Kile v. Tubbs, 32 Cal. 332.) And that right of entry cannot be impaired by any fraud, misrepresentation, or collusion practiced by him to obtain possession. (Dupuy v. Williams, 26 Cal. 309.) But an entry upon a lot in possession of another is not complete until he has expelled the other party, and has effected an exclusive lodgment. (Valencia v. Couch, 32 Cal. 339.) An entry, with full notice of plaintiff's rights, during the temporary removal of his inclosure, cannot be defended on the ground that the lands were uninclosed. (Sweetland v. Hill, 9 Cal. 556.) A defendant in ejectment, entering under a deed executed by order of a court of competent jurisdiction, enters under color of title. He is not a naked trespasser, and may set up an outstanding title in a third person. Gregory v. Haynes, 13 Cal. 591. 15. Essential Averments. In the action of ejectment, the material facts which are essential to be alleged by the plaintiff are: First, The title of the plaintiff. Second, Possession by the defendant. None of the technical allegations peculiar to the old practice are necessary. (Payne v. Treadwell, 16 Cal. 220.) Under our system the plaintiff is not limited to any form of complaint. He may aver seizin in fee, or some estate therein, or prior possession and ouster; but whatever is put in issue will be final and conclusive. (Stark v. Barrett, 1 5 Cal. 361; Caperton v. Schmidt, 26 Cal, 479; Payne v. Treadwell, 16 Cal. 220.) Where the allegations of a complaint in the District Court are, that the plaintiff was in possession, and lawfully entitled to the posses- sion, at the time he was evicted by the defendant: Held, that the complaint must be treated as a declaration in ejectment. Ramirez v. Murray, 4 Cal. 293. 2l6 FORMS OF COMPLAINTS. 16. Entry, Insufficient. A mere entry, without color of title. accompanied by a survey and marking of boundaries, is not sufficient. (Murphy r. Wallingford. 6 Cal. 648.) So, occupation and cultivation can have no greater effect than a private survey. (Waterman v. Smith, 13 Cal. 373.) And a mere survey, and marking the lines of a boundary, without an inclosure of the premises, is not a possession in law, unless made so by compliance with the statutes in reference to possessory actions on public lands. (Bird v. Dennison, 7 Cal. 297.) So, the mere inclosure of the lot with a brush fence, from two to three feet high, without any other steps taken to subject the property to any use, is not sufficient evidence of ownership or right of possession. Hulton ?>. Schumaker, 21 Cal. 453. 17. Form of Action. The plaintiff is not limited to any partic- ular form of complaint, but the form may be adapted to the facts desired to be put in issue. Plaintiff may allege that he is seized of the premises, or of some estate therein, in fee, for life, or for years, or he may aver a former possession and ouster; but whatever is put in issue and determined, is conclusive and final. (Caperton v. Schmidt, 26 Cal. 490; see, also, Steinback v. Fitzpatrick, 12 Id. 295.) In New- York, the complaint in an action under the Code to recover the posses- sion of real property need not be drawn in the form employed in declarations in ejectment suits, under the revised statutes. (Walter v. Lockwood, 4 Abb. Pr. 307.) Both the complaint and answer, in such actions, should conform to the rules of pleading laid down in the Code, and their sufficiency is to be tested by those rnles. Id.; the case of Warner v. Nellingar, 12 How. Pr. 402; and Lawrence v. Dwight, 2 Duer, 673, disapproved. 13. Highways. Ejectment lies by the owner in fee against one who has exclusively appropriated a part of a public street or highway to his own private use. (i Burr. 133; 15 Johns. 447; Brown v. Galley, Hill & D. Supp. 308.) And where the owner in his conveyance excepts the portions included in the highway, he may maintain eject- ment against his grantee, for encroachments thereon, or exclusive occu- pation. (Smith's Lead. Cas. 183; Etz v. Daly,,2O Barb. 32.) But the possession must be exclusive of the public. (Redfield v. Uticaand Syra- cuse R.R. Co., 25 Barb. 54.) Possession of land adjoining a road for seventy years is sufficient to enable plaintiff to maintain ejectment as to the roadway. (Dunham v. Williams. 36 Barb. 136.) That ejectment is a proper remedy for the appropriation of a highway, see 24 N.Y. 655; FOR REAL PROPERTY. 2I/ Lozier v. N.Y. Cent. R.R. Co., 42 Barb. 465; Wager v. Troy Union R.R. Co, 25 A:?'. 526. 19. Identifiying Land in Controversy. Where plaintiff claims title under deed from the commissioners of the funded debt of the City of San Jose, it is incumbent on the plaintiff to show that the premises had not been granted or conveyed by the Pueblo or the City prior to the execution of the deed of the commissioners to the plaintiff's grantor. (Halloway v. Galliac^ Cal. Sup. Ct., Oct. 7'., 1869.) So, where the conveyance was of " the balance" of the tract of fourteen hundred acres, the Court held that it was necessary to show what "the balance '' was, and that it included the land in controversy. (Taylor v Taylor, 3 A. K. Marshall, 19; Mayor and Common Council of San Jose v. Uridias, Cal. Sup. C., Apl. 71, 1869; cited in Halloway z>. Galliac, Cal. Sup. Ct., Oct. 71, 1869.) A party claiming title under a deed cannot show title to the premises in controversy by the mere production and proof of the deed ; he must show that the description of the land in the deed includes the land in controversy. (Halloway v. Galliac, Cal. Sup. Ct., Oct. 7., 1869; see, also, Valentine v. Jansen, Cal. Sup. Ct., Oct. 71, 1869; and McGarvey v. Little, 15 Cal. 27.) \Vhere there is a mistake in the first call of a deed, and the remaining calls are sufficient to iden- tify the land, the Court may hold that the land in controversy is covered by the deed. Moss v. Shear, 30 Cal. 479; Reamer v. Nesmith, 34 Cal. 624; cited in Walsh v. Hill, Cal. Sup. Ct., Oct. 71, 1869. 20. 1: 3 junction. In a complaint in ejectment, parties may seek, in addition to a recovery of the premises, an injunction restraining the commission of trespass in the nature of waste pending the action; but the grounds of the equity interposition should be stated subsequently to and distinct from those upon which the judgment at law is sought. Natoma Water and Mining Co. v. Clarkin, 14 Cal. 544. 21. Joinder of Actions. A claim to recover possession of a farmhouse and yard, occupied by plaintiff's permission, and damages for trespass on the farm, cannot be joined in one complaint. (Hulce v. Thompson, 9 Hmv. Pr. 113.) For a claim for injuries to the freehold cannot be joined with a demand for reserve profits. (Frost v. Duncan, 19 Barb. 560.) In Illinois, a party who holds a bond and mortgage to secure a debt may maintain an action of ejectment to recover the mortgaged premises, foreclose the equity of redemption in chancery, and sue on the bond, and have all these actions proceed at the same time. 3 Scam. 203; 26 III. g. 2l8 FORMS OF COMPLAINTS. * 22. Illinois. Under the laws of Illinois, two things are necessary: First, Possession; and, Second, A connected title at law or equity. See Arrowsmith v. Burlingim, 4 McLean, 489; Moore v. Brown, ti How. U.S. 414; affirming, S.C., 4 McLean, 211; consult Scales' Treat, and Stat. . Treadwell, 16 Cal. 220; Sanders v. Leavy, 16 How. Pr. 308.) Nor is it necessary to set out the mesne conveyances through which the plaintiff deraigns title; (Norris v. Russel, 5 Cal. 249; Leigh Co. v. Independent Ditch Co., 8 Cal. 328; Godwin v. Stebbins, 2 Id. 103; and see Hagley v. West, 3 L. J. Ch. 63;) since these are but averments of evidence, and are not admitted by a failure to deny them in the answer. (Siter v. Jewett, 33 Cal. 92.) And a complaint in ejectment should -not state matters of FOR REAL PROPERTY. 2 19 evidence,, but only the ultimate facts constituting the cause of action. (Dupuy v. Williams, 26 Cal. 209.) To set out the facts connected with the title, and the wrongful acts of the defendant, would produce confu- sion without benefit. Garrison v. Sampson, 15 Cal. 93. 26. Measure of Relief. A complaint may be for two separate and distinct pieces of land; but the two causes of action must be sepa- rately stated, affect all the parties to the action, and not require different places of trial. (Boles v. Cohen, 15 Cal. 150.) Distinct parcels of land may not only be included in one complaint, if covered by one title, but a demand for their rents and profits, or for damages for withholding them, may also be included. (Beard v. Federy, 3 Wall. U.S. 478.) In an action to recover possession of land, brought against a party who was a naked trespasser upon his entry, and who, while such trespasser, made improvements, but afterwards became a co-tenant, the plaintiff can recover the increased value of the rents and profits arising from such improvements. Carpentier v. Mitchell, 29 Cal. 330. 27. Mexican Grants. One who, without the permission of the grantee, takes possession of land within the. boundaries of a Mexican grant, whether perfect or inchoate, before the final survey is made by the United States, is guilty of an ouster, although informed by the grantee that the land so taken is not within the limits of the grant. (Love v. Shartzer, 31 Cal. 487.) For land within the boundaries of the general tract granted to Sutter, in the County of Sacramento, ejectment will lie directly upon the grant, although no official survey and measurement has yet been made by the offices of the Government, and although it may appear, when such survey and measurement are made, that there exists within the exterior limits of the general tract a quantity exceeding the eleven leagues. Cornwall v. Culver, 16 Cal. 423; affirmed in Riley v. Heisch, 18 Cal. 198; see, also, Mahoney v. Van Winkle, 21 Cal. 552. 23. Missouri. The act of 1826, regulating ejectment, requires the plaintiff to allege not only that he is entitled to the premises, but that he is legally entitled to the possession of them. (R.S. 1,825, 343; Jamison v. Smith, 4 Mo. 202.) A wife cannot be joined with her husband as defendant in ejectment, merely for the reason that she lived with him upon the premises. (Meegan v. Gunsollis, 19 Mo. 417.) And if a female, in an action of ejectment, marries while the case is pending, the plaintiff is not bound to make the husband a party, unless 22O FORMS OF COMPLAINTS. the latter applies to be made such. (Evans v. Greene, 21 Mo. 170.) A mortgagee may maintain ejectment against the mortgagor or those claiming under him. (Valcop v. McKinney, 10 Mo. 229.) One will not be allowed to recover property under a deed which does not include within its description the property claimed, although the party under whom he claims, holding by a deed with a similar description of the premises, may have acquired title by adverse possession or in some other manner. (Menkins v. Blumenthal, 19 Mo. 496.) An executor or administrator, as such, cannot maintain ejectments for lands of which the testator or intestate died seized. (Burdyne v. Mackey, 7 Mo. 374.) Ejectment cannot be maintained against a minor upon the possession of his guardian. Spitts v. Wells, 18 Mo. 468. 29. Mortgage. The mortgagee will not be permitted to set up an adverse possession to bar the rights of the mortgagor. (Gordon v. Hobart, 2 Sumn. 401; compare Dexter v. Arnold, 2 Id. 152.) Nor is the possession of the mortgagor adverse to the rights of the mortgagee. (Higginson v. Mein, 4 Cranch, 415; see, also, Connor v. Whitmore, 52 Me. 185;) where it is held a mortgagor cannot maintain ejectment against a mortgagee in possession. But after forfeiture the mortgagee may maintain ejectment. (2 Ohio, 223; 3 Scam. 203; 30/77. 224.) In California, the practice is to foreclose the mortgage and sell the property, and mortgagee cannot maintain ejectment until he has a sheriffs deed. A bare mortgage of the premises will not sustain such action, under the rule that a mortgagee cannot bring ejectment for the mortgaged premises. (See Sahler v. Signer, 37 Barb. 329.) That no action of ejectment shall be maintained by a mortgagee, applies to one who holds by a conveyance, absolute upon its face, but really given to secure a debt. (Murray v. Walker, 31 N.Y. 399.) The title of a mortgagee in possession after condition broken, is not divested by a sale on a judgment against the mortgagor, so as to allow a recover}' in an action of ejectment by a purchaser at such sale. It is otherwise, 'how- ever, if the mortgagee never took possession. Hall v. Tunnell, i Houst. 320. 30. Ouster. The averment of wrongful withholding is equivalent to averment of an" ouster. (Marshall v. Shatter. 32 Cut. 176.) And the ouster must be alleged subsequent to the date of plaintiff's title. (Coryell v. Cain, 16 Cat. 567.) But the complaint need not state the exact time of the alleged ouster, especially where no claim is made for damages, and no recovery had for them the allegation in this case, as FOR REAL PROPERTY. 221 to time of ouster, being "on or about , 18. .." (Collier v. Corbett, 15 Cal. 183.) The date of the ouster need not be alleged. (Woodward v. Brown, 13 Pet. i.) The date is only material with ref- erence to mesne profits. (Stark v. Barrett, 15 Cal. 361.) Under an allegation of an ouster, a holding over may be shown. (Garrison v. Sampson, 1 5 Cal. 93.) In an action against plaintiffs co-tenant, it is sufficient for the plaintiff to show that the defendant's entry into posses- sion was under a claim hostile to the rights of the plaintiff. (Clason v. Rankin, i Duer, 337.) To enable the plaintiff to recover on prior possession, he must allege and prove an actual ouster. (Watson v. Zimmerman, 6 Cal. 46.) Under an allegation of an ouster, a holding over may be shown. (Garrison v. Sampson, 15 Cal. 93.) As to allega- tion of ouster being necessary for a recovery, see Lawton v. Gordon, Cal. Sup. Ct., Apl. 7\, 1869. 31. Overflowed Lands. A grant of land under water, for the purpose of erecting a wharf thereon, is not an easement. The right to build a wharf and take tolls is an easement. But as incident to this right, a grant of the use and occupancy of a strip of overflowed land conveys an estate in the land which authorizes the grantees to take possession, occupy, and control it for the purposes of the grant. It is something of which they could be dispossessed, and, if ousted, ejectment would lie. (See St. Lawrence R.R. Co. v. Valentine, 19 Barb. 487.) Where a right of entry existed, and the interest is tangible so that pos- session could be given, ejectment would lie. (See Jackson v. Buel, 9 Johns. 298; Jackson v. May, 16 Id. 184: Co. Litt. 5; i Tyler, 335; 2 Yeates, 333; Peoples v. Mauran, 5 Den. 389; Adams on Eject. 18; 2 Bac. Abr. 4-17; i M. & W. 210; 15 Barb. 357; cited in Frisbie v. McClernin, Cal. Sup. Ct., Jul T., 1869.) So, though it will not lie for a water course, yet it will lie for the ground over which the water passes. Yelv. 143. 32. Owner. The allegation that the plaintiff " is the owner " of the land is in substance an allegation of seizin in fee, in " ordinary " instead of technical language. Garwood v. Hastings, Cal. Sup. Ct., Jul. T., 1869; citing Payne v. Treadwell, 16 Cal. 242, 244. 33. Parties Plaintiff At the common law the grantee of the reversion could not enter or bring ejectment for breach of the covenants of a lease. (Sheets v. Shelden's Lessee, 2 Wall. U.S. 177.) In Ohio, a wife, under a decree giving her the use of a house and lot for alimony, 222 FORMS OF COMPLAINTS. may recover the possession in an action of ejectment. ( Wright, 205.) Even in case of a naked trustee, in general the Court will not go behind the naked legal title and inquire into the equities. A trustee may recover in ejectment against the cestui que trust. (5 Gilm. 236; 31 ///. 468.) A petitioner in insolvency may maintain ejectment to recover the homestead. Moore v. Morrow, 28 Cat. 551. 34. Parties Defendant. An action of ejectment to recover land in the possession of an employee, should be brought agairist the employer. (Hawkins v. Reichert, 28 Cal. 534.) In ejectment one or several defendants may be sued. Ellis v. Jeans, 7 Cal. 499. 35. Pennsylvania. The common law remedy by ejectment, as a means of compelling specific performance, is not taken_away in Penn- sylvania by the grant of equity powers to the courts of common pleas. (Corson v. Mulvany, 49 Penn. 88.) The grant of land by the govern- ment passes at once to the grantee the legal possession as well as the title, which continues until he is disturbed by an actual adverse possession. (8 Cranch, 229; Potts v. Gilbert, 3 Wash. C. Ct. 475.) As to effect of paying taxes or of omitting to pay taxes and buying in at a tax sale, see Girard v. City of Philadelphia, 2 Wall. jr. C. Ct. 301; Ewing v. Burnett, n Pet. 41; i Mcl^an, 266; Wilkes v. Elliot. 5 Cranch, 611. 36. Possession by Plaintiff! A complaint which shows that the plaintiff is in possession, is bad on demurrer. 2 Cai. 335; Taylor v. Crane, 15 How. Pr. 358; see, also, Hulce v. Thompson, 9 Id. 113; Budd v. Bingham, 18 Barb. 494; Frost v. Duncan, 19 -Id. 560. 37. Possession by Defendant. The burden of showing five years' adverse possession is on the defendant. The plaintiff having shown title, the possession is presumed to follow the title. (Garwood v. Hastings, Cal. Sup. Ct., Jul. T., 1869.) If it be shown that defendant was in possession before and after suit, plaintiff need not show him to be in possession on the day suit is brought. (Doe v. Roe, 30 Ga. 553.) It would seem that in Wisconsin, it is not necessary to allege that defendant is in possession at the time of the commencement of the action. (Herrick v. Graves, 16 Wis. 157.) The possession by the defendant is an issu- able fact, and its possible rightful character need not be negatived. (Payne v. Treadwell, 16 Cal. 244.) And a continued adverse holding must be shown. Steinback v. Fitzpatrick, 12 Cal. 295. 38. Possession as Evidence of Title. (See Hicks v. FOR REAL PROPERTY. 223 Davis, 4 CaL 69; Plume v. Seward, 4 Id. 94; Murphy v. Walling- ton, 6 Id. 649; Wolf v. Baldwin, 19 Id. 314; Dyson v. Bradshaw, 23 CaL 537; Hutchinson v. Perley, 4 Id. 33; Bird v. Lisbros, 9 Gz/. i; Norris z>. Russel, 5 Gz/. 249; Sac. Vail. R.R. Co. v. Moffatt, 7 Gz/. 577.) So of agricultural land, as against a trespasser. (Burdge ?'. Smith, 14 Cal. 380.) That the possession of real property raises the presumption of title in the possession, see (Bernal v. Gleim, 33 Cal. 668.) It is evidence of seizin in fee. (Keame v. Cannovan, 21 Cal. 291.) And the possession of the grantor under whom the plaintiff claims inures to the benefit of such plaintiff. (Rose v. Davis, n Cal. 133.) But it must be an actual bona fide occupation or possessio pedis, and not a mere assertion of title and the exercise of casual acts of ownership such as recording deeds, paying taxes, etc. (Plume v. Seward, 4 Cal. 94.) Nor by insufficient fencing without actual occupation. (Borel v. Rollins, 30 Cal. 408.) But the fact that a person is in the possession of one acre does not raise any presumption that he has title to an unlimited tract in the same neighborhood. Havens v. Dale, 18 Cal. 359. 39. Possession as Notice of Title. Open and notorious possession of land, existing at the time of the acquisition of title or deed of the subsequent vendee, is evidence of notice to him of title, even though the first vendee have an unrecorded deed for it. (Hunter v. Watson, 12 Cal. 363.) And this rule applies as well to any other title consistent with the possession. (Partridge v. McKenney, 10 Cal. 181; Havens v. Dale, 18 Cal. 359; Woodson v. McCane, 17 Id. 298; see, also, Lestrade v. Earth, 19 Cal. 660; Dutton v. Warschauer, 21 Cal. 609; Fair v. Stevenot, 29 Cal. 486.) So, such possession by a tenant is sufficient to put the purchaser upon inquiry as to the landlord's title. (21 Cal. 609; Landers v. Bolton, 26 Cal. 393.) The possession of the grantor is that of the purchaser. (Ellis v. Jeans, 7 Cal. 409.) A purchaser of the legal title has notice of the equity of another in possession. Bryan v. Ramuriez, 8 Cal. 461; see, also, Morrison v. Wilson, 13 CaL 494. 40. Property in Another. When parties assert, either by declaration or conduct, the title to the property to be in othe^, the statute of course cannot run in their favor, and their possession is not adverse. McCracken v. City of San Francisco, 16 CaL 591. 41. Public Lands. To constitute adverse possession on public lands, it is sufficient if the party in possession claims against all the 224 FORMS OF COMPLAINTS. world, except the United States. It is not necessary that he possesses under color of title. (Page v. Fowler, 28 Cal. 605.) But the pre- tended possession of land with an insufficient inclosure, but without actual occupancy, will not establish adverse possession. (Borel v. Rol- lins, 30 Cal. 408.) But one claiming to have acquired a title to land by adverse possession of five years, need only show that such possession was held by an inclosure, and need not prove occupation, cultivation, or use of the premises. Polack v. McGrath, 32 Cal. 15; Ewing v Bur- nett, ii Pet. 41; affirming S.C., i Mcl^ean, 266; and see Watkins v. Holman, 16 Pet. 25. 42. Rents and Profits. Where rents and profits are claimed, the complaint must state the title of the plaintiff as existing at some prior date and continuing up to the commencement of the action, and the entry of the defendant at some date subsequent to that of the alleged title. (Payne v. Treadwell, 16 Cal. 248.) He is entitled to damages measured by the value of the rents and profits up to the time the judg- ment is rendered. (Love v. Shartzer, 31 Cal. 487; Rich v. Maples, 33 Cal. 102.) But the rents and profits must be shown by the complaint to be connected with, and arising out of the wrongful withholding of possession; (Tompkins v. White, 8 How. Pr. 520;) and are limited to such as accrue subsequent to the ouster alleged. (Yount v. Howell, 14 Cal. 465;) or subsequent to the accruing of his right of possession. (Clark v. Boyreau, 14 Cal. 634.) But in an action to recover posses- sion of land on a title acquired by sheriff's sale and deed thereunder, the plaintiff cannot recover the rents and profits accrued during the period allowed for redemption; (Clarke v. Boyreau, 14 Cal. 634; Henry v. Evarts, 30 Cal. 425;) as the right depends upon title. An allegation of the value of the use and occupation, rents and profits of the premises for the period during which defendants were in the wrong- ful possession and excluded plaintiff, is sufficient to charge defendants, without any averment that they received such rents and profits. Patter- son v. Ely, 19 Cal. 28; see, further, Note 55. 43. Rents and Profits, Demand for. In Ohio, the demand for rents and profits is deemed a separate cause of action, and should be separatfly stated. (See Swan on PL 444; Ohio Code, 559, 564; McKinney v. McKinney, 8 Ohio, 423.) So in New York. (Holmes v. Davis, 21 Barb. 265.) A demand of damages for the ouster does not cover them. (Livingston v. Tanner, 12 Barb. 481.) In California, when they are claimed in an independent suit, the record of recovery FOR REAL PROPERTY. 225 in ejectment is^ as to the title, only evidence of the right of possession of the plaintiff at the commencement of the action in which the recovery was had. (Yount v. Howell, 14 Cal. 465.) The Legislature has no power to enable another person, who has no title, to recover from the persons entitled to the possession, the rents and profits of the land. Rich v. Maples 33 Cal. 102. 44. Rents and Profits Right to. The right to mesne profits is a necessary consequence of the recovery in ejectment. (Benson v. Malsdorf, 2 Johns. 369; Jackson v. Randall, u Id. 405; Baron v. Abeel, 3 Id. 481.) But defendant is only to be held liable for the time he was in possession, in fact, or in judgment of law. (Byers v. Wheeler, 4 Hill & D. Supp. 389.) And the measure of dam- ages in such action is that which would obtain in assumpsit for use and occupation. (Holmes v. Davis, 19 N.Y. 488.) Under our practice (California), it is competent for the plaintiff to recover real property, with damages for withholding it, and the rents and profits, all in the same action, and as one cause of action. (Sullivan v. Davis, 4 Cal. 291.) And if plaintiff is in possession of a portion of the land, damages may be assessed for the use of the entire tract. (Ellis v. Jeans, 26 Cal. 272.) And damages may be awarded on a default. Dimick v. Campbell, 31 Cal. 238. 45. Right of Possession. To maintain ejectment, a right of entry and possession is all that is required. A contrary doctrine would defeat the policy in view of which pre-emption rights were conceived, by put- ting the settlement and improvement of the pre-emptioner at the mercy of any stranger who might choose to trespass upon them. (To- land v. Mandell, Cal. Sup. Ct., Jul. T., 1869.) A mere naked fee does not always warrant a recovery in ejectment. The plaintiff must prove the right to the possession. (Scales' Treat., etc., Stat. of III. 214; n 777. 547; 13 HI. 251; 13 ///. 239; 25 777. 537; 13 Wis. 474; 35 In - 265 ; City of Cincinnati v. White, 6 Pet. 431.) But if no adverse title be shown, recovery may be had without showing the right of possession, or an entry, or a right of entry in his lessor. (Wilkes v. Elliot, 5 Cranch C. Ct. 6n.) Even if the deed of such grantor purporting to convey was fraudulent. (Gregg v. Sayre, 8 Pet. 244; Wright v. Matti- son, 1 8 Hmv. U.S. 50.) The right to the possession depends upon title. So, when the vendor's title expires, his right to possession also expires. So held in a case where vendor sued to eject the purchaser, who set up title under the Homestead Law to Government lands, the plaintiff in the 15 226 FORMS OF COMPLAINTS. action claiming right of possession only. If the defendant was estopped by reason of the contract of sale from setting up title, the plaintiff, by admitting he had.no title, will not be admitted to setup the estoppel to show that his admission was untrue, as it would then be an estoppel against an estoppel, "which settleth the matter at large." Holden v. Andrews, Cat. Sup. Ct.Jul. T., 1869. 46. Seizin in Fee. Under an allegation of seizin in fee of the premises, plaintiff may recover, if he show any interest entitling him to possession. (Stark v. Barrett, 15 Cal. 361.) And from seizin in fee, and of possession by defendant when established, the law implies a right to the present possession. (Payne v. Treadwell, 16 Cal. 220; Salmon v. Symonds, 24 Cal. 255.) But the presumption may be rebutted by proof of an equitable title in another of the character to carry the right of possessson. ( Willis v. Wozencraft, 2 2 Cal. 607.) To sustain an action of ejectment, an averment of seizin is essential, and must be alleged to have been within the time limited for bringing the action. (Brockee z'. Crosby, 2 Paine 432 ; Salmon v. Symonds, 24 Cat. 266.) A variance between the alleged seizin and right of possession of plaintiff, and the date of the conveyance to him, is immaterial. Stark v. Barrett, 15 Cal. 361. 47. Settlers upon Public Land. Persons having settled in person upon the public land, improved it, and erected dwelling houses thereon, are lawfully in possession, have a right to be protected in it, and if ousted may sue to recover it. To maintain ejectment, a right of entry and possession is all that is required. (Payne v. Treadwell, 5 Cal. 310; Yount v. Howell, 14 Id. 468; Grady v. Early, 18 Id. 108; Hub- bard v. Barry, 21 Id. 321; Bullock v. Wilson, 2 Port. (Ala.) 437; Masters v. Eustis, 3 Id. 391; Goolib v. Smithson, 5 Id. 345; cited in Toland v. Mandell, Cal. Sup. Ct.,July T., 1869.) A settler on public land, if ousted after the lapse of a reasonable time within which to improve it, can recover against the person in possession, by showing an actual, notorious, prior possession. (Staininger v. Andrews, 4 Nev. Rep. 59.) Where he shows that he first entered upon it, marked out the bound- aries, and diligently proceeded, or diligently made preparations to do such acts as were necessary to constitute an actual possession, he will be entitled, even without showing an actual possession, to recover against a person subsequently entering. Staininger v. Andrews, 4 Nev. 59. 48. Settler, Complaint by. Where the complaint alleged that in FOR REAL PROPERTY. 227 September, 1849, plaintiff settled on a tract of land, "the same being public land of the United States;" that subsequently, H., a foreigner, built a house and occupied a portion of the tract, and now that H.'s ex- ecutor is offering the same for sale, and plaintiff prays for an injunction, and damages for the occupation: Held,\ha.\. the complaint does not state facts sufficient to constitute a cause of action. (O'Conner v. Corbett, 3 Cal. 371.) That at a certain time the party received a deed of a tract of land, and from that time forward continued in the actual, exclusive, adverse, and notorious possession, and had the same protected by a sub- stantial inclosure, is an adverse possession. Vassault v. Seitz, 31 Cal. 225. 49. Statute of Limitations. The Statute of Limitations distin- guishes between an entry made without any right or claim of right, and one made under a claim or color of title. The naked disseisor is regarded with the greater disfavor, and his possession is strictly to the land in his actual exclusive possession, co-extensive with his metes and bounds. ( Walsh v. Hill, Cal. Sup.jCt., Oct. T., 1869.) Peaceable and uninterrupted possession for seven years, under a grant or deed of conveyance, gives a complete title to a person in possession. (Piles v. Bouldin, n Wheat. 325.) And a naked trespasser for seven years is not a bar to the action. (Patton v. Hynes, i Cooke, 357.) But a connected title need not be shown. (Green v. Neal, 6 Pel. 291; overruling Patton v. Easton, i Wheat. 476; Walker v. Turner, 9 Id. 541; and Powell v. Harman, Pet. 241.) The possession of one having no title, but holding by consent of another, may be connected with the title of such other. (Mclver v. Reagan, i Cooke, 366.) Under the statute of. Kentucky, an adverse possession under a survey previous to patent, may be connected with possession under the patent. (Walden v. Gratz, i Wheat. 292.) So, a party entering into possession of land under a patent, but not showing a paper title to any particular portion, is deemed as claiming to the abuttals of the patent against other parties not then in seizin or possession. 2 Marsh, 18; i Id. 376; Clarke v. Courtney, 5 Pet. 319. 50. Stipulation by Attorney. If the attorneys of the parties stipulate in writing that one of the defendants consents to a reference, and that plaintiff will within five days execute to defendant a deed to a part of the land in controversy, such stipulation gives to defendant an equitable title to the land named, although judgment in the action is for the plaintiff. Killeyz>. Wilson, 33 Cal. 691. 228 FORMS OF COMPLAINTS. 51. Sufficient Allegations. Where the complaint alleges that the plaintiff "is the owner, and entitled to the possession of the land,' "that defendant is in possession of said lot of land without any right or title thereto, and against the will and without the consent of the plaintiff," that said defendant wrongfully withholds the possession of said lot of land from the plaintiff, it is sufficient. That the plaintiff is the owner is in substance an allegation of seizin in fee, in " ordinary" instead of technical language, as is permitted by 39 of the Practice Act. Payne v. Treadwell, 16 Cal. 242, 244; followed in Garwood v. Hastings, Cal. Sup. C/., July T., 1869. 52. Sufficient Complaint. Where the complaint avers: Frst, That the plaintiffs are the owners in fee, as tenants in common, of the premises. Second, That the defendants are in possession of the same, and withhold the possession thereof from the plaintiffs; it is sufficient. All beyond these averments is immaterial. Payne v. Treadwell, 1 6 Cal. 247; Haight v. Green, 19 Cal. 113; Ensign v. Sherman, 14 How. Pr. 439; Walters. Lockwood, 23 Barb. 228; Landers v. Leavy, 16 How. Pr. 308. 53. Tax Title. No title can be derived from a tax sale where the tax was levied against the buyer, whose duty it was to pay it. (McMinn v. Whelan, 27 Cal. 300; Kelsey v. Abbott, 13 Cal 609; Moss v. Shear, 25 Cal 38; Coppinger v. Rice 33 Cal 425; followed in Garwood v. Hastings, Cal Sup. Ct.Jul T., 1869. 54. Tenants in Common. Tenants in common are in posses- sion of all the land held in common, and each and every one of them has the right to enter upon and occupy the whole of the common lands, and every part thereof. (Carpenter v. Webster, 27 Cal. 545 cited in Tevisz>. Hicks, Cal. Sup. Ct.,Jul. T., 1869.) Their occupation shall be, by law between them, in common. (2 Bouviers Inst. 314.) So, one tenant in common can recover possession of the entire premises, as against a mere trespasser. (Treat z>. Reilly, 35 Cal. 129; Hardy v. Johnston, i Wall U.S. 371; Sharon v. Davidson, 4 Nev. 416; also Rowe v. Bac- cigalluppi, 21 Cal. 633.) In Tennessee, the practice has been for the tenants in common in ejectment to declare in a joint demise, and to recover a part or the whole of the premises, according to the evidence. (Poole v. Fleeger, n Pet. 185; affirming Fleeger v. Poole, i McLean, 185.) Tenants in common cannot join in an action of ejectment in Missouri. Dube v. Smith, i Mo. 313; Watherz/. English, Id. 746. FOR REAL PROPERTY. 2 29 55. Tenants in Common Damages. Where a party after taking possession wrongfully, became a co-tenant of the plaintiff, the plaintiff cannot recover damages for the period while he was wrong- fully in possession as co-tenant. (Carpentier v. Mendenhall, 28 Cal. 484.) But a tenant in common who is ousted by his co-tenant, may recover damages from the time of the ouster according to his right. (Id.; see 2 Ohio no.) Where the plaintiff is owner of an undivided half interest, and the defendant, a naked trespasser, purchased an undivided interest after the commencement of the action, plaintiff can recover the value of one half of the rents and profits, including those resulting from the improvements placed on the land by the defendant during the period of wrongful possession. Carpentier v. Mitchell, 29 Cal. 330. 56. Termination of Plaintiff's Title Pending Suit. Where the plaintiff shows a right to recover at the time the action was com- menced, but it appears that his right has terminated during the pen- dency of the action, the verdict and judgment shall be according to the fact; and the plaintiff may recover damages for withholding the prop- erty. (Cal. Pr. Act, 256; Moore v. Tice, 22 Cal. 513.) This provi- sion of the statute applies to all cases where the plaintiffs title from any cause ceases to exist before trial, and is not confined to cases in which the title expires by limitation. (Lang v. Wilbraham, 2 Duer, 171.) The death of the wife, after suit brought by the husband for the homestead, defeats the action. (Gee v. Moore, 14 Cal. 472.) But the sale of the premises during the action is but a transfer of the cause of action. (Moss v. Shear, 30 Cal. 469.) Though where plaintiff's title ex- pired before judgment, if he is entitled to mesne profits he may have judg- ment so as to enable him to recover them. Jackson v. Davenport, 18 Johns. 295. 57. Title. A plaintiff must recover on the strength of his own title, and not on the weakness of the defendant's. (Woodworth v. Ful- ton, i Cal. 295; Stanford v. Maugin, 30 Ga. 355; Turner v. Albridge, i Me All. 229; Sahler- v. Signer, 37 Barb. 329;' Brady v. Hennison, 8 Bosw. 528; State v. Stringfellow, 2 1 Kansas 2 63 ; Seabury v. Field, i Me All. i.) And upon his title as it was when the suit was commenced. A subsequently acquired deed will not aid him. (25 ///. 537; i Black. U. S. 459; 35 ///. 265; 13 ///. 251.) For exceptions to the maxim that the plaintiff must recover upon the strength of his own title and not upon the weakness of his adversary's, see (Macklot v. Dubrueil, 9 Mo. 473.) This rule has no application to mining claims. 'Richard- 230 FORMS OF COMPLAINTS. son v. McNulty, 24 Cal. 339.) The plaintiff must show title in himself before the ouster laid in the complaint. (Buxton v. Carter, 1 1 Mo. 481.) A legal subsisting title outstanding in another is inconsistent with the title in the plaintiff, and must defeat him. See Puterbaugh's PL & Pr. (HI.); citing 23 III. 75; 4 Gilm. 15; 159 ///. 540: 25 ///. 277. 58. Title and Prior Possession. Where a party relies on documentary title and prior possession, if he fail in the former he may still rely upon the latter. The failure to prove the proper title does not impair the just force and effect of the possession. Morton v. Folger, 15 Cal. 275. 59. Title, Allegations of. The title of the plaintiff is the ultimate fact, the fact in issue upon which the recovery must be had in ejectment. Marshall v. Shafter, 32 Cal. 176; Payne v. Treadwell, 16 Cal. 243.) And must be alleged in the complaint. (Bass v. Steele, 3 Wash. C. Ct. 381; Gray v. James, Pet. C. Ct. 476.) It may be averred in general terms, but if he attempts to set forth a specific deraignment, he must aver every fact required to be proved in order to recover. (Castro v. Rich- ardsorv, 18 Cal. 478.) And he will be confined in the proof to his pleadir%. (Eagan v. Delaney, 16 Cal. 85; Coryell v. Cain, Id. 567.) An allegation that on a day named the plaintiff "was possessed of" certain lands therein described, which said premises the plaintiff claims in fee simple absolute, is an allegation of title in fee simple absolute. (Marshall v. Shafter, 32 Cal. 176.) The allegation of possession at the time of the ouster complained of is a sufficient allegation of title. (Hutchinson v. Perley, 4 Cal. 33; approved in Winans v. Christy, Id. 78; Sacramento V. R.R. v. Moffatt, 7 Id. 579; Naglee v. Macy, 9 Id. 427.) So, an averment of prior possession and ouster are sufficient. Boles v. Cohen, 15 Cal. 150; Norris v. Russel, 5 Cal. 249. 60. Title, Equitable. Ejectment cannot be maintained upon an equitable title. (O'Connell v. Dougherty, 32 Cal. 458; Seaton v. Son, 32 Cal. 481.) A mere equitable title to land does not enable the owner to maintain an action to recover possession thereof. Although the Code (N. Y.) has abolished the distinction between actions at law and suits in equity, so far as regards forms, the rules by which the rights of parties are to be determined remain unchanged; and, in an action against a stranger in possession, the plaintiff can only recover on his legal title. (2 T. R. 684; 5 East. 132; 2 Johns. 221; / 5 Cal. 87.) And where title to land rests in possession only, the prior possessor has the better title. Ayres v. Bensley, 32 Cal. 620. 101. Prior Possession. Prior possession will prevail in eject- ment over a subsequent one, obtained by mere entry, without any lawful right. (Buckner v. Chambliss, 30 Ga. 652.) A locator on public land, who shows that he first entered upon it, marked out the boundaries, and diligently proceeded to, or diligently made preparation to do such acts as were necessary to constitute an actual posession, will be entitled, even without showing an actual possession, to recover against a person subsequently entering. (Stain inger v. Andrews, 4 Nev. Rep. 59.) Where the plaintiff has documentary title, aided and accompanied by possession, and the defendant is a mere trespasser, the plaintiff is entitled to recover on prior peaceable possession alone. (16 Pet. i; 1 8 How. U.S. 497; 14 Hmv. U.S. 281; Grady v. Early, i Cal. 18; Id. 421.) Possession isprima facie evidence of title. Hutchinson v. Perley, 4 Cal. 33; Hutchinson v. Perley, Id. 67; Winans v. Christy, ' Id. 70; Bequette v. Caulfield, Id. 278. 102. Prior Claim to Water. Possession or actual appropria- tion is the test of priorty in all claims to the use of water, where such cJlaims are dependent upon the ownership of the land through which the water flows. Kirrxball v. Gearhart, 12 Cal. 27 FOR REAL PROPERTY. 245 103. Prior Possession of Grantor. If one who has not been in the actual possession of land claims title on the ground of prior pos- session, he must not only show the conveyances of his grantors, but must show that they were in actual possession and occupation of the land. Borel v. Rollins, 30 Cal. 408; Lawrence v. Fulton, 19 Cal. 683. 104. Title by Prior Possession. Actions of ejectment do not affect the title to the property, but the possession. (Long v. Neville, 29 Cal. 131.) It is confined to cases where the claimant has a posses- sory title, or a right of entry upon the lands. (Payne v. Tread well, 5 Cal. 310.) And the right to possession, as between the parties, is alone tried. (Marshall v. Shafter, 32 Cal. 176.) An action can be main- tained upon any title, legal or equitable, or upon an instrument, sealed or unsealed, which entitles plaintiff to the possession of the property in dispute, as against the defendant; but this refers to proceedings in equity. (Ortman v. Dixon, 13 Cal. 33.) In ejectment, plaintiffs may rely on prior possession, and the legal title is not necessarily involved. (Grady v. Early, 18 Cal. 108.) It is sufficient evidence of title to support the action. (Nagle v. Macy, 9 Cal. 426.) Title therefore by prior possession may be alleged, but he must, in connection there- with, allege an entry and ouster. (Norris v, Russel, 5 Cal. 249; Boles v. Cohen, 15 Cal. 150; Payne v. Treadwell, 16 Cal. 220.) And a continued adverse holding by the defendant. Boles v. Cohen, 1 5 Cal. 150; Garrison v. Sampson, Id. 93; Steinback v. Fitzpatrick, 12 Cal. 295. 105. Title by Limitation. Adverse possession for five years gives a title to the land. (Le Roy v. Rogers, 30 Cal. 229; Simpson v. Eckstein, 22 Cal. 580.) But possession for five years, unless it is either admitted or found as a fact to be adverse, will not presume a title. (Sharp v. Daugney, 33 Cal. 505; Stillman v. White Rock Manf. Co., 3 Woodb. & M. 538.) In Illinois, a person in actual possession under claim or color of title in good faith for seven years, and during all that time paying all taxes, shall be adjudged legal owner. (Russel v. Bar- ney, 6 McLean, 577; compare Wright v. Mattison, 18 How. U.S. 50.^ When parties enter without title or claim or color of title, such occu- pation is subservient to the paramount title, as title must be somewhere. (i Graff. 605; Sharp v. Daugney, 33 Cal. 505; Harvey v. Tyler, 2 Wall. U.S. 328.) As to the Rule in Connecticut, see (Stillman v. White Rock Manf. Co., 3 Woodb. & M. 538.) In Delaware, an action of ejectment cannot be maintained against a mere trespasser on the 246 FORMS OF COMPLAINTS. ground of possession alone, unless the possession has continued twenty years. (Jefferson v. Howell, i Houst. 178.) For the Statutes of t Lim- itation of the various states, see Adams on Ejectment, p. 43, et seq. No. 446. vi. By the Tenant. [TITLE.] The plaintiff complains, and alleges: I. That one A. B. is the owner in fee simple of a piece of land in the Township of , County of , bounded as follows: [describe the land.~\ II. That on the day of , 1 8 . . , the said A. B. let the said premises to plaintiff, for years, from III. That the defendant withholds the possession thereof from the plaintiff. [Demand of Judgment. ,] 106. Action Will not Lie. In an action of ejectment, if the plaintiff count upon a lease to himself from a person whom the evidence shows to have been dead at the time, it is bad. Connor v. Brady, i Haw. U.S. 211. 107. Expired Lease. Where the lease under which ejectment is brought has expired before trial, no recovery can be had without amendment. (Roe v. Doe, 30 Ga. 608:) Land was conveyed in fee, reserving a rent charge with a right of re-entry for non-payment. The grantor died, leaving six heirs. Held, that one of said heirs could main- tain ejectment for one-sixth of said lands for non-payment of rent, without joining the others. Cruger v. McClaughry, 51 Barb. 642. 108. Personal Representatives. The personal representatives of a lessee for years, or his assignee, have an estate in the land, and are entitled to its possession, and may maintain ejectment. ( Williams on Ex. 748; 4 Co. 95; i Ventr. 30; 3 T. R. 13; Roscoe on Actions, 545; FOR REAL PROPERTY. 247 1 6 Eng. Com. L. R. 115; Mosher v. Yost, 33 Barb. 277.) A plaintiff in ejectment, who claims under two leases, cannot recover when one lessor has conveyed his legal title and the other lessor is barred by a former recovery. Dearmond v. Roe, 30 Ga. 632. 109. Possession by Tenant. A party entering under a lease with bounds, or under a deed, gains a possession only to the extent of the boundaries of the lease or deed. Where the tenant is settled on a patent with intent to gain possession, without limits or bounds, it was held that the landlord's possession thereby obtained extended to the lines of the patent. (Lee v. McDaniel, i A. K. Marshall, 234; Owings v. Gibson, 2 Id. 515.) But an alienee entering upon lands with bounds gains a possession only to the extent of his bounds. (Mawry v. Waugh, 1 A.K.Marshall, 452; Owings v. Gibson, 2 Id. 515; Jones v. Chiles, 2 Dana, 25; Wickliffe v. Ensor, 9 B. Monr. 258.) If the landlord himself enters and is ousted by an intruder, he may recover to the boundaries of his deed, while the tenant, if ousted, can recover only to the boundaries of his lease. Walsh v. Hill, Cal. Sup. O., Oct. T., 1869. No. 447. vii. Form in Ejectment tinder the Oregon Code. [TITLE.] The plaintiff complains, and alleges: I. That he is [and for five years last past has con- tinually been] the owner in fee of the parcel of land situated in said County, known and described as Lot .... in Block . . . . , in the City of , in said County and State, and is entitled to the possession thereof. II. That said defendant wrongfully withholds [and for one year and three months last past has continued wrongfully to withhold] the same from him, said plaintiff, to the said plaintiff's damage in the sum of dollars. [ Dema nd of Judgment. ] 248 FORMS OF COMPLAINTS. 110. Oregon. The Practice Act of Oregon specially directs the substance of the complaint in actions for the " recovery of the posses- sion of real property." (Oregon Code, p. 226.) Oregon Code, 315, is as follows: "The plaintiff, in his complaint, shall set forth the nature of his estate in the property, whether it be in fee, for life, or for a term of years, or for whose life, or the duration of such term, and^hat he is entitled to the possession thereof, and that the defendant wrongfully withholds the same from him, to his damage, for such sum as may be therein claimed; the property shall be described with such certainty as to enable the possession thereof to be delivered, if a necessary recovery be had." The donee of a land claim may maintain an action under the statute for the recovery of real property at least, against one who shows no title except possession. (Keith v. Cheeney, i Or. 285.) A deed unacknowledged and unrecorded is good between the parties. (Moore v. Thomas, i Or. 201.) And a recorded conveyance of real estate not vitiated by fraud, will have priority in all cases over a convey- ance not recorded. Moore v. Thomas, i Or. 201. No. 448. viii. Form Under the New York Code By Widow, for Dower. [TITLE.] The plaintiff complains, and alleges : I. That the late A. B. was husband of the plaintiff at the time of his death; that he died many years since; and that at the time of his death, and for many years previous thereto, he was seized in fee and in possession of the following described premises [description]. II. That the plaintiff is entitled to one undivided third part thereof for her life, as her reasonable dower. III. That the defendant Y. Z. is in possession of said premises, and wrongfully and unjustly withholds from plaintiff the possession of her said one-third part thereof as her dower. FOR REAL PROPERTY. 249 IV. That the other defendants claim an estate in fee in said premises, as the heirs at law of the said A. B. ; that they are the legitimate children of said A. B. Wherefore the plaintiff demands judgment. 1. That she recover possession of one undivided third part of said premises for her own life, against said defendant Y. Z. 2. That she be declared entitled to one undivided third part thereof for her own life against all the other defendants. 3. That she recover her costs of action. NOTE. This form is applicable to the State of New York, but not to this State, and is taken from Abbott's Forms, No. 624. COMPLAINTS SUBDIVISION SEVENTH, In Actions Concerning Real Property. CHAPTER I. FORECLOSURE OF MORTGAGES AND LIENS. JVo. 449. i. Foreclosure of Mortgage Common Form. [TITLE.] The plaintiff complains, and alleges : I. That on the .... day of , 1 8 . . , at , in this State, the defendant made his prom- issory note, bearing date on that day, in the words and figures following, to wit: [Copy of note.'] II. That the said defendant, to secure the payment of the said principal sum and the interest thereon, as mentioned in said note, according to the tenor thereof, did execute under his hand and seal, and deliver to the said plaintiff, a certain mortgage bearing date the .... day of , 1 8 . . , and conditioned for the pay- ment of the said sum of dollars, and interest thereon at the rate and at the time and in the manner specified in said note, and according to the conditions thereof; which said mortgage was duly acknowledged FORECLOSURE OF MORTGAGES AND LIENS. 25! and certified, so as to entitle it to be reorded, and the same was afterwards, to wit, on the .... day of , 1 8.., duly recorded in the Office of the County Recorder of County of , in Liber of Mortgages, page ; a copy of which said mortgage, with the indorsements thereon, is hereunto annexed, marked "Exhibit A," and made a part of this complaint. III. That the interest on the said principal sum men- tioned in said promissory note, and in the said mort- gage, has been paid down to the .... day of , 1 8.., but nothing more has been paid thereon; and the principal sum mentioned in said promissory note and mortgage, together with interest thereon at the rate of .... per cent, per , from the .... day of , 1 8 . . , has not been paid by said defend- ant. IV. That the plaintiff, on the .... day of , 1 8 . . , or thereabouts, paid on said premises the sum of dollars, for taxes duly assessed thereon, which were a lien and incumbrance upon said premises legally attaching thereto, and no part thereof has been repaid to said plaintiff; and the said sum of dollars, taxes so paid by the plaintiff, and interest there- on at the rate of .... per cent, per , from the .... day of , 1 8 . . , has not been paid by the defendant to the plaintiff. V. That the plaintiff is now the lawful owner of said promissory note and mortgage. VI. That the defendants [here insert names of other claimants and incumbrancers\ have or claim to have some interest or claim upon said premises, or some part 252 FORMS OF COMPLAINTS. thereof [as purchasers, mortgagees, judgment-creditors, or otherwise^, which interests or claims are subsequent to and subject to the lien of the plaintiff's mortgage. Wherefore the plaintiff prays judgment against the said defendant: 1. For the sum of dollars, with interest at the rate of .... per cent, per ...... . . , from the .... day of , 1 8 . . , and for costs of suit. 2. That the usual decree may be made for the sale of said premises by the Sheriff of said County, accord- iug to law and the practice of this Court; that the pro- ceeds of said sale may be applied in payment of the amount due to the plaintiff, and that said defendant and all persons claiming under him, subsequent to the exe- cution of said mortgage upon said premises, either as purchasers, incumbrancers, or otherwise, may be barred and foreclosed of all right, claim, or equity of redemp- tion in the said premises, and every p*art thereof, and that the said plaintiff may have judgment and execu- tion against the said defendant for .any deficiency which may remain after applying all the proceeds of the sale of said premises properly applicable to the satisfaction of said judgment. 3. That the plaintiff or any other parties to the suit may become purchaser of said sale; that the Sheriff execute a deed to the purchaser; that the said pur- chaser be let into the possession 'of the premises on production of the Sheriff's deed therefor; and that the plaintiff may have such other or further relief in the premises as to this Court may seem meet and equitable. . FORCLOSURE OF MORTGAGES AND LIENS. 253 1. Action. In California, there shall be but one action for the recovery of any debt, or the enforcement of any right, secured by mort- gage upon real estate or personal property. (Cal. Pr. Act, 246.) It is an action for the legal determination of the existence of the lien, ascertainment of its extent, and subjection to sale of the estate pledged for its satisfaction. (Boggs v. Hargrave, 16 Cal. 559; McMillan v. Richards, 9 Cal. 365.) The proceeding for a foreclosure of the equity of redemption as at common law, is unknown to our system. (Good- enow v. Ewer, 16 Cal. 461; McMillan v. Richards, 9 Id. 365.) The owner of the mortgage can in no case become the owner of the prem- ises, except by purchaseupon sale under judicial decree, consummated by conveyance; (Id.;} the surplus after a decree of sale going to the subsequent incumbrancers or the owner of the premises. (Id.} And adverse titles to the premises are not the proper subjects for determina- tion in the suit. (San Francisco v. Lawton, 18 Cal. 465.) In such cases the decree should reserve the right of the adverse claimants, and so limit the relief awarded as to protect those rights. San Francisco v. Lawton, 21 Cal. 589; Elias v. Verdugo, 27 Cal. 418; see, also, Orde v. McKee, 5 Cal. 515. 2. Allegation of Insurance by Plaintiff! That the defend- ant [mortgagor] did not keep the premises insured, but on the con- trary [suffered the insurance to expire on the .... day of ] ; in consequence whereof the plaintiff .caused them to be insured in the Company, of , for the term of , from the .... day of , 1 8 . . , and paid therefor the premium of dollars. 3. Inadequate Security. The allegation should be, that the premises are an inadequate security for plaintiff's demand. Warner v. Gouverneur, i Barb. 36. 4. Bond for Title. At common law, a bond for title is in effect a mortgage. The legal title remains in the vendor, and an equity rests in the vendee. To have the title in compliance with the conditions, and the legal title and equity go to the whole estate, including fixtures, the vendor can bring an action in ejectment, breach of condition, or foreclosure. Merritt v. Judd, 14 Cal. 59. 5. Conditions in Mortgage. The usual conditions in a mort- gage contain no personal obligation to pay the money. The contract is simply that the mortgagor may pay the sum named, which will revest 254 FORMS OF COMPLAINTS. the title in him, or if he fail to do it then the deed becomes absolute at law, though in equity he still has a right to redeem, which right may be cut off by a foreclosure. In such cases the mortgagee is limited to the land for payment, and if that is not sufficient he has no further security. Drummond v. Richards, 2 Munf. 337; 4 Kent's Com. 136; 2 West. Law Jour. 216; Nash's Ohio PI. & Pr. 347. 6. Conflicting Claims. The purchaser in good faith and for value of a mortgage, should not have his rights prejudiced or postponed by a controversy between purchasers of the mortgaged premises, con- cerning the order in which different portions of the premises covered by the mortgage shall be sold under the foreclosure. He is entitled to judgment for foreclosure of sale, without reference to the conflicting claims of owners of the estate. Smart v. Bement, 2 Keyes, 241. 1. Debt Falling Due by Installments. If the debt be not all due, so soon as sufficient property is sold to pay the debt due the sale shall cease, and the Court may order more sold as soon as more of the debt falls due. (Cal. Pr. Act, 248.) But if the property cannot be sold in portions without injury to the parties, the whole may be ordered to be sold in the first instance, and the entire debt and costs paid, with a proper rebatement of interest. (Id.} When a debt secured is payable in installments, the mortgagee or his assignee has a right to bring an action to foreclose the mortgage, when the first installment falls due and is not paid. (Grattan v. Wiggins, 23 Cal. 16.) This is also the practice in Ohio; King v. Longworth, 7 Ohio, 231; Lansings. Capron, i John. Ch. 617; Lyman v. Sale, 2 John. Ch. 487.) A mort- gage given to secure a debt payable by installments may be foreclosed on failure to pay the first installment when due. The bill in such case may set out the amounts not yet due, and if they become due and are not paid before the final hearing they may be included in the deed. Magrudersy. Eggleston, 41 Miss. 284. ^ 8. Defeasance. The difference between an absolute deed and a mortgage consists in the defeasance which is an essential part of the latter. Whatever may be the effect of a parol defeasance in equity, it is cleat that it cannot at law operate as a defeasance of a deed of con- veyance. (Cutler v. Dickinson, 8 Pick. 386; Flagg v. Mann, 14 Pick. 467; Scituate v. Hanover, \6Pick. 222; Flint v. Sheldon, 13 Mass. 443; Eaton v. Grew, 22 Pick. 526; i Wash. Real Prop. 480.) In a bill in equity that avers a deed to have been a mortgage, it is not neces- FORECLOSURE OF MORTGAGES AND LIENS. 255 sary to add that it became so by a defeasance, in order to let m proof of a defeasance. (Bently v. Phelps, 2 Woodb. & M. 403.) Where A. gave to B. a deed of bargain and sale absolute on its face, and as a part of the same transaction, B. executed and delivered to A. an instru- ment in writing, in which he stated that the land had been deeded to him as security for the payment of a promissory note, and the instru- ment recited that moneys received from the sales of the land should be credited on said note, and that when the note was fully paid by the pro- ceeds from the sales of the land, or otherwise, that B. should redeed to A. all the lands first deeded to him, excepting such as may be sold, such a transaction is not intended as a mortgage merely. The instrument relied on as a defeasance amounts to a declaration of trust, and shows the intention to vest the title in B. to enable him to sell and convey the lands. (Vance v. Lincoln, Cal, Sup. Ci., Oct T., 1869.) A mortgage passes the title to the mortgagee, the mortgagor reserving the right to defeat the transfer, and revest the title in himself, by the performance of an express condition subsequent. Brewster v. Hartley, Cal. Sup. Ct., Jan. T., 1869. 9. Demand and Notice. Against a'subsequent purchaser the complaint should allege that the mortgage was recorded, or that de- fendant had notice when he purchased. (Peru Bridge Co. v. Hendricks, 1 8 Ind. n.) But no demand is necessary where a mortgage is payable generally. (Gillett v. Balcom, 6 Barb. 370; Harris v. Mulock, 9 How. Pr. 402.) The English practice seems to be different. ( Whitw. Eq. Prec. 395, Note 7.) Nor is guarantor or surety entitled to notice before commencing suit. Rushmore v. Miller, 4 Edw. 84. 10. Description of Land. Section fifty-eight of the Practice Act, relating to the description of land, does not apply to actions for the foreclosure of mortgages. (Emeric v. Tarns, 6 Cal. 155.) In Indiana, the mortgage, etc., must be made part of the complaint. (Hiatt v. Goblt, 1 8 Ind. (Kerr.) 494.) But in California it is sufficient that the complaint refer to a copy of the mortgage annexed, for a description of the land. Emeric v. Tarns, 6 Cal. 155. 11. Equity Practice. Under the former procedure, if proceed- ings had been had, the complaint should show that the remedy at law had been exhausted, and with what effect. (Shufelt v. Shufelt, 9 Paige, 137; Lovett v. German Reformed Church, 12 Barb, 67;) but proceed- ings at law were not necessarily a bar to the foreclosure. (Williamson v. 256 FORMS OF COMPLAINTS. Champlin, 8 Paige, 70; Suydam v. Bartle, 9 Id. 294.) But the prac- tice is different now; if there have been any proceedings, they are to be set up in defense. Newton v. Newton, 12 Ind. 527. 12. Essential Averment. The complaint should state that the debt was due at the time the action was commenced. Maynard v. Tal- cott, ii Barl. 569; Hare v. Van Deusen, 32 Barb. 92; Smith v. .Holmes, 19 N. Y. 271; McCullough v. Colby, 4 Bos. 603; Watson v. Thibou, 17 Abb. Pr. 184. 13. Estate of Deceased Partner. An action to foreclose a mortgage made by a deceased partner on his separate estate, may be maintained without showing in the complaint that the firm is insolvent, or that mortgagee has pursued his remedy upon the debt against the surviving partner. (Savings and Loan Society v. Gibb, 21 Cal. 595.) In such case, if the surviving partner be executor of deceased, he may be, as an individual, made co-defendant. Id. 14. Executors as Parties Defendant. An action may be maintained against an executor or administrator to foreclose a mortgage upon real estate, executed by his testator or intestate, although the debt secured by the mortgage has been presented and allowed. Fallon v. Butler, 21 Cal. 24. 15. Claims against Estate. The words "claimant" and " claim " are synonymous with the words " creditor " and " legal demand." (Gray v. Palmer, 9 Cal. 616.) The word "claims" does not embrace mortgage liens, but has reference only to such debts or demands against decedent as might have been enforced against him in his lifetime by personal actions, for the recovery of money and upon which only a money judgment could have been rendered. (Fallon v. Butler, 21 Cal. 24.) The word "claim," when it speaks of claims against an estate, is broad enough to include a mortgage. (Ellis v. Polhemus, 27 Cal. 350.) Or a note secured by a mortgage. Id. 16. Infant Defendants. If there are infant defendants, the complaint must state what their interest is, and whether it is paramount or subordinate to the interest mortgaged. Aldrich v. Lapham, 6 How. Pr. 129. 17. Injunction. The Court may, on good cause shown, restrain the party in possession of the mortgaged premises from committing in- FORECLOSURE OF MORTGAGES AND LIENS. 257 jury to the same during foreclosure. (Cal. Pr. Act, 261.) The remedy in such case is only preventive and not exclusive of any other remedy. Sands v. Pfeiffer, 10 Cal. 258. 18. Interest, Averment of. In an action to foreclose a mortgage, an allegation that a party who is made a co-defendant with the mortgagor, has or claims to have some interest in or claim upon the mortgaged premises, is sufficient, without averring the character of the interest. (Anthony v. Nye, 30 Cal. 401.) A general allegation in the complaint that such parties have or claim to have some interest in the property is all that is required. Poett v. Stearns, 28 Cal. 226. 19. Lien of Bondholder. The lien of a bondholder who has lent money to a state, on the pledge of certain property by its legislature, cannot be divested or postponed by a subsequent act of siich legislature. (Trustees of Wabash and Erie Canal Company v. Beers, 2 Black. U.S. 448.) Such bondholder is protected by the clause of the Constitution of the United States, which forbids a state to pass a law impairing the obligation of contracts. (Trustees of Wabash and Erie Canal Co. v. Beers, 2 Black. U.S. 448.) The bondholder does not lose the lien of his first bonds by surrendering or exchanging others of later date and of inferior security for canal stock or other state pledges. (Id.) A suit could be maintained upon the coupons, without production of the bonds to which they had been attached. (Lenox County v. Aspinwall, 21 How. U.S. 539.) A coupon payable to bearer, cut from a bond and owned by one party, while another party owns the bond, is still a lien under a mortgage given to secure the bond, and entitles the holder to share pro rata in the proceeds of said mortgage on foreclosure. Miller v. Rutland and W. R.R. Co., 40 Vt. 399; Arents v. Commonwealth, 18 Grat. (Va.) 750. 20. Material Rights. The action for a foreclosure of a mortgage upon real property is not brought for the possession merely of the property, except as such possession may follow the sheriff's deed, but to subject to sale the title which the mortgagor had at the time of executing the mortgage, and to cut off the rights of parties sub- sequently becoming interested in the premises ; and executors and administrators do not possess the title, but only a temporary right to the possession. Burton v. Lies, 21 Cal. 87. 21. Mortgage a Mere Security. A mortgage is a mere security for the payment of money or the performance of some other 17 258 FORMS OF COMPLAINTS. act, the interest passing to the mortgagee being regarded as a lien upon the real estate. They pass no interest or estate in the land except the lien, and the lien is an incident to the debt or the obligation which is thereby secured. (McMillan v. Richards, 9 Cal. 409.) The definition of a mortgage as known at common law an estate defeasible by the performance of a condition subsequent does not correctly describe that instrument as it is interpreted in this and most of the other states. (Jackson v. Lodge, Cal. Sup. Ct., Oct. T. 1869.) This doctrine is sustained by a decided preponderance of authority. (Jack- son v. Willard, 4 Johns. 41; Hitchcock v. Harrington, 6 Johns. 290; Collins v. Terry, 7 Johns. 278; Coles v. Coles, 15 Johns. 319; Lane v. Shears, i Wend. 433.) And is established in this State by statute. Cal. Pr. Act, 260.) That a deed absolute on its face may be proved to have been intended only as a mortgage is settled in this State. Vance v. Lincoln, Cal. Sup. Ct., Oct. T. 1869. 22. Parties. All persons interested in the mortgaged premises should be made parties; otherwise they will be entitled to redeem, even though the sale was made on the oldest lien. (Nash's PI. and Pr. 346; citing Hughes v. Edwards, 9 Wheat. 489; Madeiras v. Cattell, 7 Monr. 475; Potter v. Crandall, i Clark Ch. R. 119; Renwick v. Macomb, Hopk. 277; Reed v. Marble, 10 Paige. 409; Haines v. Beach, 3 Johns. Ch. 459; see Vol. i., "Parties," pp. 81, 106, 116.) So, an assignee is entitled to foreclose, but the mortgagee is still a necessary party; but if he has conveyed the legal title he is no longer a necessary party. (Newman v. Chapman, 2 Rand. 92; McCuffey v. Finlay, 20 Ohio, 474.) Where the mortgagor has by deed conveyed his equity to another he need not be a party. (Bigelow v. Bush, 6 Paige Ch. 343.) A subse- quent purchaser of land mortgaged is a proper if not a necessary party to a foreclosure suit, and if the complaint be faulty in praying to hold him as trustee of the mortgage on accout of fraud in the purchase, such defect cannot be reached by demurrer. De Leon v. Higuera, 15 Cal. 495. 23. Parties Supplemental. If the real holders of the title are not parties to the decree of foreclosure, a 'court of equity will allow them to be made such by a supplemental complaint, provided application be made within a reasonable time. (Heyman v. Lowell", 23 Cal. 106.) It is only such as have an interest in and under the mortgagor that are necessary parties. The suit is to extinguish his title. (Eagle Fi. Co. v. Lent, 6 Paige Ch. 635.) The action may be maintained by one FORECLOSURE OF MORTGAGES AND LIENS. 259 who is surety for the mortgage debt to compel payment or foreclosure. Marsh v. Pike. 10 Paige, 595; Lawrence v. Lawrence, 3 Barb. Ch. 71; Cornell v. Prescott, 2 Barb. 16; Vanderkemp v. Shelton, n Paige, 28. 24. Power of Sale in Mortgage. Where a mortgage contains' a power of sale, the mortgagee has. his election to foreclose in chancery or to sell under the power. (Cormerais v. Genella, 22 Cal. 116.) Or the mortgagor, with the consent of the mortgagee, may be authorized to sell the premises to pay the debt. (Fogarty v. Sawyer, 17 Cal. 589.) The legal title passess by the sale of the mortgaged premises, but where the mortgagee becomes the purshaser indirectly by having the premises bid off to him, the sale is voidable on application in equity by the mortgagor. (Blockley v. Fowler, 21 Cal. 326.) A deed of trust, the trustee not being the creditor but a third party, given to secure a note, and authorizing the trustee to sell the land at public auction, and execute to the purchaser a deed of the same, upon default of paying the note or interest as it falls due, and out of the proceeds to satisfy the trust gener- ally, and to render the surplus to the grantor, etc., is not a mortgage requiring judicial sale. Koch v. Briggs, 14 Cal. 256. 25. Receiver. The plaintiff has no right to have a receiver of rents and profits appointed during litigation. Guy v. Ide, 6 Cal. 99. 26. Record and Acknowledgment. As against the mort- gagor, the allegation of record and acknowledgment is immaterial and unnecessary, nor that the mortgagor has not conveyed. (St. Mark's Fire Ins. Co. v. Harris, 13 How. Pr. 95.) Except in case of a married woman. Perdue v. Aldridge. 19 Ind. (Kerr.) 290; Culph v. Phillips, 17 Id. 209. 27. Relief in Case of Default. In a foreclosure suit, where judgment is taken by default, the decree can give no relief beyond that which is demanded in the bill. Raun v. Reynolds, n Cal. 14. 28. Sale under Statute Foreclosure. Where the agent employed by the mortgagee to sell property, sold it at a time contrary to instructions given him, and for something less than its value: Held, that the purchaser having bought in good faith without knowledge of the instructions, the courts should not set aside the sale. An attorney acting in such transaction might be treated as acting in his professional character, except where third per- sons are thus affected. (Leet v. McMaster, 51 Barb. 236.) A notice 26O FORMS OF COMPLAINTS. of sale on a statutory foreclosure need not specify that the mortgage will be foreclosed. Leet v. McMaster, 51 Barb. 236. 29. Remedy, Extent of. The party on a bill to foreclose a mortgage is confined in his remedy to the pledge. Such a suit is not intended to act in personam. It seems to be pretty generally admitted that the mortgagee may proceed at law on his bond or covenant at the same time that he is prosecuting his mortgage in chancery; and that after foreclosure he may sue at law for the deficiency. (Ld..Redesdale, i Sch. and I^efr. 176; 13 Ves. jr. 205; Aylett v. Hill, Dickens, 551; Took's Case, Id. 785; 2 Bro. 125; Perry v. Barker. 13 Ves. jr. 198; Dashwood v. Blythway, i Eq. Cas. Abr. 317.) In California, however, judgment may be rendered for the amount found due upon the per- sonal obligation to secure which the mortgage is executed. (Rollins v. Forbes, 10 Cal. 299; Rowland v. Leiby, 14 Id. 156; Englundf. Lewis, 25 Cal. 337.) Parties are at liberty to adopt the course pursued under the old chancery system, and take a decree adjudging the amount due upon the personal obligation of the mortgagor, and directing a sale of the premises, and the application of the proceeds to its payment, and after sale apply for the ascertainment of any deficiency and for execu- tion for the same, or they may take a formal judgment for the amount due in the first instance. Rowland v. Leiby, 14 Cal. 156; Rowe v. Tab. M. Wat. Co., 10 Cal. 441. 30. Right of Surety by Mortgage. The holders of the notes might subject premises mortgaged by D. to the payment of the notes, or might abandon the mortgage and subject the property of the principal in the lands of the mortgagor to the payment of the notes, or they might have the property mortgaged to secure the notes sold, the proceeds applied to their satisfaction, and if any balance remained unpaid, subject the surplus of any property of the principal in the hands of the mortgagor, that might remain after compensating the mort- gagor for loss or damage by the appropriation of his property mort- gaged; but they are not entitled to appropriate both the property mortgaged by the surety, and that conveyed or mortgaged by the principal to the surety for the indemnity of the latter. Van Orden v. Admr. of Est. of Catha- rine Brady, 35 Cal. 136. 31. Separate Debts Secured by one Mortgage. Where separate debts of several persons are secured by one mortgage, either creditor may bring suit to foreclose, but other parties interested must be brought in. Taylor v. Yreka Water Co., 14 Cal. 212. FORECLOSURE OF MORTGAGES AND LIENS. 26 1 32. Severance from. Realty. The severance and removal of a house from land covered by a mortgage withdraws the house from the mortgage lien; and after the removal the mortgagor or his assignee has a right to sell the house, and the purchaser may convert it to his own use. Buckout v. Swift, 27 Cat. 434. 33. Statute of Limitations. Where an action upon a prom- issory note secured by a mortgage of the same date upon real property is barred by the statute, the mortgagee has no remedy upon the mort- gage. That though distinct remedies may be pursued by him, the limi- tation prescribed is the same by both, (19 Pick. 489; Sichel v. Carillo, Cal. Sup. Ct., Apl. T., 1869.) In the older states, where a different time was prescribed in the statutes of limitations for simple contracts and those under seal, an action to foreclose a mortgage was held not to be barred, although the action on the note secured was barred. Thus, in (Elkins v. Edwards, 8 Geo. 326), an-action to forclose a mortgage, the Supreme Court of Georgia say: Because the remedy on the note is barred by the Statute in six years, it does not follow that the creditor's remedy on the mortgage, being a sealed instrument, is also barred. (Sichel v. Carrillo, Cal. Sup. Ct., Apl. T., 1869.) The non-action of the holder, by which the action became barred, would not discharge the surety. (Dane v. Corduan, 24 Cal. 164; Whiting v. Clarke, 17 Cal. 410.) In the latter case, the creditor allowed the demand to become barred as to the principal, and the surety claimed that the bar dis- charged him. The Court held otherwise; and the case is directly in point as to this question. (Sichel v. Carillo, Cal. Sup. Ct., Jul. T., 1869.) The principle thus established is, that, there are two distinct contracts, and two distinct causes of action; and that the creditor has stipu- lated for two remedies, one on the note, and the other on the mortgage; that is to say that, there is one cause of action on the note against the maker, and another on the mortgagor, and these may be against differ- ent parties, or, if originally against the same party, they may subse- quently become separated and attach to different parties. This princi- ple was affirmed in (Low v. Allen, 26 Cal. 142; and Dent v. Spear, Id. 362; consult on this point the late decision, Sichel v. Carillo, Cal. Sup. Ct., Apl. T., 1869.) The cause of action is barred by failure to pre- sent the notes to the administrator. But is only barred as to the maker of the notes. The debt is not paid, satisfied, discharged, or in any way extinguished, and the cause of action against the lands on mortgage remains according to the principles of the cases cited. Sichel v. Carillo, Cal. Sup. Ct., Apl. 7'., 1869. 34. Stipulations in Mortgage. In foreclosing a mortgage 262 FORMS OF COMPLAINTS. containing a stipulation that the mortgage should be entitled to all costs, including counsel fees, not exceeding five per cent, of the amount due, it is not necessary to aver in the complaint that five per cent, was rea- sonable counsel fees, as the counsel fees thus stipulated to be paid were not the cause of action, but, like costs, a mere incident to it, and might be fixed by the Court, at its discretion, not exceeding the five per cent. (Carriere v. Minturn, 5 CaL 435; Gronfier v. Minturn, 5 Id. 492.) And it is not necessary to aver in the complaint that five per cent, was reasonable. 35. Subsequent Incuinbrancers. If there are incumbrancers which the plaintiff insists are subsequent to his mortgage, but who claim to have a prior equity, e.g., where the plaintiff claims to have become mortgagee in good faith without notice of a prior claim, the facts must be specially stated. Potter v. Crandall, Clarke, 119; Bank of Orleans v. Flagg, 3 Barb. Ch. 316. 36. Subsequent Liens. It is not necessary to make a claim for payment of subsequent liens. (Field v. Hawxhurst, 9 How. Pr. 75.) See, as to former practice in this regard, (Wheeler v. Van Kuren, i Barb. Ch. 490; Tower v. White, 10 Paige, 395.) Perhaps, however, it is not necessary to do so. Field v. Hawxhurst, 9 How. Pr. 75. 37. Subsequent Mortgages. Where the Sheriff was proceed- ing to sell under a judgment in a case of foreclosure, and the plaintiff as subsequent mortgagee, tendered to him the full amount of the judg- ment and costs, which was refused, and where plaintiff paid into Court the amount tendered, but not enough to cover the interest accrued sub- sequent to the tender, and plaintiff asked to be subrogated to their rights as subsequent mortgagees, it was held that all the relief to which the plaintiff is entitled could have been speedily and summarily had in the action of foreclosure on motion, and a subsequent equitable action will not lie. Ketchum v. Croppin, Cal Sup. Ct., Apl. T., 1869; citing Boggs v. Hargrave, 16 Cal. 559; Borland v. Thornton, 12 CaL 440; Comstock v. Clemens, 19 CaL 80; Logan v. Hillegass, 16 Cal. 202; Imley v. Caipenter, 14 Cal. 173; Gregory v. Ford, 14 Cal. 143; Sanchez v. Carriaga, 31 Cal. 172. 38. Substituted Parties. Where the plaintiff, being the owner of an undivided one -half of a tract of land, mortgaged his interest therein to A., and subsequently, with his co-tenant, conveyed the land to B. and C., two-thirds to one and one-third to the other, by two sepa- FORECLOSURE OF MORTGAGES AND LIENS. 263 rate deeds, in each of which is set forth the agreement of the grantees to assume the payment of the mortgage; and after the mortgage fell due, the plaintiff filed his bill against B. and C., to compel a fore- closure and payment: Held, that the case was one of chancery jurisdic- tion, and that it was not necessary for plaintiff first to pay off the mort- gage before bringing his action. (Abel v. Coons, 7 Cal. 105.) A mere stranger, who voluntarily pays money due on a mortgage, and fails to take an assignment thereof, but allows it to be canceled and discharged, cannot afterwards come into equity, and in the absence of fraud, acci- dent, or mistake of fact, have the mortgage re-instated, and himself sub- stituted in the place of the mortgagee. Guy v, DuUprey, 16 Cal. 195. 39. Surplus Averment. If the complaint in a foreclosure suit avers that the mortgage was executed by the defendant (thereby making it by averment a legal mortgage), and also sets out a copy of the same, and it appears on its face not to be a legal as distinguished from an equitable mortgage, the averment may be rejected as surplus- age. (Love v. S. N. L. W. & M. Co., 32 Cal. 639; Vassault v. Austin, Id. 597.) As to variance between pleadings and the mortgage, see Sears v. Barnum, Clarke, 139. 40. Tax Title. In an action to foreclose a tax title, it is unnec- essary to allege in the petition the due and regular performance of the acts, necessary to make the tax deed valid, when the execution and delivery of such deed by the proper officer is averred, and a copy of it is annexed. Byington v. Robert, 17 Iowa, 562. 41. Tender. Where upon default in the payment of interest upon a ^mortgage, which provides that on such default the principal shall at the mortgagee's option become payable, the mortgagee has made his election by bringing an action claiming to foreclose for the whole amount, the defendant has a right, although after suit brought, to tender the whole amount with costs, and the tender, if refused, extin- guishes the lien of the mortgage, i Rob. 246; Hartley v. Tatham, i Keyes, 222. 42. That Defendants Claim some Interest. The above allegation is sufficient against defendants who claim subsequent to the plaintiff's mortgage. It is only important in a contest as to the sur- plus. (Lewis v. Smith. 9 N.Y. 502; Drury v. Clark, 16 Hmv. Pr. 424.) But a decree against such defendants does not bar rights which 264 FORMS OF COMPLAINTS. are paramount to the title of both mortgagor and mortgagee. Lewis v. Smith, 9 N.Y. 502; 11 Barb. 152. 43. Two Mortgages on the same Property. Where plaintiff holds two mortgages on the same property, an,d the property is indivis- ible he may foreclose when the first becomes due. Hawkins v. Hill, 15 Cal. 499. 44. Waiver of Right to Foreclose. A. commenced an action against B. on a money demand, and to foreclose a mortgage given to secure his debt. On motion of A.'s attorney, the prayer for foreclosure of the mortgage and sale of the property was stricken out, and a money judgment taken. Held, that this was an abandonment and waiver of A.'s right to a foreclosure and sale of the mortgaged property. Ladd v. Ruggles, 23 Cal. 232. 45. When Action Lies. Where a judgment is rendered against A. and his sureties, and A. and a portion of his sureties, in order to secure the payment of said judgment, mortgage their property, subsequent to which an execution under the judgment is levied upon sufficient property of B., a surety not joining in the mortgage, to satisfy the judgment, and afterwards is voluntarily released: Held, that no action can be maintained on the mortgage; for the levy satisfying the judgment, the mortgage, as an incident thereto, must also be thereby satisfied. (People v. Chisholm, 8 Cal. 29.) An action will not lie on the mere recital in a mortgage of the existence of the debt. In an action upon the promise to pay money, if the complaint contains no averment of consideration or of indebtedness, except by way of recital, it is insufficient. Shafer v. Bear River and Auburn W. and M. Co., 4 Cal. 294. 46. Who may Maintain Action. The creditor of the estate of a deceased person whose claim is secured by mortgage, may, after presentation of his claim, proceed at once to foreclose the mortgage, whether it be allowed or rejected. (Willis v. Farley, 24 Cal. 490.) But the claim must first be presented to the executor, or administrator, and the probate judge. Id. FORECLOSURE OF MORTGAGES AND LIENS. 265 No. 450. ii. The Same Another Form. [TITLE.] The plaintiff complains, and alleges: I. That on the .... day of , 18 . . , the defendant executed to the plaintiff a note, conditioned to pay him dollars, in .... years, with interest at [twelve] per cent, per annum, payable [half yearly]. II. That for securing the payment of the said note, the said executed to the plaintiff a mortgage of the same date, upon certain real property in the County of , described as follows: \_give a de- scription of the property, as it should be described in the Sheriff ' s deed.~\ III. That on the .... day of , 18 . . , the said mortgage was recorded in the. Office of the County Recorder of the County of , in Book . . . . , of Mortgages, page IV. That on the ... day of , 1 8 . . , the said conveyed the same real property, subject to the said mortgage, to the defendant E.F., who there- upon covenanted with the said A.B., under his hand and seal, that the said note and mortgage should be paid at maturity. V. That no part of the principal or interest of the said note and mortgage has been paid. VI. That the defendant G.H. has or claims some interest in, or lien upon the said real property; but the 266 FORMS OF COMPLAINTS. same, whatever it may be, is subject to the lien of the said mortgage. Wherefore, the plaintiff demands judgment: 1. That each of the defendants, and all persons claiming under any of them, subsequently to the com- mencement of this action, be foreclosed of all equity of redemption or other interest in the said real property. 2. That the same may be sold, and the proceeds applied to the payment of the amount due on the said note and mortgage, with interest. 3. That if there be any deficiency, the defendants A.B. and E.E. pay the same. 45. Essential Averments. In an action upon the promise to pay money, if the complaint contains no averment of consideration or of indebtedness, except by way of recital, it is insufficient. (Shafer v. Bear River and Auburn W. and M. Co., 4 Cal. 294.) And an action will not lie on the mere recital in a mortgage of the existence of the debt. (Id.) Though it has been held that the indebtedness for which the mortgage was given need ndt be set forth. (Day v. Perkins, 2 Sandf. Ch. 359.) The averment in the complaint that the plaintiff is the owner of the note and mortgage is sufficient, without stating that he is holder. (Rollins v. Forbes, 10 Cal. 299.) A complaint in an action commenced after the death of the husband, on a note and mortgage executed by the husband and wife, during the life of the husband, does not state a cause of action, unless it aver that the husband in his lifetime failed to pay the note. Brown v. Orr, 29 Cal. 120. 46. Form. This form is from Swan's PI. 414. 47. Joinder of Parties. In a proceeding to foreclose a mortgage, or to enforce payment, both from the maker and the indorser, the original mortgagee cannot be joined in the same count. Sands v. Wood, i Clarke, 263. 48. Joinder of Causes of Action. It is not an improper FORECLOSURE OF MORTGAGES AND LIENS. 267 joinder of two causes of action to sue the indorser of a promis- sory note on his liability as such, and to ask a decree against the mort- gagor foreclosing a mortgage, given to secure the same note by another party. (Eastman v. Turman, 24 Cal. 382.) Claim against mortgagor and mortgagee and persons having liens may be united. (Farwell v. Jackson, 28 Cal. 105.) Mortgage and debt may be united. Where a suit was brought to foreclose a mortgage executed by husband and wife to secure a note made by 'the husband alone, and the complaint prayed for judgment against the husband for the amount of the note and interest, and a decree against both defendants for the sale of the mort- gaged premises: Held, there was no misjoinder of actions, and the complaint was not demurrable on that ground. Rollins v. Forbes, 10 Cal. 299. 49. Parties. The cause of action against the mortgagor on the mort- gage, in such case, might be prosecuted to judgment, without making the maker of the notes a party. (Sichel v. Carillo, Cal. Sup. Ct., Apl. T., 1869.) Where certain parties executed notes and a mortgage to secure their payment to certain individuals of their number, suit may be brought for the foreclosure of the mortgage, notwithstanding the plaintiffs in the suit are both payers and payees, mortgagors and mort- gagees. (McDowell v. Jacobs, 10 Cal. 387.) The right of the plaintiff to go into equity, and foreclose a mortgage given to secure a note, de- pends upon the fact whether he was really interested in the subject matter. (Ord v. McKee, 5 Cal. 515.) A note was executed to O., as the agent of M., and the mortgage to secure the note was made to M. O., under a contract with M., was entitled to one-half of the note: Held, that O. having a right to the note, had a right to foreclose the mortgage. (Id.} It seems that on foreclosure of a subsequent mort- gage, a prior mortgage cannot be adjudged to be discharged without consent of the prior mortgagee. McReynolds v. Munns, 2 Keyes, 215. 50. Several Notes. Where several notes have been given which are secured by one mortgage, and the notes are assigned to different persons, the assignor has a right, by agreement with the assignees, to fix the rights of the purchasers of the several notes to the mortgage security. (Grattan v. Wiggins, 23 Cal. 16.) Where, in such a case, the assignee of a note, having the first right to the benefit of the mortgaged security, forecloses when the debt falls due, and obtains a decree under which all the mortgaged property is sold, such foreclosure and sale operate as an extinguishment of the mortgage. (Id.) The 268 FORMS OF COMPLAINTS. holders of the other notes secured by the mortgage have a right to redeem from the sale made under such forclosure; but when not made, parties to the action must assert this right to redeem within four years, or it is barred by the Statute of Limitations. Id. No. 451. in. Assignee of Mortgagee Guaranteeing Payment, against Mortgagor, Grantee Assuming Payment, and Junior Incumbrancers. [TITLE.] The plaintiff complains, and alleges: I. and II. As in Form No, 449, substituting mort- gagee s name for the words " the plaintiff.'' III. That on the .... day of , 18 . . , the defendant \mortgag'ee\ t by an instrument in writing under his hand and seal, assigned said note and mort- gage to plaintiff, which assignment contained a covenant, of which the following is a copy: \_set it forthl\ IV. That on the day of , 18 . . , the defendants, A. B. and C. D., entered into an indenture under their hands and seals, whereby the said A. B. conveyed to said C. D. the mortgaged premises, subject to said mortgage, and said C. D. covenanted that he would pay off and discharge the same as a part of the consideration of said conveyance [or otherwise, accord- ing to the covenant^. V. That no proceedings have been had, at law or otherwise, for the recovery of said moneys, or any part thereof. VI. [ Where plaintiff holds other liens. ~\ That on the .... day of , 1 8 . . , at , in the Court of , the plaintiff recovered a judgment, FORECLOSURE OF MORTGAGBB AND LIENS. 269 which was duly given by said Court against the defend- ant, for dollars, in an action wherein this plaintiff was plaintiff [or defendant] , and the defendant herein was defendant [or plaintiff] ; and which was on the day of , 1 8 . . , duly docketed in the Office of the Clerk of said County, so as to become, and still remains, a lien on the mortgaged premises. VII. That the defendants [subsequent incumbrancers~\ have or claim some interest in, or claim upon said premises, or some part thereof, accrued since the lien of said mortgage. Wherefore the plaintiff demands judgment: 1 . That each of the defendants, and all persons claim- ing under them, or either of them, subsequent to the execution of said mortgage upon said premises, may be foreclosed of all right, claim, or equity of redemption, or other interest in said mortgaged premises, and every part thereof. 2. That the same be sold, and the proceeds applied to the payment of the costs and expenses of this action, and the amount due on said bond and mortgage, and the amount of said premium of insurance [and of said judgment], with interest on said moneys up to the time of such payment. 3. That the defendant [mortgagor] may be adjudged to pay any deficiency that may remain after applying all of said moneys so applicable thereto. NOTE. This form is from Abbotts' Forms, No. 68 1. 270 FORMS OF COMPLAINTS. 51. Assignees. Where an assignment of a note and mortgage has been made to plaintiffs to indemnify them as sureties on a bail bond for the assignor, and where suit is then pending on such bond, it is proper for them, as such assignees, to institute suit on the note and mortgage; and a decree of foreclosure in such case, with directions to pay the money into Court, to await the further decree of the Court, is proper, or at least, there is no error in such a decree to the prejudice of the de- fendants. (Hunter v. Levan, n Cal. 11.) If a mortgage is assigned by the mortgagee to another party, as a pledge for the payment of a debt due the other party by the mortgagee, it is not an improper joinder of several causes of action for the assignee to unite in the*same action his claim against the mortgagor and mortgagee and persons having liens or incumbrances upon the mortgaged property, and make them all parties. Farwell v. Jackson, 28 Cal. 105. 52. Averment. In a foreclosure action, the complaint alleged that the mortgage was executed and delivered to one P., that he was since deceased, and that his wife, having been qualified as his executrix, had duly assigned the same to the plaintiff; that it was owned and held by him by virtue of the assignment. The answer denied that the mort- gage was owned by the plaintiff by virtue of the assignment, or that he was the lawful owner of it. On the trial the plaintiff produced a mortgage in which the mortgagee was named as "P., acting adminis- trator of the estate of D." Held, that evidence on behalf of defendants to show that the mortgage was taken to secure a debt due to the estate of "D," and therefore that the executrix had no title to it, was admis- sible. (Renaud v. Conselyea, 7 Abb. Pr. 105.) The decision in this case (5 Abb. Pr. 346) reconsidered and reversed, Id. No. 452. i. For Redemption of Real Property. [TITLE.] The plaintiff complains, and alleges: I. That on the .... day of 1 8 . . , he executed to the defendant a mortgage upon certain real property in the City of , in the County of , FORECLOSURE OF MORTGAGES AND LIENS. 271 described as follows: [describe it\, to secure the pay- ment of ...!.... dollars in .... years, with interest at .... per cent, per annum, payable [half yearly] . II. That on the .... day of , 18 . . , he tendered to the defendant dollars, being the principal of the said mortgage, with interest from the date thereof to that time, and requested the defendant to acknowledge satisfaction for the same, but he refused to do so. Wherefore the plaintiff demands judgment: 1 . That he be allowed to redeem the said mortgage, upon paying to the defendant the amount due thereon. 2. That upon such payment the defendant satisfy the said mortgage of record. 53. Action to Redeem. A subsequent party in interest, whether by way of mortgage, lease, or judgment, cannot on motion obtain a right to redeem and have the property conveyed to him by a purchaser. The only remedy in such a case is by action seeking to enforce such right to redeem; and in such an action the rights of all other parties can be protected. (Douglass v. Woodworth, 51 Barb. 79.) Although a power of sale mortgage authorizes the mortgagee or his assignee to become the purchaser at the sale, yet if he fails in the utmost diligence in protecting the rights of the mortgagor, the mort- gagor will be allowed to redeem. Montague v. Dawes, 14 All. 369; see Hahn v. Pindell, 3 Bush. 189, 193. 54. Adverse Claimants. For the form of a complaint to ascertain and declare the rights of adverse claimants to real property, to allow redemption from a mortgage, to restrain foreclosure of a mortgage, and for the appointment of new trustees under a trust deed, to fill the place of trustees who had renounced, see Woodgate v. Fleet, 9 Abb. Pr. 222. 55. Tender. The plaintiff, in an action to redeem a mortgage, 272 FORMS OF COMPLAINTS. need not allege or prove a tender of the amount due upon the mort- gage debt previous to the commencement of the action. Daubenspeck v. Platt, 22 Cal. 330. JVo. 453. ii. By a Lessee. [TITLE.] The plaintiff complains, and alleges: I. That on the .... day of , 187., the defendant \nwrtgagor\ being the owner in fee of the following described premises, leased the same to the plaintiff by an indenture dated on that day, a copy of which is annexed as a part of this complaint; and that by virtue of said lease the plaintiff entered upon, and ever since has been, and still is in possession of said premises, and is vested with the unexpired term thereof; which premises are [described] as follows: [descrip- tion^ \\. That on the day of , 18 . . , said [mortgagor] made to the defendant [mortgagee] a mortgage upon the same premises to secure dollars, payable on the .... day of , 1 8 . . . III. That on the said day the mortgage became due, but has not been paid; and that said [mortgagee] has commenced an action to foreclose the same for such default. IV. That on the day of , 18 . . ,. the plaintiff tendered dollars to said [mortgagee'], being the amount due on said mortgage, with interest, and the costs of said action [or proceeding] up to that time, in redemption of said mortgage, and has ever FORECLOSURE OF MORTGAGES AND LIENS. 2/3 since been ready and willing- to pay the same; and did then request him to assign the same to the plaintiff, but he refused so to do. Wherefore, the plaintiff demands judgment that he be allowed to redeem the said mortgage upon paying to the defendant [mortgagee] the amount due upon the mortgage; and that upon such payment the defendant, by an assignment duly executed and acknowledged by him, assign said bond and mortgage to the plaintiff. 54. Accounting and Redemption. In a bill for an account- ing and redemption, a distinct offer to pay the amount due is not necessary. The form is, that, on the payment of what, if anything, shall be found due, the mortgagee may be decreed to deliver posses- sion, etc. Quin v. Brittain, Hoffm. 353; and see Barton v. May, 3 Sand/. Ch. 450. 55. Form. The above form is from Abbotts' Forms, No. 686. . 454- i. Mechanics' Liens Common Form. [TITLE.] The plaintiff complains, and alleges: I. That [here set out claim of plaintiff^. II. That it being the plaintiff 's intention to avail himself of the benefits of the Act of the Legislature of .the State of California, entitled "An Act for Securing Liens of Mechanics and Others," approved March 30, 1868, and perfect a lien upon the premises aforesaid, and hereinafter described, as a security for the payment of the claim so due to plaintiff from defendant, as aforesaid, and to claim and hold such 18 274 ' FORMS OF COMPLAINTS. lien not only upon the said building or other improve- ments, but also upon the land whereon the same have been constructed, together with a covenient space about the same, or so much as might be required for the con- venient use and occupation thereof, or upon such interest as the said defendant, who caused the said building or other improvement to be constructed, had therein on the .... day of : . , 1 8 . . ; and before the expira- tion of .... days next ensuing the completion of such building or other improvements as aforesaid, [the said plaintiff] did file, on the .... day of , 1 8 . . , and after performance of said contract and completion of , with the County Recorder of the County of [whereon said premises are wholly situa- ted], his claim, containing a true statement of his demand against defendant, after deducting all just credits and offsets, with the name of the owner or reputed owner thereof; also the name of the person by whom occupied, and also a description of the property to be charged with said lien sufficient for identification, duly verified by the oath of III. That said claim was for constructing [describe building], upon the following described premises, to wit: [description of premises.] IV. That the said [building was] at the time said work was commenced, and until the time of filing the notice of the lien therein mentioned, the property of the defendant. V. That ninety days have not elapsed since the fil- ing of said lien. VI. That dollars is a reasonable amount for counsel fees in this action. FOkECLOSURE OF MORTGAGES AND LIENS. 2/5 Wherefore said plaintiff prays judgment directing the sale of the premises above described, to the extent of the right of the defendant [last named] therein, on the .... day of , 18. ., by the Sheriff of said County, according to law and the practice of this Court, and directing that the proceeds of such sale be applied to the payment of the costs of these pro- ceedings, reasonable counsel fees, and to the payment of said plaintiff's claim as aforesaid, amounting to dollars, and also for the payment of the claim of any other lien-holder or holders on said pro- perty, if any such there be, who shall come in and duly be made parties to this action, and for such other and further relief as may be just in the premises. , [Verification.} 56. Action, how Commenced. No complaint need be filed or summons issued, but in lieu thereof a petition is filed and the clerk issues a notice, which is published. Van Winkle v. Stow, 23 Cal. 457. 57. Buildings and other Improvements. These words include and apply to any wharf, bridge, ditch, flume, tunnel, fence, machinery, railroad, wagon-road, aqueduct for hydraulic power, or for mining or other purposes. Laws of Cal. 1867-8, p. 593. 58. Complaint by Sub-Contractor. In New York, where the proceeding is by a sub-contractor, his complaint must aver that the labor or materials were furnished iij conformity with the contract between the owner and the original contractor. (Boderick v. Poillon, 2 E. D. Smith, 554; Quinn v. Mayor etc. of N.Y., 2 E. D. Smith, 558; see, also, Cun- ningham v. Jones, 4 Abb. Pr. 433; Doughty v. Devlin, 2 E. D. Smith, 625; Kennedy v. Paine, Id. 651 ; Cronk v. Whittaker, Id. 647; Hauptman v. Halsey, Id. 668.) The complaint must show that the complaint has taken the requisite steps to create a lien. Foster v. Poillon, 2 E. D. Smith, 556; Crohkright v. Thomson, i Id. 66 1. 59. "Construction, Alteration, or Repair," include partial 276 FORMS OF COMPLAINTS. construction and all repairs dpne in and upon any building or other improvement. Laws of Cal. 1867-8, p. 593. 60. Construction of Averment. The reasonable construction of an allegation in a complaint, that "plaintiff furnished the materials between the sixth day of April, 1862, and the twenty-eight day of June 1862," is, that the plaintiff commenced furnishing the materials on the sixth day of April, and continued furnishing the same from time to time up to June 28th. McCreaz>. Craig, 23 Cal. 522. 61. Description of Premises. For description of premises in real action, see (Cal. Pr. Act, 58), and cases therein. It is sufficient if it describes the premises sufficiently to enable thesheriffto determine beyond a doubt the premises to be sold; and the street number of the premises should be shown, or the plaintiff's ignorance of it averred. (Duffy v. McManus. 3 E. D. Smith, 657; S. C., 4 Abb. Pr. 432.) The employees of the contractor have no lien on the building as principals. (Dore v. Sellers, 27 Cal. 588.) The following notice of a mechanic's lien does not contain such a description of the premises as the statute contemplates: "A dwelling house lately erected by me for J. W. Conner, situated on Bryant Street, between Second and Third Streets, in the City of San Francisco, on Lot No " The fact that Conner owned no other building on that street would not cure the defect. Montrose v. Conner, 8 Cal. 344. 62. Form. The above form is drawn under the California Statutes. The mechanic's lien acts passed in this State previous to 1862 were all repealed by the Act of that year, and that Act was in its turn repealed by the Act of 1867-8. See Laws of Cal. 1867-8, p. 593 83. Interest of Third Parties. The rights and interests of third parties, purchasers and incumbrancers, prior to the suit, are affected only in a similar degree as upon a foreclosure of a mortgage. Whitney v. Higgins, 10 Cal. 547. 64. Jurisdiction. The proceeding to enforce a mechanic's lien under the California Law of 1861 is a special case, and county courts have jurisdiction. (McNiel v. Borland, 23 Cal. 144.) The enforce- ment for liens under this act, except liens upon personal property, under Section 15, shall be in the District Court, and the pleadings, process, practice, and other proceedings shall be the same as in other cases. Laws of Cal. 1867-8, p. 691. FORECLOSURE OF MORTGAGES AND LIENS. 277 65. Limitation. If the time has expired for the enforcement of the lien, the plaintiff is not entitled to a judgment. Green v. Jackson Water Co., 10 Cal. 374. 66. Material Men. In a suit by a material man to enforce a lien against a building for lumber sold to the contractor, it must be averred and proved that the lumber was expressly furnished for the building in question, and it is not sufficient to show that is was used in such building. Bottomly v. Grace Church, 2 Cal. 90. 67. Parties. All persons personally liable, and all lien-holders whose claims shall have been filed for record, shall, and all other persons interested may be made parties. Laws of Cal. 1867-8, p. 592. 68. Parties Intervening. Persons having a lien by mortgage upon the property have no right to intervene. (Van Winkle v. Stowe, 23 Cal. 457.) An intervention within six months is as much a com- pliance with the Act as an original suit. (Mars v. McKay, 14 Cal. 127.) But where the suit has been pending some time, and the application to intervene was made just as plaintiff was taking judgment, it was properly refused. Hocker v. Kelley, 14 Cal. 164. 69. Parties Plaintiff Material men and mechanics, entitled to a lien on a building, but whose claims are several, without any com- munity of interest in the claims themselves, may join as plaintiffs in an equitable action to establish and enforce their liens. Barber v. Rey- nolds, 33 Cal. 497. 70. Personal Actions. Nothing in the provisions of this A ct shall impair or affect the right of any person to maintain a personal action to recover the debt secured. Laws of Cal. 1867-8, p. 592. 71. Right of Lien. Unless some one or some portion of the several payments to be made to the contractor during the progress of the building, were made to the original contractor by the employer before they became due by the terms of the original contract, or after notice had been duly served upon the employer by the holder of a claim against the contractor, the claimant has no right of lien upon the premises, and no legal personal claim against the employer. Henley v. Wadsworth, Cal. Sup. Ct., Jul. T. 1869. 72. Subsequent Statute Governs. Where the contract was made and the materials furnished while the California Lien Law of 278 FORMS OF COMPLAINTS. 1858 was in force, but notice of lien was not filed until after the Lien Law of 1862 went into effect, the lien must be enforced according to the provisions of the later Act. McCrea v. Craig, 23 Cal. 522. No. 455. ii. By Contractor, for Building Materials. [TITLE.] The complaint of the plaintiff, filed pursuant to an order of this Court, ma'de on the .... day of , 18. ., shows: I. That on the .... day of , 1 8 . . , at , this plaintiff, by virtue of a contract with the defendant, sold and delivered to the defendant certain building materials, consisting of , of the value of dollars; the quantity and value of which is set forth in the bill of particulars herein. II. That by the terms of said contract and sale, the said sum became due on the .... day of , 1 8 . . , but the defendant has not paid the same. III. That the said materials were used in erecting a building and appurtenances upon the following described premises, to wit: \describe premises.] IV. That the said premises were, at the time of mak- ing said contract of sale, and until the filing the notice of lien hereinafter mentioned, the property of the defendant. V. That on the .... day of , 1 8 . . , and after performance of said contract, the plaintiff duly filed with the Clerk of the City and County of [or Clerk of County], a notice of lien claimed upon said premises for the indebtedness aforesaid; which FORECLOSURE OF MORTGAGES AND LIENS. 279 notice was duly verified, and specified the amount of the claim as above stated, and specified the defendant as the person against whom the claim was made, and as the owner of said premises, which were therein described by the street [and number] of the building. Wherefore the plaintiff prays judgment, directing a sale of the interest of the defendant in the premises, building, and appurtenances above described, to the extent of the right of defendant, on the .... day of , 1 8 . . [date of filing the notice of lien~\, and directing that the proceeds of such sale be applied to the payment of the costs of these proceedings, and to the payment of this plaintiff's claim aforesaid [and that the residue of such proceeds, if any, be paid to the Clerk of the City and County of , to abide the further order of the Court] ; and that if the proceeds of such sale shall not be sufficient to discharge the costs and claim aforesaid, this plaintiff have leave to docket a transcript of judgment against the defendant for such sum as may remain due. NOTE. The above form, and those following, are taken from Abbotts' Forms, Nos. 629 and 631; and are applicable to the City and County of New York. They are given, as they will be of service to the practitioner here as well as elsewhere. They are not strictly applicable under the Statute of California. The complaint in these cases is subject to the rules govering pleadings in other actions. Duffy v. McManus, 3 E. D. Smith, 657; S.C., 4 Abb. Pr. 432. 280 FORMS OF COMPLAINTS. JVo. 456. Hi. By Sub-Contractor, against Owner and Contractor, for Labor. [TITLE.] The complaint of the plaintiff, filed pursuant to an order of this Court, made on the .... day of , 18. ., shows: I. That on the .... day of , 18 . . , the defendant W. X. [contractor] entered into a contract with the defendant Y. Z. [owner] for the erection of a building and appurtenances upon the premises herein- after described; by the terms of which contract it was agreed that [state substance of terms of contract; or say, which contract was as follows, to wit: and give copy\. II. [State performance of contract by contractor so far as to show indebtedness of owner to contractor, and aver suck indebtedness, specifying its amountJ] III. That between the .... day of , 18 . . , and the .... day of , 1 8 . . , the plaintiff, in pursuance of an agreement theretofore entered into by him with the defendant W. X. [contractor], and in con- formity with the terms of the contract above mentioned, performed \_state kind of labor performed], to the value of dollars, the nature, amount, and value of which labor are set forth in the bill of particulars herein. IV. That by the terms of the agreement between the plaintiff and the defendant W. X. [contractor], said sum became due on the .... day of , 1 8 . . , but he has not paid the same. V. That said labor was performed in erecting a build- FORECLOSURE OF MORTGAGES AND LIENS. 281 ing and appurtenances upon the following described premises : \_describe premises^ VI. That the said premises were, at the time when said labor was performed, and until the filing the notice of lien hereinafter mentioned, the property of the de- fendant Y. Z. [owner"]. VII. That on the day of , 18. ., the plaintiff duly filed with the Clerk of the City and County of New York [or Clerk of County], a notice of lien claimed upon said premises for the indebtedness aforesaid, which notice was duly verified, and specified the amount of the claim as above stated, and specified the defendant [owner's name] as the person against whom the claim was made, and as the owner of said premises, which were therein described by the street [and number] of the building. Wherefore the plaintiff prays judgment directing a sale of the interest of the defendant Y. Z. [owner] in the premises, building, and appurtenances above de- scribed, to the extent of the right of the defendant, on the .... day of , 1 8 . . [date of filing the notice of lien], and directing that the proceeds of such sale be applied to the payment of the costs of these proceedings, and to the payment of the plaintiff's claim aforesaid [and that the residue of such proceeds, if any, be paid to the Clerk of the City and County of New York, to abide the further order of the Court]; and prays judgment, in addition, against the defendant Y. Z. [contractor] for the sum of dollars [the amount of the plaintiff ' s claim], with interest from the .... day of , 1 8 . . , together with the costs of these proceedings. NOTE. See note to preceding form. 282 FORMS OF COMPLAINTS. Notice of Forms of Contract. If sub-contractors, mate- rial men, or laborers furnish material or labor in the construction of a building or work, relying upon their right of lien under the statutes as security for their pay, they must be held to know the terms to which the right is subordinate, and upon which lien can be secured, and to a strict compliance with these terms. (Henley v. Wadsworth, Cal. Sup. Ct., Oct. T., 1869.) All such persons are presumed to have notice of the contract, a knowledge of its terms, and of the rights and obliga- tions of the parties thereto. Id. Relative Rights of Parties. Upon a compliance on their part with the terms of the statute, the right of a sub-contractor, laborer, or material man to the lien which through the original con- tractor inures primarily to the benefit of persons in that relation, must be determined and controlled by the terms of the original contract between the owner and original contractor. Henley v. Wadsworth, Cal. Sup. Ct., Qct T., 1869; citing Murdoch v. Stillwell, 36 Cal. No. 457. i. Vendor against Purchaser, to Enforce Lien. [TITLE.] The plaintiff alleges: I. That on the day of . . . . , 1 8 . . , at , the plaintiff sold and conveyed to the de- fendant acres of land, situated in [describe the premises specifically^, for the sum of dol- lars, for which the defendant agreed to pay the plaintiff the sum of dollars \_state terms of sale~\. II. That the defendant is indebted to the plaintiff in the premises .... dollars, no part of which has been paid. III. That the plaintiff has a lien as vendor upon said premises, for the payment of said puschase money, which he claims in this action. FORECLOSURE OF MORTGAGES AND LIENS. 283 Wherefore the plaintiff demands judgment: 1. For the said sum of .... dollars, with interest from the .... day of , 1 8 . . . 2. That the said premises may be ordered sold for the payment thereof [etc. etc.~\ JVo. 458. n. Vendor against Purchaser, and his Grantee, and Judgment-Creditors, to Enforce Lien. [TITLE.] The plaintiff complains, and alleges: I. That he was owner in fee of the real property hereafter described, and on the .... day of , 1 8 . . , he sold the same to the defendant A. B., for the sum of dollars, and thereupon by his deed conveyed the same to the defendant A. B. [in fee], which premises are described as follows: [description as in deecT\ . III. That the said A. B. paid the plaintiff dollars, part of said purchase money, and on the .... day of , 1 8 . . , at , gave to the plaintiff his promissory note for , dollars the residue thereof, payable on the .... day of , 1 8 . . . III. That on the day of , 18 . . , at , the plaintiff demanded payment of the de- fendant A. B. [of said note, or ] of the residue of said purchase-money; but he did not pay the same. IV. That the said C. D. purchased of the said A. B. a portion of said premises, with the full knowledge that the said A. B. had not paid the balance of said pur- chase-money, and took a conveyance from the said A. B. 284 FORMS OF COMPLAINTS. to him for* the said premises so by him purchased of the said A. B. V. That the said E. F. claims to have recovered judgment against the said A. B. for dollars, on the .... day of , 1 8 . . , in the . . Court, in the County, State of , and has caused execution to be issued thereon, and is proceed- ing to sell the part of said premises not sold to the said C. D., whereby the said plaintiff will wholly lose the bal- ance of the said purchase-money, as the said A. B. is wholly insolvent, and unable to pay the same. Wherefore the plaintiff demands judgment: 1. Against the said A. B., for the said sum of dollars, together with interest thereon from the .... day of , 1 8 . . , and the costs of this action. 2. That in case the said A. B. shall not pay the said judgment, that the said premises may be sold, and so much of the proceeds as may be necessary be applied to the payment of the judgment so to be rendered. 73. Execution. In a bill in equity to enforce the lien, it is not necessary to allege the issuance of execution under a judgment at law previously obtained by the vendor against the purchaser for the amount due, and the return of nulla bona, to sustain the allegation of insolvency. Walker v. Sedgwick, 8 Cal. 398. 74. Failure of Performance. It could not be a defense that only one note was due, as that would be sufficient to show a failure of performance. Creary v. Bowers, Cal. Sup. Ct., Jan. 2'., 1862, not re- par led; see Note 76. 75. Lien as a Charge. The lien which the vendor of real property retains, after an absolute conveyance, for the unpaid purchase- FORECLOSURE OF MORTGAGES AND LIENS. 285 money, is not a specific and absolute charge upon the property, but a mere equitable right to resort to it upon failure of payment by the ven- dee. Sparks v. Hess, 15 Cal. 186; Hill v. Grigsby, 32 Id. 58. 76. Notes not Security. The vendor's lien on the land con- veyed is not lost by his taking the notes of the purchaser for the pur- chase-money. And the lien equally exists, whether the instrument amounts to a conveyance or merely to an executory contract. (Walker v. Sedgwick, 8 Cal. 398.) The execution of two notes for the amount due upon a note and mortgage, when the mortgage is not canceled, will not defeat an action for the foreclosuse of the same, commenced after the second notes are due and unpaid. Creary v. Bowers, Cal. Sup. Ct.,Jan. T., 1862, not reported. 77. Purchase-Money is, in equity, a lien on land sold where the purchaser has taken no separate security. (Salmon v. Hoffman, 2 Cal. 138; Hill v. Grigsby, 32 Cal. 55; Chilton v. Braiden's Admistratrix, 2 Black. U.S. 448.) Married women are included in this rule. (Id.} And when the vendor has not conveyed the title, his position is analo- gous to that of a mortgagee. Salmon v, Hoffman, 2 Cal. 138; Hill v. Grigsby, 32 Cal. 55. 78. Right, when Enforced. The equitable right may be enforced in the first instance, and before the vendor has exhausted his legal remedy against the personal .estate of the vendee. The Court, after determining the amount of the lien, can, by its decree, either direct a sale of the property for its satisfaction, and execution for any defi- ciency, or award an execution in the first place, and a sale only in the event of its return unsatisfied, as the justice of the case may require. Sparks v, Hess, 15 Cal. 186; Hill v. Grigsby, 32 Cal. 58. 79. Security. A vendor's lien does not exist in this State, where a mortgage security is taken for the purchase-money. The silent lien of the vendor is extinguished whenever he manifests an intention to abandon or not to look to it. And this intention is manifested by taking other and independent security upon the same land, or a portion of it, or on other land. Hunt v. Waterman, 12 Cal. 301. 80. Vendor's Lien. A general averment in the complaint to enforce the vendor's lien, that the mortgage is defective as a security, is not sufficient to withdraw the case from the general rules of equity. Hunt v. Waterman, 12 Cal. 305. 286 FORMS OF COMPLAINTS. 81. Waiver of Lien. The equitable lien which a vendor of real estate, after an absolute conveyance, has for the unpaid purchase- money, is waived by the taking of a mortgage to secure the same, although the mortgage is void and cannot be enforced. (Camden -v. Vail, 23 Cal. 633.) B. made a parol gift to his daughter R., who took and kept possession of the same twelve years. She then sold the land to M., receiving his notes therefor, and B. at her request conveyed the land to M. As against the purchaser, R. had a vendor's lien. Russell v. Watt, 41 Miss. 602. No. 459. i. To Foreclose Chattel Mortgage. [TITLE.] The plaintiff complains, and alleges : I. That on the .... day of , 1 8 . . , at , the said defendant made and executed his certain prom- issory note, in writing, in the words and figures follow- ing, to wit: [here copy note\ whereby he promised to pay plaintiff the sum of $ , with interest- at the time and in the manner therein specified, in gold coin of the United States, and then and there delivered the said note to the said plaintiff. II. That at the time and place aforesaid, in order to secure the payment of said promissory note, the said defendant executed and delivered to the plaintiff his certain instrument in writing, under seal, known as a chattel mortgage, a copy of which is hereto annexed as a part of this complaint, marked "Exhibit A," which said chattel mortgage was made in good faith, for the purpose aforesaid, without intent to defraud creditors or purchasers, and was verified, acknowledged, and re- corded, pursuant to the statute in such case made and provided. FORECLOSURE OF MORTGAGES AND LIENS. 287 III. That the property mentioned and described in said chattel mortgage and the schedule annexed con- sisted of [here describe property and where situated^. IV. That no proceedings have been had at law, or otherwise for the recovery of said sum and interest, or any part thereof, and the same is still wholly owing and unpaid. Wherefore the plaintiff prays judgment. 1. That the defendant be foreclosed of all interest, lien and equity of redemption in said mortgaged prop- erty, to wit: the said goods and chattels. 2. That the same be sold, and that the proceeds thereof be applied to the payment of the costs and ex- penses of this action and of counsel fees not to exceed the sum of dollars, and of the amount due on said note and mortgage, with interest thereon up to the time of payment, at the rate of .... per cent, per month. 3. That the defendant be adjudged to pay any defi- ciency that may remain after applying all said money as aforesaid, and for such other and further relief as to this Court may seem just in the premises. . 82. Action Lies. Under Section 246 of our Practice Act, if commercial paper be mortgaged, the mortgage may be foreclosed, and the securities sold under the decree ; and by Sections 217 and 2 20, such securi- ties may be seized and sold under execution on a judgment at law. Davis v. Mitchell, 34 Cal. 87; cited in Donahue v. Kelly, Cal. Sup. Ct., //. T., 1869. 83. Assignment and Delivery. Where a chose in action is assigned and delivered as collateral security for the payment of a debt due the assignee, the assignment and delivery to the assignee of the hose in action are necessary to give the latter full authority to readily 288 FORMS OF COMPLAINTS. control the security and make it available; but this does not necessarily constitute the transaction a chattel mortgage as distinguished from a pledge. Gay v. Moss, 34 Cal. 125. 84. Chattel Mortgage. A., the owner of a quartz mill in Amador County, executed a mortgage on the same to B. Afterwards, A. purchased at Sacramento a steam engine and boiler, and, to secure the purchase money, executed to C. a chattel mortgage on the same, and then transported them to Amador and placed them in the quartz mill, so that they became a part of the realty. Held, that C.'s mort- gage on the steam engine and boiler had priority over the mortgage of B. (Tibbetts v. Moore, 23 Cal. 208.) If, at the time of the execu- tion and delivery of a promissory note, the payor also gives the payee a bill of sale of personal property by way of mortgage to secure the note, and also delivers possession of the property, the payor has a right to have the property mortgaged applied in satisfaction of the debt; and if the payee sells any of the property, he has a right to have the pro- ceeds or value applied towards the satisfaction of the debt. McGarvey v. Hall, 23 Cal. 140. 85. For Future Advances. A mortgage given in good faith for the purpose of securing future advances expected to be made, is a good and valid security. Such mortgage need not express its object on its face, although it would be better if it should. But a mortgage knowingly given for a greater sum than is due, and not in good faith, as a pretended security for future advances, is fraudulent in law as to the creditors of the mortgagor. Fully v. Harloe, 35 Cal. 302. 88. Pledge.- A pledge of personal property may be foreclosed by a decree of a court of equity, in the same manner, and with like effect, as if it were a mortgage. Donohue v. Gamble, Cal. Sup. Ct.,Jul 7'., 1869; referring to Cal. Pr. Act, 246. CHAPTER II. COMPLAINTS FOR NUISANCES. 460, For Erecting a Nuisance. [TITLE.] The plaintiff complains and alleges: I. That he is, and at all the times hereafter men- tioned was possessed of the house and lot number . . . . , Street, II. That on the .... day of , 18 . . , the defendant erected upon the lot [No , Street, ], a slaughter house, and still main- tains the same, and from the said day until the present time has continually caused cattle to be brought and killed there [and state any other particulars^ . III. [ State special damage '.] Wherefore the plaintiff demands judgment: 1. That the defendant be restrained by injunction from erecting or using the said building as a , or otherwise, to the nuisance of the plaintiff, or permit- ing it to be so used. 2. That the plaintiff recover from the defendant dollars, damages, and his costs. 19 FORMS OF COMPLAINTS. No. 461. For Abatement of a Nuisance. [TITLE.] The plaintiff complains, and alleges: I. That he is, and at all the times hereafter mentioned was the owner in fee of [the house and lot No ..... , ........ Street, ........ ]. II. That the defendant is, and at all the said times was the owner in fee of [the lot No ..... , ........ Street, ........ , adjoining said proper ty\. III. That on the .... day of ........ , 18 . . , the defendant erected upon his said lot a slaughter house, and still maintains the same; and from that day until the present time has continually caused cattle to be brought and killed there [and has caused the blood and offal to be thrown into the street opposite the said house of the plaintiff, or as the case may be~\. IV. That the plaintiff has been compelled by reason of the premises to abandon the said house, and has been unable to rent the same. Wherefore the plaintiff demands judgment, that the said nuisance be abated. NOTE. This, in substance, is taken from the New York Code Com- missioners' Book of Forms. 1. Action to Abate. The action to abate a nuisance is "a case in equity," and from judgment rendered in it an appeal lies. (People v. Moore, 29 Cal. 427.) An action for a nuisance is not abated or barred by a subsequent abatement of the nuisance by the plaintiff. Call v. Buttrick, 4 Cush. 345. FOR NUISANCES. 29! 2. Building Adjacent. Under the civil law, if a man build a house upon land of his own and sell it, neither he nor a subsequent grantee can build on their land adjacent so as to destroy windows which were a necessary and essential part of the house. (Palmer v. Fleicher, i Lev. 122', i Sid. 167; i Keble, 552; Rosewell v. Prior, 6 Mod. 116; Coutts v. Gorham, Mood. offal from which renders the waters of a creek unwholesome, and the vapors from which render a dwelling uninhabitable, is a nuisance. (Smith v. McConathy, i-i Mo. 517.) It is not necessary that the corruption of the atmosphere be such as to be dangerous to health; it is sufficient that the effluvia are offensive to the senses, and render habitations uncomfort- able. (Eames v. N. E. Worsted Co., n Met. 572.) A dense smoke, laden with cinders, liable to continue twelve hours twice a month, and to penetrate houses at distances of from forty to two hundred feet, in a part of a town occupied by mechanics for their homes and for grades requiring a certain amount of smoke, is a nuisance. (Ross v. Butler, 4 C. E. Green, 294.) But in view of the damage to very large iron works which an injunction would cause, and where the injury could be compensated for at law, an injunction ought not to be granted. (Rich- ards' Appeal, 57 Penn. 105; see, also, Rhodes v. Dunbar, 57 Penn. 274.) Where defendants built a platform in front of plaintiff's lot, and on his side of the way, as plaintiff presumptively owned to the middle of the street, he could maintain a private suit. Higbee v. Camden and Am- boy R.R. Co., 4 C. E. Green, 276. 13. Private Nuisance Allegations. In an action for a pri- vate nuisance it is not necessary to allege or prove any special damage; but in a private action for a public nuisance special damages must be averred and proved. (Smiths. McConathy, n Mo. 517.) It becomes the gist of the action. Baker v. Boston, 12 Pick. 196. 14. Public Gaming House. A public gaming house is a nui- sance. (See United States v. Ismenard, i Cranch C. Ct. 150.) A 296 FORMS OF COMPLAINTS. public bowling alley, kept in connection with a lager beer saloon in a populous town, is not per se a public nuisance. State v. Hall. 3 Vroom. 158. 15. Public Nuisances. The following have been held pub- lic nuisances, viz: The erection of a house on a highway.. (Gun- ter v. Geary, i Cal. 467; People v. Davidson, 30 Id. 383.) The appropriation of that part of the river or bay below low water or low tide is a public nuisance. (Gunter v. Geary, i Cal. 462.) Any obstruction to the navigation of a public navigable stream, is, upon established principles, a public nuisance. (Mayor etc. of Georgetown v. Alexandria Canal Co., 12 Pet. 91.) It does not follow as a legal concjusion that a wharf erected below high water mark in tide waters, and upon the soil thereunder belonging to the State, is a public nui- sance, or an injury to commerce and navigation. Whether such a wharf is a public nuisance is a question of facts. (People v. Davi- son, 30 Cal. 379. An injunction will be granted to restrain the erec- tion of a wharf in tide waters where it is a public nuisance, or will be followed by some form of irreparable damage. (People v. Davison, 30 Cal. 379.) A common scold is a nuisance. (See United States v. Boyall, 3 Cranch C. Ct. 620.) To keep a large quantity of gunpowder near where persons dwell is a nuisance. (Myers v. Malcolm, 6 Hill, 292; Borden v. Crocker, 10 Pick. 388; Lansing v. Smith, 4 Wend. 9; Harrisson v. Sterrell, 4 Har. & McHen. 540; Story v. Hammond, 4 Ohio, 376; Shaw v. Cummisky, 7 Pick. 76.) A house on fire, or those in the immediate vicinity which serve to communicate the flames, is a nuisance which it is lawful to abate; and the private rights of the indi- vidual yield to considerations of general convenience and the interest of society. (Surocco v. Geary, 3 Cal. 73.) The constitutional pro- vision requiring payment for private property taken for public use does not apply. (Id.} Nor can one who abates such a nuisance be held personally responsible for trespass. Id. 16. Public Nuisance when Action Lies. An action will not lie for damages for a public nuisance, unless plaintiff has sustained some special damage. Comyns. Dig. Nuisances; 9 Code Rep. 112; 2 T. R. 667; ii East. 61; 12 Id. 432; ^M.&S. 101; 2 Bing. 156; Stetson v. Faxon, 19 Pick. 147; Pittsburg v. Scott, i Penn. St. Rep. 309; Thayer v. Boston, 19 Pick. 511; Myers v. Malcolm, 6 Hill, 292. 17. Remedy. By judgment, the nuisance may be enjoined or FOR NUISANCES. 297 abated as well as damages recovered. (Cal. Pr. Act, 249.) To entitle a party to an injunction in a case of a nuisance, the injury to be restrained must be irremediable, and such as cannot be adequately compensated by damages. (Middleton v. Franklin, 3 Cal. 241.) In an action to abate a nuisance damages are only an incident to the action, and the failure to recover them does not affect the question of costs. (Hudson v. Doyle, 6 Cal. 102; affirmed in Courtright v. B. R. A. W. M.Co., 30 Id. 567.) Courts of equity, pursuing the anal- ogy of the law that a party may maintain a private action for special damages, even in the case of public nuisance, will grant an injunction against a public nuisance at the instance of a private person, where he is in imminent danger of suffering a special injury, for which, under the circumstances of the case, the law would not afford an adequate remedy. But the plaintiff in such case, to maintain his suit in equity, must aver and prove an individual injury. (19 Ves. 616; 6 John. Ch. 439; Mississippi and Missouri R. R. Co. v. Ward, 2 Black. 485.) Where an individual is damaged by a public nuisance, he has the same remedy as when injured by a private nuisance. (Welton v. Martin, 7 Mo. 307; Stetson v. Faxon, 19 Pick. 147; Thayer v. Boston, 19 Pick. 511; Shaw v. Cummisky, 7 Pick. 76; Holm an v. Townsend, 13 Met. 297.) And plaintiff must prove that the damage he has sustained "is not common to others." Co. Lit. 56, a; 19 Pick. 155. 18. Riparian Proprietor. Where a river is made a boundary to the land, the grantee becomes riparian proprietor, and is entitled to the land the river cpvers, ad filum medium aqua, and any (in case of a grant) subsequent grantee under the same description, is alike entitled Ang. on Watercourses, 19; People v. Canal Appraisers, 13 Wend. 355, 17 Wend. 571; Ex parte Jennings, 6 Cow. 548; Commissioners v. Kempshall, 26 Wend. 404. 19. Rules for Abatement of Nuisance. Rules which govern a court of equity in a suit for the abatement of a nuisance. Missis- sippi and Missouri Railroad Company v. Ward, 2 Black. U.S. 485. 20. Steam Engine in Cellar. The erection of a steam engine and machinery and a grist mill in the cellar, under an auction store, held not to be such in injury as to require a restraining power of the Court; at least, not until the question of nuisance should be deter- mined by a jury, and even then the remedy at common law is adequate. Middleton v. Franklin, 3 Cal. 241; see Saltonstall v. Banker, 8 Gray (Mass.) 195. 298 FORMS OF COMPLAINTS. 21. Street Railroads. Where a railroad track is on a public street, owners of property in the vicinity, to sustain a complaint against its construction, must establish that it is a public nuisance, and that they have sustained special damage. (Black v. Phil, and Reading R.R. Co., 58 Penn. 249.) Where a company is authorized by law to construct a street railroad, with switches and turnouts, the presumption of law is that the switches and turnouts are necessary, and the burden of proving that they are a nuisance is cast on the plaintiff. Carson v. Cent. R.R. Co., 35 Cal. 325. 22. Verdict. In an action to abate a nuisance, a general verdict in favor of the plaintiff is sufficient to sustain a judgment abating the same. (Blood . Light, 31 Cal. 115.) So if special findings are not inconsistent with it. Id. 23. When Action Lies. In general, courts of equity do not take jurisdiction in cases of nuisance until the party aggrieved has estab- lished his right by an action at law, unless some special ground is shown ; such as irreparable injury, multiplicity of suits, or the like. Review- ing many authorities, (Parker v. Winnipiseogee Lake Cotton and Woolen Co., 2 Black. 545 ; Irwin v. Dixon, 9 How. U. S. 10; Pennsylvania v. Wheeling and Belmont Bridge Co., 13 Hoiv. U.S. 5, 1 8, 561 ;) in which authorities may be found the history of the jurisdiction of courts of equity in these cases. 24. Who Liable. The author of a nuisance is answerable for all the damages thereof, and after a recovery of damages for its erection another action may be maintained for its continuance. Each continu- ance is a new nuisance. (Ang. on Watercourses, 587.) So that, if a person erects a mill, to the nuisance of another, every occupier of it afterwards, who permits a continuance of the nuisance, is subject to an action. (Ang. on Wafer courses, 588, and cases there cited; see Ells- worth v. Putnam, 16 Barb. 565.) If the purchaser be ignorant of the consequences and damage occasioned he must have notice of it, and a request must be made to remove trie nuisance before an action can be brought. (Ang on Watercourses, 590.) But, of course, where the nuisance is committed by the defendant himself, no notice or request of removal before action is necessary. (Id.} The person whose duty it was to remove the nuisance, or to keep a hole protected, is alone liable. (Blake v. Ferris, i Seld. 48.) The party doing the work and his servants are liable. (Id.; Lougherz;. Painter, 5 Barn.& Cres. 560; FOR NUISANCES. 299 Milligan v. Wedge, 12 Adol. & Ellis, 737.) A landlord is liable to his tenant for injury from the bursting of a defective sewer. Alston v. Grant, 2\Eng. L.& Eq. 122; Tenants. Goldwin, 2 Ld. Raym. 1,089; Vaughn v. Menlove, 2 Bing. (N.C.) 468; Cooper v. Barb, 3 Taunt. 99; Andrew v. Pullen, 10 M. &. W. 321. No. 462. lii. For Continuance of a Nuisance. [TITLE.] The plaintiff complains, and alleges : I. That he is, and at all the times hereafter men- tioned, was, possessed of [the house and lot, No , Street, ]. II. That ever since the .... day of , 1 8 . . , the defendant has maintained [a slaughter house] on the [lot No , Street, , etc., etc., as in the preceding form\ . III. That on the .... day of , 1 8 . . , the plaintiff requested the defendant to remove the said [slaughter house, or to cease using it for that purpose], but he has not done so. IV. [State special damagel\ [Demand of Judgment.] 25. Allegation of Request. By some of the courts of New York, a request is held necessary against a mere continuer of a nuisance. (Hubbard v. Russell, 24 Barb. 407; but see, contra, Brown v. Cayuga and Susq. R.R., 12 N.Y. 492.) I cannot, however, upon prin- ciple, see any reason in the rule, if there be such a rule, which requires notice to discontinue the doing an unlawful act. 26. Allegation where Land has been Transferred. That 3 FORMS OF COMPLAINTS. on or about the day of . ". , i 8 . . , }he defendant A. B. con- veyed said premises to the defendant C. D., who ever since has been in possession of the same, and wrongfully maintains said nuisance. That on the .... day of , 1 8 . . , the plaintiff requested him to re- move and abate the same. 27. Continuance. Every continuance of an obstruction is in itself an offense. (Renwick v. Morris, 7 Hill, 575.) The action lies against him who erects a nuisance, and against him who continues a nuisance erected by another. (Staple v. Spring, 10 Mass. 72; Hodges v. Hodges, 5 Met. 205.) And every use of an erection which is a nui- sance is a new nuisance. And one who continues a nuisance may be sued without notice, or a request to him to abate it. Conhocton Stone Co. v. Buffalo, N.Y., and E. R.R. Co., 52 Barb. 390. No. 463. iv. For Obstructing a Way. [TITLE.] The plaintiff complains, and alleges: I. That he is, and at the time hereafter mentioned was possessed of a house in the Town of , County of [or describe premises], and that the same fronted upon a certain road or highway. II. That he was accustomed to pass [with vehicles, or on foot], along that certain highway [or private way] leading to his said house. III. That on the day of , 18 . ., the defendant obstructed the said highway, so that plaintiff could not pass [with vehicles, or on foot, as the case may be~\, along said highway, and has ever since obstructed the same. IV. \State special damage, if any.~\ [Demand of Judgment.] FOR NUISANCES. 3OI 28. Action, when it Lies. An action to abate a nuisance in a highway by water, obstructing the free use of plaintiff's property, will lie the same as to abate a nuisance in a highway by land. (Blank v. Klumpke, 29 Cal. 156.) If the free use of his property is interfered with he may have his private action to abate the same. Id.; cited as authority in Hastings v. Stark, 36 Cal. 122. 29. Bay or River as a Highway. All that part of a bay or river below low water or low tide, is a public highway, common to all citizens, and if any person appropriate it to himself exclusively, the presumption is that it is a detriment to the public. Gunter v. Geary, i Cal. 462. 30. Building on a Street. A person building a storehouse on a street, who, in consequence of the city's raising the carriage-way of the streets, raises a sidewalk so as to make it conform to the carriage way, thereby obtaining vaults and an area for the benefit of his building, does not do a public work nor relieve himself from the penalty of making a nuisance, if a nuisance is made by what he does. (Robbins v. Chicago City, 4 Wall. U.S. 657.) Buildings erected on public grounds or highways acquire no right either on account of time or expenditure. (Philadelphia v. Phil, and Reading R.R. Co., 58 Penn. 253.) It is a nuisance to erect a building on a highway. Gunter v. Geary, i Cal. 467. 31. Impediment in Street. Defendants dug a deep hole on their premises close to the line of a public street, and threw out earth and stones upon the sidewalk. The plaintiff in trying to pass the ob- struction on the sidewalk, went a little upon the defendants' land, fell into the hole, and was injured. It was a dark night, and defendants had provided no light. The plaintiff was using due care. Held, that the fact that, under the above circumstances, he went upon defendants' land, and was injured there, did not bar his action. Vale v. Bliss, 50 Barb. 358. 32. Injunction. If a plaintiff has suffered a particular injury from the obstruction of a public way, a bill will lie for an injunction. Cook v. Mayor of Bath, Law Rep. 6 Eq. 177; Bateman v. Gray, Law Rep. 6 Eq. 215. 33. Nuisances on Public Streets and Highways. If a city, in the exercise of its right to grade highways, creates a stagnant pond on a man's land, close to his house, it is liable in damages. 3. Gilborn, 8 How. Pr. 456; Brownson v. Gifford, Id. 389.) But a widow, though a proper, is not a necessary party. And a judgment which makes not a sale, but actual partition, in no way affects her interests, and should not be disturbed upon her motion to set aside for irregularity. Gordon v. Sterling, 13 How. Pr. 405; and see Ash v. Cook, 3 Abb. Pr. 389; Tanner v. Niles, i Barb. 560; compare Ripple v. Gilborn, 8 How. Pr. 456. 14. Mining Claim* The mere fact that a mining claim is owned and worked by several persons as partners, is no valid objection to a partition of the same between the owners, where the answer does not set up, and it is not shown that a suit in equity is necessary to settle the accounts and adjust the business of the partnership; and all the material allegations in a complaint for partition of real property, which are not denied by the answer, are deemed admitted for the purpose of the trial. (Hughes v. Devlin, 23 Cal. 501.) Where two thirds of a quartz mill and mine were owned by M. and S., while the other third was owned by C. and Y., and the profits and losses of the entire claim were shared in this proportion, M. and S. conveyed by deed their in- terest to R., who entered into and remained in possession of the same, a small portion only of the purchase money being paid down by R. A suit was instituted against M., S., C. and Y. for a debt due by the com- pany, and judgment was passed against them, and all their right, title, and interest were sold to H., who in due course received a sheriffs deed, under and by virtue of which he thereafter claimed to own all FOR PARTITION. 323 said ptoperty. In an action by R. against H. to quiet title, it was held that R. acquired under said deed from M. and S. the title to the two- thirds undivided interest, and H. acquired by said sheriff's deed only the one third undivided interest of C. and Y. Ross v. Heintzen, 36 Cal. 313. 15. Mortgage. It is not sufficient to aver merely that the defend- ant claims an interest adverse to the plaintiff, but the nature of the claim should be set out. (Stryker v. Lynch, n N.Y. Leg. Obs. 116.) The plaintiff cannot foreclose a mortgage which he holds on defend- ant's interest in the property, and cut off defendant's equity of redemp- tion by an absolute sale, as in partition. Bradley v. Harkness, 26 Cal. 76. 16. Notice Lis Pendens. Immediately after filing the com- plaint, the plaintiff shall file with the Recorder of the county or of the several counties in which the property is situated, either a copy of such complaint or a notice of the pendency of the action. From the time of the filing, it shall be deemed notice to all persons. (Cal. Pr. Act, 267.) The notice shall contain the names of the parties so far as known, the object of the action, and a description of the property. Cal Pr. Act, 267. 17. Parol Partition. In general, a valid partition of lands cannot be made by parol, such case being within the Statute of Frauds. But a parol partition may be made of lands held under a trust arising by im- plication of law. (Dow v. Jewell, 1 8 N.H. 340.) And a parol par- tition, valid as between the parties, may be ratified by others interested in the land. (lu.) Family arrangements are to be regarded with favor, and a parol partition among heirs, if fairly made, is binding even upon femmes covert, if they are parties to it, and assent to the arrangement; but only when it has been agreed to by all the joint owners, and when it has been executed. McConnell v. Carey, 48 Penn. 345. 18. Parol Partition, how Made. A parol partition of land may be made by co-owners under the Mexican law, as well as by ten- nants in common under the common law. (Long v. Dollarhide, 24 Cal. 222.) In order to uphold a parol partition under both the Spanish and common law, it must satisfactorily appear that there was not only an. agreement to make the partition, but that the same was fully executed and followed up by a several possession, by either the parties themselves or their grantees (Id.) An agreement to establish 324 FORMS OF COMPLAINTS. a partition line between the occupants of adjoining tracts of land is of no validity. In order to render such agreement for a partition line effectual, each party must have the title to and right to dispose of the tract claimed by him; or, in other words, they must be co-terminous proprietors. (Carpentier v. Thirston, 24 Cal. 280.) A parol partition of land owned by tenants in common could be made in California before the adoption of the common law; but the agreement for such partition should be satisfactorily proved, and each tenant in common should have assigned to him and enter upon and possess a specific part of the land in severally. Elias v. Verdugo, 27 Cal. 420. 19. Partial Partition. When in the opinion of the Court, a com- plete partition would be impracticable or inconvenient, a partial partition may be made. (See Cal. Pr. Act, 272.) Where commissioners in the partition and allotment failed to divide and allot some marsh land, a part of the tract, and where no proof was offered that this land was of any value, or that the division made was affected in any manner by the failure to divide it, or that the allotments made would in any degree have been affected by the allotment of this, or that any injury resulted to any one interested in consequence of this omission, and where important rights have vested under the partition, this court would not be warranted in holding the action of the commissioners void because of their failure to divide and allot the marsh land. Tewksbury v. Provizzo, 12 Cal. 20. 20. Parties. When several co-tenants hold and are -in possession of real property, as parceners, joint tenants, or tenants in common, in which one or more of them have an estate of inheritance, or for life or lives, or for years, an action may be brought by one or more of such persons for a partition thereof. (Cal. Pr. Act, 264.) A tenant in common of part of a tract of land is a proper party in a suit for the parti- tion of the whole. (Gates v. Salmon, 28 Cal. 320; Button v. Warschauer, 21 Cal. 609; Hathaway v. De Sota, Id. 191.) The real parties in interest should be joined in partition, and the holder of a special tract, as well as the co-tenants of his grantor, should be made parties to the action. (Gates v. Salmon, 35 Cal. 576.) Neither the administrator nor the creditors of an intestate are necessary or proper parties to a bill for par- tition between the heirs of the estate of the intestate, even if his per- sonal property is insufficient to pay his debts. (Speer v. Speer, i McCarter (N,J.} 240.) The proper construction of 4 of the Cal. Pr. Act, taken in connection with 268, 278, and 293, requires that FOR PARTITION. 325 the holder of a special tract, as well as the co-tenants of his grantor, should be made a party to such action. (Gates v. Salmon, 35 Cat. 576; cited as authority in Sutler v. San Francisco, 36 Cal. 112.) The severa parties to an action of partition, so far as its ultimate purpose is con- cerned, to wit: a partition are all actors or plaintiffs, each against each and all others, and it is in this respect a matter of no consequence whether they appear uponjthe face of the record in the technical atti- tude of plaintiffs or defendants. Morenhout v. Higuera, 32 Cal. 295. 21. Partition by Attorney. A power of attorney which authorizes the attorney to sell the lands of the constituent, and to do whatever is necessary to carry the power into execution, does not authorize the attorney to make partition of lands in which the constit- uent has an interest as a tenant in common. (Borel v. Rollins, 30 Cal. 408.) But an attorney in fact, whose power does not authorize him to make partition of the lands of his principal, may afterwards give effect and confirmation by the execution of deeds of conveyance. Id. 22. Partition by Deed. Where a deed of partition is invalid as a conveyance, by reason of its non-execution by some of those who are parties to it, it may become effectual by the parties taking and hold- ing in severally in pursuance of its terms, and dealing with their respect- ive parties as if owned in severally; but such acts of ratification do not operate to make the deed a valid conveyance, but only by way of estop- pel or as a determination of boundaries, and only upon the interests of those performing them. A party who signed the deed is not estopped from insisting upon its invalidity by reason of any acts of ratification, either of the others who did execute or of those who failed to execute. (Tewkesbury v. O'Connell, 21 Cal. 60.) A contract between A. and E., tenants in common, by which it is agreed that B.'s interest in the land shall be a certain amount in excess of what he otherwise owned, and that B. shall extinguish all claim of title in the land set up by C., by procuring C.'s deed, and that after certain other events transpire a divi- sion of the land shall take place between the contracting parties, and deeds be exchanged, is not fulfilled by B. having procured C.'s deed before the contract was made, nor by procuring C.'s deed to himself, unless he then conveys it to A.; (Porter v. Atherton, 32 Cal. 416;) even though C. had no valid title to the land. (/. Lyman, 2 Paine, n.) Where a partnership is liable to be dissolved at the will of either party, the con- sequence of such dissolution is to throw the winding up of their partner- ship affairs into a court of equity, unless they agree on the mode of settlement. (Stevens v. Yeatman, 19 Md. 480.) A court of equity will dissolve a partnership when the respondent in a suit for dissolution does not intend to carry out one of the terms of the partnership agreement. (Meaher v. Cox, 37 Ala. 201.) That one partner cannot by withdraw- ing himself from the association before the period stipulated between the partners for its continuance, either dissolve the partnership or extricate himself from the responsibilities of a partner, either in respect to his associates or to third persons, but the partnership may be put an end to by the act of God, or by operation of law, (Pearpoint v. Graham, 4 Wash. C. Ct. 232.) In the voluntary winding up of a joint stock com- pany, claim made to the liquidator on bank notes and drafts current at the time of the stoppage is a sufficient demand for payment, and inter- est runs from the date of such claim. In re East of England Banking Co., Law Rep. 4 Ch. 14. FOR DISSOLUTION OF PARTNERSHIP. 389 491. ii. On the Ground of Assignment by Partner-. [TITLE.] The plaintiff complains, and alleges: I. \_Allege partnership as before]. II. That on the .... day of , 18.., at , the defendant A. B., without the knowledge or assent of the plaintiff, assigned and transferred to the defendant C. D., all his interest in said partnership, and all his right, title and interest to any and all prop- erty of said firm. [Demand of Judgment J] 22. Dissolution by Assignment. The assignment of all joint interest in a patent, by one joint owner, is a dissolution of the partnership for working it. (Parkhurst v. Kinsman, i Blatchf. 488.) A partnership 'is dissolved by the cessio bonorum made by one of the members, and the solvent partner being bound in in solido, has a right but not an exclusive one to liquidate its affairs. Saloy v. Albrecht, 17 La. An. 75. 23. Mining Partnership. One of the partners in a mining partnership may convey his interest in the mine and business, without dissolving the partnership. Duryea v. Burt, 28 Cal. 569; Skillman v. Lachman, 23 Id. 198. 24. Sale to Stranger. Evidence that a partner sold to a stranger his interest in a stock of goods belonging to the firm, but not in the notes, accounts and other assets of the firm, and that the pur- chaser formed a partnership with the seller's partners, is not sufficient proof of the dissolution of the original partnership. (Cody v. Cody, 31 Ga. 619.) Where one partner retires from business, assigning to the other all his interest in the partnership's property, the remaining part- ner acquires the same dominion as if it had ever been his own separate 39O FORMS OF COMPLAINTS. jroperty. (Dimon v. Hazard, 32 N. Y. 65.) Where one partner sells >ut his interest in the partnership, it works a dissolution of the same. (Bradley v. Harkness, 26 Cal. 69.) The introduction of new members 'nto a firm works a dissolution of the pre-existing co-partnership, ;xcept for the purpose of collecting the assets and paying the debts of the concern. Mudd v. Bast, 34 Mo. 465. . No. iii. Upon Notice of Expiration of Term of Co-Partnership. I. [Allege partnership as in preceding forms. ~\ II. That on the .... day of , 1 8 . . , the defendant [or the plaintiff], pursuant to the provision of said agreement, gave to the [defendant or plaintiff] a written notice of his intention to dissolve said agree- ment, a copy of which is hereto annexed. [Demand of Judgment^ 25. Actual Notice. Notice to persons who have dealt with the firm must be actual or something equivalent thereto. (Johnston v. Totten, 3 Cal. 343; Williams v. Bowers, 15 Id. 321; Ennis v. Williams, 30 Ga. 691.) That one partner told several persons, prior to the execu- tion of the note, that the firm was dissolved, is inadmissible to prove dis- solution where no notice is shown to the plaintiff. (Parsley v. Ramsay, 31 Ga. 403.) Publication in a local newspaper is not, in North Carolina, notice from which actual notice will be inferred. (Scheiffelin v. Stevens, I Wins. (No. i), 106.) Nor in Louisiana. (Reillyz>. Smith, 1 6 La. An. 31.) That the question of notice is a question of fact for the jury, (Rabe v. Wells, 3 Cal. 148.) And its publication is a fact from which the jury will infer actual notice. (Treadwell v. Wells, 4 Cal. 260.) The following notice of the dissolution of partnership was published: "B. having disposed of his interest in the firm of A. & Son to A., the firm is this day dissolved. A. assumes all the liabilities of the old firm, and for such purpose will use its name, and to whom all debts due to the firm will be paid." This paper was signed by both. If made bona fide, it is a written dissolution of the partnership. Armstrong v. Fahnestock, 19 Md. 58. FOR DISSOLUTION OF PARTNERSHIP. 39! 26. Express Notice. Express notice given by publication in a newspaper is conclusive on those who have not had dealings with the firm, and as to those who have had dealings, it will be received as evidence of notice. (Shurlds v. Tilson, 2 McLean, 458.) An osten- sible partner retiring from a firm must give notice of his retirement, or he will be liable to creditors of the continuing firm on contracts made by them after his retirement. (Williams v. Bowers, 15 Cal. 321.) A member of a firm retiring therefrom without publishing notice of the dissolution, is not liable on a note signed in the firm's name by another member, given to a new customer eleven years after the retirement. Farmers' Bank v. Green, i Vroom (N.f.) 316. 27. Mutual Consent. Where a partnership is dissolved by mutual consent, a court will assume control of its business and appoint a receiver only when it appears necessary, to protect the interest of the parties, and not as a matter of course. (Cox v. Peters, 3 Beasley (N.y.} 39.) One who has been accustomed to deal with a firm is entitled to assume that it continues to exist until he receives actual notice of its dissolution. (22 Wend. 183; Mechanics' Bank v. Livingston, 33 Barb. 45$.) In New York, the dissolution of a limited partnership by filing a notice with the County Clerk, and by publication for four weeks ( i Rev. Stat. 767, 24), does not become operative until the complete perform- ance of both those acts. (Fanchawe v. Lane, 16 Abb. Pr. 71.) Such notice is necessary to exonerate the members of a firm from liability on a promissory note made in its name after dissolution. (City Bk. of Brooklyn v. McCheeney, 20 N.Y. 240; City Bank of Brooklyn v. Dearborn, Id. 244.) When notice of change of firm's name is relied on to exonerate retiring partner, such change must show that he has retired from the business. American Linen Thread Co. v. Wortendyke, 24 N.Y. 550. 28. Offer to Dissolve. Allegation by one partner, contained in a pleading, of his desire to dissolve, is not equivalent to an acceptance of an offer to dissolve made by the other party a month previous. Bank of N.Y. v. Vanderhorst, 32 N.Y. 553. 29. When Dissolution may be Obtained. A partnership that has no limit in respect to time may be dissolved by either party at will. (Chit, on Con/. 208.) Yet where parties have agreed to enter into such a partnership, the refusal of one of them to enter is a good cause of action to the other. (Skinner v. Tinker, 34 Barb. 333.) A provi- 392 FORMS OF COMPLAINTS. sion in articles of co-partnership presenting a definite period for its continuance, is sufficient, without any prohibition of an earlier dissolu- tion, to prevent either party from dissolving it at will. Smith v. Mu- lock, i Abb. Pr. (N.S.) 374. No. 493. iv. On the Ground of Bankruptcy of Partner. [TITLE.] The plaintiff complains, and alleges : I. \Allege partnership as before^\ II. That on the day of , 18 . . , at , the defendant was declared a bankrupt by the United States District Court for the District of Cal- ifornia, and that by reason of such declaration of bank- ruptcy the partnership has been greatly discredited, and has sustained loss. [Demand of Judgment. \ 30. Bankruptcy. A decree of bankruptcy against a member of a firm operates as a dissolution of the partnership, and the assignee be- comes tenant in common with the solvent partner. The joint property remains in the hands of the solvent partner clothed with a trust. He can enter into no new partnership engagement, but his whole authority is limited to settling and closing the partnership concerns. (3 Kent's Com. 59; Story on Part. i, 328, 341, 407.) And ordinarily the assignee has no right to interfere with the administration of the effects of the firm. Matter of Norcross, i N.Y. Leg. Obs. 100. FOR DISSOLUTION OF PARTNERSHIP. 393 No. 494. v. On the Ground of Misappropriation of Funds. [TITLE.] The plaintiff complains, and alleges: I. \_Allege partnership as before.~\ II. That since the commencement of said partnership, the defendant has, from time to time, applied to his own use, from the receipts and profits of said business, large sums of money, greatly exceeding the proportion thereof to which he was entitled, to wit, the sum of . dollars. Ill That the defendant still continues to collect the co-partnership debts and appropriate the money to his own use, greatly exceeding the proportion thereof to which he is entitled. Wherefore the plaintiff demands judgment: 1 . That the said co-partnership may be dissolved. 2. That a receiver of the property thereof be ap- pointed, with the usual powers. 3. That an account be taken of all the said co-part- nership dealings and transactions, from the commence- ment thereof, and of the money received and paid by the plaintiff and defendant respectively in relation thereto. 4. That the defendant be restrained by injunction from interfering with the debts or moneys or property or effects of said partnership. 5. That the property of the firm, real and personal, 394 FORMS OF COMPLAINTS. be sold, and the co-partnership debts and liabilities be paid off, and the surplus, if any, divided between the plaintiff and defendant, according to their respective interests. 6. And for such other and further relief as may be just, with the costs of this action. 31. False Entry in Books. Where one partner has the man- agement of the partnership affairs, and makes false entries in the books, and defrauds his co-partner of a portion of the partnership receipts, and retains the same to his own use, the partner defrauded is entitled to a dissolution and an accounting. (Cottle v. Leitch, 35 Cal. 434.) The taking of an account follows dissolution as a matter of course. Id. No. 495. vi. By Administrator, for Dissolution of Co- Partner ship, on the Ground of Death of Partner. [TITLE.] The plaintiff complains, and alleges: I. That on the day of , 18 . . , at , one A. B. entered into partnership with the defendant, under an agreement of which the following is a copy: \_Copy agreement^ II. That the said co-partnership business was entered upon pursuant to said agreement, and continued to be carried on under and pursuant to the same up to the time of the death of the said A. B. III. That on the day of , 18. ., at ...... . . , the said A. B. died. IV. That at the time of the death of the said A. B. there was on hand partnership assets to the amount or FOR DISSOLUTION OF PARTNERSHIP. 395 value of about dollars, as follows: \Specify personal property audits value, real property, describ- ing it and its value, and other property, as book accounts, etc., and their value. ~\ V. \_Allege appointment of plaintiff as executor or as administrator, as in Form No. 56.] VI. That ever since the death of said A. B. the said defendant has continued in the possession of the said real and personal property, and to manage and carry on said business, and dispose of said property, and to collect the debts and things in action, and to pay debts and liabilities of said firm out of the avails thereof; and that he has so collected large sums, the amount of which the plaintiff does not know and cannot ascertain. VII. That the defendant has not paid over to the plaintiff, as admistrator of the estate of said A. B., any money or other proceeds of said co-partnership since the death of said A. B., nor has he assigned, transferred, or delivered over to said plaintiff, as administrator, any of the assets, securities, .or property of said co-partner- ship. VIII. That the defendant is insolvent, and is unable to give any security for payment to the plaintiff as representative of said A. B. for the value of the interest of said A. B. in said co-partnership. IX. That the plaintiff has requested of said defend- ant a statement and account of said co-partnership trans- actions, which the defendant refused to give. Wherefore, the plaintiff demands: i. That an account may be taken of all the said co-partnership dealings and transactions, from the time 396 ' FORMS OF COMPLAINTS. of the commencement thereof to the time of dissolution by the death of said A. B., and of the moneys received and paid by the said partners respectively in regard thereto, and that he account for all dealings with and transaction in regard to the property, assets, and effects of said firm since its dissolution by the death of said A. B., and the property sold or disposed of by him, either as surviving partner or otherwise, and of the moneys collected and received and paid out by him on account thereof. 2. That the defendant may be adjudged to pay the plaintiff, as administrator as aforesaid, the residue which shall appear to be due to the estate of said A.B., after payment of all the debts of the firm. 3. That a receiver be appointed, with the usual powers and duties, and under the usual directions; and that the defendant may be restrained by order of this court from disposing of or in any manner interfering with the property and effects of said firm, or from col- lecting or receiving the co-partnership debts or other moneys coming to said firm. 4. For such other or further relief as may be just, with costs of this action. NOTE. Under our statute, a surviving partner has the absolute right to settle up tjie affairs of the co-partnership, subject always to judicial inquiry. 32. Compensation Allowed. Where the partnership has been carried on some time after the dissolution by death, and such continu- ance has proved beneficial, he may be allowed compensation for his services, to be deducted from the profits. Griggs v. Clark, 23 Cal. 427. 33. Credit Allowed. A surviving partner, who administers upon FOR DISSOLUTION OF PARTNERSHIP. 397 the partnership affairs, may be allowed a credit on his inventory, for a debt due by the deceased partner, and for a debt due by himself to the firm, at the same time both debtors being insolvent. Crow v. Weidner, 36 Mo. 412. 34. Dissolution by Death. The partnership is dissolved by death. (Scholefield v. Eichelberger, 7 Pet. 586; Burwell v. Mandeville, 2 How. Pr. 560.) The death of a partner is not a revocation of the agency. Bank of N.Y. v. Vanderhorst, 32 N.Y. 553. 35. Rights of Survivor. When a partnership is dissolved by the death of one of its members, the surviving partner is to wind up the affairs of the partnership, pay its debts out of its assets, and divide the residue among those entitled to it. (Gleason v. White, 34 Cal. 258; Loeschigk v. Addison, 19 Abb. Pr. 169.) He has the exclusive right of possession, and absolute power of disposing of the assets. (Laws of Cal. 1850; Estates of Deceased Persons, 198; Allen v. Hill, 1 6 Cal. 113.) He may transfer the title to a chose in action of the firm; and after such transfer the remedy must be prosecuted in the name of the real party in interest. (Roys v. Vilas, 18 Wis. 169.) In Louisana, on the death of a partner, his interest in the assets of the concern become vested in his heirs at law, and the surviving partners can only acquire that interest by transfer and assignment from the heirs, and thereby acquire the right to sue for a debt in their own name. (Skipworth v. Lea, 16 La. An. 247.) The right of a surviving partner to administer the partnership effects is not an absolute right, but depends upon the consent of the heirs. McKowen v. McGuire, 15 La. An. 637. No. 496. vii. By a Creditor, to Dissolve a Corporation. The plaintiff complains, and alleges: I. and II. \_Aver incorporation, and aver judgment and execution unsatisfied^ III. That said company has become and is insolvent, and unable to pay its debts. 398 FORMS OF COMPLAINTS. IV. That the defendants [officers] are the trustees [or directors] of said corporation. V. \State what acts the trustees have done to unlaw- fully dispose of the property of the corporation, and thus jeopardise the creditor s claim.~\ Wherefore the plaintiff demands judgment: 1. That said corporation be dissolved. 2. That said judgment, execution, and levy be set aside. 3. That the directors of said company account for their management and disposition of the funds and property of said corporation committed to their charge, and that they pay all sums of money that may be found to be due from them, and the value of all property which they may have acquired themselves, or transferred to others, or lost or wasted, by any violation of their duties as directors. 4. That said company and its officers be restrained from exercising any of its corporate rights, privileges, or franchises, and from collecting or receiving any debts or demands, and from paying out, or in any way transfer- ring or delivering to any person, any of the moneys, property, or effects of such corporation, until the further order of the Court. 5. That a receiver of its property and effects may be appointed. 6. And for the costs of this action. CHAPTER III. DIVORCE. No. 497. i. On the Ground of Adultery. [TITLE.] The plaintiff complains, and alleges: I. That plaintiff and defendant are husband and wife, that they intermarried at , in the County of ......... State of , on or about the .... day of , 1 8 . . , and ever since have been, and now are husbanpl and wife. II. That the plaintiff is and has been a resident of the State of , for the period of .... months immediately preceding the commencement of this action. III. And plaintiff, on her information and 'belief, alleges that the defendant did, on the .... day of , 1 8 . . , commit adultery with one ' . , at \_name the place, and describe the house~\ . IV. Plaintiff further alleges, on her information apd belief, that defendant, on divers days and times between said last mentioned day and the commencement of this action, has committed adultery with the said , and is now living and cohabiting with the said , , , at the place and in the house above mentioned. 4-OO FORMS OF COMPLAINTS. V. Plaintiff further alleges that each and all of said acts of adultery were committed without the consent, connivance, procurement, or previous knowledge of plaintiff, and that she has not lived or cohabited with defendant since she became cognizant of the commission by the defendant of the several acts of adultery complained of. VI. Plaintiff further alleges that the defendant is the owner and possessed of the following described real and personal property: [particularly describe it, and state its value\ , all of which has been acquired by him since their said marriage. VII. Plaintiff alleges that the rents, issues, and profits of said real property are of the monthly value of about dollars, in United States gold coin. VIII. Plaintiff furthes alleges that there are now liv- ing of the issue of their said marriage children. \State their sex, names, and ages^\ IX. Plaintiff further alleges that she is in indigent circumstances, and wholly dependent upon her own labor for her support [or that she is in ill health, or too aged to earn her livelihood, and is dependent on the charity of her friends for support.] Wherefore plaintiff demands judgment: i . That the bonds of matrimony between herself and the defendant be dissolved, and that the custody of the said minor children be awarded to the plaintiff. 2. That such portion of the common property be allowed 'and set apart to plaintiff as shall be equitable and just, and that the defendant be enjoined and re- FOR DIVORCE. 4. Doane, 22 Cal. 635.) The failure of a complaint, in an action for a division of common property, to state with sufficient particularity the facts showing the character of the property, is a defect of form which must be objected to by demurrer. Id. 8. Common Property, Disposition of. In an action for divorce for extreme cruelty, where nothing is said in the pleading about the disposition of the common property, it is error to award it all to one of the parties. Howe v. Howe, 4 Nev. Rep. 469. 9. Condonation. Condonation is a constitutional forgiveness, and a repetition revives the condoned injury, (i Hagg. Ecc. 745; Smith v. Smith, 4 Paige, 432; Johnson v. Johnson, Id. 460; 14 Wend. 637; Burr v. Burr, 10 Paige, 29.) And former injuries will be revived by misconduct of a slighter nature than such as to constitute an original ground for a divorce. (2 Hagg. 114; Burr v. Burr, 10 Paige, 20; see, also, Whispell v. Whispell, 4 Barb. 217.) Connivance destroys all claim to remedy by way of divorce. Myers v. Myers, 41 Barb. 114. 10. Consent. The Court will not proceed on the ground of the 404 FORMS OF COMPLAINTS. consent to a dissolution of the marriage contract. Williamson v. Williamson, i Johns. Ch. 488. 11. Custody of Child. A wife suing for divorce on the ground of extreme cruelty, is entitled to the custody of their female child of tender years. (Wand v. Wand, 14 Cal. 512.) There is no error in requiring the husband to maintain a minor child committed to the mother's custody, after a divorce obtained on account of his misconduct. Arm- strong v. Armstrong, 35 ///. 109. 12. Improper Familiarities. Ri a case of adultery, proof of improper familiarities, not amounting to criminality, was received to characterize the conduct of the party charged; and such proof was allowed of facts which occurred before the time in which the offense was alleged to have been committed. Lockyer v. Lockyer, i Edw. 107. 13. Injunction. In an action for divorce brought by a wife, an injunction was allowed upon the complaint to restrain the defendant from removing his property out of the State. (Vermilyea v. Vermilyea, 14 How.Pr, 470; 6 Abb. Pr. 511; Rose v. Rose, n Paige, 169; Lawrie v. Lawrie, 9 Id. 234.) And where the husband fraudulently assigned his property, both he and his assignee were enjoined from dis- posing of it. Questel v. Questel, Wright's Ohio Rep. 92. 14. Joinder of Courts. Two or more of the above grounds of divorce may, in California, be united in the same complaint, but they should be separately stated, and demand of judgment should be framed accordingly. But it seems that in New York, charges of adultery and of cruel usage, being distinct and independent, and leading to distinct issues and decrees, cannot be united. (Pomeroy v. Pomeroy, i Johns. Ch. 606; Johnson v. Johnson, 6 Johns. Ch. 163; Smith v. Smith, 4 Paige, 92; Rose v. Rose, n Id. 166.) And the same rule is applied under the Code of Procedure. Mclntosh v. Mclntosh, 12 How. Pr. 289. 15. Jurisdiction. In an action for divorce brought by the wife, .the judge of the court in which the action is pending has no jurisdic- ,tion to hear and determine in the district court of an adjoining county, of the same district, an application by the wife for an allowance, pen- dente lite, and for the custody of the children of the marriage. (Bennett ... Southard, 35 Cal. 688.) It can only be made in the court where the .action is pending. J.6. Marriage, Averment of. The averment of marriage, if FOR DIVORCE. 405 not denied, need not be proven. (Fox v. Fox, 25 Cal. 587.) In suit for divorce on the ground of adultery, the marriage must be proved. It will not be inferred from matrimonial cohabitation with the reputation of being married. (Case v. Case, 17 Cal. 598.) 17. Marriage, -when Void. Though a marriage be ipso facto void, as where a party was insane, yet it is proper that it should be de- clared void by a judicial tribunal, i Black. Com. 439; i Collins on Lun. 554; Sid. 112; Prec.in Ch. 203; i Eg. Cas. Abr. 278; 9 Mod. 98; i Ves. & 1 Bean. 140; Wightman v. Wightman, 4 Johns Ch. 343; Perry v. Perry, 2 Paige, 501. 18. Name of Adulterer. The name of the person with whom defendant committed adultery should be given, if known, though, to avoid scandal, it has been held the name need not be given if sufficient certainty can otherwise be had. Far v. Far, 34 Miss., 597. 19. Parties. The wife, in a suit for divorce, may make a party of any one claiming interest in the common property. (Kashaw v. Ka- shaw, 3 Cal. 312.) In New Hampshire, a bill for divorce cannot be prosecuted by a third person where libellant dies before entry of the bill.' Kimball v. Kimball, 44 N.H. 122. 20. Residence of Six Months. The plaintiff must aver and prove though it is not denied that he or she has been a bona fide resident of this State six months before making the application for a divorce. (Bennett v. Bennett, 28 Cal. 599.) A man's residence is that place where his family dwells, or which he makes the chief seat of his affairs and interests. (Matter of Hawley, i Dale, 531.) The domi- cile of the husband is the domicile of the wife, and the plaintiff must be considered a resident of this State, where the husband has resided since 1850. (Kashaw v. Kashaw, 3 Cal. 312; Beard v. Knox, 5 Cal. 257; see, also, Moffat v. Moffat, Id. 281.) To constitute a residence, within the legal meaning of the term, there must be a settled fixed abode, an intention to remain permanently, at least for a time, for business or other purposes. (Frost v. Brisban, 19 Wend, n; Matter of Hale, 2 N.Y. Leg. Obs. 139.) In New Hampshire, an offense committed when both parties were out of the jurisdiction of the Court is not a ground for divorce. Frost v. Frost, 17 N.H. 251. 21. Second Action. A plaintiff may bring a second action for divorce for subsequent acts of adultery. The practice of resorting to .406 FORMS OF COMPLAINTS. supplemental complaint is not compulsory. Cordier v. Cordier, 26 How. Pr. 187. 22. Time and Place. In averring the offense in an action for divorce on the ground of adultery, precision as to time, place and cir- cumstances is required. (2 Paige, 108; see n Abb. Pr. 231; 7 Notes ofCasestnEcd.Cts.i2'j; Anonymous, 17 Abb.Pr. 48.) As above cited, where a plaintiff in his complaint alleged that five years had not elapsed since he discovered the fact that such adultery had been committed by the defendant, without his consent, connivance, or procurement, it is not suf- ficient it should aver that the adultery charged was committed without the consent, connivance, etc. (Myers v. Myers, 41 Barb. 114.) The complaint must allege that the discovery by the plaintiff of the defend- ant's criminality took place within a certain time before the commence- ment of the suit. (Zorkowski v. Zorkowski, 27 How. Pr. 37.) In Illinois, the time is sufficiently alleged if it is stated to have happened before the commencement of the action. Hawes v. Hawes, 33 ///. 286. No. 498. ii. On the Ground of Desertion. [TITLE.] The plaintiff complains, and alleges: I. \_Allege marriage as in previous form.~\ I 1 . \_Allege residence as in prev ious form . ] III. That on or about the year , the said defendant, disregarding the solemnity of his marriage vow, willfully and without cause deserted and abandoned the plaintiff, and ever since has and still continues so to willfully and without cause desert and abandon said plaintiff, and to live separate and apart from her, without any sufficient cause or any reason, and against her will, wish, or consent. [Demand of Judgment. \ FOR DIVORCE. 407 22. Consideration. The offer, after that period, to return and live with the wife, will not defeat the action, unless the offer is accepted and acted upon. (Benkert v. Benkert, 32 Cal. 467.) The refusal of a wife to accompany her husband on a change of his residence is willful desertion, if unattended by excusing circumstances, and if followed by a cessation of matrimonial cohabitation. (Hardenberg v. Harden- berg, 14 Cal. 654.) Desertion consists in actual cessation of matrimo- nial cohabitation, coupled with intent to desert. Id.; also see Morrison v. Morrison, 20 Cal. 431. 23. Intent. Intent is presumed from proof of prolonged abandon- ment without apparent cause. Id. 24. Voluntary Separation. Where, on the inability of a hus- band to support his wife, they separate voluntarily, and she returns to her relatives, the separation is not a willful desertion on his part, though he should cease to correspond with her. Ingersoll v. Ingersoll, 49 Penn. St. 249. 25. Willful. In suits of divorce " willful " signifies intentional. Benkert v. Benkert, 32 Cal. 467. 26. Willful Desertion. In California, willful desertion for the space of two years is ground for divorce. (Conant v. Conant, 10 Cal. 249.) But it must be without the consent of the other party. Ben- kert v. Benkert, 32 Cal. 467. No. 499. iii. On the Ground of Conviction for Crime. [TITLE.] The plaintiff complains, and alleges: I. \_Allege marriage as in preceding forms^\ II. [Allege residence as in preceding forms .] III. That at the term of Court , in the County of , State of Cali- fornia, and before this action, the defendant was [duly] 408 FORMS OF COMPLAINTS. convicted of the crime of , and [duly] sen- tenced by the said Court to confinement in the state prison of said State for the term of years, and in pursuance of the said sentence the defendant is now confined in said state prison. [Demand of Judgment, ,] JVo. 500. iv. On Grounds of Extreme Cruelty. [TITLE.] I. \Allege marriage as in Form No. 497.] II. [Allege residence as in Form No. 497.] III. That since said marriage, the defendant has treated her in a cruel and inhuman manner, and in par- ticular as follows: On the .... day of , 1 8 . . , at , the defendant [here state the particular acts of cruelty, specifying date and place for each, and the nature of the act\. [Demand of Judgment^ ' * ; ,. 27. Alimony -without Divorce. The question was decided that a wife, who without cause or provocation is driven from her husband's house, with her infant child, and is wholly without the means of support, may maintain an action against the husband for a reasonable allowance, for the maintenance of herself and child, without coupling with the application a prayer for a divorce. (Gallandz;.Galland, Cal Sup. Ct.Jul. T., 1869.) "The doctrine extends through the entire field of our law, as administered alike in the common law, equity, and ecclesiastic tribunals, that in effect whenever the wife is adjudged entitled to live separate from her husband, by reason of breaches of matrimonial duty committed by him, a concurring adjudication must be pronounced that he support her while so living; the one adju- FOR DIVORCE. 409 dication being commensurate in extent with the other, and neither one existing without the other." (See Galland v. Galland, Cal. Sup. Cl.,Jul. T., 1869, and cases there cited.) In several states, by legislative pro- ceedings, an allowance for the separate maintenance of the wife, dis- connected with proceedings for a decree of divorce, is authorized. (Galland v. Galland, Cal. Sup. Ct., Jul. T., 1869.) " We therefore con- ceive that the chancellor, before the statute and since, in cases not embraced by it, which have strong moral claims, had and has jurisdic- tion to decree alimony, leaving* the matrimonial chain untouched, and that those authorities which decide in favor of such jurisdiction ought to prevail." The same proposition is maintained in (Purcell v. Purcell, 4 Hen. & Mun. 507; Almond v. Almond, 4 Randolph, 662; Logan v. Logan, 2 B. Mun. 142; Prather v. Prather, 4 Desares, 33; Rhame v. Rhame, i McCord Ch. R. 197; Glover v. Glover, 16 Ala. JR. 446; Galland v. Galland, Cal. Sup. Ct., Jul. 7'., 1*869.) ^ * s better, say our Court in the above case, to abandon the subterfuge to which courts have sometimes resorted in such cases "as a pretext for jurisdiction," and administer the appropriate relief without the "pretext." Gal- land v. Galland, Cal. Sup. Ct., Jul. T., 1869. 28. Allegation of Cruelty. The specific acts which constitute the cruel treatment must be stated. Anonymous, n Abbotts' Pr. 231; S.C., sub nom. Walton v. Walton, 32 Barb. 203. 29. Common Property. Where the decree of divorce, for extreme cruelty, in an action in which there was no averment in the pleadings as to the common property, awarded it all to the plaintiff: Held, that in so far as it purported to make disposition of or direction concerning such property, it should be reversed, and the cause remanded for amendment of the pleadings and for further proceedings. (Howe v. Howe, 4 Nevada Reports, 469.) There is no doubt that the Court, in granting a divorce, has authority to direct the defendant to pay the plaintiff alimony, and the allowance may be based upon his earnings, or his ability to earn money. (Bishop on Mar. and Div. 604.) The party found guilty of either adultery or extreme cruelty shall only be entitled to such portion of the common property as the court granting the decree may, in its discretion, from the facts of the case, deem just and allow; and such allowance shall be subject to appeal in all respects, including the exercise of discretion by the court below. Stat. of Cal. 1857, I 199. 30. Condonation. An offer by a wife to return to her husband 4IO FORMS OF COMPLAINTS. and live with him, made pursuant to an order of court for her support,* in lieu of an allowance, is not a condonation of his previous cruel treat- ment. Retz v. Retz, 19 Abb. Pr. 90. 31. Cruelty without Violence. There may be extreme cruelty without the slightest violence. If it appear probable that the life of one of the parties will be rendered miserable by any character of miscon- duct on the part of the other, although no personal violence be appre- hended, a separation should be decreed. (Reed v. Reed, 4 Nev. Rep. 395.) Language may constitute a cruelty. (Durant v. Durant, i Hagg. Eccl. R. 769; Lockwood v. Lockwood, 2 Curtis Eccl. R. 281; cited and approved in Bihin v. Bihin, 17 Abb. Pr. 26.) Cruel and inhuman treatment, to justify a limited divorce, need not consist of injury to the person. (Hetley, 149; i Hagg. Eccl. R. 776, 769; 2 Cur. Eccl. R. 281 : Bihin v. Bihin, 1 7 Abb. Pr. 19.) It is such conduct as furnishes reason- able apprehension that the continuance of the cohabitation would be attended with bodily harm. . Morris v. Morris, 14 Cal. 76; Powelson v. Powelson, 22 Cal. 358; see, also, Mahone v. Mahone, 19 Cal. 626. 32. Extreme Cruelty. Extreme cruelty means the same thing under the statute as sceviiia or cruelty under the English ecclesiastical courts. (Morris v. Morris, 14 Cal. 76.) If either party inflicts, by violence on the other, bodily pain, as by whipping, or by threatening or .attempting to commit adultery, or by curses and abuses, or by using insulting or opprobrious language, it is cruel treatment. (Gholston v. Gholston, 31 Ga. 625.) In Iowa, the cruel treatment must be such as to endanger the life, and the complaint must state the specific facts of inhuman treatment. It is not sufficient to allege them generally. (Freerking v. Freerking, 19 Iowa, 33.) Where a husband, in presence of his wife, in spite of her entreaties, unmercifully beats her child, it is cruel and inhuman treatment. (Bihin v. Bihin, 17 Abb. Pr. 19.) But demeanor calculated to provoke annoyance, discontent and disgust, is not sufficient. (Conklin v. Conklin, 17 Abb. Pr. 20.) And divorces are granted in such cases to relieve from apprehended danger of bodily harm. (Morris v. Morris, 14 Cal. 76.) But not when such cruelty is caused by the misconduct of the wife. (Johnson v. Johnson, 14 Cal. 459.) The acts or character of treatment which will amount to extreme cruelty, sufficient to constitute a ground of divorce, must in a great measure depend on the character of the respective parties, and the peculiar circumstances of each case. Reed v. Reed, 4 Nev. Rep. 295. FOR DIVORCE. 41 I 33. Form, -with Claim for Alimony. That plaintiff and defendant were duly married and became husband and wife in the kingdom of Prussia, in the year 1859, and immediately removed to the State of California, from which time they continued to live and cohabit together as man and wife, in this State, till November, 1864, during which time they had born unto them one child, a son (now under plaintiff's care), and by their united exertions acquired property of the value of twenty thousand dollars, which property consists of money, stocks, notes, and other personal securities, now entirely in the hands and under the control of defendant; that in the month of November, 1864, defendant, without cause or provocation, drove plaintiff from his house, and ever since has and still does refuse to live or cohabft with plaintiff, allow her to return to his house or to speak to him; and since the separation as aforesaid, the defendant has supplied her with $77 per month for the maintenance of herself and child, but threatens to reduce or wholly deprive her of this allowance at his pleasure; that she has no separate property. Wherefore plaintiff prays permanent alimony in the sum of dollars per month, to be paid and secured to her for the separate maintenance of herself and child, and that the custody of said child be awarded to her. This was substantially the form of com- plaint in Galland . Galland, Cal. Sup. Ci.. Jul. T., 1869. 34. Provocation of Violence. A divorce will not be granted on the ground of extreme cruelty, where it appears that the complaining party has willfully provoked the violence or misconduct complained of, unless such violence greatly exceeds the provocation. (Reed v. Reed, 4 Nev. 395.) Where the conduct of the plaintiff was not free from fault, but it was not of such a character as to excuse defendant's acts of personal violence, the Court is authorized to grant a divorce. Eiden- muller v. Eidenmuller, Cal. Sup. Ct., Apt. T., 1869. 35. Single Act of Violence. A mere act of violence, where there is no apprehension of its repetition, and which is the result of rashness rather than malignity, does not furnish a ground of divorce on the ground of extreme cruelty, because this relief is not granted to punish the party guilty of misconduct, but to relieve the other party from future suffering or violence. Reed v. Reed, 4 Nev. Rep. 395. 412 FORMS Of COMPLAINTS. No. 501. v. On the Ground of Fraud. [TITLE.] i The plaintiff complains, and alleges : I. and II. \_Allege marriage and residence as before^ III. That for the purpose of inducing the plaintiff to consent to the said marriage, the defendant falsely and fraudulently represented that she was physically com- petent to marry the plaintiff, and concealed from the plaintiff her real physical condition. IV. That the defendant was not at the time physic- ally competent to marry the plaintiff but was at the time of the said marriage in a state of pregnancy by some other man than the plaintiff. V. That the plaintiff was induced to consent to the said marriage by the said representations, which he be- lieved at the time of his said marriage to be true, and that if the said representations had not been made to him, and said concealment had not been practiced, he would never have consented to the said marriage. VI. That immediately upon his discovery of the falsehood of said representations, to wit: on the day of , 1 8 . . , the plaintiff ceased to cohabit with the defendant, and has never since cohabited with her. {Demand of Judgment. \ 36. Absence of Former Husband. Where, after a husband has been absent five years, and not heard from, and the wife in good faith, supposing him dead, marries another, the marriage is voidable only, and cannot be adjudged void at the instance of a third party. . FOR DIVORCE. 413 Crosbey v. McKinney, 30 Barb. 47; see Griffin v. Banks, 24 How. Pr. 213. 37. Alimony. In an action by a man, to obtain a decree de- claring void a marriage, for the reason that the defendant at the time of such marriage had a living husband, the fact being admitted, the Court will not grant the defendant alimony and a counsel fee; because she is admittedly not the wife of plaintiff. Appleton v. Warner, 51 Barb. 270. 38. Ante-Nuptial Pregnancy. Ante-nuptial pregnancy by a stranger is a fraud going to the \ry substance of the contract, and vitiates abinitio. (Baker v. Baker, 13 Cal. 87.) To sustain an*action of divorce on the ground that the woman was pregnant at the time of the marriage, it is not necessary to prove express representations on her part that she was chaste. Donovan v. Donovan, 9 Allen (Mass.) 140. 39. Death of Former Wife. Where the husband had, before marriage to his present wife, represented to her that his former wife was dead, when in fact she was living, he having been divorced from her, these representations, even if fraudulent, are not fraud in a material matter or thing, within the legitimate purposes of marriage. Clarke v. Clarke, n Abb. Pr. 228. 40. Frauds which. Invalidate. Those frauds which inval- idate a marriage are usually such as negative any consent to be mar- ried at all, and are commonly duress, surprise, or stratagem in procuring the marriage, and the fraud must be nearly if not actually coincident with the marriage. (Leavitt v. Leavitt, 13 Mich. 452.) So of a mar- riage ^procured by abduction, terror, or fraud. (Ferlat v. Gojon, Hopk. 478.) Or by fraud and force. Sloan v. Kane, 10 How. Pr. 66. No. 502. vi. On the Ground of Habitual Drunkenness. [TITLE.] The plaintiff complains, and alleges: I. \_Allege marriage as in Form No. 497.] II. \_Allege residence as in Form No. 497.] 414 FORMS OF COMPLAINTS. III. That the defendant, disregarding his duties as a husband towar.ds the plaintiff, has been guilty of habitual drunkenness for years last past. [Demand of Judgment.'] 41. Habitual Intemperance Defined. If there be a habit of drinking to excess, to such a decree as to disqualify the party from attending to his business during the principal portion of the time usually devoted to business, it is habitual intemperance. (Mahone v. Mahone, 19 Cal. 626.) A single act of drunkenness and indecency of the wife is not such an indignity as will render the condition of the husband intolerable, within the meaning of the Statute of Missouri. (Kempfv. Kempf, 34 Mo. 211.) Habitual drunkenness, a series of annoyances, and extraordinary conduct, do not constitute legal cruelty, but in addi- tion to these, the willful communication of a venereal disease to the wife is cruelty. Brown v. Brown, Law Rep. i P. & D. 46; Boardman v. Boardman, Id. 237. No. 503. vii. On the Ground of Lunacy. [TITLE.] * . , The plaintiff complains, and alleges: I. \_Allege marriage as in Form No. 497.] II. [Allege residence as in Form No. 497.] III. That at the time of such marriage [she] he was a lunatic, and incapable of contracting a marriage, and has been ever since [or slate the duration^. IV. That the defendant is now perfectly recovered of his [her] lunacy aforesaid, and restored to his [her] right mind, memory, and understanding, and has been FOR DIVORCE. 415 for about months last past, and that since his [her] restoration to a sound state of mind as aforesaid, the plaintiff has not cohabited with the said defendant. [Demand of Judgment. \ 42. Return to Reason. Where a person, insane at the time of her marriage, after return to reason refused to ratify or consummate it, and filed her bill to annul it, the Court decreed the marriage null and void. Wightman v, Wightman, 4 Johns, Ch. 343. No. 504. viii. On the Ground of Willful Neglect. [TITLE.] The plaintiff complains, and alleges: I. [Allege marriage as in Form No. 497.] II. \Allege residence as in Form No. 497.] III. That the defendant, for more than years last past, has willfully neglected to provide for plaintiff the common necessaries of life, having the ability so to do, and has compelled plaintiff to live upon the charity of friends, notwithstanding he is abundantly able to support her, and is worth, as this plaintiff is in- formed and believes, about the sum of dollars, and is in the constant receipt of wages sufficient for their joint support from his daily labor, to wit, about dollars per month. [Demand of Judgment, ,] 43. Ability to Provide. It must appear that the husband was 41 6 FORMS OF COMPLAINTS. owner of sufficient property to provide, but neglected to do so. Wash- burne v. Washburne, 9 Cal. 476. 44. Charge of Failure to Support. It must affirmatively appear in the complaint, that the husband was the owner of property sufficient to provide for the necessaries of life, and neglected ,so to do, where the application is made on the ground of the willful neglect of the husband, for the period of thfee years, to provide the common necessaries of life, having the ability to provide the same. Washburne v. Washburne, 9 Cal. 476. 45. Willful Neglect. Willful neglect for the period of three years, whether accompanied with desertion or otherwise, is a distinct ground of divorce. (Washburne v. Washburne, 9 Cal. 475.) The neglect must be such as leaves the wife destitute of the common neces- saries of life. Id. . 505. ix. On the Ground of Physical Incapacity. [TITLE.] The plaintiff complains, and alleges: I. \_Allege marriage as in Form No. 497.] II. \Allege residence as in Form No. 497.] III. That immediately after said marriage took place, the plaintiff discovered that the said defendant A. B., at the time of her [his] marriage with the plaintiff as aforesaid, was physically incapable of entering into the marriage state; that the \_etc., stating the cause of siich incapacity^. IV. That the physical incapacity of the said A. B., arising from her diseased condition as aforesaid, was well known to the defendant at the time of her [his] intermarriage with the plaintiff as aforesaid, but was wholly unknown to the plaintiff. FOR DIVORCE. 417 V. That the plaintiff has been informed and believes that the said physical incapacity of the said A. B. still exists, and is incurable, and so charges the fact to be. Wherefore the plaintiff demands judgment, that the marriage between him [her] and the said defendant may be dissolved, and a divorce decreed, according to the statute in such case made and provided. 46. Impotence. To authorize a sentence of nullity on the ground of impotence, the existence of incapacity at the time of marriage, its continuance, and that it is incurable, must be shown, i Chitt. M.J. 375 ; Law. of H. & W. 1 6; i Hagg. Ecc. 523; 2 Lees. Ecc. Cas. 580; i fleck's M.J. 68; 4 Partida, tit. 8; Van Leeuw. 87; Davenbagh v. Davenbagh, 5 Paige, 554. CHAPTER IV. FRAUD. No. 506. \. For Rescission of Contract, on the Ground of Fraud. [TITLE.] The plaintiff complains, and alleges : I. That on the day of , 18 . . , the plaintiff was the owner of a farm situated in the Town of , County of [describing it\. II. That the plaintiff then was and ever since has been old, infirm, and blind, and wholly incapacitated from attending to business, and the defendants on that day, 27 41 8 FORMS OF COMPLAINTS. fraudulently taking advantage of the plaintiff's said inca- pacity, procured him to sign a certain writing, without paying him any consideration therefor, and which writ- ing they falsely and fraudulently represented to be a mere matter of form. III. That on the day of , 1 8 . . , the plaintiff demanded possession of said writing of the defendants, or information as to the contents thereof, but the defendants refused to surrender the same, or to give him any information concerning the same. IV. That the plaintiff is informed and believes that the said writing is under seal, and is a deed of said premises, and conveys the same or some interest therein to the defendants; and that they intend to use the same for their own benefit, and to the prejudice of the plaintiff. Wherefore the plaintiff demands judgment: 1. That the said writing is void. 2. That the defendants produce the said writing, and deliver it up to be canceled. 3. For costs of this action. NOTE. This form is in substance from Abbotts' Forms. 1. Act of Agent. Fraud committed through an agent is well stated in pleading as that of the principal. If this were otherwise, and it appeared at the trial to be that of an agent without any participation of his principal, the variance is the subject of amendment, and will be disregarded upon appeal. (Curtis v. Fay, 37 Barb. 64; Bennett v. Judson, 21 N.Y, 238.) Equity will relieve, where falsehood or fraud is practised, whether it be by the principal or the agent. (Mason v. Crosby, i Woodb. & M. 342; Smith v. Babcock, 2 Id. 246, 293.) Even when the false representations are made by a stranger, FOR FRAUD. 419 it is deemed as if made by the seller. (Crocker v. Lewis, 3 Sumn. i.) In such case, the relief granted must be on the ground of mistake. (Fisher v. Boody, i Curt. C. Ci. 206.) It is a fraud for an agent to avail himself of his confidential relations to create an interest adverse to that of his principal in the transaction, and that fraud creates a trust even when the agency must be proved only by parol. (i Russ. & Mylne, 53; 11 Bligh, 397, 418; contra, \ Eden, 515; S.C., i Cox, 15; 4 East. 477; 4 Russ. 423; Jenkens v. Eldridge, 3 Story C. Ct. 18.) In alleging fraud committed by an agent, it is the better practice to state the fact that the defendant acted by an agent. See, also, 2 Chit. PL 117; i Wentw. 345. 2. Act of Legislature Fraud. An act of the Legislature is not subject to attack on the ground of fraud, and it is sufficient on this point to refer to (Sherman v. Story, 30 Cal. 266; Oroville and Vir- ginia City Railroad Company v. the Supervisors of Plumas County, Cal. Sup. Ct., April T., 1869.) Any attempts to deceive persons entrusted with the high functions of legislation, by secret combinations, or to create or bring into operation undue influences of any kind, have all the injurious effects of a direct fraud on the public. (Marshall v . Bal- timore and Ohio R.R. Co., 16 How. U.S. 334.) All persons interested in the passage of an act have an undoubted right, either in person, or by counsel, to urge their claims and arguments, before legislative com- mittees, as well as in courts of justice; but a hired advocate or agent, assuming to act in a different character, is practicing deceit on the Leg- islature. See, Miles v. Thome, Cal. Sup. Ct., Oct. T., 1869. 3. Act of Attorney. If a sale of lands under a power of attorney procured through fraud be set aside as fraudulent and void ab initio, the fraudulent vendee is not entitled to a decree against the vendor for restitution of a part of the purchase money paid to the attorney who was privy to the fraud. Sanchez v. McMahon, 35 Cal. 218. 4. Actual and Intentional Fraud. Where a bill charges actual and intentional fraud, and prays for relief on that ground, the complainant cannot, under the prayer for general relief, rely on circum- stances which may amount to a case for relief, under a distinct head of equity, although those circumstances substantially appear in the bill, but are charged in aid of the charge of actual fraud. (Eyre v. Potter, 1 5 How. U.S. 42.) Rule is applied to purchase from widow by her stepson. If a bill charges fraud as the ground of relief, fraud must be proved. The proof of other facts, though such as would be sufficient, under 42O FORMS OF COMPLAINTS. some circumstances, to constitute a claim for relief under another head of equity, will not prevent the bill from being dismissed. Fisher v. Brady, i Curtis C. Ct. 206. 5. Assignment. A cause of action for damages for procuring a sale of goods by false representations is assignable; and the assignee may sue thereon without joining the assignor. Johnson v. Bennett, 5 Abb. Pr. (N.S.) 331; Allen . Brown, 51 Barb. 86. 6. Consideration. Mere inadequacy of consideration, unless ex- tremely gross, does not per se prove fraud or mistake. (Eyre v. Potter, 15 Hoiv. U.S. 42; Wright v. Stanard, 2 Brock. Marsh. 311; this sub- ject considered in Vint v. King, 2 Am. Laiv Reg. 712.) The insert- ing in the deed of a consideration less than the true consideration is not of itself a fraud, if a fair amount was paid. (Knowles v. Case, 2 Cranch C. Ct. 576.) But an entire failure of consideration is often sufficient to rescind a contract in equity, although mere inadequacy of consideration is not. (i Grant Ch. 367; 2 Ves. 155; i Met. 180; I Story Eq. Jur. 244; i Knapp P.C. 73; i Brown Ch. Ct. App. 558; i Cox, 383; 8 Ves. 133; Warner v. Daniels, i Woodf. & M. 90.) Where purchaser does not receive the title which the deed pur- ports to convey, and he goes into and retains possession under the deed, and the failure of title goes to the entire consideration paid, the remedy is by a rescisson of the contract, alleging a paramount title in another, and offering to re-deliver possession and account for the rents and profits. (Walker v. Sedgwick, 8 Cal. 398.) A creditor who attacks a sale on the ground of fraud as to him, admits the validity of the sale between the parties thereto, but seeks the benefit of the statute as to himself, and must show fraud. Thornton v. Hook, 36 Cal. 223. 7. Contract of Agent. An action ex-contractu does not lie against one who fraudulently represents himself as the agent of another, and makes a contract in his name. The remedy is an action for decei}. Noyes v. Loring, 55 Me. 408. 8. Contract of Sale. A party who sues to rescind a contract for the purchase of land, on the ground of fraud, must in his bill offer to return the land purchased. Murphy v. McVicker, 4 McLean, 252. 9. Debts Fraudulently Contracted. In case of a debt fraudu- lently contracted by a partnership firm by one member alone, made with innocent third parties, while all the members will be bound in FOR FRAUD. 421 an action brought on the contract, or to recover the property so fraudu- lently obtained, yet the liability to an action for the fraud, which is essentially different and involves moral turpitude, Ms limited to the part- ner committing the same, unless the others assented to the fraud or ratified it, or retained its fruits with knowledge of the fraud. Stewart v. Levy, 36 Cal. 159. 10. Deceit, how Alleged. In alleging deceit, the averment that the defendant falsely and fraudulently represented, etc., is sufficient, as an allegation of his knowledge, that his representations were false. (2 Johns. 550.) But if this were not the case, an objection to a plead- ing for such defect, if not taken at the trial, cannot be raised on appeal from the judgment. Thomas v. Bebee, 25 N.I'. 244. 11. Deed Deposited -with Third Person. Where a bill in equity is filed to cancel a deed which avers that the grantor deposited the same with a third person, to be by him delivered to the grantee upon the order of the grantor or his agent, and that before the agent gave the order the grantor directed the third person not to deliver the deed, but does not aver that the third person intends or threatens to deliver the deed to the grantee, or that he will disobey the instructions of the grantor, the bill does not state facts sufficient to constitute a cause of action. (Fitch v. Bunch, 30 Cal. 208.) If a suit to rescind a deed is brought after a considerable lapse of time, and after the plaintiff has exercised the powers of an owner over the property, so as to change its character or value materially, the bill must state sufficient reasons for the delay; and those reasons must be made out in proof. (Fisher v. Boody, i Curtis C Ct. 205.) For a complaint to set aside a deed of minor, on his coming of age, see Voorhies v. Voorhies, 24 Barb. 159. 12. Demand. A demand for the price of goods sold is not necessary to maintain an action against a debtor for fraudulently pur- chasing the same. Payment, though it would satisfy the debt, would not remove the part of the fraud which is the gravamen of the action. Stewart v. Levy, 36 Cal. 159. 13. Facts must be Alleged. A bill for relief upon the ground of fraud must be specific in stating the facts which constitute the fraud. It is not sufficient to charge fraud in general terms. (Kent v. Snyder, 30 Cal. 666; Castle v. Bader, 23 Id. 75; Moore v. Greene, 29 How. Pr. 69; Beaubien v. Beaubien, 23 Id. 190.) And without the* aver- ment of such facts, the expressions "fraudulently," "deceitfully," "by 422 FORMS OF COMPLAINTS. mistake," will not bring the case within the equitable jurisdiction, even on a demurrer to the bill. (Maginac v. Thompson, 2 Wall. jr. C. Ct. 209; S.C., 15 How. U.S. 281.) In imputing fraud, the term itself need not be used, if the facts stated amount to it. (Attorney-General v. Cor- poration of Poole, 4 Myl 6* C. (i 8 Eng. Ch.~) 1 7 ; S.C., 8 LJ. (N.S.)ch. 27.) No allegation of fraud is necessary in the complaint in an action founded on a warranty deed. Any allegations oT fraud in such complaint, when not essential, may be disregarded. (Quintard v. Newton, 5 Rob. 72.) In case of a warranty, the scienter need not be alleged. (Holman v. Dord, 12 Barb. 336.) But the fraud or deceit must be substantially alleged. Everston v. Miles, 6 Johns. 138; Zabriskie v. Smith, 3 Kern. 322; Cazeaux v. Mali, 25 Barb. 578. 14. False Representations. The essential allegations in an action to recover damages for false and fraudulent representations, are: First, That they were false. Second, That defendant knew them to be false. Third, That he made them with intent to defraud the plaintiff. These facts should be clearly stated. (Sharp v. Mayor of N. Y., 2 5 How. Pr. 389; Addington v. Allen, 1 1 Wend. 374; reversing S.C., 7 Id. 9; Wells v. Jewett, 1 1 How. Pr. 242.) In an action on the case for fraud in the sale of a lot of land, a declaration sufficiently alleges the fraud which states that the defendant induced the plaintiff to purchase by fraudu- lently misrepresenting, in the course of a conversation between the plaintiff and the defendant in regard to the sale of the land, "that there were three thousand spruce logs on the premises (meaning that there were spruce trees growing thereon that would cut and make three thousand spruce logs of the usual and customary size and quality)." (Whitton v. Goddard, 36 Vermont, 730.) Where a complaint averred a fraudulent agreement, and alleged that the representations to the plaintiffs, and the purchase made of the plaintiffs on such representa- tion, were made in pursuance of such fraudulent agreement, and were a device and contrivance, the complaint was held sufficient. Ballard v. Lock wood, i Daly, 158. 15. Fraud Defined. Any material misrepresentation of a mate- rial fact as to which one party places a known trust and confidence in the other, and by which the confiding party is actually misled to his in- jury, will induce a court of chancery to set aside a conveyance. (Smith v. Richards, 13 Pet. 26.) Fraud in the use of a written instrument is as much ground for the interposition of equity as fraud in its creation. Pierce v. Robinson, 1 3 Cal. 1 1 6. FOR FRAUD. 423 16. Fraud, when Consummated. The fraudulent intent of a party to procure goods without payment is consummated when the pos- session of the goods is obtained without payment on delivery. Stewart v. Levy, 36 Cal. 159. 17. Fraud must be Alleged. The burden of charging, as well as of proving fraud, is on the party alleging it. Mere conclusions will not avail. (Butler v. Viele, 44 Barb. 166.) A general allegation that the grantee procured the deed by false and fraudulent representations and practices, and by undue and improper influence, is insufficient, without stating the nature of the alleged representations. (Id.) Where upon the facts the law adjudges fraud, still it is not therefore indispensable that the complaint should in terms allege fraud, and its omission does not substantially vary the cause of action. Sharp v. Mayor of N.Y., 40 Barb. 256. 18. Fraudulent Deed. C. fraudulently obtained a deed of D., conveying land in Michigan, and had said deed recorded in said State. C. then granted said lands to third parties. Held, that even under this fraud, courts of another state could not undertake to pronounce these recorded deeds nullities. But the parties being before the Court, and there being no attempt, to prove that the last mentioned grantees were pur- chasers for a valuable consideration, the Court could compel said grantees to execute to S. a release of all claim acquired through the deed from him, under penalty for attachment of contempt. If said grantees should go beyond the jurisdiction, the Court should appoint a special commissioner to make the conveyance in their stead. (Cooley v. Scarlett, 38 ///. 316.) In an action to set aside as fraudulent a convey- ance of land, so much of the complaint as sets out in detail the incep- tive steps which culminated in the alleged fraudulent conveyance is not irrelevant or redundant matter. Perkins v. Center 35 Cal. 713. 19. Fraudulent Intent. That fraudulent intent should be averred in pleading a charge of fraud, see (Moss v* Riddle, 5 Crancht 351; compare Fenwick v. Grimes, 5 Cranch C. Ct. 439.) When the facts relied upon as constituting the fraud must be pleaded, see (McClintick v. Johnston, i McLean, 414; Lathrop v. Stewart, 6 Id. 630.) A party seeking relief from the payment of purchase-money, on the ground of fraud, must distinctly allege it in the bill. Noonan v. Lee, 2 Black. U.S. 499. 20. Fraudulent Note. When a party has given a promissory 424 FORMS OF COMPLAINTS. note, and the payee assigns the note, without recourse, after maturity, and suit is brought upon the note by the assignee, the maker then files his bill against the assignor and assignee, alleging fraud in obtaining the note, and praying for an injunction, and that the note be canceled : Held, that the case was a proper one for equitable relief, and the maker had the right to have the note canceled, so as to prevent future litiga- tion. (Domingo v. Getman, 9 Cal. 97.) For a form of complaint to cancel a note or bill in defendant's possession, see (Gardner v. Lee's Bk. ii Barb. 558.) For a complaint seeking to avoid payments of notes given by a company never duly organized, see (Jones v. Dana, 24 Barb. 395.) To cancel note or bill in defendant's possession, see Gardner v. Lee's Bank, n Barb. 558. 2L Fraudulent Representations. A complaint alleged that the plaintiff was the keeper of a livery stable, and as such it was his business to keep horses for hire, etc. ; that he kept in his stable two val- uable horses of his own, etc. ; that the defendant, knowing these facts, brought to the plaintiff a horse which had the distemper, representing that the horse had recovered and could not communicate the disease; that the plaintiff being ignorant of the condition of the horse received him into his stable, relying on the defendant's representations; that the defendant knew that the disease was then in the contagious stage, and that the plaintiff's two horses took the disease. Held, that the com- plaint was not bad for not alleging that the injury occurred without fault or negligence on the part of the plaintiff, or that the defendant did not in his business receive sick and diseased horses for keeping. Ful- ler v. Wyckoff, 25 Ind. 321. 22. Fraudulent Sale of Mine. If a complaint avers that the defendant, by false representation as to the value of mines, induced the plaintiff to purchase the same, and pay a sum of money therefor, and that defendant gave plaintiff a deed therefor, and received the con- sideration, and also claims general damages exceeding the consideration, and avers an offer to redeem the deed, it is an action, in common law parlance, ex delicto, and not ex contractu, and the averment of an offer to return the deed is not an offer of a rescission of the contract, nor an offer to rescind. (Ahrens v. Adler, 33 Cal. 608.) If the plaintiff in his complaint claims damages for a fraudulent sale of mines to him, and avers an offer to return the deed given to him, an amendment striking out the offer to return the deed does not change the issues tendered in the complaint. (Ahrens v. Adler, 33 Cal. 608.) Plaintiff FOR FRAUD. 425 and defendant were partners in the purchase of mining claims. De- fendant was the active partner, and acquainted with the value of a certain claim owned by the firm, plaintiff being ignorant of its value. Plaintiff sold his interest in this claim to defendant for greatly less than its value. Held, that in a suit by plaintiff against defendant, 'to set aside this sale for fraud, and for an account, etc., an averment that defendant is indebted to plaintiff on an account in a sum greater than that paid by defendant for the mining, is in effect an offer to place defendant in statu quo. Watts v. White, 13 Cal. 321. 23. Guardian's Sale. For complaints to set aside guardian's sale as fraudulent, see Clark v. Underwood, 17 Barb. 202. 24. Insufficient Averments. Where the complaint alleges " that by virtue of the covenants of said deed, said B. M. covenanted and agreed that she had title to said premises, and the right to convey the same, and that she had not prior thereto conveyed the same to any person except to said plaintiff and W.," and that relying solely upon the said representations " made by B. M., that she was the owner of the premises, they accepted and received the deed in part payment of a pre-existing debt," and that "by means of which false and deceptive repiesentations" they have suffered damages in the sum of, etc., it was held ambiguous and uncertain. Lawrence v. Montgomery and Evoy, Adm'rs, Cal. Sup. Ct., Apr. T., 1869. 25. Jurisdiction. Courts of law and equity have concurrent jurisdiction of fraud in many cases; (Swayze v. Burke, 12 Pet. n; Rhoades v. Selin. 4 Wash. C. Ct. 715; Sabury v. Field, i Me All. 60;) e.g., to enforce a bond cancelled by the obligee in consequence of fraud practiced by the obligor. (United States v. Spaulding, 2 Mas. 478.) On account of the difficulties in adjusting the rights and equities of the parties at law, a court of law refuses to open the question of fraud, in the consideration, or in the transaction out of which the consideration arises, in a suit upon a sealed instrument. (Hartshorn v. Day, 19 How. U.S. 211 ; overruling Day v. New Eng. Car Spring Co., 3 Liv. Law. Mag. 44.) Fraud is a well recognized ground of equitable jurisdiction. (Atkins v. Dick, 14 Pet. 114; Dunlop v. Stetson, 4 Mas. 349; Briggs v. French, i Sumn. 504; Hubbard v. Tinner, 2 McLean, 519.) In both equity and law, fraud and injury must concur to furnish ground for judicial action. (4 Pel. 297; 6 Id. 716; Clarke v. White, 12 Pet. 178.) Courts of equity may direct the cancelment of a contract for 426 FORMS OF COMPLAINTS. raud or mistake, but they cannot alter the contract. Brooks v. Stolley, 3 McLean, 523. 26. Misapplication of Money. All persons in interest must oe joined in a suit against a party for misapplication of money collected by him. (Harris v. Schultz, 40 Barb. 315.) A charge of embezzle- ment, and praying that defendant be adjudged guilty of fraud, and for judgment and execution against his person and property, is insufficient to sustain a verdict convicting the defendant of fraud. (Porter v. Hermann, 8 Cal. 623.) The facts which constitute the fiduciary capacity, its nature and extent, should be stated in direct and positive terms. It is necessary, in such a case, to charge not only that defend- ant received the money as agent, but that he converted it in the course of his employment as such. The allegation is, in substance, that the defendant collected the money as agent, or, if not as agent, then as attorney in fact. (Id.) The embezzlement by an officer of a national bank, of a special deposit in such bank, is not made punishable by any statute of the United States, and may therefore be punished under a state law. Otherwise, of such embezzlement of the property of the bank. State v. Tuller, 34 Conn. 280. 27. Patent to Land. Fraud may be shown in the procurement of a deed, or the execution of a patent. (Cooper v. Roberts, 6 McLean, 93.) In an action to set aside a patent for land, on the ground that it was procured by false suggestions, fraudulent concealments, and by misrepresentations, the acts of fraud and misrepresentation must be speci- fied in the complaint. (Semple v. Hagar, 27 Cal. 163.) Where a party, in order to bring himself within a class of legislative grantees, must exhibit his muniments of title, fraud may be shown to prove that they have been dishonestly obtained. (Seabury v. Field, i McAll. 60.) When it appears that the relator is the real party in interest, and that 'the State has no direct interest in the event of the suit, he has a right to the control of the suit, and is responsible for its commencement, con- duct, and costs. People ex rel. Rondel v. Nor. San Fran. Homestead and R.R. Ass'n., Cal. Sup. Ct., Oct. T., 1869. 23. Patent to Land Form of Complaint. A complaint which merely avers that the relator is seized and possessed of the land, and that his title was derived from the State of California, under and by virtue of the location of a school warrant made under and in accordance with the provisions of an Act of the Legislature; that said location was FOR FRAUD. 427 duly and properly made, and in all respects according to the provision of said Act, does not state facts sufficient to constitute a cause of action. (People v. Jackson, 24 Cal. 632.) A general averment of the perform- ance of conditions precedent is sufficient in actions on contracts, but in other cases the facts showing the performance must be alleged. (Id.) A complaint in equity, filed for the purpose of setting aside a grant, on the ground that it was obtained by fraud, must state specifically and definitely the facts constituting the fraud. Oakland v. Carpentier, 21 Cal. 642. 29. Relief from Fraud. In actions for relief against fraud, the fraud, and not the discovery, is the substantive cause of action. (Sublette v. Tinney, 9 Cal. 423; Carpentier v. Oakland, 30 Cal. 444.) Relief will not be afforded upon the ground of fraud, unless it be made a dis- tinct allegation in the bill, so that it may be put in issue. (Noonan v. Lee, 2 Black. 499.) And allegations of fraud in a bill, which allega- tions are subsequently withdrawn, cannot aid the jurisdiction. (Adams v. Preston, 22 How. U.S. 473.) Where the bill charges actual and intentional fraud, and prays for relief on that ground, the complainant cannot, under the prayer for general relief, rely on circumstances which amount to a case for relief under a distinct head of equity, although those circumstances substantially appear in the bill, but are charged in aid of the charge of actual fraud. (Eyre v. Potter, 15 How. U.S. 42.) If a bill charges fraud as the ground of relief, fraud must be proved. Fisher v. Boody, i Curtis C. Ct. 206. 30. Return of Purchase Money. When a plaintiff is in a condition to rescind a contract, he may recover back in assumpsit the money paid on it. (Crossgrove v. Himmelrich, 54 Penn. 203.) Where an action is in disaffirm ance of a contract to recover back the price paid, and it appears that the plaintiff has complied up to the time of electing to rescind, tender or offer of the money which would have been due on completion is not essential. (Id.) Where an action is in affirmance of a contract, an offer of readiness to pay is material. Id. 31. Return, Allegation for. That on, etc., as soon as he had ascertained that the said representations were untrue, he demanded of defendant a return of said dollars, which defendant refused and still refuses. 32. Sale by Wife. While property after a sale under a fore- closure was subject to redemption, the wife, by her quit claim deed, 428 * FORMS OF COMPLAINTS. conveyed all her interest in it to S., for an inadequate consideration, and immediately thereafter S. conveyed it to C., who furnished the money which was paid to the wife: Held, that she is not entitled to rescind the contract of sale. (Perkins v. Center, 35 Cal. 713.) The rights of the wife in the homestead cannot be prejudiced by fraudu- lent acts of husband, where she did not participate. Barber v. Babel, 36 Cal. ii. 33. Statute of Limitations. A cause of action on the ground of fraud is barred after three years from the perpetration of the fraud. (Carpentier v. Oakland, 30 Cal. 444.) If the plaintiff wishes in such a case to bring himself within the exception of the statute, he must allege the fact of a discovery of a fraud at a period bringing him within the exception. (Id.} The complaint should also aver that the acts constituting the fraud had been discovered within three years; but if the replication contains this averment, and this issue is tried without objection, the irregularity in the answer of presenting the issue will be disregarded. (Boyd v. Blankman, 29 Cal. 20.) If plaintiff alleges fraud to have been committed more than three years before the commencement of his action, to bring himself within the exception of the statute, he must allege the fact of a discovery at a period bringing him within the exception. Sublette v. Sinney, 9 Cal. 423; Boyd v. Blankman, 29 Cal. 20; Carpentier v. City of Oakland, 30 Cal. 444. 34. Time must be Alleged. And especially must there be distinct averments as to the time when the fraud, mistake, conceal- ment, or misrepresentation was discovered, and what the discovery is, so that the Court may clearly see whether by the exercise of ordinary diligence the discovery might not have been before made. Stearns v. Page, 7 How. U.S. 819. No. 507. ii. For Rescission of Contract, on the Ground of Mistake. [TITLE.] The plaintiff complains, and alleges: w I. That on the day of , 1 8 . . , the defendant represented to the plaintiff that a certain FOR FRAUD. 429 piece of ground belonging to the defendant, situated at , contained twenty acres. II. That the plaintiff was thereby induced to pur- chase the same, at the price of dollars per acre, in the belief that the said representation was true, and signed an agreement, of which a copy is hereto annexed, and marked " Exhibit A," and made a part hereof. But no deed of the same has been executed to him. III. That on the .... day of , 18. ., the plaintiff paid the defendant dollars, as part of such purchase money. IV. That the said piece of ground contained in fact only ten acres. Wherefore the plaintiff demands judgment: 1. For dollars, with interest from the .... day of , 1 8 ... 2. That the said agreement of purchase be delivered up and canceled. 35. Action Lies. It is a well settled principle that mistakes in written instruments may be corrected in a court of equity, and it will not only go back to the original error and reform it, but will adminis- ter complete justice by correcting all subsequent mistakes which grow out of and were superinduced by the first. Quivey v. Baker, Cal. Sup. Ci., Apl. T., 1869; and Cole v. Rickle, at the same term decided on its authority. 36. As to Quantity. When the fraudulent representations relate to the quantity of the land, it is immaterial whether the sale is in gross or by the acre. Thomas v. Beebe, 25 N.K 244. 37. Knowledge of Plaintiff. Though the fact that the com- plainant had means of ascertaining the facts will ordinarily defeat a suit 43O FORMS OF COMPLAINTS. to rescind a contract on the ground of mistake merely, it will not prevent a recovery if actual fraud is shown to have been practiced upon him to induce him to make the contract, (i Story Eq. Jur. 192, 222; 7 Paige, 124; 2 P. Wins. 154; i Sim. 37; 2 Id. 289; i Sch. & L. 429; Warner v. Daniels, i Woodb. . Babcock, 2 Woodb. <&* J/. 246; Tyler z;. Black, i$Hmu. U.S. 230. JVo. iii. To Reform a Conveyance by Mistake in the Boundary. [TITLE.] The plaintiff complains, and alleges : I. That on the day of , 18 . . , the defendant executed and delivered to the plaintiff, under his hand and seal, a deed, of which the following is a copy: \_give copy of deed.~\ II. That the discription therein given of the premises intended to be conveyed was erroneous, and in fact does not describe any premises whatever \_here insert wherein the error lies], and that in order to make said deed pass any premises whatever to this plaintiff, and to make it conform to the actual intention of the parties, it is necessary that the said description should be amended so as to read as follows: \_here insert correct descrip- tion of the premisesl\ III. That the plaintiff has paid to the defendant for the said premises the consideration expressed in said deed. FOR FRAUD. 43! Wherefore the plaintiff demands judgment: 1. That said deed be reformed as aforesaid. 2. For costs of this action. 38. Deed. A complaint in equity to have a deed, absolute on its face, reformed so as to become a deed of trust, which avers that the deed does not express the trusts and Conditions upon which it was agreed the property should be transferred, but that such conditions were by the defendants fraudulently suppressed, without any statements of what acts of fraud were practiced, does not state facts sufficient to constitute a cause of action. (Kent v. Snyder, 30 Cal. 666.) Where a party brings a bill to have a conveyance, which is absolute on its face, declared a mortgage to secure an oral promise to pay a certain sum of money in gold, and to redeem, he cannot redeem except on paying said sum in gold, and this not on the ground of the " Specific Contract Act," but because " he who seeks equity must do equity." Cowing v. Rogers, 34 Cal. 648. 39. Mortgage. For the allegations of a complaint seeking to reform a mortgage on the ground of fraud, and for foreclosure as reformed, see (DePeyster v. Hasbrouch, n N.F. 582.) Facts should be distinctly stated entitling the plaintiff to relief. Lamoreux v. Atlant. Ins. Co., 3 Duer, 680. 40. Terms of a Contract. Of the rules of pleading applica- ble, where a party sued for non-performance of a contract in writing seeks to have it reformed, so as to express the real intentions of the parties, see (Wemple v. Stewart, 22 Barb. 154.) A complaint seek- ing to have a written contract reformed, and for judgment thereon when reformed, states but a single cause of action. (Gooding v. McAlister, 9 H& Rep. 347.) To prevent the publication of private correspond- ence, see (3 Edw. Ch. Rep. 515.) To restrain parties from using the name chosen and used by plaintiff for his inn. (3 Sand/. Rep. 725.) As to the infringement of trademarks, see, generally, (2 Bosw. i ; 25 Barb. 417; 2 Sand. 605; 2 Sand. Ch. 586; Id. 613.) For fraudu- lent change of trademark, injunction will be granted. (Gillott v. Kettle, 3 Duer, 626; Lemoine v. Ganton, 2 E.D. Smith, 347.) And mere colorable differences will not in general prevent an injunction from issuing. (Williams v. Johnston, 2 Bosw. 6; Clark v. Clark, 25 Barb. 78; Brooklyn Lead Co. v. Masury, Id. 418; A. Co. v. Spear, 2 Sand. 608.) The Court will consider the effect on the public, rather than on manufactures, if the article is of such a kind that the public would be apt to purchase upon the strength of the trade mark. Shrimpton v. Laight, 1 8 Beav. 164. 18. Action will not Lie. An injunction will not be granted to assist a wrong doer e.g., to a plaintiff who is himself counterfeiting another man's mark, so as to give him exclusive power to deceive. (Samuel v. Berger, 4 Abb. Pr. 88; Partridge v. Mench, 2 Sand. Ch. 622; i How. Cases, 548; Stewart v. Smithson, i Hilton, 121.) Nor in case plaintiff is in any wise imposing by fraudulent statements on the public concerning the matter. (19 How. Pr. 571; ^Abb.Pr.m; 6 Beav. 76; but see 4 Abb. Pr. 156; and Comstock v. White, N.Y. Trans., Feb. 17, 1860, conlra.} And where plaintiff falsely stamped his production with the word "patented," an injunction for his protection was refused. (Flavel v. Harrison, 10 Hare, 471, 472.) But in a case where the article had really been patented, and the patent had expired, the plaintiff continu- ing the use of the old label, including the word '"patented," this was held justifiable, and no ground for denying an injunction for plaintiff's benefit, (n Hare, 86.) And the plaintiff may even use a fictitious name, and be protected in it. (Stewart v. Smithson, i Hilton, 121.) If the facts are doubtful, or if the case is for any reason not a clear one, injunction should not be granted before a verdict upon the issues, 30 466 FORMS OF COMPLAINTS. (iZHow.Pr. 69; 4 Abb. Pr. 88; Id. 161 ; 2 Id. 326; 2 Sand. 618; 2 156; 2 S. Clark, 2 Philips, 156. 20. Allegation in Case of a Periodical Publication. That he is the proprietor and publisher of a newspaper [or magazine, or other periodical], at , known and distinguished as [name of publica- tion]; and that as such proprietor he has published the same daily [or otherwise] for years last past, and that such publication has been made by the plaintiff, and those through whom he purchased the same, as the owners and proprietors thereof, since the original establish- ment of the same, in the year . . . . , under the name of 21. Common Law Rule. By the common law, the manufac- turer of goods, or the vendor of goods for whom they have been manufactured, has a right to designate them by some peculiar name, symbol, figure, letter, form or device, whereby they may be known in the market as his own, and be distinguished from other like goods manufactured or sold by other persons; and, when original with him, the owner of such mark will be protected by the courts in its exclusive use, but only so far as it serves to indicate the origin and ownership of the goods to which it is attached, to the exclusion of any symbols, figures, and combinations of words which may be interblended with it, indicating their name, kind, or quality. Falkinburg v. Lucy, 35 Cal. 52. 22. Imitation of Label. In an action to recover damages for an alleged invasion, by imitation of the plaintiff's trade mark for the sale of a certain washing powder, which consisted of a highly colored picture representing a wash-room, with tubs, baskets, clothes lines, etc.; also the following legend interblended on it: "Standard Soap Company, Erasive Washing Powder," followed by directions for the use of the "washing powder," and the place of manufacture, the alleged imi- tation by defendants consisted of a picture and label which were the same as in plaintiff's alleged trade mark only in the use of the words "washing powder," the direction for the use of the powders, and in use of paper of the same color as that used by plaintiff: Held, that this did not constitute an infringement of plaintiff's trade mark. (Falkinburg v. Lucy, 35 Cal. 52.) The action may be maintained against the vendor of the simulated article, though he sells it as an imitation. (Coats FOR INJUNCTION. 467 v. Holbrook, 2 Sand/. Ch. 586.) It is sufficient to show the fact of falsity, and that the effect will necessarily be to deceive. (Peterson v, Humphrey, 4 Abb. Pr. 394.) But the plaintiff himself must be free from fraud in the business which he seeks to ^protect. (Pidding v. How, 8 Sim. 477; Perry v. Trufitt, 6 Beav. 66; Motley v. Downman, 3 Myl. . Elliot, i Cal. 337; Folsom v. Bartlett, 2 Id. 163; Barren v. Frink, 30 Id. 486; 2 Smith's Leading Cases, note to Cutter v. Powell, p. 22; Hill v. Grigsby, 35 Cal. 656; Rourke v. McLaughlin, Cal. Sup. Cl.,Jul. T., 1869. 5. Contract must be Certain. The performance of a con- tract must be decreed, according to its terms. (Hepburn v. Dunlop, I Wheat. 179; Bowen v. Waters, 2 Paine i; Oakley v. Ballard, Hempst. 475.) And specific performance will not be decreed unless the terms of the contract are clear, definite, and positive. (Kendall v. Almy, 2 Sumn. 278.) Courts of equity will not attempt to enforce vague and shadowy claims. Doe v. Culverwell, 35 Cal. 291. 6. Contract must be Complete. Specific performance will not be decreed, if it be doubtful whether an agreement has been con- cluded, especially if the party has done nothing under it. Carr v, Duval, 14 Pet. 77. 7. Contract must be Mutual. A contract to be obligatory on either party must be mutual and reciprocal. (Doe v. Culverwell, 35 Cal. 291.) Performance will not be decreed, where only a part of the vendors are bound for the title, and there is a want of mutuality. (i Johns. Ch. 370; 2 Id. 282; 6 Paige, 288; Bronson v. Cahill, 4 McLean, 19.) But the contract becomes mutual by the act of filing the complaint, where the action is brought against the one who signs the memorandum. (See 5 N.Y. 246; Joseph v. Holt, Cal. Sup. Ct., Ap. T., 1869; Rogers v. Saunders, 16 Maine, 92; Coleman v. Upcot, 5 Vtner, 527; Owens v. Davis, i Ves. 82; see, also, Buckhouse v. Crosby, 2 Eng.Eq. Cas. Air,, 32; Hatton v. Gray, 2 Chancery Cad. 164; i Eng. Eq. Cas. Abr. 21.) It is not necessary that the written agreement should be signed by the party seeking to enforce it. If the agreement is certain, fair, and just in all its parts, and signed by the party sought to be charged, that is sufficient; the want of mutuality is no objection to its enforcement. (2 Story's Eq. J. 736; 3 Sandf. Ch. 292; i Edw. Ch. i; 1 6 Wend. 460; 4 Johns. 484; White v. Schuyler, i Abb. Pr. (N.S.) 300; S.C., 31 How. U.S. 38; Muller v. Vettel, 25 How. Pr. 350.) It is of no consequence if the note or memorandum purports 478 FORMS OF COMPLAINTS. to be in the language of the vendor or the vendee, or both. If it pur- ports to be in the language of the vendee, it is none the less a note or memorandum stating the names of the parties, and expressing the con- sideration. By subscribing such a note or memorandum, the vendor vouches for the truth of the facts therein stated, and if need be adopts it as his own. (Joseph v. Holt, CaL Sup. Ct, ApL T., 1869.) It there- upon ceases to be the separate statement of the vendee, and becomes the joint act of both. (Id.) An ex parte or unilateral statement or proposition will not raise a contract; but such a memorandum is not such a unilateral statement, since it is but a statement of what has already transpired by one party, shown by him expressly, and by the other by implication and assent to; by the latter, by the act of subscrib- ing his name. (Joseph v. Holt, CaL Sup. Ct., ApL T., 1869.) It is a statement as evidence of a contract already made, and not a mere prop- osition to sell or buy; a mere memorandum to satisfy the Statute of Frauds, and it is sufficient for that purpose, for it shows a sale and the parties to it, expresses the consideration, and is subscribed by both parties. (Id.) If the language of the note should be, H. has purchased from J., it would include the statement of both a purchase by H. and a sale by J., since the expression, I (H.) have purchased from J., includes the equiv- alent expression, J. has sold to me (H.) Joseph v. Holt, CaL Sup. Ct., ApL T., 1869. 8. Contract must be Reasonable. Specific performance will not be enforced where the contract is unreasonable, or where from sur- prise it is inequitable to enforce its execution. (Bowen v. Waters, 2 Paine i ; Thompson v. Todd, I Pet. C. Ct. 380; Surget v. Byers, Hempst. 715.) Or where the contract is one of great hardship. (King v. Ham- ilton, 4 Pet. 311.) Mere excess of price over value (Cathcart v. Robinson, 5 Pet. 264; 2 Brock. Marsh. 185), or mere inadequacy of price, does not furnish cause for dismissal of the bill. (Erwin v. Parham, 1 2 How. Pr. 1 97.) In what cases specific performance may be enforced, see Pennsylvania Coal Co. v. Delaware and Hudson Canal Co., 31 N.Y. 91. 9. Contract to Release Mortgage. A party who is entitled to a specific execution of an agreement to release the land from the lien of a mortgage, may maintain a suit for that purpose, notwithstanding before the filing of the bill he had conveyed away the land, such con- veyance being with warranty. (4 N.Y. 403; Bennett v. Abrams, 41 Barb. 619.) An agreement that the holder of a second mortgage, FOR SPECIFIC PERFORMANCE. 479 should foreclose his mortgage, and if he should buy at the foreclosure pay a sum on account of the first mortgage, may be enforced. Living- ston v. Painter, 19 Abb. Pr. 28; 28 How. Pr. 517; 43 Barb. 270; see, also, McLallen v. Jones, 20 N.Y. 162. 10. Contract to Transfer Stock. The agreement to transfer stock may be enforced where the contract to convey is clear, and the uncertain value of the stock renders it difficult to do justice by an award of damages. 2 Barb. 609; 2 Sto. Eq. 716, 718; 6 Johns. Ch. 222; 3 Cow. 445; White v. Schuyler, i Abb. Pr. (N.S.) 300; 31 How. Pr. 38. 11. Contract of Ancestor. Proceedings may be had to compel a specific performance of a contract of ancestor. Hyatt v. Seely, 1 1 N.Y. 52. 12. Covenant to Renew. A court of equity can compel the specific performance of an absolute covenant to renew a lease, at a rent to be fixed by arbitrators. (Johnson v. Conger, 14 Abb. Pr. 195.) On a lease from W. to H. was indorsed, "that at the expiration of the said term, H. shall have the privilege of purchasing the whole of said premises," at a fixed price. H. brought a bill demanding a marketable title. W.'s wife refused to join in the conveyance, but no collusion with her husband was shown. Held, that W. was not bound to idemnify H. against wife's claim, and specific performance was refused. (Hawralty i). Warren, 3 C. E. Green, 124.) Where a lease gives the lessee the privilege of purchasing the land on certain terms, the privilege is limited to the whole land, and the lessee, or a purchaser from him of a portion of the land, cannot claim the rights to buy that portion. (Hitchcock v. Page, 14 Cal. 440.) See, as to effect of such a covenant, De Rutte v. Maldrow, 16 Cal. 505. 13. Demand. It is held that a reasonable time must be given after a demand to prepare a deed,. arid by the allegation of a second demand the reasonable time may be shown. (Lutweller v. Linnell, 12 Barb. 512; Connelly v. Pierce, 7 Wend. 130; Hackett v. Huson, 3 Wend. 250; Fuller v. Hubbard, 6 Cow. 17.) But if the vendor on the first demand positively refuses, no further demand is necessary. (Car- penter v. Brown, 6 Barb. 147; Driggs v. Dwight, 17 Wend. 74.) In an action for the specific performance of a trust, by the execution of a deed, a demand therefor before suit is only material as effecting costs. Jones v. City of Petaluma, 36 Cal. 230. 480 FORMS OF COMPLAINTS. 14. Departure from Contract. Trivial departures from the contract will not affect the right to enforcement of a specific perform- ance. Secombe v. Steele, 20 How. Pr. 94. 15. Facts, how Alleged. A complaint should state expressly, in direct terms, the facts constituting the cause of action, leaving no essential fact in doubt, or to be inferred or deduced by argument from the facts which are stated; and where the memorandum only raises an implication of the terms of the contract, as of the undertakings of the parties, the consideration, etc., and the complaint fails elsewhere to dis- tinctly aver them, it is bad. (Joseph v. Holt, Cal. Sup. Ct., Apr. T., 1869.) Inference, argument, or hypothesis cannot be tolerated in a pleading. (Green v. Palmer, 15 Cal, 411; Joseph v. Holt, Cal. Sup. Ct., Apr. T., 1869.) The rule which permits the pleader to declare upon a contract in hcec verba is limited to cases where the instrument set forth contains a formal contract. (Joseph v. Holt, Cal. Sup. Ct., Apl. T., 1869.) To extend the rule to mere notes or memoranda made as evidences of the terms of a contract sufficient to take it out of the Statute of Frauds, would be to substitute inference and argument for facts. Id. 16. Gold and Silver Coin. A contract to pay money in gold and silver coin cannot be specially enforced, nor can any other damages be recovered upon its breach, except interest. (Wilson v. Morgan, i Abb. Pr. (N.S.) 174; S.C., 30 How. Pr. 386.) So of an award to pay in gold coin. (Howe v. Nickerson, 14 All. 400; see Tuffts v. Ply- mouth Gold Min. Co., 14 All. 407.) The rule is different in Califor- nia, if the memorandum provides for payment in gold arid silver coin. Where a party who has executed a deed to lands to secure the per- formance of his agreement, not in writing, as to pay a certain sum of money in gold coin, and who seeks the aid of a court of equity to have the deed declared a mortgage, and to be permitted to redeem and have a conveyance of the land, ought to be held to a full compliance with the terms of the agreement as a condition precedent to the conveyance, and this by no construction of the specific contract act, but by the appli- cation of the maxim that " he who seeks equity should do equity." Cowing v. Rogers, 34 Cal. 648. 17. Imposing Terms. When it would be unconscientious to enforce a specific performance according to the letter, it may be refused, unless the complainant will comply with certain modifications. Me- chanics' Bank of Alexandria v. Lynn, i Pet. 376. FOR SPECIFIC PERFORMANCE. 481 18. Inability to Make Title. Where the vendor could not make a good title, he cannot enforce the specific performance of the contract by the vendee. (Stevenson v. Buxton, 15 Abb. Pr. 352; Mor- gans. Morgan, 2 Wheat. 290; Watts v. Waddle, 6 Pet. 389; affirming i McLean, 200.) And his ability to make title must be unquestionable. (Garnett v. Macon, 2 Brock. Marsh. 185.) And title must be to all the lands embraced in the contract. (Hepburn v. Auld, 5 Cranch, 262; Sohier v. Williams, i Curtis C. Ct. 479-) But where there is simply a deficiency in quantity, a specific performance may be decreed upon the principle of compensation. (Hepburn v. Auld, 5 Cranch, 262.) As to where there is an excess of land, see King v. Hamilton, 4 Pel. 311. 19. Jurisdiction. A bill, quia timet, and to enforce the specific execution of an agreement, lies only where there is no adequate remedy at law. But where the damages resulting from a breach of such agree- ment are susceptible of precise admeasurement, equity will not take jurisdiction unless there are some peculiar equitable circumstances. (White v. Fratt, 13 Cal. 525.) The execution of a contract fairly and legally entered into is one of the peculiar branches of equity. Jurisdic- tion and a court of equity will compel a delinquent party to perform the' agreement according to its terms and the manifest intention of the par- ties. (Hunt v. Ronsmaniere, i Pet. i.) And the jurisdiction having once attached, the court will go on and do complete justice. (Cathcart v. Robinson, 5 Pet. 264; Clarke v. White, 12 Id. 178.) But a specific performance of a contract respecting a chattel will not be enforced in equity, unless it clearly appears that there is no adequate remedy at law. (Roundtree v. McLain, Hempst. 245.) Cases in which, and upon what grounds a court of equity will entertain a bill, Tufts v. Tufts, 3 Woodb. & M. 456; Vint v. King, 2 Am. Law Reg. 712. 20. Land Subject to Trust. The owner of the equity of redemption of land took an assignment of the mortgage to himself, " trustee, and his heirs, and assigns." After his death defendant agreed to buy the land of his heirs, upon the delivery of a good and sufficient deed, free from all incumbrances. Held, that without a discharge of the mortgage, or proof that the land was not subject to a trust, the heirs could not compel specific performance. Sturtevant v. Jaques, 14 All. 523. 21. Limitations. In an action for specific performance, the plaintiff, after a decree in his favor which does not designate the time 31 482 FORMS OF COMPLAINTS. for performance, may demand its enforcement at any time until the Statute of Limitations becomes available by his adversary. Redington v. Chase, 34 Cal. 666. 22. Memorandum must be in Writing. The Statute of Frauds requires the contract or some note or memorandum thereof to be in writing, thus recognizing a difference between the contract itself and the written evidence which the statute requires. (Chitt on Con/. 69; Joseph v. Holt, Cal. Sup. Ct., Apr. T., 1869.) As to what is a suffi- cient memorandum under the statute, see (Barry v. Coombe, i Pet. 640; Carrington v. Brents, I McLean, 167; Bissell v. Farmers' and Me- chanics' Bank of Mich., 5 Id. 495.) C. agreed in writing to convey to F. an undivided interest in a mining claim, upon the fulfillment of cer- tain specified conditions to be thereafter performed by F., and let F. into possession. On the failure of C. to convey as stipulated, F., being at the time out of possession: Held, that ejectment would not lie. The remedy of F. was by action for specific performance, and as inci- dental thereto a delivery of the possession. (Felger v. Coward, 35 Cal. 650.) If the instrument be under the hand and seal of the one who is sought to be charged, equity will treat such agreements as specialties. (Cas. Temp. Talb., 108; Burton v. Smith, 4 Wash. C. Ct. 522.) Spe- cific performance by a parol contract was refused for want of clear, definite, and conclusive proofs of the contract, delivery of peaceful and uninterrupted possession, or valuable improvements made on the prem- ises in question. Purcellfl. Miner, 4 Wall. 513. 23. Minor Heirs. Where the vendor dies, and the land descends to his heirs, some of whom are minors, the remedy of the purchaser is by applying to the court for an order of specific performance by the minors. (Tompkins v. Hyatt, 28 N.Y. 347; Moore v. Burrows, 34 Barb. 173.) A purchaser at an executor's sale of real estate under an order of court which has paid the consideration, may compel heirs of deceased to make a title. Piatt v. McCullough, i McLean, 69. 24. Parol Contract, when Enforcible. K. entered into a parol contract to convey to L. a tract of land, upon the payment of a stipulated price therefor. L. paid the price as stipulated, and was let into possession. Thereafter K. brought ejectment to recover the pos- session of said land, to which action L. pleaded said contract, and its said part performance, and prayed judgment for its complete perform- ance on the part of K. : Held, that a judgment for L., as prayed, was properly rendered. King v. Meyer, 35 Cal. 646. FOR SPECIFIC PERFORMANCE. 483 25 Parties. Equity may decree a specific performance, as against a party who would not be permitted to demand it himself. (Hepburn v. Dunlop, i Wheat. 179.) A vendor may have a decree for the specific performance of a contract as well as a vendee. (Cathcart v. Robinson, 5 Pet. 264; Brownson v. Cahill, 4 McLean, 19; Watts v. Waddle, 6 Pet. 389; affirming i McLean, 200.) A sub-purchaser may be joined as a party at any time, if the actual posture of the other par- ties will not be changed. Taylor v. Longworth, 14 Pet. 172. 26. Performance. For the purpose of enforcing a specific per- formance of stipulations, the consideration for which was an agreement to perform personal services, an offer to perform these services is not equivalent to an actual performance. Cooper v. Pena, 21 Cat. 403. 27. Performance must be Shown. The complainant must show that he has performed, or offered to perform, on his part, the acts which formed the consideration on his part. (Kendall v. Almy, 2 Sumn. 278; Denniston v. Coquillard, 5 McLean, 253; Colson v. Thompson, 2 Wheat. 336; Boone v. Missouri Iron Co., 17 How. U.S. 340.) In Louisiana, neither party can compel the other to perform, unless he complies with the contract in toto. Hyde v. Booraem, 16 Pet. 1 70. 28. Performance Ability of Defendant. The complaint must show that the defendant has the power or ability to perform on his part, and not leave his capacity in doubt, as the presumptions are always against the pleader, and all doubts are to be- resolved against him. Where by the memorandum it appears that notes of third par- ties, dated two months before, were to be given in payment, but no averment of their existence or of their being irr the possession or con- trol of the purchaser at the time appears in the complaint, the defend- ant could not be decreed to perform, for that would involve an impos-. sibility, since in such an action the plaintiff must make a case in which the defendant is prima facie able to perform. (Joseph v. Holt, Cal. Sup. O., Apl. T., 1869.) Where a bill was filed against the provisional committee of a projected railway company, for a specific performance of an agreement to deliver a certain number of certificates, there being no allegation that the defendant could deliver, but a statement from which the contrary might be inferred, the bill shows no capacity in the defendants to perform, and demurrer will be sustained. Col- umbine v. Chichester, 2 Phil. 27. I 484 FORMS OF COMPLAINTS. 29. Prayer for Relief. Under a bill which prays for the rescis- sion of a contract specifically, and for general relief, chancery may de- cree a specific performance, if improper to rescind or modify. (Hep- burn v. Dunlop, ,i Wheat. 179.) Case where on refusing to decree a specific performance, the complainant was not entitled to a decree for the sum to be paid on a rescission, Holt v. Rogers, 8 Pet. 420. 30. Refusal to Convey must be Alleged. In an action to compel defendant to execute a deed of real estate held by him, the complaint alleged that the property was purchased by plaintiff of one C., and by agreement with the defendant was conveyed directly to him as security for a debt, he to make a deed to plaintiff upon its payment, and that the debt was subsequently paid and the deed demanded; but the complaint failed to aver that defendant, upon the demand, refused, or at any other time has refused to execute the deed. Held, that the failure to aver refusal is fatal to the action, and may be taken advan- tage of on the ground that the complaint does not state facts sufficient to constitute a cause of action. Dodge v. Clark, 17 Cal. 586. 31. Relief. The specific performance is a matter of right, but relief rests in the discretion of the Court, and a delay of five days, where time may be regarded as of the essence of the contract, may be deemed a bar to a specific performance. (Gale v. Archer, 42 Barb. 320.) And the discretion of the Court is governed for the most part by settled rules. Bo wen v. Irish Presbyterian Congregation, 6 Bosw. 245. 32. Relief, Extent of. In cases of specific performance, the purchaser is not compellable to accept a conveyance for only a part of the premises, except where th'ey consist of different parcels purchased separately and having- distinct prices. (2 Sandf. 298; 6 Johns Ch. 38; Gilbert v. Peteter, 38 Barb. 488.) As to the form in relief in a special case where the deed which the vendor had executed became void by his death, and his administratrix was substituted, and it was adjudged that the original plaintiff was entitled to a specific performance, see Roome v. Phillips, 27 N. Y. 357. 33. Rents and Profits. Although the claimant in a bill for the specific execution of a contract may not have specifically claimed .in his bill a decree for rents and profits while in the possession of the defendant, he may claim it in the appellate court under the prayer for general relief. Watts v. Waddle, 6 Pet. 389; affirming i McLean, 200. FOR SPECIFIC PERFORMANCE. 485 34. Rescinded Contract. Equity will not compel a speci6c performance where the parties have, upon default of one party, agreed by parol to rescind the contract. 24 N.Y. 367; Arnoux v. Romans, 25 How. Pr. 427. 35. Tender. In suit by a vendee for specific performance of a contract of sale, the averment of tender of payment was in general terms as that the tender had been been repeatedly made, and that the plaintiff has been at all times, and still is ready and willing to pay. Held, that the tender should have been stated with greater particularity as to time, but the objection, in this respect, cannot be taken for the first time in the Supreme Court. Duffs'. Fisher, 15 Cal. 375. 36. Time of Performance. A reasonable time only can be allowed to a vendor to execute his part of the contract. (Bronson v. Cahill, 4 McLean, 19; Mason v. Wallace, Id. 77) The time fixed for conveyance of the land is regarded at law as a material element in it, and if the vendor is not able to perform at the time, the purchaser may elect to consider the contract at an end; but equity will in certain cases carry the agreement into execution, although the time appointed has elapsed. (Bank of Columbia v. Hagner, i Pet. 455.) The gen- eral rule of equity is that time is not of the essence of the contract. Brown v. Covillaud, 6 Cal. 571; Brashier v. Gratz, 6 Wheat. 528; Ahl v. Johnson, 20 How. U.S. 511; Hunter v. Town 'of Marlboro, a Wood. & M. 1 68; 3 Leading Cases in Eq. 76; Wells v. Wells, Ired. Ch. 596; Revemuells v. Jackson, i How. (Miss.) 358; Attorney-General v. Purmout, 5 Paige, 620; Hepburn v. Auld, 5 Cranch, 262. 37. Time as the Essence. Even if there is an express agree- ment that time shall be of the essence of the contract, yet it is deemed strong but not conclusive evidence by courts of equity. (2 Pars, on Conf. 543.) Except in cases where time has been made the essence of the contract for the sale of property, time is not treated by courts of equity as of the essence of the contract. (Miller v. Steen, 30 Cal. 407; 8 Cranch, 471; 9 Id. 456, 493, 494; 6 Wheat. 528; 7 Ves. 265; 13 Id. 73, 225, 289; i Young & Co. 415; Taylors. Longworth, 14 Pet. 175; Hepburn v. Auld, 5 Cranch, 262; Gibbs v. Champion, 3 Hamm. 336; De Campz'. Feay, 5 Serg. 6f Rawle, 323; Gillett v. Maynard, ^John. 87; Raymond v. Bernard, 12 John 276,) where it says there must be some- thing in the contract indicating an intention that default in payment should work a forfeiture, to justify the supposition that time is of the essence of the contract, and it cites the above cases. 486 FORMS OF COMPLAINTS. 37. Time the Essence. Where time is really material to the parties, the right to a specific performance may depend upon it. (Gar- net v. Mason, 2 Brock. Marsh. 185; Vint v. King, 2 Am. Law Reg. 712.) To make time the essence of the contract, it must appear that a punctual performance is a condition which will work forfeiture of the rights given, unless rigorously fulfilled. (Jones v. Robbins, 29 Maine, 357.) Something more than a mere stipulation that the money shall be paid, or the deed executed at a given time, is required. Id. 87; Vielez>. Troy and Boston R.R. Co., 21 Barb. 381; De Camp v. Feay, 5 -S. & R. 328; Jackson v. Ligon 3 Leigh, 161, 187. 38. Time, Effect of Delay. That a court of equity may at any time, as a matter of indulgence, decree a specific performance of an agreement, if the vendor is able to make a good title before the decree is pronounced. (Hepburn v. Dunlop, i Wheat. 179.) Where delay has not changed the condition of the parties, nor the value of the property, and the same justice can be done between the parties as when a conveyance was to have been executed, and there is an excuse for delay, a specific execution may be decreed. (Longworth v. Taylor, I McLean, 395, affirmed, 14 Pet. 172.) So, where the purchaser has entered into possession and improved the land, on payment of the money a specific performance will be decreed, notwithstanding the de- lay. (Mason v. Wall^e, 4 McLean, 77.) And continued possession prevents the purchaser from rescinding the contract on the ground of non-performance on the day named. (Benson v. Tilton, 24 How. Pr. 494.) But possession taken by the purchaser is not a basis for a specific performance, if such possession has been surrendered by him before the commencement of the action. (Haight v. Child, 34 BaM. 186.) " The general principle appears to be perfectly established that time is a circumstance of decisive importance in these contracts, but it may be waived by the conduct of the parties; that it is incumbent on the plaintiff calling for a specific performance to show that he has used due diligence, or if not, that his negligence arose from just cause, has been acqusesced in." (Chase v. Hogan, 3 Abb. Pr. (N. S.) 66.) The fact that neither party performed nor offered to perform on the day fixed by the contract, and that the purchaser continued in possession some days after, shows that time was not considered by them as of the essence of the contract. Benson v. Tilton, 24 How. Pr. 494. 39. Time, when a Bar. When the circumstances have so changed that the objects of the party against whom a performance is FOR SPECIFIC PERFORMANCE. 487 sought can no longer be equitably accomplished -by a performance where the lapse of time has been very great, or where the value has materially changed, etc. etc., the court will refuse to interfere. (Green v. Covil- laud, 10 Cal. 328; Pratt v. Law, 9 Cranch, .456; Brashier v. Gratz, 6 Wheat. 528; Holt v. Rogers, 8 Pet. 420; McNeil v. Magee, 5 Mas. 244; Garnett v. Mason, 2 Brock. Marsh. 185; Cooper v. Brown, 2 McLean, 495.) A purchaser seeking the aid of a court of chancery to enforce specific performance must apply promptly. (McWilliams v. Long, 32 Barb. 194.) When the vendor gives notice to the vendee, by serving him with a summons in ejectment, it is the vendee's duty to act promptly, by tendering payment and asserting his claim to the per- formance of the contract, or his equity will be lost. (Tibbs v. Morris, 44 Barb. 138.) Case where the Court refused to interfere after a lapse of seven years, (Pratt v. Carroll, 8 Cranch, 471.) Specific perform- ance was refused where there were laches in the non-performance of the agreement. (Boone v: Missouri Iron Co., 17 How. U.S. 340.) So of an award where there had been a long delay and laches, and a material change of circumstances, and injury to the other party. McNeil v. Magee, 5 Mas. 244. 40. Title. In a suit for specific performance, a purchaser will be forced to take a title \vhich appears to the Court of Appeals to be good, though the judge of the court below was of a different opinion; that fact not being sufficient to constitute a doubtful title. (Beioley v. Carter, Law Rep. 4 Ch. 230.) An agreement to make "a good and sufficient general warranty deed " of lands, is an agreement to convey a good title to such lands. Wellman v. Dismukes, 42 Mo. 101. 41. Vendor and Vendees as Trustees. The rule is well settled that where land is purchased, for which one party pays the con- sideration, and another party takes the title, a resulting trust immediately arises in favor of the person paying the consideration, and the other party becomes his trustee, and it is now equally well settled that if one party pays only a part of the consideration, the party taking the title to the whole land becomes a trustee for the other party pro tanto. The party setting up the trust must show that the money was paid by him at or before the execution of the conveyance. (Hidden v. Jordon, 21 Cal. 92; Millard v. Hathaway, 27 Cal. 119; Currey v. Allen, 34 Cal. 254; cited in Case v. Codding, Cal. Sup. Ct., Jul. T., 1869; 2 Story Eq. i, 201; Will. Eq. 600; Botsford v. Burr, 2 Johns. Ch. 405.) The general principle is that from the time of the contract for the sale of 488 FORMS OF COMPLAINTS. the land, the vendor, as to the land, becomes a trustee for the vendee, and the vendee, as to the purchase-money, a trustee for the vendor, who has a lien upon the land therefor. And every subsequent purchaser from either, with notice, becomes subject to the same equities as the party would be from whom he purchased. Courts of equity treat such contracts precisely as if they had been specifically executed. The vendee is treated in equity as the equitable owner of the land, and the vendor as the owner of the money. (Willis v. Wozencraft, 22 Cal. 6 1 6.) The distinction between action for specific performance and an action to enforce a trust considered in reference to the effect of delay, Tomlinson v. Miller, 3 Keyes, 517. 42. What Contract may be Enforced. A court of equity will decree a good and sufficient conveyance to be made upon payment of the purchase money, pursuant to a contract for the sale and convey- ance of land. (Mechanics' Bank of Alexandria v. Seton, i Pet. 299; Murphy v. McVicker, 4 McLean, 252.) But this jurisdiction of equity must be exercised under a sound discretion, with an eye to the substan- tial justice of the case. (King v. Hamilton, 4 Pet. 311.) And the re- lation of vendor and purchaser must exist between the parties. (Watson v. Coulson, i McLean, 120.) A vendee who has fulfilled his contract may obtain a decree for specific performance against parties who with notice of his equities succeeded to the interest of the vendor. (Laverty v. Moore, 33 A* Y. 658.) The rules preventing the adjudgment of a specific performance of a contract in cases of fraud must state surprise and hardship reviewed, (Lynch v. Bischoff, 15 Abb. Pr. 357.) A gift of land, having been partly executed, may be enforced by an action for specific performance. (Freeman v. Freeman, 51 Barb. 306.) Lands held by no other tenure than possession, may be the legitimate subjects of control, and sometimes in equity chattel interests or personal property are made the subject of specific performance. Johnson v. Rickett, 5 Cal. 218; Senter v. Davis, Cal. Sup. Ct., Oct. T., 1869. 43. When Action can be Maintained. Specific perform- ance will be decreed whenever the parties or the subject matter, or so much thereof as is sufficient to enable the Court to enforce its decree, is within the jurisdiction of the Court. Thus, specific performance of a contract for lands lying in America was decreed in England. (Penn v. Lord Baltimore, i Ves. 444.) So, a trust in relation to lands lying in Ireland may be enforced in England, if the trustee live in England. (i Vern. 419.) It will lie if the subject of the trust or contract be FOR SPECIFIC PERFORMANCE. 489 within the jurisdiction, though the parties are not. So, a bill for an allowance for the support of children out of stocks in England was sustained, though the parties were out of the Kingdom. (Anonymous, i Atkyns, 19.) So, also, a contract for the sale of lands lying in America, made by a citizen of New York, at Havana, with the defend- ant a Spanish subject, was enforced in New York, although there was nothing connected with the parties or the subject matter within the jur- isdiction of the Court, except the deed for the land. (Ward v. Arre- dondo, Hopkins Ch. R. 213; see, also, Arglass v. Muschamp, i Vern. 75; Toller v. Cateret, 2 Id. 494; Massic v. Watts, 2 Cranch, 148; Cleveland v. Burnell, 25 Barb. 523; Newbor v. Bronson, 3 Kiernan, 587; cited in Rourke v. McLaughlin, Cal. Sup. Ct., Jul. T., 1869. No. 526. v. The Same Where Money Lay Idle. [TITLE.] The plaintiff complains, and alleges : I. That the defendant, on the .... day of , 1 8 . . , at , was the owner in fee' of the prem- ises hereafter described, and that he then entered into an agreement with the plaintiff, executed under their hands and seals, whereby plaintiff agreed to buy and defendant agreed to sell the property described therein; of which agreement the following is a copy: \copy the dgreement^ II. That the plaintiff has duly performed all the condi- tions of said agreement on his part. III. That on the day of , 18. ., at , the plaintiff tendered to defendant said sum of dollars, and requested a conveyance of said premises according to the terms of said agreement; but 4QO FORMS OF COMPLAINTS. the defendant then and even since has refused to exe- cute and deliver such conveyance. IV. That the plaintiff, ever since the time of said tender, has kept said money so tendered on deposit and unproductive, and ready to be paid over on said agreement, and into this Court. Wherefore plaintiff demands judgment: 1. That the defendant execute to the plaintiff a suf- ficient conveyance of the said property. 2. For dollars damages for withholding the same. 3. For interest on plaintiff's purchase-money which has lain idle from the date when said conveyance should have been made. 44. Allegation Where there is a Deficiency of Land. That since the making of said agreement, the plaintiff has discovered that there is a deficiency in the quantity of said , and that the same does not contain acres, but only acres. Wherefore the plaintiff demands judgment: (i.) That a just deduction from the purchase-money be made on account of said defici- ency, and that on payment of the residue of said purchase-money, the defendant execute to the plaintiff a sufficient conveyance of the said property. (2.) For dollars damages for withholding the same. 45. Allegation Where there is an Outstanding Incum- brance. That the defendant's title to the premises is incumbered by a mortgage to one A. B. for dollars, with interest \terms of payment}, which mortgage is not payable until the .... day of , 18. ., wherefore, etc. 46. Discretion. The Court may exercise its discretion in fixing the time from which interest shall run on the purchase -money. Bu- chanan v. Upshaw, i How. U.S. 56; S.C., 17 Pe/.*jo, FOR SPECIFIC PERFORMANCE. 49! 47. Mistake in Boundaries. An error in boundaries may be alleged in this allegation. Voorhies v. DeMayer, 2 Barb. 37; see, also, Whitw. Eq. Pr. 225. [TITLE.] JVo. 527. vi. On an Exchange of Property. The plaintiff complains, and alleges : I. That on the day of , 18 . . , at , the plaintiff and defendant entered into an agreement in writing, dated on that day, whereby, in consideration of the covenants on the part of the plaintiff hereafter mentioned, the defendant covenanted that he would, on or before the .... day of , 1 8 . . , convey to the plaintiff in fee a lot of land, situ- ated in the Town of , and County of , in the State of , and described as follows: [de- scription of premises^ In consideration whereof, the plaintiff covenanted in and by said agreement to con- vey to the defendant in fee a house and lot situate in the City of San Francisco, in this State [describe if\. II. That the plaintiff performed all the conditions of said contract on his part, and, on the .... day of , 1 8 . . , at , tendered to the defendant a warranty deed of said premises, signed and sealed by the plaintiff, and demanded of him a deed of said premises in , but the defendant refused to exe- cute and deliver such a deed to the plaintiff. III. That on the day of , 18. ., in pursuance of said agreement, the plaintiff delivered and the defendant took possession of the premises so to be conveyed to the defendant, and that he still occupies the same. 492 FORMS OF COMPLAINTS. Wherefore the plaintiff demands judgment: That the defendant convey to the plaintiff said lot in , pursuant to the contract, and for the costs of this action. 48. Consideration. A consideration must be shown, as volun- tary covenants are not specifically enforced. Hayes v. Kershaw, i Sandf. Ch. 258. 49. Exchange of Lands. A contract for the exchange of lands is as much within the Statute of Frauds, as a contract for their sale. Purcellz>. Minor, 4 Wall. U.S. 513. 50. Essential Allegations. What must be shown in such a complaint, and which require to be proved, are: First, The contract must be shown, bearing no jus deliberandi nor locus peniteniice. Second, That the consideration has been tendered. Third, That there has been such a part performance that its rescission would be a fraud on the other party, and could not be fully compensated by recovery of dam- ages in a court of law. Fourth, That delivery of possession has been made in pursuance of the contract, and acquiesced in by the other party. A gift of land, having been partly executed, may be enforced by an action for specific performance. Freeman v. Freeman, 51 Barb. 306. No. 528. vii. Vendor against Purchaser. [TITLE.] The plaintiff complains, and alleges: I. That on the .... day of , 18 . . , the plaintiff was seized in fee of certain property hereafter described. II. That on the same day the plaintiff and defendant entered into an agreement under their hands and seals, whereby plaintiff agreed to buy, and defendant agreed FOR SPECIFIC PERFORMANCE. 493 to sell the land described in said agreement; a copy of which is hereto annexed, and made a part of this com- plaint, marked " Exhibit A." III. That on ' the .... day of , 18 . . , at , the plaintiff tendered to the defendant a deed of the premises, pursuant to the agreement, but the de- fendant then, and ever since, refused to accept the same, and to pay the amount of purchase-money specified in the said agreement [or otherwise, according to the terms of sale\. IV. That the plaintiff was, and has always been, and still is ready and willing to perform the agreement on his part. Wherefore the plaintiff demands judgment: i. That the defendant perform said agreement, and pay to the plaintiff dollars, the remainder of said purchase-money, with interest from the . . . , day of , 18... [Annex "Exhibit A."] 51. Agreement. That the plaintiff executed the agreement is not essential. Clason v. Bailey, 14 Johns. 484; Worrall v. Munn, 5 N.F. 229. 52. Contracts, when Enforced. While it is a general rule that contracts for the sale and transfer of personal property will not be specifically enforced, yet, if there are circumstances in view of which a judgment for damages would fall short of the redress which the plaintiff's situation demands, as that by non-performance he will be greatly em- barrassed and impeded in his business plans, or involved in a loss of profits which a jury cannot estimate with any degree of certainty, equity will decree specific performance. Duff v. Fisher, 15 Cal. 375; Treas- urer v. The Commercial Coal Co., 23 Id. 390; McLaughlin v. Piatti, 27 Id. 463; Senter . Davis, Cal Sup. Ci., Oct. T., 1869. 494 FORMS OF COMPLAINTS. 53. Damages. The existence of an adequate remedy by action for damages does not preclude the vendor of lands from suing for specific performance. Fry on Sp.P. n; 2 Const. 60; Schroeppel v. Hopper, 40 Barb. 425. 54. Debt, Purchase of. A bill in equity, which states as the complainant's title, that he purchased under regular proceedings, and at an open and fair executed sale, a debt of $260,000 for $600, is not bad on demurrer. Erwin v. Parham, 12 How. U.S. 197. 55. Employment. Where the defendant employed the plaintiff to negotiate a sale of certain described lands, and find a purchaser for the same, with a stipulation that if the said plaintiff should within ten days find a purchaser at a certain price per acre, that the defendant would sell and convey the same to such purchaser, and that plaintiff should have for his services all that should be obtained from such over said price per acre, it is not a contract for sale of land within the meaning of the Statute of Frauds, but is a mere contract of employment. (Heyn v. Phillips, Cal. Sup. Ct., Jul. T., 1869.) And is revocable at anytime. (Brown v. Pforr, Id.) But it would seem that where a portion of the remuneration to be paid for such services, should be a part of the land in question, it would be otherwise. In that case, the contract being oral, and no note or memorandum having been reduced to writing or signed by either party thereto, that portion stipulating for the' transfer of land to the plaintiff is null and void by the eighth section of the Statute con- cerning Fraudulent Conveyances, and that portion of the contract being void, the remaining portion could not be enforced. Lexington v. Clark, 2 Ventr. 223; Chater v. Brickett, 7 Tenn. 201; Crawford v. Merrill, 8 John. 255; Van Alstine v. Wimple, 5 Con. 164; cited in Fuller v. Reed, Cal. Sup. Ct., Jul. T., 1869. 56. Oral Contract. Specific performance of an oral contract partly performed, may be enforced. (Bennett v. Abrams, 41 Barb. 619; Williston v. Williston, Id. 635.) Where the purchaser takes pos- session by virtue of the agreement, with the assent of the vendor, a specific performance may be enforced. Will. Eq. 283; Williston v. Williston, 41 Barb. 635. 57. ' Part Performance. A court will, under some circumstances, decree a specific performance, where there has been a part perform- ance. (Brashier v. Gratz, 6 Wheat. 528.) The payment of part of the price, is not such an act as that the icscission of the contract would FOR SPECIFIC PERFORMANCE. 495 be a fraud on the other party. Story's Eg. 760, 761 ; Sudg. on Vend. 112 3 Exp. Storer, Da-vies, 294; Haight v. Child, 34 Barb. 186; Purcell v. Miner, 4 Wall. [7.S. 513. 58. Plaintiff's Title. If the plaintiff's title is defective, and it appears before decree or report, that it can be perfected, the delay is compensated by charging the complainant with interest. Clute v. Robinson, 2 Johns. 595; Pierce v. Nichols, i Paige, 244; Brown v. Haff, 5 Id. 235; Reformed Dutch Church v. Mott, 7 Id. 77; Viele v. Troy and Boston R.R. Co., 21 Barb. 381; affirmed, 20 N.Y. 184; Cleaveland v. Burrill, 25 Barb. 532. 59. Remedy. Whether equity will enforce the specific perform- ance of a contract, depends not upon the character of the property involved, as whether it be real or personal, but upon the inadequate remedy afforded by a recovery of damages in an action of law. Duff v. Fisher, 15 Cal. 375. 60. Sale and Delivery of Chattel. W. agreed orally to buy of G. a designated mschine, worth $375, and directed G. to forward the same, by the New York Central Railroad, to one S. Held, that the sale was complete, and taken out of the Statute of Frauds, by delivery to said railroad company. Specific performance decreed in favor of the vendors, Glen v. Whitaker, 51 Barb. 451. 61. Tender. No previous tender of a deed is necessary where the purchaser has abandoned possession and given notice of his refusal to perform. Crary v. Smith, 2 N.Y. 60. 62. Variance. If there be a variance between the written agree- ment and the true agreement, the difference should be clearly shown. Coles v. Browne, 10 Paige, 526. CHAPTER VII. USURPATION OF OFFICE. No. 529. i. By the Attorney-General against an Elective Officer. [TITLE.] The plaintiff complains, and alleges: I. [Allegation of capacity as in Form No. 4, Vol. /., / I74-] II. That on the .... day of , 18 . ., at , an election was duly held in the [ Precinct, District, or County] of this State, for the office of \here designate the office^ for the term of years, from the .... day of , 1 8 . . . III. That at the said election one received the greatest number of legal votes for the said office. IV. That on the .... day of , 1 8 . . , the defendant usurped the said office, and has ever since withheld the same from the said Wherefore the plaintiff demands judgment: 1. That the defendant is not entitled to the said office, and that he be ousted therefrom. 2. That the said is entitled to, and that he be put in possession of the same. FOR USURPATION OF OFFICE. 497 , 1. Action in General. Actions for the usurpation of any office, franchise or liberty, or on the part of a corporation for the usurpation of a franchise not authorized by law, are brought by the Attorney-Gene- ral. (5 Mass. 230.) He may set forth in the complaint the name of .the person rightfully entitled to the office, with a statement of his right thereto. (Cal. Pr. Act, 311; Ex parte Att'y-Genl., i Cal 87.) It is a remedy provided by the Code; (People v. Olds, 3 CaL 175;) though the distinction between writs of mandate and quo warranto are still recognized. {Id. 177.) It is the proper remedy to try the right to an office. (People v. Scannell, 7 Cal. 439.) The contestant in such actions cannot take judgment by default; the allegations must be proved. Keller v. Chapman, 34 Cal. 635; Searcy v. Grow, 15 Cal. 117; Dorsey v. Barry, 24 Cal. 449. 2. Appointment to Office. Under the provisions of the Con- stitution, two events must coincide before the Governor is authorized to appoint to an office. There must be both a vacancy, and no mode provided by the Constitution and laws for filling " such vacancy." (People v. Mizner, 7 Cal. 523; People v. Stratton, 28 Cal. 392; The People ex rel. Shoaff v. Parker, Cal. Sup. Ct., Jul. T., 1869;) in this case assuming that there was a vacancy, notwithstanding the fact that there was a locum tenens authorized to hold until some one else should be duly appointed. See (People v. Whitram, 10 Cal. 43, contra?) Was there no mode provided by law to fill such vacancy ? The constitu- tional provision only steps in where no other appointing power is provided; and it has been repeatedly held that the constitu- tional provision conferring power on the Governor in the cases speci- fied, should be strictly construed when there is any doubt, so as to limit the power of the Governor. (People v. Mizner, 8 Cal. 524; People v. Langdon, 8 Cal. 15; People v. Whitman, 10 Cal. 46; The People ex rel Shoaff v. Parker, Cal. Sup. Ct., Jul. T., 1869.) The power creating an office may immediately select the officer for the whole or a limited period of its existence, and may and most generally does merely create the office, define its duties, and prescribe the mode of selecting the officer for the successive terms or periods of its existence, and may and usually does provide a mode for supplying an officer, in case the primary mode provided should partially or wholly fail to accomplish that result for the entire term. (The People ex rel. Shoaff v. Parker, Cal. Sup. Ct., Jul. T., 1869.) A vacancy in an office or term of office contemplated by the statute, has reference to and is immediately connected with an incumbent who has entered upon 32 498 FORMS OF COMPLAINTS. the office, or a duly selected incumbent of such office or term of office. 3. Arkansas. The writ of quo warranto lies against a corpora- tion for the abuse of its charter. Smith v. State, 21 Ark. 294. 4. Averment of Date of Incorporation. A complaint in quo warranto against a plank road company must aver time of incorpo- ration or date of organization, that the Court may know by what statute the decision is to be governed. Covington Co. v. Van Sickle, 18 Ind. 244. r 5. Damages. Damages sustained by reason of the usurpation may be recovered. Cal. Pr. Act, 314. 6. Determination of Rights. In such actions the Court may not only determine the right of the defendant, but of the relator also; and if it determine in favor of the relator, may rentier judgment that the defendant forthwith deliver up to the relator the office. People v. Banvard, 27 Cal. 470. *7. District Attorney. A person not licensed to practice law by any court is eligible to the office of District Attorney, in California. People v. Dorsey, 32 Cal. 296. 8. Duly and Legally Held. " That an election was duly and legally held pursuant to the Statute," was held sufficient as to the time, and that it was on the day prescribed by law. People v. Ryder, 2 Kern. 433. 9. Essential Averments. The complaint should state the facts constituting the usurpation, which constitute the cause of action. States. Messmore, 14 Wis. 115. 10. Holding Office. To constitute the " holding " of an office, there must be the concurrence of two wills that of the appointing power, and that of the person appointed. People ex rel. Meloney v. Whitman, 10 Cal. 38. 11. Holding Two Offices. For discussion on the meaning of the third article of the Constitution, and a review of the discussions upon the point involved from the earliest case of Burgoyne v. Supervisors, 5 Cal. 191; seethe leading case of People v. Provines, 34 Cal. 521. FOR USURPATION OF OFFICE. 499 12. Illinois. In Illinois, a proceeding by quo warranto is a crim- inal prosecution, and should be carried on "in the name and by the authority of the people of the State of Illinois," and should conclude "against the peace and dignity of the same." (n ///. 552; 13 ///. 66; 15 Id. 417; see PuterbaugKs PL & Pr. 669.) When it is resorted to for the protection of individual rights, it is in substance, though not in form, a civil suit, and a change of venue under the statute, the same as in civil cases. (13 ///. 581.) And it should be alleged that the party against whom it is filed holds and executes some office or franchise, describing it. (21 ///. 65.) It is the proper mode of testing the ques- tion of forfeiture of a charter, i Gilm. 667; 32 ///. 82. 13. Intruder. A person holding a certificate of election without legal title to the office is an intruder. (People v. Jones, 20 Cal. 50.) And the action lies against an intruder into the office created by the charter of a corporation. People v. Kipp, 4 Cow. 382; People v. Tib- bits, Id. 358. 14. Louisiana. In Louisiana, the writ of quo warranto will not be granted to test the right to a state office. Terry v. Stauffer, 17 La. An. 306. 15. Massachusetts. The proceeding in quo warranto is applied to testing the right to the use of lands below low water mark. (Com- monwealth v. Roxbury, 9 Gray (Mass.) 451.) In Massachusetts, the action lies for the purpose of dissolving a corporation, or seizing its franchises; (Commonwealth v. Union Insurance Co., 5 Mass. 230;) in cases of usurpation by individuals of offices holden of the Common- wealth; (Commonwealth v. Fowler, 10 Mass. 295;) against an officer appointed by the Governor and council, viz., a judge of probate, as well as those holding corporate offices or franchises. (Commonwealth v. Fowler, 10 Mass. 290.) So of the right of persons exercising the functions of parish officers in colon' officii. (Sudbury v. Stearns, 21 Pick. 155.) Against a corporation, for a forfeiture of their charter. (Commonwealth v. Tenth Mass. Turnpike Co., 5 Cush. 509.) Or a violation of their charter, (n Cash. 171.) It does not lie against the managers of a corporation having the grant of a lottery. (Common- wealth v. Dearborn, 15 Mass. 125.) Nor against a railroad company, in behalf of a stockholder, merely because the corporation issued stock below the par value, and began to construct their road before the requi- site amount of stock was subscribed, if the petitioner's private interest 5 FORMS OF COMPLAINTS. was not put in hazard. (Hastings v . Amherst and Belchertown R.R., 9 Cush. 596.) The information must be filed, by the Attorney-General. (Goddard v. Smithett, 3 Gray, 116; Commonwealth v. Union Fire and Marine Ins. Co., 5 Mass. 230;) or the Solicitor-General. Id. 16. Michigan. Where the information averred that an election to fill the offices was held, and the relator duly elected, a plea was held to be good which set forth that no votes were cast to fill such office. As to its exercise in the dissolution of insolvent corporations, see (People v. Bank of Pontiac, 12 Mich. 527.) The Court will not dismiss an information in the nature of a quo warranto on motion of the relator whose name was used without his authority, but will amend the inform- ation by striking out the relator's name. (People v. Knight, 13 Mich. 230.) Judgment of ouster will be given on default. People v . Con- nor, 13 Id. 238. 17. Missouri. A writ of quo warranto is in the nature of a writ of right for the State, against any person who claims or exercises any office, to inquire by what authority he supports his claim, and it issues as a mat- ter of course. (State v. Perpet. Ins. Co., 8 Mo. 330; State v. Stone, 25 Mo. 555.) Leave of court must first be obtained before the informa- tion can be filed, as the relation of a private person, but otherwise when the Attorney-General files the information ex officio. The jurisdiction of the Supreme Court being appellate, it refused to issue the writ. (State v. Stewart, 32 Mo. 379.) ' It is a civil proceeding. (State v. Luigo, 26 Mo. 496.) The sheriff of the old county may proceed against the per- son assuming to act as sheriff of the new county, when the act establish- ing the new county within the borders of the old county is unconstitu- tional. State v. Scott, 17 Mo. 521.) Where an office is already filled by a person holding by color of right, quo warranto is the proper remedy. (St, Louis Co. Court ^..Sparks, 10 Mo. 117.) A recorder who has failed to take and file the oath prescribed by the new Constitu- tion may be removed upon an information in the nature of a quo war- ranto. (State v. Bermondy, 36 Mo. 279.) In suit against a defaulter, the petition should show that the person, when appointed to the second office, was in default, and accountable for public moneys. Ex parte Bellows, i Mo. 115. JB. New York. In New York, an action in the nature of a quo -warranto is a civil action. (People v. Cook, 8 N.F. 67; affirming S.C., 14 Barb. 259.) It may be maintained to establish title to a public FOR USURPATION OF OFFICE. 5oi office. (People ex rel. Smith v. Pease, 27 N.Y. 45.) In such action it may be shown that a sufficient number of the votes cast for a person who received the certificate were illegal, to annul his majority, and his elec- tion may be set aside for that reason. (Id. ) Such action lies against a corporation, of which a receiver was appointed on account of its insol- vency, to vacate its charter and prohibit it from acting. (People ex rel. Barton v. Rensselaer Ins. Co. 38 Barb. 323; People v. Washington Ice Co., 1 8 Abb. Pr. 382.) It lies against a corporation for carrying on banking business without authority, this being a franchise given by statute. (People v. Utica Ins. Co., 15 Johns. 358.) So is the posses- sion of corporate powers. (People v. Tibbets, 4 Cow. 384.) So is the appointment of professers of an incorporated college. (People v. Trustees of Geneva College, 5 Wend. 211.) The object of the Code is to provide a speedy and effective mode of determining the claims of persons to exercise the duties of any office within the State, and in nec- essarily involves a determination of the existence of the particular office. People v. Carpenter, 24 N,Y. 86. 19. North Carolina. An information in the nature of a writ of quo warranto against a corporation, to have its privileges declared for- feited because of neglect and abuse in their exercises, must be brought in the name of the Attorney-General and cannot be.instituted in the name of a solicitor of a judicial district. Houston v. Neuse River Co., 8 Jones, 476. 20. Ohio. On a judgment of ouster in quo warranto, against an incumbent in office, the Court will not proceed to adjudge in favor of another claimant whose election is then in process of regular contest. State z>. Taylor, 15 Ohio St. 137. 21. Parties. A certificate of election is not necessary to enable a party claiming to have been elected to bring this suit. (Magee v. Board or Supervisors of Calaveras Co., 10 Cal. 376.) Where several claim an office, their rights may be determined in a single action. Cal. Pr. ^/, 315- 22. Pennsylvania. Jurisdiction in quo warranto is exercised by the Supreme Court, and the State has power to inquire into the exer- cise of the right of corporations reserving the right of trial by jury in such cases. (Commonwealth v. Delaware Co., Penn. St. R. (7 Wright) 295.) The Supreme Court will grant the writ to try the right of a mem- 5O2 FORMS OF COMPLAINTS. ber of the Common Council to a seat in that body. Commonwealth v. Meeser, 44 Penn. St. R. (8 Wright) 341. 23. Possession. Allegations of possession without legal author- ity import intrusion and usurpation. (People v. Woodbury, 14 Cal. 43.) An allegation that defendant is in possession of the office without lawful authority, is a sufficient allegation of intrusion and usurpation. If the complaint be defective in this particular, the defect must be reached by special demurrer. Id. 24. Salary of Office. The salary annexed to a public office is incident to the title of the office, and not to its occupation and exercise. Principle affirmed in (Dorsey v. Smith, 28 Cal. 21; Stratton v. Oulton, Id. 44.) And a party elected and qualified, and being ready and will- ing to enter upon the discharge of the duties of the office, his right to the salary is unaffected by the fact that a usurper discharged the duties of the office. Dorsey v. Smith, 28 Cal. 21; cited in Carroll v. Seiben- thaler, Cal. Sup. C/., Apl. T.jn86g. 25. Surrender of Office Property. In an action by one claim- ing to have been elected to an office, against his predecessor, to compel a surrender of the books and papers belonging to the office, plaintiff must show prima facie that a vacancy existed in the office, and that he was elected to fill it. Doane v. Scahnell, 7 Cal. 393; Id. 439. 26. Title of Relator. In pleading a party's title to public office, an averment that under and in pursuance of the laws of this State, on a specified day, he was duly appointed to fill such office, and duly made and executed his official bond with sureties, and took the oath of office required by law, and was thereby constituted such officer, and was thenceforth entitled to hold and administer such office, is sufficient on demurrer. (Platt v. Stout, 14 Abb. Pr. 178.) But the complaint need not aver his requisite qualifications for the office. People ex rel. Crane v. Ryder, 12 N.Y. 433. 27. United States Territories. A proceeding in the nature of a quo warranto in one of the Territories of the United States, to test the right of a person to exercise the functions of a judge of the Supreme Court of the Territory, must in the name of the United States, and not in the name of the Territory. (Territory v. Lockwood, 3 Watt. 236.) The proper practice in such cases, in quo warranto, stated, United States v. Lockwood, Burn. ( Wts.) 215. FOR USURPATION OF OFFICE. 503 28. Unnecessary Averments. It need not be stated that the claimant possessed the requisite qualifications, nor that he has taken the oath and given bond of office, nor need it state the number of votes given. (People ex rel. Crane v. Ryder, 12 N. F., 433; S.C., 16 Barb. 370. ) As the complaint may be good against the defendants without showing title in the relator. Flynn v. Abbott, 16 Cal. 358; People v. Ryder, 16 Barb. 370. 29. Vacancy. Vacancy in office is defined in the Constitution. (People v. Whitman, 10 Cal. 38.) When the Constitution enumerates the events that constitute a vacancy, all other causes of vacancy are excluded, except when the Constitution leads to an anonymous result. (Brooks v. Maloney, 15 Cal. 58.) As to when a vacancy occurs in an office, see (People ex rel. Shoaf v. Parker, Cal. Sup. Ct., Jul. T., 1869; citing and commenting on various cases, and, also, People ex rel. Baird v. Tilton, Cal. Sup. Ct., Jul. T., 1869; likewise eking many cases, and commenting thereon.) In the States of Pennsylvania and Missouri, it has been held that a vacancy does not occur, but the incumbent of the expired term holds over. Commonwealth v. Hanley, 9 Penn. S. R. 513; State v. Lush, 18 Mo. 333. 30. When Action Lies. For usurpation of, intrusion into, or unlawful holding any public office, civil or military, this action will lie. (People v. Olds, 3 Cal. 167; Lewis v. Oliver, 4 Abb. Pr. 121; People v. Sampson, 25 Barb. 254.) Or to try the title to office. (People v. Scannell, 7 Cal. 432; Mayor of N.Y. v. Conover, 5 Abb. Pr. 171.) Or to test the right of an appointee of the Board of Pilot Commissioners. (Palmer v. Woodbury, 14 Cal. 43.) Or against one in possession of an office to which he has not been duly elected, but who holds a certificate from the board of election canvassers. (People v. Jones, 20 Cal. 50.) The possession of the certificate- affords him, at most, but a color of title, and does not invest him with the right which belongs to another. (/ incorporation of defendants^ as in Form No. 51, Vol.I.,p. 290.] II. That said corporation, for the space of months past, has exercised, without any warrant, charter, or grant, the franchise \insert user], and has [recite its acts in this iisurpation of franchise^, and has exercised franchises not conferred upon it by law. Wherefore the plaintiff demands judgment: i . That the defendant \namtng the corporation^ be excluded from all corporate rights, privileges, and fran- chises. 506 , FORMS OF COMPLAINTS. 2. That said corporation be dissolved. 3. And for costs of this action. 34. Note. As to the rules of pleading in such cases, see Cal. Pr. Ac/, 310-316; see, also, People v. Ravenswood etc. Turnpike and Bridge Co., 20 Barb. 518; People -v. Utica Ins. Co., 15 Johns. 358; People v. Richardson, 4 Cow. 97. COMPLAINTS SUBDIVISION NINTH. Statiitory Actions. CHAPTER I. FOR FORCIBLE ENTRY AJVD UNLAWFUL DETAINER. Jfo. \. For Forcible Entry and Unlawful Detainer. [TITLE.] The plaintiff complains, and alleges: I. That at the time hereafter mentioned he was in the peaceable and actual possesion of all that certain piece or parcel of land [describe the premises}, and of the dwelling house, barns, and sheds thereon. II. That on the .... day of ........ , 1 8 . . , and FOR FORCIBLE ENTRY, ETC. 507 while the plaintiff was so in possession of said land and premises, the defendant, with violence and a strong hand, and by force, entered thereon, and in a forcible manner ejected said plaintiff, and put him out of said lands and tenements, and broke the doors and windows of said house, and tore down and destroyed said barn and sheds \or otherwise state damage^ contrary to the form of the statute, and to the damage of the plaintiff dollars. III. That the said defendant unlawfully withholds and keeps possession of said land and premises, and has so held and kept possession of the same at all times since the said .... day of , 1 8 . . . IV. That in consequence of said acts the plaintiff has been deprived of the rents, issues, and profits of said land and premises, to his damage dollars. {Demand of Judgment. \ 1. Action Character of. The action is a summary proceed- ing to recover possession of premises forcibly or unlawfully detained. The inquiry in such cases is confined to the actual peaceable possession of the plaintiff, and the unlawful or forcible ouster or detention by de- fendant, the object of the law being to prevent the disturbance of the public peace by the forcible assertion of a private right. Question of title or right of possession cannot arise; a forcible entry upon the actual possession of plaintiff being proven, he would be entitled to restitution, though the fee simple, title, and present right of possession is shown to be in the defendant. (McCauley v. Weller, 12 Cat. 500; Davis v. Mitchell, 34 Cal. 81.) The defendant's title or right to the possession, cannot be tried on this action. (Id.; Mitchell v. Davis, 23 Cal. 381.) The general terms " actions of forcible entry and detainer," as employed in the Constitution of the State, include actions for the unlawful holding over by tenants. (Brummagim v. Spencer, 29 Cal. 661.) The validity of the lease under which the lessee held the prem- ises cannot be tried in this action, nor can the lessee be deprived of the 508 FORMS OF COMPLAINTS. advantages resulting from the possession of the premises under the lease, by a forcible ouster under legislative enactment. McCauley v. Weller, 12 Cal. 500. 2. Action Statutory. The statute provides a remedy for an unlawful entry, as well as a forcible entry, and the policy of it is doubt-' less to avoid nice distinctions as to what constitutes force in an entry upon lands. (Moore v. Goslin, 5 Cal. 266.) It must be strictly con- strued. (House v Reiser, 8 Cal. 499.) The case must be governed by the provisions of the Act, so far as they go, and as to other matters not embraced in the words of the Act, the general rules governing proceed- ings in these courts will apply. (People v. Harris, 9 Cal. 572.) As to what acts have been repeated, see Forcible Entry and Detainer Act, 15. 3. Actual Possession. The complaint must show that the plaintiff was in the actual, and not merely in the constructive posses- sion or occupancy of the premises, within five days preceding the entry. Shelby v. Houston, Cal. Sup. Ct., Oct. T., 1869. 4. Allegation Construed. The allegation of a complaint must be construed most strongly against the'pleader. A complaint that alleges that he is in possession in one place, and in another avers that he is not, shows no cause of action. (Dickinson v. Maguire, 9 Cal. 46.) If the plaintiff sues upon one only, or upon two of the causes of action mentioned in the Forcible Entry and Detainer Act, and the testimony makes a cause of action named in the Act, but not set out in the com- plaint, it is the duty of the Court, on its own motion or on the motion of the plaintiff, to permit him to amend his complaint to suit the testi- mony. (Valencia v. Couch, 32 Cal. 340.) As to when complaint may be amended, see Forcible Entry and Detainer Act, 10. 5. Appearance. As to complaint and fixing day for appearance of defendant, and summons, see Forcible Entry and Detainer Act, 5. 6. Arrest and Bail. If the complaint in the action presented shall establish fraud, force, or violence in making such entry, or in holding such possession, and that such possession is unlawful, the Judge may also make an order for the arrest of the defendant, and all the provi- sions of law, in reference to arrest and bail, shall be and are hereby made the rule of proceeding to said arrest and bail in said action of forcible entry or detainer. Forcible Entry and Detainer Act, 8. FOR FORCIBLE ENTRY, ETC. 509 7. Construction of Statute. A forcible entry, as defined in the first section of the Act (Stat. of Cal. 1865-6, p. 768), is committed by breaking the doors, etc., of the building, without any violence to the person in possession. Each mode mentioned in the statute is as dis- tinct and complete in itself as the third mode mentioned, that of the expulsion of the party in possession by force, threats, or menance, after a peaceable entry. (Brawley v. Risdon Iron Works, Cal. Sup. Ct., Oct. T., 1869.) It is not intended by the statute to charge a party responsi- bility for a forcible detainer, by construction, who did not in fact detain the premises. Brawley v. Risdon etc., Cal. Sup. Ct., Oct. T., 1869. 8. Costs. Costs should not be adjudged to be paid in gold coin. Moore v. Del Valle, 28 Cal. 170. 9. Court Commissioner. Any duly appointed court commis- sioner of a county may perform any and all of the duties in this act required to be performed by the County Judge, whenever such com- missioner is authorized by law to perform such duties. Forcible Entry and Detainer Act, 14. 10. Damages. The right to the rents and profits comes from the right to the possession of the premises. But if the plaintiff claims the value of the buildings destroyed as damages, the solution of the ques- tion would depend upon the amount of his interest in the building. (Warburton v. Doble, Cal. Sup. Ct., Oct. T., 1869.) And damages are not awarded unless the plaintiff recovers possession of the premises in controversy. (Brawley v. Risdon Iron Works, Id.} A., in pursuance of the provisions of the "Act Prescribing the Mode of Maintaining and Defending Possessory Actions on Lands Belonging to the United States," entered upon unoccupied land, and marked it out, so that its bounda- ries might be easily traced, and commenced to build a house upon it, when he was ousted by B. : Held, that in an action of forcible entry A. could recover the land from B., but without a fine or treble damages. (Stark v. Barnes, 4 Cal. 412.) The complaint in an action of forcible entry need not pray for treble damages to warrant the Court in treb- ling them. (Hart v. Moon, 6 Cal. 169.) If a complaint contains proper averments of damages sustained, and plaintiff recovers, and damages are found, either by the Court or by the verdict of a jury, it is the duty of the Court to treble the damages, although treble damages are not asked for in the complaint. Tewkesbury v. O'Connell, 25 Cal. 264; Watson v. Whitney, 23 Cal. 375. 510 FORMS OF COMPLAINTS. 11. Damages on Appeal. In an action tried in the County Court on appeal from a Justice's Court, plaintiff having obtained a ver- dict for nine hundred and fifty dollars damages, with restitution of the premises, moved that they be trebled. Motion denied, and judg- ment entered for one hundred and fifty dollars, with restitution of the premises. Plaintiff applies to the Supreme Court for mandamus to compel the court below to render judgment for treble damages. Held, that the application must be denied, as plaintiff has an adequate remedy by appeal; pending which, plaintiff can enforce so much of the judgment as awards restitution. The judgment can be corrected in this Court, if proper, by trebling the damages. Early v. Mannix, 1 5 Cal. 149. 12. Description of the Land. In forcible entry and detainer, a description of the land, sufficiently definite to enable the administra- tion of substantial justice, is all that is required in actions before justices of the peace. (Hermandez v. Simon, 4 Cal. 182.) Where the com- plaint described the premises as " about ten rods square, situated within and comprising the northwesterly corner of that certain piece or parcel of land bounded and described as follows, to wit:" (and then goes on to give the metes and bounds of a tract containing one hundred and for- ty-six acres,) " the said ten rods square being situated, etc. the proof among other things, showed this ten rods to be called the northeasterly instead of the northwesterly corner of the tract: Held, that the variance in the description of the premises did not prejudice appellant; the question was one of identity, and the fact that the corner of the small tract was called the northeasterly instead of the northwesterly corner was itself insufficient to defeat the action, if the other and more definite marks of description sufficiently indicated and identified the premises. (Paul v. Silver, 1 6 Cal. 73 ; see Green v. Palmer, 1 5 Id. 4 1 1 .) " That tract or parcel of land situated in the County of Santa Barbara, and known as the Rancho Lespe, granted by the Mexican nation to Don Carlos Antonio Carillo, by grant dated November 29th, 1833, and bounded and described as follows : bounded by the Mission San Fernando and San Buenaventura, situated in the then jurisdiction of Santa Barbara, containing six square leagues, a little more or less," is a sufficient description. More v. Del Valle, 28 Cal. 170. . 13. Force Essential. Force, either actually applied or justly to be feared from the conduct of the defendant, is essential to the support of this action. (Frazier v. Hanlon, 5 Cal. 156.) To sustain an action of forcible entry, or forcible and unlawful detainer, actual force, threats FOR FORCIBLE ENTRY, ETC. 5 1 I of violence in the entry, or the just apprehension of violence to the person, must be shown to have existed, unless the detainer be riotous. But see Brawley v. Risdon Iron Works, Cal. Sup. Ct., Oct. T., 1869. 14. Forcible Entry Defined. As to what constitutes a forci- ble entry, see (Forcible Entry and Detainer Act, i.) This section de- fines a forcible entry under the statute; (Shelby v . Houston, Cal. Sup. Ct., Oct. T., 1869;) which is a distinct offense, and a separate cause of action or ground for relief, and must be separately stated. (Id.) One who goes to a lot in another's possession, accompannied by several men, and builds a fence around it while the former possessor is remonstrat- ing, and removes him from the line of the fence, where he places him- self to prevent the fence from being built, is guilty of a forcible entry. (Valencia v. Couch, 32 Cal. 340.) One entering upon a lot in the possession of another does not effect a complete entry and acquire pos- session until he has expelled the party in possession and effected an exclusive lodgment. Id. 15. Forcible Entry and Detainer Who Liable. One who, with armed men, enters upon land inclosed with a fence, and in the possession of another, and commences the erection of a house, and refuses to 'deliver up peaceable possession on demand, but makes a show of force to retain it, is guilty of forcible entry and detainer. (Watson v. Whitney, 23 Cal. 375.) Several persons were owners of separate tracts of land within an outside fence which formed a common inclosure; but the division lilies of the separate tracts within the com- mon inclosure were well known and defined, and each person cultivated his own tract. A. and B., two of these owners, disposed of their tract to C. Soon after this D., who was the owner of another tract within the inclosure, went upon the tract sold to C. and commenced plowing. C. went to D., took hold of his horses, and commenced turning them from the tract, when D. drew a pistol and aiming it at him, threatened to hurt him if he did not leave. D. continued plowing the land. Held, that the acts committed by D. clearly amounted to a forcible entry and detainer, and that the general outside fence constituted as full and com- plete an actual possession in the owner of each separate tract as though it had been enclosed by a lawful fence. Hussy v. McDermott, 23 Cal. 419. 16. Gist of the Action. A complaint in an action under the Forcible Entry and Detainer Act, other than actions against tenants hold- 512 FORMS OF COMPLAINTS. ing over as provided in said Act, does not state facts sufficient to consti- tute a cause of action, unless it allege a forcible entry or a forcible detainer. (McEvoy v. Igo, 27 Cal. 375.) If the complaint charges a forcible entry with a multitude of people, and a forcible and unlawful detainer, the forcible entry is the gist of the action. McMinn v. Bliss, 31 Cal. 122. 17. Injunction. Where parties threaten to take forcible posses- sion of property, and the complaint does not aver the insolvency of the defendants, and that there is no adequate remedy at law, an injunction will not be granted. Where forcible possession is. taken, forcible entry and detainer would be a speedy mode of regaining possession, and for other damages, the usual proceedings at law would suffice. Tomlinson v. Rubio, 1 6 Cal. 201. 18. Jurisdiction. Actions for the recovery of the possession of any lands or tenements under the provisions of this Act, and for dam- ages consequent upon any forcible entry or detainer, shall be com- menced and prosecuted in the County Court of the county in which such lands or tenements, or some portion thereof, may be situate, and as herein provided. {Forcible Entry and Detainer Act, 4.) The new county courts, as organized under the amended Constitution, January i, 1866, had authority to proceed, try, and determine appeals in cases of forcible entry and detainer, pending in the old count)- courts on the last day of 1863. McMinn v. Bliss, 31 Cal. 122; see Davis v. San Lorenzo R.R. Co., Cal. Sup. Ct., Apl. T., 1869. 19. Legal Interest. A judgment for damages in forcible entry and detainer bears interest at the rate of ten per cent, per annum from the time it is entered, whether it is so provided in the judgment or not; and the insertion of a clause in the judgment making it bear such in- terest is merely suplusage and not erroneous. Burke v. Carruthers, 3 1 Cal. 468. 20. Object of Action. The otrject of the Act of 1850, exclud- ing the thirteenth section, is to redress wrongs occasioned by force used or threatened by the defendant, by restoring possession to the plaintiff, and punishing the defendant with fine and treble damages. (Owens v. Doty, 27 Cal. 502. The action of forcible detainer is not intended as a substitute for the action of ejectment. (Hodgkins v. Jordan, 29 Cal. 577; Owens v. Doty, 27 Cal. 502.) The purpose of the action is to obtain a restitution of the premises and damages occasioned by the for- f FOR FORCIBLE ENTRY, ETC. 513 cible entry and detainer, but when damages are claimed which do not necessarily result from the forcible entry or detainer, the title to the property injured may be a proper subject of inquiry, as in other actions for the same injury. Warburton v. Doble, Cal. Sup. Ct., Oct. T., 1869. 21. Ouster. In forcible entry and detainer, if the proofs show that plaintiff was ousted from a portion only of the tract of land described in the complaint, he is not entitled to recover damages for the detention of the whole. Thompson v. Smith, 28 Cal. 527. 22. Parties Plaintiff The remedy is a summary one, given by statute to protect the possession, and cannot be extended by implication to any other than the real occupants. (Treat v. Stuart, 5 Cal. 113.) A landlord cannot sue in this form, in his own name, for an unlawful en- try upon the possession of his tenant. (/<) It can only be maintained by the person ousted ; and his grantee cannot maintain the action. (House v. Reiser, 8 Cal. 499.) The action may be brought by the husband and wife, if the wife is a sole trader. (20 Cal. 282.) A tenant in com- mon cannot maintain an action of forcible entry and detainer against his co-tenant for holding over. The land must first be partitioned. Lick v. O'Donnell, 3 Cal. 59.% 23. Parties Defendant. No person other than the actual occu- pants of the premises shall be necessary parties defendant to proceed- ings specified in this Act; nor shall any action abate or plaintiff be non- suited for the misjoinder of any persons who might or should have been made parties defendant. And in case a married woman be a tenant or occupant, and her husband is not a resident of the county in which the premises are situated, her marriage shall not be a defense in such proceedings; but in case her husband be not joined, or unless she be doing business as a sole trader, a judgment against her shall be only valid against property on the premises at the time of the commence- ment of the action. (Forcible Entry and Detainer Act, 1 1 .) An action of forcible entry and detainer will not lie against a party claiming a right to land, who is not in the actual possession. (Preston v. Kehoe, 10 Cal. 445.) A person may be guilty of a forcible entry who is not actually present, and does not actively assist therein. He is guilty of an entry made with force by one acting at the time under his direction and procurement. (Minturn v. Burr, 20 Cal. 48.) An action under the act concerning forcible entries and unlawful detainers will not lie against a party who has been put in possession by a sheriff in good faith, 33 5 14 FORMS OF COMPLAINTS. % by virtue of a writ of restitution, even if the person turned out, and who brings the action, was one whom the officer could not lawfully dis- possess by virtue of the writ. Janson v. Brooks, 29 Cal. 214. 24. Possession. One entering within the inclosure of another, and building a house there, and asserting a claim to the inclosed land, while the other is living within the inclosure and asserting his posses- sion to the land, does not require actual possession to enable him to maintain the action, unless it is to the land on which his house actually stands, and so much as is absolutely necessary to the occupation of the house. (Ross v. Roadhouse, 36 Cal. 580.) See, as to actual possession by inclosure under the Van Ness Ordinance, Satterlee v. Bliss, 36 Cal. 487. 25. Possession Essential. In actions of forcible entry and detainer, the fact of possession, and not the right of possession, is what is to be determined. (Mitchell v. Davis, 20 Cal. 45.) The plaintiff must show an actual, peaceable and exclusive possession; in him a scrambling or interrupted possession is not sufficient. (Id.; House v. Reiser, 8 Cal. 499.) The plaintiff must have been in actual possession; and when the land is public land, not taken up under our Possessory Act, nor under the federal laws, such actual possession can be shown only by actual inclosure, or its equivalent. Merely putting down stakes, or marking out a boundary line, is not sufficient. (Preston v. Kehoe, 15 Cal. 315.) One who in the morning enters upon a portion of a tract of land in the possession of another, and in- closes it with a fence, and puts a house on it before sundown, does not acquire such a peaceable possession as to enable him to maintain forci- ble entry and detainer against the possessor, who at sundown destroys the same house and fence and drives him away. Hoag v. Pierce, 28 Cal. 187. 26. Possession, Right to Protect. One who is in possession of a tract of land has the right to resist and expel an intruder, if the resistance and expulsion take place before the possession of the intruder had become actual and peaceable. (Hoag v. Pierce, 28 Cal. 187.) The law will not permit a party to take forcible possession even of his own lands, if they are in the peaceable though wrongful possession of another; and if he does so he will not only be compelled to restore the possession before his title will be investigated, but will also be pun- ished by fine and further judgment for treble damages for his own nfraction of the laws. Davis v. Mitchell, 34 Cal. Si. FOR FORCIBLE ENTRY, ETC. 515 27. Possession, Sufficient. A person has possession of a lot twenty-eight feet by one hundred and thirty-two. It is sufficient to ena- ble him to maintain forcible entry and detainer, if it adjoins a lot upon which he lives, and he has a stable on it, arid cultivates it, even though the fence inclosing the whole is not very substantial. Valen- cia v. Couch, 32 Cal. 340. 28. Possession, Averment of. The objection to a complaint in forcible entry and detainer, that it does not aver "actual possession " the word "possession" only being used was a mere defect in plead- ing, which should have been taken advantage of below, where, if the objection be good, the complaint could have been amended; but it cannot be urged in the Supreme Court for the first time. (Minturn v. Burr, 1 6 Cal. 107.) It is an essential averment in the complaint, in an action of forcible entry and unlawtul detainer, that at the time of the alleged forcible entry plaintiff was in the actual possession of the premises; and in order to maintain the action, plaintiff must prove this averment on the trial. (Cummins v. Scott, 23 Cal. 526.) If the com- plaint in forcible entry and detainer sufficiently shows an actual peace- able possession in plaintiff, it will be sufficient without the use of the word "actual;" but it is bet^r to use the statutory term. (Morez>. Del Valle, 28 Cal. 170.) An averment of title in forcible entry and detainer may be treated as surplusage. Id. 29. Principal and Agent. Where one man acts openly and avowedly for another in leasing or controlling his property, this is suffi- cient, as against third persons, to show that the property is that of the person recognized by the agent as owner; and the possession of the agent is the possession of the principal, who can maintain forcible and unlawful entry and detainer against such third persons, whether the agent had any written authority or not. (Minturn v. Burr. 16 Cal. 107.) In an action between S. and D., a writ of restitution issued command- ing the sheriff to cause D. to be removed from certain premises, and S. to have restitution of the same. The return of the writ by the sheriff shows that he " put S., by his representative M., in peaceable possession." Held, that the possession under the writ was that of S., and not of M.; that M. was the mere agent of S., and that the pre- sumption of the continuance of that relation was not destroyed by proofs of acts of control over the premises subsequently exercised by M. which were not inconsistent with his position as agent. (Mitchell v. Davis, 20 Cal. 45.) After the service of the writ, and while the rela- 5l6 FORMS OF COMPLAINTS. tion remained unchanged between S. and M., D. entered upon the premises, and an action under the forcible entry and unlawful detainer statute was thereupon commenced by and in the name of M. against D. Held, that M. could not maintain the action by reason of his want of possession. (Id.) The persons by whose direction, agency, and procurement the forcible entry is made, are liable in the action. Minturn v. Burr, 20 Cal. 48. 30. Rents and Profits. Section twelve provides that " damages shall be assessed as well for waste and injury committed upon the premises as for the rents and profits during the detainer," and the ver- dict shall .find the monthly value of the rents and profits. (Tewkes- bury v. O'Connell, 25 Cal. 264; Watson v. Whitney, 23 Cal. 375.) The meaning of this is, that the rents are to be regarded merely as damages, and that their amount during the period of the detention is to be estimated by ascertaining their monthly value. (Howard v. Val- entine, 20 Cal. 282.) The plaintiff in an action under this section can only recover the rents which accrue after the possession of the tenant becomes unlawful; the rents accruing prior to that time are not recov- erable. (Id-} The amount of rents is immaterial, and whether it is one dollar or one thousand dollars, the jurisdiction is the same. (Id.) Rents and profits may be awarded on damages without the value thereof being stated in the complaint. (Holmes v. Horber, 21 Cal. 55.) The plaintiff is entitled to recover the monthly rents and profits during the time of the unlawful detainer, without regard to the nature or the extent of the right or title by which he held the possession. Roff v, Duane, 27 Cal. 568. 31. Restitution and Damages. As to restitution and dam- ages, se Forcible Entry and Detainer Act, 12. 32. Restitution, Writ of. Where a sheriff refuses to execute .the writ on the ground that the premises are in possession of persons .not parties to the suit, the Court will award a peremptory mandamus against the sheriff to compel him to execute the writ. (Fremont v. Crippen, 10 Cal. 211.) Where in forcible entry and detainer, plaintiff had judgment in the Justice's Court, and was placed in possession of the land by a writ of restitution, and subsequently defendant gave bond and appealed to the County Court, where, after trial, there was a verdict for defendant: Held, that the County Court had power, after reversing the judgment of the Justice, to award defendant a, writ of restitution; that such a writ was necessary to perfect the jurisdiction of that Court over :the subject. (Kennedys. Hamer, 19 Cal. 375. Stark v. Barnes, FOR FORCIBLE ENTRY, ETC. 517 4 Cal. 412) does not hold that a party succeeding to the original wrongful possession is liable in action of forcible entry and detainer in the same manner as his predecessor, because there Barnes came in without any new title, and merely succeeded to the claim, and consum- mated the trespass of the original trespasser. (Id.) For damages, see Ante, Note 10. 33. Separate Statement. Forcible entry and forcible detainer are separate causes of action, and ought to be separately stated in differ- ent counts in the complaint. If not so stated the complaint is bad on demurrer, but if the complaint is not demurred to, the objection is waived. Fraud, if relied on, should also be separately stated. Valen- cia v. Couch, 32 Cal. 340. 34. Showing Required of Plaintiff or Defendant upon Trial. As to showing required of plaintiff or defendant, see (Forcible Entry and Retainer Act, 9.) The holding over of the law must be shown, (Reed v. Grant, 4 Cal. 176,) and an actual peaceable posses- sion in himself. (Treat v. Stuart, 5 Cal. 113.) Actual force is not necessary, but threats, and showing an intention to resort to- violence, if resistance is offered, is sufficient. (O'Callaghan v: Booth, 6 Cal. 63.) The plaintiff in this action must show an actual peaceable possession in himself. (Treat v. Stuart, 5 Cal. 113.) Actual force is not neces- sary, but threats and showing an intention to resort to violence if resist- ance is offered, is sufficient. (O'Callaghan v. Booth, 6 Cal. 63.) The plaintiff in this action must show an actual peaceable possession in him- self, at the time of the entry. (Treat v. Stuart, 5 Cal. 113.) What is actual, and what is constructive possession, is a question for the jury in many cases. (O'Callaghan v. Booth, 6 Cal. 63.) Where the complaint avers forcible and unlawful entry, and that the defendant forcibly detained the premises so unlawfully taken, forcible entry must be proven the averment of detainer not being stated ,as an independent ground of relief. (Preston v. Kehoe, 15 Cal. 315.) In such action, proof of forcible detainer does not prove forcible entry. (Id.) If the plaintiff seeks to recover on the ground of a forcible entry and detainer, and the proof shows that there was no actual force, and that he neither apprehended, nor had any ground to apprehend any positive act of vio- lence from the defendant, he cannot recover. (Thompson v. Smith, 28 Cal. 527.) The evidence must tend to prove an entry by the defendants with strong hand, with unusual weapons, or with menace of life or limb,- or they cannot be convicted of a forcible entry. McMinn v. Bliss, 31 Cal. 122. 518 FORMS OF COMPLAINTS. 35. Summons. As to what summons shall contain, see Forcible Entry and Detainer Act, 6. 36. Treble Damages. The power of the County Court to treble the damages by way of penalty in actions of forcible entry results by necessary implication from its power to try de novo. (O'Callaghan v. Booth, 6 Cal. 63.) If the complaint in forcible entry and detainer avers that the lands are in the county where the suit is brought, a fail- ure to mention the state will not be a fatal defect. More t>. Del Valle, 28 Cal. 170.- 37. Waste and Injury. The Statute of California, 1850, 12, provides that damages should be assessed "as well for waste and injury committed upon the premises, as for rents and profits during such detainer." (Hicks v. Herring, 17 Cal. 566.) In 1861 &e statute was amended by providing that such damages should be assessed "tf claimed in the complaint." (Staf. of Cal. 1861, p. 582.) And it was again amended in 1863, providing for the assessment of "the damages occa- sioned to' 'the plaintiff" without mention of waste or injury to the prem- ises; (Stat. of Cal. 1863, p. 655, 13;) leaving the remedy for waste and injury to the premises as a separate action, and not an appendage to the action of forcible entry and detainer. See Stat. of Cal. 1866; War- burton v. Doble, Cal. Sup. Ct., Oct. T., 1869; Brawley v. Risdon Iron Works, Id. t 38. Waste Pending Suit. Whether, if plaintiff in forcible entry and detainer inserts in his complaint a conditional prayer, that if waste be committed on the property pending the suit, investigation be had in relation thereto, and the damages occasioned thereby be allowed, he is then entitled to prove such damages, and have them assessed by the jury, query, (Hicks v. Herring, 17 Cal. 566.) Under the twelfth section of our Forcible Entry and Detainer Act, plaintiff is not com- pelled to claim damages for waste and injury, or for rents and profits. He may simply claim possession; and, in a subsequent suit, may recover damages for waste committed pending the action of forcible entry and detainer. (Id.) It is optional with plaintiff either not to claim any damages, or to claim only such as arise from loss of rents, or from waste, or from both. There is no such connection between the rents and profits and waste committed as to require the damages from the loss of the one and the commission of the other to be united in the demand. (Id.) In actions for damages for waste, the rule is, FOR FORCIBLE ENTRY, ETC. 519 that the proof of damage may extend up to the time of verdict as to all facts which flow as a natural result from the injury for which suit is brought. (/. Whitney, 24 Cal. 267; Thompson v. Smith, 28 Cal. 532; cited in Shelby v. Houston, Cal. Sup. Ct., Oct. T., 1869.) The plaintiff must have had the actual possession when the wrongful or forcible entry was made; and if a forcible detainer alone is complained of, -the entry of the defendant must have been unlawful. Owen v. Doty, 27 Cal. 502. FOR FORCIBLE ENTRY, ETC. 525 No. 535. i. Holding Over after Rent Due. [TITLE.] The plaintiff complains, and alleges: I. That on or about the .... day of , 18 . . , the said plaintiff, by a lease, made on or about the said day at the , County of , leased, demised and let to the said defendant, of the said , County of ....,...., the premises situate, lying and being in the "County of , State of , and described as follows, to wit: [describe premises\, to have and to hold the said premises, to the defendant, for the term of months thence next ensuing, at the monthly rent of dollars, payable in advance. II. That by virtue of said lease the defendant went into the possession and occupation of the demised premises, and still continues to hold and occupy the same. % III. That according to the terms of said lease there became due, on the .... day of , 1 8 . . , for the rent of said premises, the sum of dollars. IV. That on the .... day of , 18 . . , and within one year after said rent became due as afore- said, by the terms of said lease, demand was made by the plaintiff of \Jke lessee], for payment thereof, but said defendant neglected and refused to pay the said rent, and the same remained unpaid for the space of three days after said demand. V. That afterwards, to wit, on the .... day of 526 FORMS OF COMPLAINTS. , 1 8 . . , at , County of , demand was made in writing of the defendant to deliver up the possession of the said premises, held as aforesaid, to the plaintiff, but said defendant neglected and refused, for the space of three days after said de- mands as aforesaid, to quit the possession of the said demised premises, or to pay the rent thereof due and unpaid as aforesaid, and the same still remains due and unpaid. VI. That said defendant unlawfully holds over and continues in the possession of the said premises, after default in the payment of the rent as aforesaid, and without the permission of the plaintiff; by reason whereof the plaintiff has sustained damages in the sum of dollars. Wherefore the said plaintiff prays judgment: 1. For the sum of dollars damages for waste and injury, and for the detention of said prem- ises. 4 2. For the sum' of dollars, rent due as aforesaid, and restitution of the said premises. 3. That said damages may be trebled, together with costs of suit. FOR FORCIBLE ENTRY, ETC. 527 No. 536. ii. Holding Over after Expiration of Term. [TITLE.] The plaintiff complains, and alleges: I. That on or about the .... day of , 1 8 . . , the said plaintiff, by a lease made on or about the said day, at the , County of ......... leased, demised, and let to the said defendant, of , County of , the premises situate, lying, and being in the , County of , State of , and described as follows, to wit: \_describe property~\, to have and to hold the said premises, to the defendant, for the term of .... years from the .... day of , 1 8 . . , at the yearly rent of dollars, payable in advance. II. That by virtue of said lease, said defendant went into possession of said premises, and he and others under him still continue to hold and occupy the same. III. That the term for which said premises were demised as aforesaid has terminated, and that the said defendant holds over and continues in possession of the said demised premises, without the permission of the said plaintiff, and contrary to the terms of said lease. IV. That the said plaintiff since the expiration of the term for which said premises were demised as aforesaid, to wit: on the .... day of , 18. ., made demand in writing of the said defendant to deliver up and surrender to him the possession of said premises. 528 FORMS OF COMPLAINTS. V. That more than three days have elapsed since the making of such demand, and the defendant has refused and neglected, for the space of three days after such demand, to quit the possession of said demised premises, and still does refuse, contrary to the form of the statute in such case made and provided. VI. That the monthly value of the rents and profits of the said premises is the sum of dollars. Wherefore the said plaintiff prays judgment: 1. For the restitution of the said premises, and for damages for the rents and profits of said premises. 2. That such damages may be trebled as damages for the occupation and unlawful detention and holding over of the same, amounting to the sum of dollars per month, besides costs of suit. 50. Acts Repealed. As to acts repealed, see Forcible Entry and Unlawful Detainer Act, 15. 51. Assignee. The assignee of a lease may discharge himself from all liability under the covenants of the lease, by assigning over, and the assignment over may be to a beggar, a femme covert, or a per- soft on the eve of quitting the country for ever, provided the assignment be executed before his departure; and even though a premium is given as an inducement to accept the transfer. Johnson v. Sherman, 1 5 Col. 287. 51. Complaint, -what to Contain Fraud may be Charged. The complaint in such action shall set forth the facts on which the plaintiff seeks to recover, and shall describe the premises sought to be recovered with reasonable certainty, and may charge that the defendant has acted fraudulently in making such forcible entry or holding such possession by force (in case where the action is brought for a forcible entry or forcible holding), and may claim such damages therefor as he may deem proper; and in case of rent due and unpaid, may state the amount thereof; and such complaint shall be verified in the mode pre- FOR FORCIBLE ENTRY, ETC. 529 scribed by law for the verification of pleadings in civil cases. (Forcible Entry and Unlawful Detainer Act, 8.) Requisites of a complaint by a landlord to recover possession of demised premises for non-payment of rent, see Mayor of N.Y. v. Campbell, 18 Barb. 156. 53. Damages. The plaintiff cannot prove damages sustained by the defendants holding over in respect to their property immediately adjoining the demised premises, respecting which the relation of land- lord and tenant was not subsisting. (Kower v. Gluck, 33 Cal. 401.) As to damages, consult Forcible Entry and Detainer Act, 13. 54. Demand of Rent and for Delivery of Possession. If a tenant holds over after rent has become due and remains unpaid for the space of three days, a demand by the landlord of the payment of rent and delivery of possession, both made at the same time, will enable him to maintain an action for unlawful holding over. It is not necessary to demand rent and wait three days, and then demand pos- session. (Brummagin v. Spencer, 29 Cal. 66 1.) A waiver of the demand will never be implied for the purpose of making a forfeiture. A forfeiture cannot take place by consent, and it is not favored by the Tules of law. (Gaskill v. Trainer, 3 Cal. 334.) A demand for rent may be made at any time. Forcible Entry and Unlawful Detainer Act, 5- 55. Entry, how Made. No entry shall be made into any lands, tenements, or other possessions, but in cases where entry is given by law, and in such case only in a peaceable manner; not with strong hand, nor with a multitude of people. (Forcible Entry and Unlawful Detainer Act, i.) A landlord has no right of entry for breach of covenant in a lease, and to forcibly eject the tenant, the lease reserving no such right of entry. (Fox v. Brissac, 15 Cal. 223.) If the land- lord does so enter and eject the tenant, the tenant may recover damages for the vegetables and grape vines growing on the land, and planted by the tenant for sale, he not being permitted to enter and gather them. Fox v. Brissac, 15 Cal. 223. 56. Estate at SufFranee. An estate at suffrance is when one comes into possession of land by lawful title, but keeps it afterwards without any title at all. 2 Blaksi. Com. '150; Taylor's Land, and Ten. 64; see Hawkshurst v. Lobree, Cal. Sup. Ct., Oct. T., 1869. 57. Fraud Defined. A defendant shall be deemed guilty of 34 530 FORMS OF COMPLAINTS. fraud within the meaning of this Act when the forcible entry or forcible detainer is shown to have been made or done in bad faith, and knowing that said defendant had no legal right to make such entry or detainer. Forcible Entry and Detainer Act of 1 868, 1 1 . 58. Jurisdiction. Actions for the recover} 7 of any lands or tene- ments specified in the Forcible Entry and Detainer Act of 1863, and for consequent damages for holding over or not surrendering the pos" session of demised premises, shall be commenced and prosecuted in the County Court of the county in which the said lands or tenements, or some portion thereof, may be situate. Forcible Entry and Detainer Mt 0/1863, 7- 59. Notice to Quit. By the terms of an award which f was decisive between a landlord and his tenant, the latter was to leave the premises on the ninth: Held, that the plaintiff had no yight to give notice to quit until the tenth, after which the plaintiff had six (now three) days (Forcible Ent. and Dei. Act of 1863, 4; 6 Cal. 189) to remove, wherefore the action commenced on the tenth was premature. (Ray v. Armstrong, 4 Cal. 208.) In an action under the thirteenth* section, where the evidence showed a tenancy from year to year, plaintiff must show r that he has terminated the tenancy by notice to quit, and if the tenant be permitted to hold over without such notice, a new term is created, and he cannot be legally dispossessed. (Sul- livan v. Gary, 17 Cal. 80.) When notice is served on the original lessee, the notice binds the under tenants who acquire possession from the tenant after its service; (Schilling v. Holmes. 23 Cal. 227;) ad they are liable to the landlord for double the monthly value of the prem- ises. Id. 60. Notice, Tenant not Entitled to. Where defendant held, as tenant under J.-S. in his lifetime, under whom as heir at law, the plaintiff claimed as landlord, but the defendant refused to recog- nize him as such: Held, that this refusal terminated the tenancy, and overweighed the presumption of a contract between defendant and plaintiff. (Sampson v. Schaffer, 3 Cal. 190.) The denial of title and the relation of tenant makes defendant a trespasser, and not entitled to notice to quit, and no special demand for payment of rent is necessary to make a forfeiture, as defendant could not deny title and yet claim the benefit of holding in subordination to it. Smith v. Ogg Shaw, 16 Cal. 88. FOR FORCIBLE ENTRY, ETC. 531 61. Parties. As to the necessary parties defendant, see {Forcible Entry and Unlawful Detainer Ac/, 12..) If a landlord sells the leased property and assigns to the purchaser the lease, and the tenant does not attorn to the purchaser, or recognize him as landlord, the pur- chaser cannot recover possession of the premises from the tenant under the act concerning forcible entries and unlawful detainers. (Reay v. Cotter, 29 Cal. 1 68.) The tenant cannot, by submitting to being wrong- fully turned out of possession under a writ which did not run against him, and then attorning to the plaintiff in the writ, prevent his first landlord from recovering possession against him for non-payment of rent. (Calderwood v. Peyser, 31 Cal. 333.) The right to remove a tenant under the Act concerning Forcible Entries and Unlawful Detainers is given to the conventional landlord alone, and not to his successor in the estate. (Id.; Owen v. Doty, 27 Cal. 502.) The relation of land- lord and tenant is not dissolved by the execution of papers intended as an assignment o the lease to the landlord, and release and cancellation of the lease. A surrender in fact of the demised premises is essen- tial to the completion of a dissolution of that relation. A possession by the tenants, after the execution of the papers mentioned, of the demised premises, renders them liable to be proceeded against under the Act concerning Forcible Entries and Unlawful Detainers. Kower v. Gluck, 33 Cal. 401. 62. Possession, Demand of. As to demand of possession and proceedings thereon, see Forcible Entry and Unlawful Detainer Act, 4. 63. Possession to be Restored. Where any such forcible entry shall be made, or where the entry shall be made in a peaceable manner, and the possession shall be held by force, the person so forci- bly put out, or so forcibly holden out of possession, shall be restored to such possession by action to be commenced and prosecuted as in this Act provided. (Forcible Entry and Unlawful Detainer Act, 2.) It is a settled rule at common law, that where a right of re-entry is claimed on the ground of forfeiture for non-payment of rent, there must be proof of a demand of the precise sum due, at a convenient time before sunset, on the day when the rent is due, upon the land, in the most notorious place of it, even though there 4>e no person on the land to pay. Connor v. Bradley, i Howard U.S. 211. 64. Proceedings. The proceeding in and upon the trial of any 532 FORMS OF COMPLAINTS. such action shall be the same as in any other civil cases, except as otherwise provided in the Act. See Fore. Ent. and Det. Act, 14. 67. Relation of Landlord and Tenant. The production of a lease in evidence will not, of itself, prove the relation of landlord and tenant to have existed between the lessor and lessee, but the entry of the lessee under the lease, or a holding by him referable to the lease, must also be proven. (Caldwell v. Center, 30 Cal. 539.) A., who claimed to be in possession of a tract of coal-bearing land, made a verbal agreement with B. and C., by which they were to prospect for coal until they struck a particular seam or ledge, and before they struck this ledge they were to do all the work and have two-thirds of the claim; but after the ledge was struck the work was to be prosecuted by the parties jointly, A. to bear one third of the expenses and B. and C. two thirds: Held, that this agreement did not create the relation of landlord and tenant between A. and B. and C., but that it made them tenants in common, or partners in mining, and that the action of unlawful detainer was not the proper remedy, for A., if excluded from the premises by B. and C. Id. 68. Relation must be Shown. Under the Forcible Entry and Detainer Act of April 27, 1863, an action for an unlawful holding over cannot be maintained unless the relation of landlord and tenant is shown to exist between the plaintiff and defendant at the time of mak- ing demand for possession, as required by Section four of said Act. Steinback v. Krone, 36 Cal. 303; citing as authority Wheelock v. Warschaner, 21 Cal. 316; and S.C., 34 Id. 265. 69. Remedy. A tenant at suffrance is not entitled to a notice to quit. The statute requiring the landlord to give a month's notice to a hold-over tenant is not imperative; the object is to give the landlord a more effective and additional remedy if he choose to adopt it, i.e. double rent after the service of the notice to quit. But if after the expira- tion of the term, the landlord assents to further occupation, or overtly rec- ognizes it, the tenant becomes a tenant for years. (Hawkshurst v. Lobree, Cal. Sup. O., Jul. T., 1869.) Where the plaintiff does not claim double rent, a notice to quit is unnecessaiy, but where the landlord would avail himself of the statutory remedy, a month's notice to quit is requisite to enforce the claim 1 8 . . , in the County of , in the State of , A. B., then and there being County Assessor of said County, did duly assess and set down upon an assessment roll all the property, real and personal, in said County subject to taxation; that said assessment roll was afterwards sub- mitted to the Board of Equalization of said County, and was by said Board duly equalized, as provided by law; that the same Doe No , John Doe and Rich- ard Roe were, at the time the said property was so assessed, and still are owners of the land and improve- ments above described, and were at the time said assess- ment was made, absent therefrom and from the said County, and were during all the time aforesaid and still are liable for and in duty bound to pay the taxes herein specified; that the names of the owners of the said land and improvements, and the names of the defendants last aforesaid were, during all the time aforesaid, and still are unknown to the said Assessor, and unknown to the said plaintiffs, and the above described lands and improvements were so assessed at the time and place aforesaid, in the manner provided by law, to " unknown owners," to wit: Said real estate, valued and so assessed at Said improvements, valued and so assessed at 568 'FORMS OF COMPLAINTS. II. That each of the persons, defendants herein, have and claim a title to and interest in the said real estate, improvements on real estate and personal property, and are liable for and in duty bound to pay the taxes herein specified; that upon said property there has been duly levied for the fiscal year A. D. 1 8 . . : A State tax of $ A County tax of $ Amounting in the whole to $ All of which is due and unpaid ; of which amount dollars was duly assessed and levied against the real estate aforesaid, and dollars against the improvements aforesaid. Wherefore said plaintiffs pray judgment against said persons, defendents herein, for the sum of dollars, and separate judgment against said real estate and improvements for the sum of dollars, and that said real estate and imprqvements be sold to satisfy such separate judgment, and that all the interest and claim of each person aforesaid, defendants herein, and all persons claiming any interest in said real estate or improvements be forever barred and foreclosed; and that said taxes, and all costs subsequent to the assess- ment of said taxes, and all costs and expenses of this suit, be paid in gold and silver coin of the United States; and plaintiffs pray for such other judgment as to justice belongs. District Attorney, County of , [ Verification. ] NOTE. Under this chapter of tax and tax suits, the inquiry has been confined almost exclusively to California and Nevada, for in most of FOR TAXES AND TAXATION. 569 the other States of the Union an entirely different mode of collecting taxes is adopted, and even in California this system of tax suits is not universal, for in San Francisco no suits are brought, but sales for delin- quent taxes are made -directly from the rolls. The decisions' of our Supreme Court on the various questions arising under the revenue law relating to assessment and collection of taxes, are numerous and exhaust- ive; nearly the whole field of inquiry has been traversed. 1. Action "will not Lie. An action of debt for taxes will not lie when the predicate of the action is a mere assessment upon prop- erty. Much depends upon the wording of the act creating fhe tax. If the act merely imposes a tax upon property, and provides a particular process for enforcement, as a sale of the property, no suit can be brought against the person to collect the tax. If a personal liability be imposed for the tax, and the debt is silent as to the mode of enforce- ment, then an action would lie for the enforcement of the obligation, for the rule is general that debt lies at common law to enforce a statu- tory duty or penalty of forfeiture. (State of Cal. v. Poulterer, 16 Cal. 514.) The provisions of the Constitution and revenue laws on the subject of taxation are to be understood as referring to private property and persons only, and not to public property, as to state, counties, towns or municipal corporations. (People v. Doe, 36 Cal. 220; citing Mayo v. Ah Loy, 32 Cal. 477.) The State cannot tax and sue itself; (People v. McCreery, 34 Cal. 433;) nor can it in person or as represented in its local subordinate government, sue without its own consent. Sharp v. Contra Costa County, 34 Cal. 584; People v. Doe, 36 Cal. 220. 2. Assessment. If property is not properly assessed , the assess- ment and tax levied thereon imposes no legal obligation to pay the taxes so levied on the defendants or any other person, and creates no lien on the real estate so assessed. (People v. Pearis, Cal. Sup. Ct., Apr. T., 1869.) The words "assessment" and "taxation," as used in the Constitution of this State, do not have the same signification. Taylor v. Palmer, 31 Cal. 240. 3. Assessment of, Valuation for Revenue Purposes. Where in making an assessment on real estate for revenue purposes, a dispute arose between the assessor and owner as to value, and the asses- sor taking away the sworn statement of the owner, with a blank left for the value, said he would submit the dispute to the Board of Equaliza- tion, and afterwards filled the blank in the sworn statement with a higher valuation than was admitted by the owner, and the property was 57 FORMS OF COMPLAINTS. taxed at that valuation, and the owner never appeared before the Board of Equalization : Held, that the assessment, though not entirely regular, was not fraudulent, and that a judgment for the tax as assessed should stand. State v. Wright, 4 Nev. 251. 4. Assessors' Duties. It is the duty of assessors to assess all property in their respective districts, counties, etc., which comprehends all property, except that which may be denominated generally, public property. (People v. McCreery, 34 Cal. 432.) He must make the valuation of the property. (People v. S.F. Savings Union, 31 Cal. 132.) And it must be made against the owner when known. The individual and not the property pays the tax. (Kelsey v. Abbott, 13 Cal. 609; cited in Garwood v. Hastings, Cal. Sup. Ct., Jul. T., 1869.) But if the assessor cannot find the person to be taxed, he may nevertheless assess the property. (Hart v. Plain, 14 Cal. 148.) That the assess- ment must be made on or before the first Monday in May, is directory. (Id.) The assessment roll when completed and certified by the assessor to the Board of Supervisors, is the only evidence of his acts and intentions. (People v. S.F. Savings Union. 31 Cal. 132.) There is no particular form required for the certificate. (State v. W. U. Tel. Co., 4 Nev. 338.) The making of a certified copy by an assessor of an assessment roll made by another assessor, a previous year, is not an assessment of property. (People v. Hastings, 29 Cal. 449.) Under Section 101 of the Revenue Act of Nevada, of 1865 (Statutes of 1865 307), assessors may call for sworn statements of the amount and value of the proceeds of. mines, but they are not bound by such state- ments in making their assessments. State v. Kruttschnitt, 4 Nev. 178. 5. Auditor's Duties. The County Board of Equalization being authorized to equalize taxes, if they make an order reducing the assess- ments, however illegal it may be, the County Auditor must be governed by their action until it is set aside by a court of competent jurisdiction. State v. Fish, 4 Nev. 216. 6. Authentication. The record of the assessment in the office of the Superintendent of Streets, must be authenticated by the signature of that officer, and until signed there is no assessment, and consequently no lien upon the land for the cost of the improvement created. McGlynn v. Jones, Cal. Sup. Ct.,Jan. T., 1869; citing as authority, Himmelman v. Danos, 35 Cal. 441. 7. Board of Equalization. The presumption of law is that a FOR TAXES AND TAXATION. 5/1 Board of Equalization perform their duty and correct any inequality in the assessment of taxes. (Guy v. Washburn, 23 Cal. in.) They can- not add to the valuation of property, with evidence authorizing them to do so. (People v. Reynolds, 28 Cal. 107.) They cannot make a new assessment. Id. 8. Burden of Proof. In a suit for delinquent taxes, it is suffi- cient on the part of the State to show a regular assessment, without being required to show a delinquency. The only defenses which can be made to resist a judgment are affirmative in their character, and must be specially pleaded and affirmatively made out by the defendant. State v. Western Union Telegraph Co., 4 Nev. 338. 9. Capital of Bank. The capital of a bank embraces all its property, real and personal. (New Haven v. City Bank, 31 Conn. 106.) Where the capital stock of a bank is exempted from taxation by the charter, its banking, house is equally exempt with every other part of its capital. New Haven v. City Bank, 31 Conn. 106. 10. Capitation Tax. The revenue law imposing a capitation tax of one dollar on all passengers carried out of the State, by stage companies, is not a regulation of commerce among the States, nor a tax on exports, and is not in conflict with the powers of the Federal Government. Ex parte Crandall, i Nev. 294. 11. Chose in Action. Chose in action follows the person of those having the right. When the holder of such right resides out of the State of Nevada, this State has no jurisdiction over the person nor over the thing proposed to be taxed, and cannot tax either. (State of Nevada v. Earl, i Nev. 394.) The State can only tax choses in action belong- ing to its own citizens or residents. Id. 12. Claim. The term "claim," as used in Section five of the Revenue Act of 1861, means not only an assertion of title to, but an actual possession of the land claimed. People v. Frisbie, 31 Cal. 146. 13. "Claim to, and Possession of." The claim to and posses- sion of land, is property liable to taxation, even if the land belong to the United States, but such is not a tax upon the land itself. People v. Cohen, 31 Cal. 210; People v. Frisbie, 31 Cal. 146. 14. Common Carriers. Common carriers of gold dust com- pelled to pay the license tax fixed by 74th and 75th sections of the 572 FORMS OF COMPLAINTS. Revenue Act of 1861, pp. 442, 443- People v. Wells Fargo & Co., 19 Cal. 293. 15. Complaint. A complaint under the Act of May 17, 1861, which avers that the tax " was levied upon and assessed against per- sonal property," contains no cause of action. The complaint should not only aver that the tax was levied upon and assessed against per- sonal property, but also the kind or kinds of personal property. (People v. Holladay, 25 Cal. 300.) The complaint must aver the failure of the tax collector to collect the delinquent tax, by reason of his inability to find, seize, or sell the property belonging to the delinquent. (People v. Pico, 24 Cal. 595.) The Acts of 1861 and 1862 prescribe the same form of complaint, but the former contemplates a mere money judg- ment, while the Act of 1862 authorizes a judgment foreclosing a lien for taxes with an order of sale, etc., so that the character of the action, whether it is a case in equity or at law, will be determined by the prayer of the complaint. (People v. Mier, 24 Cal.'6i.) The statute does not require the assessed value of the property to be alleged in the complaint. (People v. Hastings, 26 Cal. 668.) A complaint in a tax suit which shows only that the property taxed was assessed as the estate of R. deceased, and that the defendants at the time of the assess- ment owned and possessed it, does not state facts sufficient to constitute a oause of action, because not showing that it was assessed to any particular party whose duty it was to pay the taxes, or that it was made to unknown owners. (People &. De Carrillo, 35 Cal. 37.) As there appears to be under the Act of 1860, no authority for levying a con- tingent and building tax, if the complaint sets forth these items, it shows no cause of action. (People v. Hagar, 19 Cal. 462.) A tax payer on the proceeds of mines may complain of inequality of assess- ment upon him, at any time before the taxes are collected or sued for. State v. Manhattan Company, 4 Nev. 318. 16. Construction of Revenue Law. The requirement of Section ten of the Revenue Act of 1865, "that the value of the pro- ceeds of monies, shall be ascertained as provided in this Act," has reference to the mode of allowance for the cost of working. (State v. Kruttschmitt, 4 Nev. 178.) The revenue laws are unconstitutional so far as they exempt private property from location, and all parts thereof relating to such exemption must be disregarded. (People v. Gerke, 35 Cal. 677.) Act imposing taxes conforms to and is not in conflict with constitutional restrictions; it is binding and obligatory, and beyond the FOR TAXES AND TAXATION. 573 control of the judicial department of the State Government. Beals v. Amador County, 5 CaL 624. 17. County Taxes By Whom Levied. The amount of taxes for county purposes must be fixed and levied by the Board of County Commissioners, and without their proper action no county tax can be collected. State v. Manhattan Company, 4 Nev. 318. 18. Debt. Standing alone, the word " debt " is as applicable to a sum of money which has been promised at a future day, as to a sum now due and payable. (People v. Arguello, CaL Sup. Ct., Jul. T., 1869.) Debts are declared to be personal property for the purpose of taxation, whether it be debts over due or under due. People v. Arguello, CaL Sup. Ct.,Jul. T., 1869. 19. Default. A tax payer is not in default until he has an op- portunity to pay the taxes assessed against him, so that if there is no person authorized to receive the taxes until the delinquent list goes into the hands of the District Attorney, the tax payer on receiving notice of that fact, ought to be allowed to pay the tax without any penalty being imposed. State v. Western Union Telegraph Company, 4 Nev. 338. 20. Demand for Sworn Statement not Indispensable. An assessment for taxes by the Assessor is not vitiated by the fact that he omitted to demand a sworn statement. State v. Western Union Tele- graph Company, 4 Nev. 338. 21. Description in Assessment. No action can be main- tained under the Act of May iyth, 1861, for a tax on real estate, unless the assessment has sufficiently designated the property to enable a proper description of it to be given in the complaint. A description of the land assessed, as the unsold portion of eleven square leagues of land known as Los Mokelamos, is fatally defective. (People v. Pico, 20 CaL 395.) A description of a tract of land by name is sufficient. (Peo- ple v. Leet, 23 CaL 161.) The assessment of lands outside of a city or incorporated town need not describe the land by metes and bounds. (High v. Shoemaker, 22 CaL 363.) Improvements on real estate and personal property need only be assessed in general terms and under a gross valuation ; a specific description of such property is unnecessary. (People v. Rains, 23 CaL 127.) The object of a description of prop- erty in an assessment roll, is to clearly identify the property assessed. (People v. Empire G. and S. M. Co., 33 CaL 171.) Bonds on deposit 574 FORMS OF COMPLAINTS. are sufficiently described by being designated "money and bonds de- posited as per statute." (People v. Home Ins. Co., 29 Cal. 503.) An assessment of land is not void by reason of a mistake in description, unless it contains such a falsity in the designation or description as might probably mislead the owner. (Bosworth v. Danzien, 25 Cal. 296.) A lumping assessment of personal property is bad. The dif- ferent classes should be stated. Falkner v. Hunt, 16 Cal. 167. 22. Description of Property in Complaint. The Statute of 1 86 1, requiring real estate in an action to recover taxes to be described in the complaint with the same particularity as in actions of ejectment, only applies to actions in which the real estate is made a party defend- ant. (People v. Leet, 23 Cal. 161.) A description of a tract of land by name is sufficient. (/. Gerke, 5 Cal. 381. 44. Mill Property. Under the statute which provides that mills shall be taxable, the machinery contained in a mill is taxable as part of the mill, and it is equally taxable here, although the owners reside out of the State, and it makes no difference that the machinery is personal property. Sprague v. Lisbon, 30 Conn, 18. 45. Mining Interests. The possession and interest or the pos- session and claim to lands for mining purposes, the title to which land is in the United States, is property, and as such is taxable to the claim- ant. So held in. (People v. Shearer, 30 Cal. 656; People v, Frisbie, 31 Id. 146; and People v. Cohen, 31 Cal. 216;) and that such property is not exempt from taxation, consult (People v. McCreery, 34 Cal. 433; People v. Gerke, 35 Cal. 677; People v. Black Diamond Coal M. Co., Cal. Sup. . Wash. Mut Ins. Co., 20 Barb. 342; Butler v. Wood, 10 How. Pr. 222; Cooper 'v. Classon, i Code R. {N.S?) 347; Sanza v. Belcher, 3 Edw. Ch. 117; Livingston v. Story, 9 Pet. 632; Le Roy v. Veeder, i John. Ch. 417; Laight v. Morgan, Id. 429; Livingston v. Livingston, 4 John. Ch. 294; Higinbotham v. Burnett, 5 Id. 184; Parsons v. Browne, 7 Paige, 351; Griggs v. Thompson, i Geo. Decis. 146; Hollsclan v. Johnston, 2 Id. 146; Newberg v. Garland, 31 Barb. 121; Jacques v. Morris, 2 E. D. Smith, DEMURRERS IN GENERAL. 60^ o 639; Blount e/..Garen, 3 Hey. 88; Fancher v. Ingraham, 6 Blackf. 1 39. 17. On a general demurrer (unless for misjoinder of actions), judgment must be given for the plaintiff, if there is one good count in the declaration. 4 Bos. & Pul. 43; Stoddard v. Treadwell, 26 Cat. 294; Whitney v. Crosby, 3 Cai. 89; S.C., Col. & C. Cas. 443; Gid- ney v. Blake, n Johns. 54; Martin v. Williams, 13 Id. 264; Monell v. Golden, Id. 395; Mumford v. Fitzhugh, 1 8 Id. 457; People v. Bartow, 6 Cow. 290; Freeland v. McCullough, i Den. 414; W r olfe v. Luyster, i Hall. 146; Ward v. Sackrider, 3 Cai. 263; French v. Tuns- tall, Hempst. 204; McCue v. Corpor. of Wash., 3 CraniJi C. Ct. 639; Brown v. Duchesne, 2 Curt. C. Ct. 97; Vermont v. Society for Prop, of Gosp., 2 Paine C. Ct. 545. 1 8. A demurrer should be interposed only to the counts badly pleaded, a general demurrer to the whole will be had. (Douglass v. Satterlee, n Johns.. 16; Mercein v. Smith, 2 Hill. 210; Gill v. Stebbins, 2 Paine, 417.) So, in covenant where several breaches are assigned, some of which are sufficient and others not, the defendant should only demur to such as are bad; and if he demur to the whole declaration, judg- ment must be given against him. (Gill v. Stebbins, 2 Paine, 417.) So, a demurrer to a whole complaint is bad if one of the plaintiffs may have judgment separately. (Peabody v. Wash. Go. Mut. Ins. Co., 20 Barb. 339.) Where a complaint, filed to compel a partnership account, contained sufficient to call uon defendants for an accounting as to a particular branch of their business, but was in other respects inartificially 604 DEMURRERS IN GENERAL. drawn and insufficient, and a demurrer was put in to the whole complaint: Held, that the demurrer must be overruled. Young v. Pearson, i Cat. 448. 1 9. For where a demurrer is too general, it will be overruled. (Young v. Pearson, i Cal. 448; People v. Morrill, 26 Cal. 361; Whiting v. Heslep, 4 Cal. 327; Weaver v. Conger, 10 Cal. 233; Stoddard v. Treadwell, 26 Cal. 294.) But in our practice this is not necessary where the demurrer is interposed on the ground that the complaint does not state facts sufficient to constitute a cause of action. If a demurrer is to the whole bill, and is good as to a part, but bad as to part, it should be overruled. (People v. Morrill, 26 Cal. 360.) For a demurrer bad in part is bad in 9 toto. Verplank v. Caines, i Johns. C. R. 57; Le Fort v. Delafield, 3 Edw. Ch. 32; Thompson v. Newbin, 3 Ired. Ch. 338; Russell v. Lanier, A^Hey. 289; Kimberly v. Sells, 3 John. C. R. 467. 20. Where the complaint counts upon two promises, the promise to pay costs and damages, and the prom- ise to pay the value of the use and occupation of the premises, and the objections taken by demurrer to the whole complaint were: First, That the complaint does not state facts sufficient to constitute a cause of action; Second, That the complaint is ambiguous, unintelligible and uncertain, and under the first cause a multitude of supposed defects were specified, and under the last none were specified, the demurrer was properly overruled. Murdock v. Brooks, Cal. Sup. Ct., Oct. T., 1869. \ WHEN DEMURRER WILL NOT LIE. 2 1 . The mistake of the pleader in setting forth the DEMURRERS IN GENERAL. 605 facts constituting a single cause of action in two sepa- . rate statements, some facts in one and some in another, as constituting separate causes of action, does not ren- der the pleading demurrable. (Hillman v. Hillman, 14 How'. Pr. 456; see Lackey v. Vanderbilt, 10 How. Pr. 155.) Nor will a demurrer lie to a complaint for the defect of not separately stating two or more causes of action ; they being such as might be united in one com- plaint, if properly stated. Moore v. Smith, 10 How. Pr. 61; Harsen v. Bayatid, 5 Duer. 656; Gooding v. McAlister, 9 How. Pr. 123; Welles z/. Webster, Id. 251; Robinson v. Judd, Id. 378; Peckham v. Smith, Id. 436; Benedict v. Seymour, 6 Id. 198; Waller v. Raskan, 12/^28; Cheney v. Fisk, 22 Id. 236; Town- ship of Hartford v. Bennett, 10 Ohio, 441; Fickert v. Brice, 22 How. Pr. 195; Dorman v. Kellam, 4 Abb. Pr. 202; Woodbury v. Sackrider, 2 Id. 402; Badger v Benedict, 4 Abb. Pr. 176. 22. Where the complaint in but one count states facts constituting two or more causes of action, or the relief claimed is beyond that authorized by the facts, the remedy is by motion to strike out, not by demurrer. (Fickert v. Brice, 22 How. Pr. 194; Dorman v. Kellam, 4 Abb. Pr. 202; Cheney v. Fisk, 22 How. Pr. 236; Lord v. Vreeland, 13 Abb. Pr. 195; 24 How. Pr. 316.) So, if some 'of the breaches in a count demurred to are good, a demurrer will not lie. (Hayden v. Sample, 10 Mo. 215; State v. Campbell, 10 Mo. 724; Glover v. Tuck, 24 Wend. 153; Adams v. Willoughby, 6 Johns. 65; Martin v. Williams, 13 Id. 264; People v. Russell, 4 Wend. 570; Though separate demurrers might be interposed to the several causes of action contained in a complaint. Ogdensburg Bk. v. Paige, 2 Code ^.75. 606 DEMURRERS IN GENERAL. 2 3. What a demurrer to a bill in equity is, and why it cannot be sustained where the facts, as stated on the face, of the bill, entitle plaintiffs to relief, (n Barb. 293; 8 How. Pr. 177; i Duer, 707; Id. 243; see Griffing^. Gibb, 2 Black. 519.) If the facts stated in a complaint constitute a valid and sufficient cause of action, though other and unnecessary, immaterial, or redundant state- ments be contained in it, a demurrer will not lie. (Loo- mis^. Soule, i Minn. 177; Bishop v. Edmiston, 16 Abb. Pr. 466; School Dist. v. Pratt, 17 Iowa, 16.) Such ob- jections are remedied by motion. Byington v. Robert- son, 17 Iowa, 562; Morse v. Oilman, 16 Wis. 504; Cheeseborough v. N.Y. and Erie R.R. Co., 13 How. Pr. 557; Graham v. Camman, Id. 360; People ex rel. Crane v. Ryder, 2 Kern. 433. 23. In New York, a demurrer will not lie for irrelevancy or redundancy. (Consult Village of War- ren v. Phelps, 30 Barb. 646; Watson v. Husson, i Duer, 242; Spies v. Acces. Trans. Co., 5 Id. 663; Roeder v. Ormsby, 13 Abb. Pr. 334; Seely v. Engell, 3 Kern. 542; Smith v. Greening, 2 Sand. 702; Rich- ards v. Edick, 1 7 Barb. 261; Graham v. Camman, 5 D^ler, 697; Hammond v. Huds. Riv. Iron and Machine Co., 20 Barb. 386; Cheeseborough v. N.Y. and Erie R.R. Co., 26 Id. 9; Lee B'k v. Kitching, 1 1 Abb. Pr. 435; Warrens. Phillips, ^oBarb. 647; Meyer vl Van Collem, 28 Barb. 230; see Anon., 1 1 Abb. Pr. 231.) So, it will not lie for argumentativeness. Brown v. Richardson, 20 N.Y. 474; Zabriskie v. 'Smith, 3 Kern. 330; Prin- dle v. Caruthers, 15 N.Y. 431; Judah v. Vincennes University, 23 Ind. 273. 24. A mere clerical error in a complaint, e.g., the DEMURRERS IN GENERAL. 607 omission in a complaint against two defendants of the letter " s" in the word "defendants," will not sustain a demurrer. (Chamberlain v. Kaylor, 2 E. D. Smith C. P. ft. 134; Fickert v. Brice, 22 How. Pr. 194.) Or if the Christian name of one of the plaintiffs does not appear, it is no ground of demurrer. Nelson v. High- land, 13 Cat. 74. 25. If the complaint shows damage, it is not a ground of demurrer that it does not show the amount of dam- ages. The amount of damages is never the subject of demurrer. (Pevey v. Sleight, i Wend. 518; Hecker v. DeGroot, 15 How. Pr. 314; Mead v. Mali, 14 How. Pr. R. 347.) A demurrer does not raise the objection that the complaint does not show a cause of action for so large a sum as that demanded. Though it seems the demurrer in such case is not frivolous. (Witherhead v. Allen, 28 Barb. 661.) In an action for the breach of a contract, the want of any averment of special damage cannot be reached by a demurrer. Such averment is only necessary where the right of action itself depends upon the special injury received. For the breach of contract an action lies, though no actual damage be sus- tained. McCarthy v. Beach, 10 Cal. 461; Hewitt v. Mason, 24 How. Pr. 366. 26. The objection that a deed was not signed and acknowledged by the wife of the plaintiff is not a cause of demurrer. (Kays v. Phelan, 19 Cal. 128.) Nor that a bond signed by two, has but one seal for the party who has not actually signed and sealed the bond, may specifically plead non est factum, under oath. (Smith v. Hart, i Mo. 273.) Although such plea would not avail under the California Decisions. 608 DEMURRERS IN GENERAL. 27. A demurrer to evidence is not a good plea to a bill in equity, on the ground of its extending beyond the allegations contained in the bill. (Blackburn v. Stannard, 5 Law Rep. 250.) So the insertion of inter- rogations in a complaint, after the mode of a bill of dis- covery, is not a ground for demurrer. Bank of British North America v. Suydam, 6 How. Pr. 379; S.C., i Code R. (N.S.) 325. 28. It cannot be objected on demurrer to a declara- tion, alleging fraudulent misrepresentations, that the representations were made as to a matter of opinion. (Whitton v. Goddard, 36 Vt. 730.) A demurrer to a bill, which contains allegations of fraud, and strong cir- cumstances of equity, must be overruled. In such case, the defendant must answer to the fraud. Burnley v. Town of Jeffersonville, 3 McLean, 336. 29. Nor is the omission of pledges of prosecution in the complaint a ground for demurrer, they being mere matters of form. (Baker v. Phillips, 4 Johns. 190.) The want of affidavit to a plea is not, in Missouri, a ground for demurrer. (Parker v. Simpson, i Mo. 539.) The objection to the want of verification of the com- plaint, where verification is required by statute, must be taken either before answer or with the answer. (Greenfield v. Steamer " Gunnell," 6 Cat. 67.) It has been held that it should be taken by motion when the respondents appeal. Woodworth v. Edwards, 3 Woodb. & M. 120. OBJECTIONS TO PRAYER FOR RELIEF. 30. Objections to the prayer of a complaint cannot be taken by demurrer. If the specific relief asked can- DEMURRERS IN GENERAL. 609 not be granted, such relief as the case stated in the bill authorizes may be had under the clause in the prayer for general relief, and even in the absence of such clause when an answer is filed. The facts in the complaint, and not the prayer, settle the relief to be granted. (Rollins v. Forbes, 10 Cat. 299; People v. Morrill, 26 Cat. 336; cited in Althof v. Conheim, Cal. up. Ct., Jul. T., 1869; Stewart v. Hutchinson, 29 How. Pr. 1 8 1.) Nor will demurrer lie to the demand for mare relief than the plaintiff is entitled to. Rollins v. Forbes, 10 Cal. 299; Andrews v. Shaffer, 12 How. Pr. 443; Beale v. Hayes, 5 Sand. 640; Bishop v. Edmiston, 16 Abb. Pr. 466: Emery v. Pease, 20 N. Y. 62; School Dist. v. Pratt, 17 Iowa, 16; Hecker v. De Groot, 15 How. Pr. 315; Moran v. Anderson, i Abb. Pr. 288; Lord v. Vreeland, 24 How. Pr. 316; 13 Abb. Pr. 195; Meyer v. Van Collem, 28 Barb. 230; Moses v. Walker, 2 Hilt. 536; St. John v. Peirce, 22 Barb. 371; Stuy- vesant v. Mayor of N.Y., n Paige, 415; to the same effect, Witherhead v. Allen, 28 Barb. 66 1 ; Hess v. Buf- falo and Niagara Falls R.R. Co., 29 Barb. 391 ; Roeder v. Ormsby, 13 Abb. Pr. 334; S.C., 22 How. Pr. 270; Woodgate v. Fleet, 9 Abb. Pr. 222. 31. If the complaint shows that the plaintiff has a cause of action, and that he is entitled to some relief, the question as to what kind, or how much relief shall be granted to him, cannot be made on demurrer. (Poett v. Stearns, 25 Cal. 226.) But if the complaint does not state facts sufficient to enable the plaintiff to recover any part of the relief demanded, it is demurrable, though he would from the facts be entitled to other relief. Wal- ton v. Walton, 42 Barb. 203; S.C., 20 How. Pr. 347; Anon., ii How. Pr. 231. 39 \ 6lO DEMURRERS IN GENERAL. 32. A demurrer to a complaint, on the ground that it seeks a remedy at law, and also seeks for equitable relief, is bad. (Gates v. Kieff, 7 Cat. 125; Marius v. Bicknell, 10 Id. 224; Weaver v. Conger, Id. 237; Rol- lins v. Forbes, Id. 300.) A demurrer to a bill in equity alleging that the relief can be had at law, will not lie where the bill charges fraud, and prays relief against a judgment at law, and a sale under it. Shelton v. Tiffin, 6 Maw. U.S. 163. GENERAL DEMURRER. 33. In Pennsylvania it has been held that a general demurrer is only for defects of substance; a special demurrer for defects of form, which must be speci- ally assigned. (Commonwealth v. Cross Cut R.R., 53 Penn. 62.) A general demurrer, assigning reasons why the plaintiff should not recover, must be considered and treated as. a special demurrer. Tyler v. Hand, 7 How- ard U.S. 573. 34. On demurrer, the Court should not pay any attention to forms, if it can find in the complaint any allegations which, under any view of them, may give the plaintiff a right to recover. (Wilder v. McCormick, 2 Blatchf. C. Ct. 31; Butterworch v. O'Brien, 39 Barb. 192; S.C., 24 Howard Pr. 438.) Or if the complaint contains the elements of a cause of action, however inartificially it may be stated, and if, on analyzing the facts disclosed, the whole or any part of them can be resolved into a cause of action, the demurrer should be overruled. People v. Mayor of N.Y., 28 Barb. 240; S.C., 8 Abb. Pr. 7; Buzzard v. Knapp, 12 How. Pr. 504. DEMURRERS IN GENERAL. 6ll 35. If the declaration does not set forth a proper case, and in a correct form, the defendant may avail him- self of these defects on demurrer; but the want of proper averments in the declaration cannot be made the ground of a nonsuit. (Bas v. Steele, Pet. C. Ct. 406.) For defects in mere matters of form in a pleading, the adverse party should interpose a special demurrer. A general demurrer will not in general reach them. (Chil- dress v. Emory, 8 Wheat S. Ct. 642 ; Christmas v. Rus- sell, 5 Wall. U.S. 290; compare Lockington v. Smith, i Pet. C. Ct. 466.) But these questions are regulated by the decisions of the courts in the several states, and the statutes in force. 36. A general demurrer to a plea of fraud in obtain- ing the judgment in suit is insufficient where the objec- tion intended to be raised is that the plea does not state the particulars of the fraud relied upon; this being matter of form. Christmas v. Russell, 5 Wall. U.S. 290. SPECIAL DEMURRERS. 37. A demurrer assigning special causes is to be regarded as a special demurrer, although it may contain a general assignment. (St. Bt. " Reveille" v. Case, 9 Mo. 498.) At common law and in the old equity practice, a special demurrer should point out, specifically, by paragraph, page, or folio, or other mode of references, the parts of the bill to which it is intended to apply. (2 Ves. & B. 118; Id. 121; 2 Sch. & Lef. 199; Story Eq. Plead. 457; Atwill v. Ferritt, 2 Blatchf. 39; Jarvis v. Palmer, n Paige, 650; Stuyvesant v. Mayor etc., Id. 415; Mathews v. Beach, 4 Seld. 173; Ruypers v. Ref. Dutch Church, 6 Paige, 57. 6l2 DEMURRERS IN GENERAL. 38. It must specify the grounds upon which any of the objections to the complaint is taken. (Stat. of Ore- gon, 67; Harper v. Chamberlain, n Abb. Pr. 234.) and if it omit such specifications, it may be disregarded. (Sec. 41, Cat. Pr. Act; N.Y. Code, 145.) This must be done in all cases; (Commonwealth v. Cross Cut R.R. Co., 53 Penn. 62;) except: First, When objection is raised to the jurisdiction of the court; and, Second, When the ground is that the complaint does not state facts sufficient to constitute a cause of action. (Kent v. Snyder, 30 Cat. 666; see Annabal v. Hunter, 6 How. Pr. 255; Durkee v. Saratoga R.R. Co., 4 Id. 226; Getty v. Hudson Riv. R.R. Co., 8 Abb. Pr. 1*77; Glenny v. Hitchings, 2 Code Rep. 56; Grant v. Lasher, Id. 2; Hunter v. Frisbee, Id. 59; Hyde v. Conrad, 5 How. Pr. 112; Hinds v. Tweddle, 7 Id. 278; Haire v. Baker, i Seld. 163; Johnson v. Wetmore, 12 Barb. 433; Skinner v. Stuart, 13 Abb. Pr. 457; Swift v. De Witt, i Code Rep. 2 5 ; Purdy v. Carpenter, 6 How. Pr. 361 ; Viburt v. Frost, 3 Abb. Pr. 120; Hobart v. Frost, 5 Duer, 672; Wilson v. JVJayor of New York, 6 Abb. Pr. 6; Powers v. Ames, 9 Minn. 178; Dorman v. Ames, Id. 180; Nash v. Smith, 6 Conn. 421. 39. A special demurrer is distinguished from a gen- eral demurrer by pointing out specially the causes for it. (Steamboat "Reveille" v. Case, 9 Mo. 498; Jackson v. Rundlet, i Woodb. & M. 381.) As to when it lies, and its effect, see (Whetcroft v. Dunlop, i Cranch C. Ct. 5; Vowell v. Lyles, Id. 428; McCue v. Corporation of Wash., 3 Id. 639; Malone v. Stilwell, 15 Abb. Pr. 421; Nellis v. De Forest, 16 Barb. 65; Chandler v. Byrd, Hempst. 222; Cage v. Jeffries, Id. 409; United States v. White, 5 Id. 368. DEMURRERS IN GENERAL. 613 40. A demurrer to two counts m^y be sustained as to one, and judgment be entered on the other against defendant. (Barber v. Cazalis, 30 Cal. 92.) But a de- murrer for a misjoinder of counts, must be to the whole declaration, (i Chitt. PL 180; Ferris v. N. A. Fire Ins. Co., i Hill, 71.) And the cause of demurrer must be specially assigned. Owsley v. Montgomery R.R. Co., i Ala. 485. CAUSES OR GROUNDS FOR DEMURRER. 41. There are six (now seven) causes for which a demurrer may be interposed, under Section forty of the Code. Unless a ground of demurrer be included under one or more of such causes, it cannot be sustained. (Hentsch v. Porter, 10 Cal. 555; Harper v. Chamber- lain, ii Abb. Pr. 232.) A defect which will defeat, the plaintiffs present right to recover, in whole or in part, is a good ground of demurrer. Hentsch v. Porter, 10 Cal. 555. 42. A demurrer will lie only when one of the several grounds of demurrer is apparent on the face of the complaint. (Hentsch v. Porter, 10 Cal. 555; Simpson v. Loft, 8 How. Pr. 234; Getty v. Hudson Riv. R.R. Co., 8 How. Pr. 177; Wilson v. Mayor of N.Y., 6 Abb. Pr.6; 4 E. D. Smith, 675; 15 How. Pr. 500; Coe v. Beckwith, 31 Barb. 339; Mayberry v. Kelly, i Kansas, 116; Union Mut. Ins. Co. v. Osgood, i Duer, 707; Aurora v. Cobb, 21 Ind. 492; Kenworthy v. Williams, 5 Id. 375; Davy v. Betts, 23 How. Pr. 396; 1 6 Abb. Pr. 466; Dillaye v. Wilson, 43 Barb. 261; Bell v. Mayor of Vicksburg, 23 How. U.S. 443; Amory v. McGregor, 12 Johns. 287; Powers v. Ames, 614 DEMURRERS IN GENERAL. 9 Min. 178; Dprman v. Ames, Id. 180.) And defend- ant is confined to the objections specified. Loomis v. Tifft, 1 6 Barb. 541. 43. The demurrer is good if it assigns the grounds of objection substantially as they are defined in the statute. (Lagow v. Neilson, 10 Ind. 183; DeWitt ads. Swift, 3 How. Pr. 280.) And unless the objection to the complaint be stated under one of the seven causes of demurrer, it cannot be sustained. Hentsch v. Porter, 10 Cal. 555; Haire v. Baker, i Seld. 363; Simpson v. Loft, 8 How. Pr. 235; Beale v. Hayes, 5 Sand. 640; Harper v. Chamberlain, n Abb. Pr. 234. 44. In New York, in all other cases than for defect of parties or want of jurisdiction, a statement of the grounds of objection in the mere words of the subdivi- sion under which the demurrer is drawn, is all that is essential. (Ellison v. Halleck, 6 Cal. 386; Getty v. Hudson River R.R. Co., 8 How. Pr. 177; Hulburt v. Young, 13 Id. 413; Haire v. Baker, 5 N.Y. 357; Paine v. Smith, 2 Duer, 298; De Witt ads. Swift, 3 How. Pr. 280; Durkee v. Saratoga and Washington R.R. Co., 4 Id. 226; Hyde v. Conrad, 5 Id.ii2', White v. Brown, 14 Id. 282; Johnson v. Wetmore, 12 Barb. 433; Hoog- land v. Hudson, 8 How. Pr. 343; Spear v. Downing, 34 Barb. 522.) The following cases to the contrary are deemed overruled: Purdy v. Carpenter, 6 How. Pr. 361 ; Hinds v. Tweddle, 7 Id. 278; Grant v. Lasher, 2 Code R. 2; Hunter v. Frisbee, Id. 59; and see Loomis v. Tifft, 1 6 Barb. 514; Skinner v. Stuart, 13 Abb. Pr. 442. CHAPTER II. FORMS OF DEMURRERS. No. 542. i. Demurrer to Some of 'the Alleged Causes of Action. [TITLE.] The defendant demurs [or the defendants, naming them, if only a part of them join, demur] to the first [or second, or other count of the complaint] , upon the ground: I. \_State ground of demurrer. ,] 1. Several Causes of Action. If a complaint containing several causes of action is demurred to, on the ground that the several coutns do not state facts sufficient to constitute a cause of action, the demurrer must be overruled, unless all the statements are insufficient. Martin v. Mattison, 8 Abb. Pr. 3; Butler v. Wood, 10 How. Pr. 222; Newbery v. Garland, 31 Barb. 121; Jacques v. Morris, 2 E. D. Smith, 639; Cooper v. Classon, i C. R. (N.S.) 347; Townsend v. Jemison, 7 How. U.S. 706. JVo. 543. ii. On the Ground of Want of Jurisdiction. The defendant demurs to the complaint filed herein, and for cause of demurrer alleges: I. That the Court has no jurisdiction of the person of the defendant [or of the subject matter of the action state wky.~\ 6l6 FORMS OF DEMURRERS. 2. Definition of Terms. The meaning of the clause " that the Court has no jurisdiction of the person" is that the person is not subject to the jurisdiction of the Court, and not that the suit has not been regu- larly commenced. If the suit has not been regularly commenced, the remedy of the defendant is by motion against the irregularity. (Nones v. Hope Mut. Life Ins. Co., 8 Barb. 541.) The meaning of subdivision first is that the person is not subject to the jurisdiction of the Court. Nones v. Hope Mut. Life Ins. Co., 5 How. Pr. 96; 3 Code Rep. 161. 3. Demurrer Lies. It is provided by Section 40 of our Practice Act that defendant may demur to the plaintiff's complaint within the time required by the summons to answer, when either one of the fol- lowing defects appear upon the face of the complaint: First, Want of jurisdiction of the person of the defendant or the subject of the action. If, therefore, it appears upon the face of the complaint " that the Court has no jurisdiction of the person of the defendant or the subject of the action," a demurrer will lie and be sustained. In the case of (Doll v. Feller, 16 Cal. 432), it was fold that, "a demurrer to the jurisdiction of the Court only lies where the want of such jurisdiction appears affirma- tively upon the face of the complaint. In a court of limited and special jurisdiction the rule is otherwise." See Wilson v. Mayor of New York, 6 Abb. Pr. 6; 15 How. Pr. 500; Kcenig v. Nott, 8 Abb. Pr. 384. 4. Jurisdiction. A justice's court is an inferior court, and its jurisdiction must be shown affirmatively by a party relying upon or claiming any right under its judgments. (Jolley v. Foltz, 34 Cal. 321.) Where an inferior tribunal, as the Board of Land Commissioners, has once acquired jurisdiction of a matter, its subsequent proceedings cannot be collaterally questioned for mere error or irregularity. Bernal v. Lynch, 36 Cal. 135. 5. Jurisdiction of Person. There are two modes of acquiring jurisdiction of the person: First, By personal service of the summons, and copy of complaint; and, Second, By constructive service, or by what is commonly called publication of summons. (Hahn v. Kelley, 34 Cal. 391.) Where S. and B. admitted " due service" in an action against them and others, the Court thereby acquired jurisdiction of them. Sharp v. Brunnings, 35 Cal. 528. 6. Nuisance Action Premature. Plaintiffs owned certain mining claims and quartz lodes on the banks of a stream, above the mill and dam of the defendant. Defendant commenced raising his dam FORMS OF' DEMURRERS. two feet higher. Plaintiff brought suit, alleging the addition of two feet as a nuisance. Held, that the action was premature, and demurrer sus- tained. Harvey v. Chilton, n Cal. 114. 7. Power of Determination. The court whose jurisdiction is impeached has power to determine the question whether it possesses it or not. King v. Poole, 36 Barb. 242. 8. Several Causes of Action. Where there are several causes of action, but of one of them the court has no jurisdiction, the demurrer must be to that one, and in this form, and not to the whole complaint, as for a misjoinder of actions. Cook v. Chase, 3 Duer, 643. 9. Statement of Grounds. A demurrer on the ground "that the Court has no jurisdiction either of the person of the defendants or of the subject of the action," and " that the complaint does not state facts sufficient to constitute a cause of action," is sufficiently explicit under the rule of construction adopted by the courts of this State. Elissen v. Halleck,.6 Cal. 386; Willis v. Farley, 24 Cal. 491; Kent v. Snyder, 30 Cal. 666. No. 544- iii. On the Ground of Want of Capacity to Sue. [TITLE.] The defendant demurs to the complaint filed herein, and for cause of demurrer alleges: That the plaintiff has no legal capacity to sue. [State reasons wky.~\ 10. Company Membership. The failure to aver member- ship in a company in the body of the complaint is a ground for demur- rer. Tolmie v. Dean, Wash. Terr. 61. 11. County. A county has legal capacity to sue. (Placer Co. v. Asten, 8 Cal. 305.) The statute provides that no person shall sue a county, unless the claim has been first presented to the Board 6f Super- visors, and been by them rejected; this fact must appear in the com- plaint, or it is demurrable. McCann v. Sierra County, 7 Cal. 123. 618 FORMS OF 'DEMURRERS. 12. Corporation. The omission on the part of a corporation plaintiff to show' their incorporation cannot be reached by a general demurrer, based upon the ground that the complaint does not state facts sufficient to constitute a cause of action. That the plaintiff has not legal capacity to sue is made a ground for special demurrer, and must there- fore be specially assigned. (Bank of Lowville v. Edwards, 1 1 How. Pr. 216.) Where a corporation sues, it must show how it was created ; without; this, there is a fatal omission of one of the material elements of a good cause of action. Johnson v. Kemp, n How. Pr. 186. 13. Defect Must be Apparent. Ground of demurrer must appear from allegation as made, not from want of allegation. Phenix Bank of N.Y. v. Darnell, 41 Barb. 571. 14. Demurrer Lies. There are many instances where, unless plaintiff shows his legal capacity to sue, a demurrer will lie under this subdivision, and the facts showing the former are not facts constituting the cause of action. Bank of Lowville v. Edwards, n How. Pr. 216; Connecticut Bank v. Smith, 9 Abb.Pr. 168; Vibert v. Frost, 3 Abb. Pr. 120; Bank of Havana v. Wickham, 7 Abb. Pr. 134; Myers v. Machado, 6 Abb. Pr. 198; Hobart v. Frost, 5 Duer, 972. 15. Foreign State. Demurrer allowed to a bill brought by " the United States of America," on the ground that a foreign state is not allowed to sue in a court of equity, without putting forward some public officer on whom process may be served, and who can be called upon to give discovery on a cross bill, United States of America v. Wagner, Law Rep. 3 Eq. 724. 16. Guardian of Infant. A complaint omitting to allege the appointment of a guardian for an infant plaintiff is impeachable under this subdivision. Grantman v. Thrall, 44 Barb. 173. 4 17. Note Held in Trust. A plaintiff has no legal capacity to sue in an action on a promissory note, when it appears on the face of the complaint that plaintiff holds the note as collateral security for a debt, under a trust to sell it, but with no power to sue. (Nelson v. Eaton, 7 Abb. Pr. 305; reversing 15 Hmu. S.C. 305.) The objection is that no person, natural or artificial, is named as plaintiff. Id. 18. Objection Waived. The objection that plaintiff has not legal capacity to sue is waived if not taken by demurrer or answer. (Palmer v. Davis, 28 'N.Y. 242; Belshaw v. Colie, i Smith, 213; Hast- FORMS OF DEMURRERS. 619 ings v. McKinley, Id. 273.) So held, when the objection was that plaintiff was a married woman, suing without a next friend, before the Act of 1857. (Palmer v. Davis, 28 N.Y. 242.) So held, when the objection was that plaintiff was a foreign executor. (Robbins v. Welles, 26 How. Pr. 15.) So held, in an action brought by a husband and wife to re- cover possession of land, when plaintiffs claimed as owners in right of the wife, and, on the trial, the defendants relied on an appointment by the husband and wife, under an ante-nuptial agreement between them, of a trustee for the property and effects of the wife. Van Amringe v. Barnett, 8 Bosw. 357. 19. Receiver. If it does not appear that plaintiff had any title to the note sued on, it is sufficient to raise the question as to his right to sue as receiver. (White v. Low, 7 Barb. 204.) Where a complaint by a receiver alleges that he was duly appointed receiver, but does not state facts from which the Court can see that he was so appointed, the proper remedy is by motion to make more definite and certain. Cheney v. Fiske, 22 How. Pr. 236. 20. Statement of Grounds. Where the demurrer specified as the ground of the demurrer that the complaint did not state facts sufficient to constitute a cause of action, among other things that it did not show plaintiff's capacity to sue : Held, a sufficient demurrer to that point. (Conn. Bank v. Smith, 9 Abb. Pr. 168; 17 How. Pr. 487.) The facts showing the capacity of the plaintiff to sue are not facts consti- tuting the cause of action. B'k of Lowville v. Edwards, 1 1 How. Pr. 216; Vibert v. Frost, 3 Abb. Pr. 120; Myers v. Machado 6 Abb. Pr. 198; Hobart v. Frost, 5 Duer 672. Wo. 545. iv. On the Ground of Another Action Pending. [TITLE.] The defendant demurs to the complaint filed in this action, and for ground of demurrer alleges : That there is another action pending between the same parties for the same cause. 62O FORMS OF DEMURRERS. 21. Defect must be Apparent. The fact must appear on the face of the complaint, for even if there is another action pending be- tween the same parties, for the same thing, and the fact does not appear on the face of the complaint, the remedy is by answer, not by demurrer. (Burrows v. Wilbur, 5 How. Pr. 51; Hornfager v. Hornfager, i Code R. (N. S.)4i2. In the case of (O'Conner v. Blake, 29 Cal. 322), it was held that plaintiff cannot, after plea in abatement of the pen- dency of a prior suit, avoid the effect of a prior plea, by discontinuing the first action which was pending at the time of the plea. 22. Divorce. Pendency of action for divorce is no cause of de- murrer to another for subsequent offenses. Cordier v. Cordier, 26 How. Pr. 187. 23. Foreclosure. In Nevada, where the complaint in foreclosure against the estate of a deceased person shows the fact that the claim had been allowed by the administrator, it is demurrable under this sub- division, as if it alleged a former suit and judgment upon the same claim. Corbett v. Rice, 2 Nev. 330. 24. Former Adjudication. Where a bill disclosed that the subject matter had been litigated between the same parties in a prior suit, and that in the said suit the plaintiff in this suit had set up the same equity which he claims by this bill, the bill was held bad on de- murrer, and was ordered to be dismissed. (Richey v. Kilbourne, 3 Cal. 327.) The fact that a vessel, lost while being towed out to sea, is insured, does not divest the owner of the right of action for her loss, and his recovery will bar another action for the same cause, and, there- fore, the defendant cannot raise the objection that the action is not brought by the real party in interest. White v. Maryann, 6 Cal. 462. 25. Quieting Title. In an action to quiet plaintiff's title to land, alleged to be clouded by defendants giving out that the title is in them- selves' and not in plaintiff, an action of ejectment pending, in which the defendant does not ask for affirmative relief, is not available as a de- fense. Ayres v. Bensley, 32 Cal. 620. 26. Receiving Judgment. A judgment in favor of a receiver is a bar to a subsequent action in the same cause by the party for whom he was appointed. And a demurrer lies on this subdivision. Tinkham v. Borst, 24 How. Pr. 246. FORMS OF DEMURRERS. 621 27. What must Appear. For a demurrer to lie 'under this subdivision, it must appear that both actions are for the identical cause of action. Paige v. Wilson, 8 Bosw. 294; Kelsey v. Ward, 16 Abb. Pr. 98. 28. When Demurrer Lies. A demurrer lies under this sub- division when there is an action between the same parties in any pro- ceeding in which the rights of the plaintiff in the last suit would be fully protected, whether strictly an action, attachment, citation before the Surrogate, or a proceeding in Court, founded on a peti- tion. (Groshon v. Lyon, 16 Barb. 461.) So, the pendency of another action brought by the defendant would come under the rule. (Hornfager v. Hornfager, 6 How. Pr. 279.) But not if the other action is for relief, which could not be granted in the action in which the demurrer is interposed. (Haire v. Baker, 5 N.Y. 357.) Nor is it sustained where the other action is in a court of another state or a court of the United States. (Burrows v. Miller, 5 How. Pr. 51; Cook v. Litchfield, 5 Sandf. 330; Strong v. Stevens, 4 Duer, 668.) This objection must be raised under subdivision three. It cannot be raised under subdivision six, assigning for cause the want of sufficient facts. Aikens v. Bruen, 21 Ind. 137. No. 546. v. On Ground of Defect of Parties. [TITLE.] The defendant demurs to the complaint and for cause of demurrer alleges : I. That G. H. should be made a plaintiff in this action [or that L. M. should be made defendant in this action state why.~\ 29. Cause of Demurrer. A defect of parties plaintiff is a good cause of demurrer by all the defendants. (Brownson v. Gifford, 8 How. Pr. 392; Walroth v. Hamly, 24 Id. 353.) But the fact that the party whose non-joinder is alleged as ground of demurrer, is living, must appear affirmatively on the face of the complaint. (Strong v. 622 FORMS OF DEMURRERS. Wheaton, 38 Barb. 616; Taylor v. Richards. 9 Bosw. 679; Burgess v. Abbot, 6 Hill, 135, 141; affirming S.C., i Id. 476; Brainard v. Jones, ii How. Pr. 569; State of Indiana v. Woram, 6 Hill, 33; Scofield v. Van Syckle, 23 How. Pr. 39.) If the fact does not appear affirmatively, the objection must be taken by answer. Brainard v. Jones, ii How. Pr. 569; Scofield v. Van Syckle, 23 How. Pr. 97; State of Indiana v. Woram, 6 Hill, 33. 30. Defect of Parties. Section 1 7 of the California Practice Act, corresponding with Section 122 of the New York Code, is to con- trol in determining whether a demurrer for defect of parties is well taken. Wallace v. Eaton, 5 How. Pr. 99. 31. Error must be Apparent. It is not within the office of a demurrer to state objections not apparent upon the face of the com- plaint, e.g., to name parties who should have been joined; and no conclusion is to be drawn from such statements adverse to the plaintiff. Coe v. Beckwith, 10 Abb. Pr. 296. 32. Freight Owners. Where some of the part owners of a vessel sued to recover freight, and the complaint showed that the plaintiffs owned three-eighths of the vessel only, and claimed to recover only their proportion of the freight money averred to be due: Held, that although all the owners should have joined in the action, yet the defendant had waived the obligation by omitting to demur to the complaint. Merritt v. Walsh, 32 N.Y. 685; followed in Donnell v. Walsh, 33 N.F. 43. 33. Interest of Parties. Where there is a defect of parties, it must appear that the party demurring has an interest in having such other party made a defendant. (Hillman v . Hillman, 14 How. Pr. 460; Newbald v. Warren, 14 Abb. Pr. 80; Wooster v. Chamberlain, 28 Barb. 602.) Or that he is prejudiced by the non-joinder. Stockwell v. Wager, 30 How. Pr. 271. 34. Multifariousness. Where several parties are joined as plaintiffs, and the issues tendered are simple, a demurrer for multi- fariousness will not he sustained. People v. Morrill, 26 Cat. 336. 35. Non-Joinder of Parties. Under the New York Code of Procedure, the objection that necessary parties are not joined can only be taken by answer or demurrer. (New York Code of Procedure, FORMS OF DEMURRERS. 623 144, 147, 148; Jacks v. Cooke, 6 Cal. 164; Rowe v. Baccigalluppi, 21 Cal. 633; Hosley v. Black, 28 N.Y. 438; 26 How. Pr. 97; Creeds. Hartman, 29 N.Y. 591; Merritt v. Walsh, 32 N.Y. 685; Donnell v. Walsh, 33 N.Y. 43; Cronch v. Parker, 40 Barb. 94; Lee v. Wilkes, 27 How. Pr. 336; S.C., 19 Abb. Pr. 355; Lorschigk v. Addison, Id. 169; Lewis v. Graham, 4 Alb. Pr. 106.) For example, the non-joinder of a co-partner as plaintiff, which is not apparent upon the face of the complaint, can only be taken by answer. And if not thus interposed, it is waived. (New York Code of Procedure, 144, 147, 148; 13 N.Y. 336; 33 Barb. 527; 31 Id. 238; Conklin v. Barton, 43 Barb. 435.) Demurrer for non-joinder of State in action against town com- missioners sustained, (Plumtree v. Dratt, 41 Barb. 333.) So, also, for non-joinder of corporation in suit against directors for embezzlement of its assets. Gardiner v. Pollard, 10 Bosw. 674. 36. Objection must be Taken. Although a demurrer to the answer reaches back to the complaint a defect of parties cannot be taken advantage of in that way. A demurrer to the complaint must be filed. (McEwen v. Hussey, 23 Ind. 395.) An allegation in an answer that the debt sued for, if due at all, is due to plaintiff and another as partners, cannot be treated as a demurrer. Andrew v. Mokelumne Hill Co., 7 Cal. 330. 37. Objection, how Taken. The objection to a defect of parties in the complaint should be taken advantage of by demurrer, or it must be deemed to have been waived at the trial. (Sampson v. Shaf- fer, 3 Cal. 202 ; Warner v. Wilson, 4 Cal. 313; Beard v. Knox, 5 Cal. 257; Oliver v. Walsh, 6 Cal. 456; Tissot v. Throckmorton, 6 Cal. 473; McKune v. McGarvey, 5 Cal. 498; Andrews v. Mokelumne Hill Co., 7 Cal. 334; Alvarez v. Brannan, 7 Cal. 510; Dunn v. Tozer, 10 Cal. 170; Hentsch.z;. Porter, 10 Cal. 555; Mott v. Smith, 16 Cal. 557; Sands v. Pfeiffer, 10 Cal. 258; Burroughs v. Lott, 19 Id. 125; Barber v. Reynolds, 33 Id. 497; Robinson v. Smith, 3 Paige Ch. R. 222; Higgins v. Freeman, 2 Duer, 650; Dillaye v. Parks, 31 Barb. 132; Wright v. Starrs, 6 Bosw. 600; Abbe v. Clarke, 31 Barb. 238; Lewis v. Graham, 4 Abb. Pr. 106; Wright v. Bennett, 3 Barb. 451; Scofield v. Van Syckle, 23 How. Pr. 97; Conklin v. Barton, 42 Barb. 435; Cowing v. Green, 45 Id. 585; Dillaye v. Wilson, 43 Id. 261; Donnell v. Walsh, 33 N.Y. 43; Hosley v. Black, 28 Id. 438; Lee v. Wilkes, 27 How. Pr. 336; Merritt v. Walsh, 32 N.Y. 685; McVean v. Scott, 46 Barb. 379; Palmer v. Davis, 28 N.Y. 272; Tremper v. Conklin, 44 Barb. 456; Seeding v. Bartlett, 35 Mo. 90. 624 FORMS OF DEMURRERS. 38. Parties Named. It was the rule in chancery that a demur- rer for want of necessary parties must show who are the proper par- ties from the facts stated in the bill. Story Eq. PI. 501, 543; Dias v. Bouchaud, 10 Paige, 445; Robinson v. Smith, 3 Id. 222. 39. Statement of Grounds. A demurrer under this subdivi- sion following the words of the Code, that there is a defect of parties defendant, is insufficient for not specifying the particular defect. (Skin- ner v. Stuart, 13 Abb. Pr. 442.) It must show who are the proper par- ties from the facts stated in the bill; not indeed by name, for that might be impossible, but in such a manner as to point out to the plaintiff the objection to his bill, and to enable him to amend by mak- ing proper parties. Star. Eq. PI. 501, 543; Dias v. Bouchaud, 10 Paige, 445; Robinson v. Smith, 3 Id. 222. 40. Trust Fund. In an action for the distribution of a fund by a trustee, the absence of necessary parties plaintiff, though demurrable at the time, is a defect cured by failure to respond. The Gen. Mut. Ins. Co. v. Benson, 5 Duer, 168. JVo. 547. vi. On Ground of Misjoinder of Parties. [TITLE.] The defendant demurs to the complaint, and for cause of demurrer alleges: I. That I. K. is improperly made plaintiff in said action [or that N. O. is improperly made a defendant in said action state 41. Executor Misjoinde'r of. The executor of an indorser of a promissory note, who as such executor is sued together with the maker, cannot demur to the complaint in such action for a misjoinder of defendants, if the complaint states facts sufficient to constitute a cause of action against him in his representative character. Churchill v. Trapp, 3 Abb. Pr. 306. 42. Form of Demurrer. A demurrer to a complaint on the ground " that the complaint does not state facts sufficient to constitute a FORMS OF DEMURRERS. 625 cause of action'' (Mann v. Marsh, 35 Barb. 68; 21 How. Pr. 372; Walrath v. Handy, 24 How. Pr. 823), and which then specifies that the complaint shows no joint cause of action in the plaintiff, and that it prays for a judgment in favor of three plaintiffs for an injury done to one, is a good demurrer for misjoinder of parties. Summers v. Far- rish, 10 Cal. 347. 43. Ground for Demurrer. A misjoinder of parties plaintiff is a ground of demurrer. It is not a ground for nonsuiting such plaintiffs as are entitled to recover. Rowe v. Baccigalluppi, 21 Cal. 633; White v. Delschneider, i Oregon, 254. 44. Husband and Wife. The misjoinder 6f husband and wife must be taken advantage of on demurrer. Tissot v. Throckmorton, 6 Cal. 471; Dunderdale v. Grymes, 16 How. Pr. 195; Avogardo v. Bull, 4 E.D. Smith, 384; Barton v. Draper, 5 Duer, 130. 45. Objection, how Taken. Where it appears on the face of the complaint that there is an improper joinder of parties, the objec- tion can only be taken by demurrer. Baggott v. Boulger, 2 Duer, 160; Lee v. Wilkes, 27 How.Pr. 336. 46. Too niany Plaintiffs. The ground of demurrer allowed by the Code, " that there is a defect of parties plaintiff or defendant," does not reach a case where there are too many plaintiffs or too many defendants, but only cases where parties are omitted. It is the same as non-joinder at law, and the omission of a necessary party in equity. (Palmer v. Davis, 28 N.Y. 242; Davy v. Betts, 16 Abb. Pr. 466; 23 How. Pr. 396; Kolls v. De Laye, 17 Abb. Pr. 312; S.C., 41 Barb. 208; S.C., 26 How. Pr. 468; Peabody v. Wash. Mut. Ins. Co., 20 Barb. 342; Gregory v. Oaksmith, 12 How. Pr. 134; Phillips v. Hagadon, 12 How. Pr. 17; Pinkney v. Wallace, i Abb. Pr. 82; Dean v. English, 18 B. Monr. 132; Voorhies v. Baxter, i Abb. Pr. 44; Crosby v. Berger, 4 Edw. Ch. R. 210; Churchill v. Trapp, 3 Abb. Pr. 306; Bank of Havana v. Magee, 20 N. Y. 359; Gilman v. Rives, 10 Pet. S. Ct. 298.) So held in the case of a misjoinder of defendants. (N.Y. and N. H. R.R. Co. v. Schuyler, 7 Abb. Pr. 41; Manning v. State of Nicaragua, 14 How. Pr. 517; Churchill v. Trapp, 3 Abb. Pr. 306; Pinckney v. Wallace, i Id. 82; Kolls v. De Laye, 17 Abb. Pr. 312.) So held in case of a misjoinder of plaintiffs. (Peabody v. Washington Co. Mut. Ins. Co., 20 Barb. 339; followed by Gregory v. Oaksmith 40 626 FORMS OF DEMURRERS. 12 How. Pr. 134; People v. Mayor of N.Y., 28 Barb. 24; 8 Abb. Pr. 7.) But the contrary to the general proposition of this rule was held in (Leavitt v. Fisher, 4 Duer, i ; and Walrath v. Handy, 24 How. Pr. 353.) Where it says that the objection that a complaint contains an excess of parties may be taken by demurrer or answer, and when not so taken is deemed to be waived, supported by Mann v. Marsh, 35 Barb. 68. 47. Too many Plaintiffs California Practice. By the practice in California, it is however well settled, that the objection that too many parties are joined as plaintiffs must be taken advantage of by demurrer, if it appear on the face of the complaint, and if it does not so appear by answer, or the same is waived. (Gillam v. Sigman, 29 Cal. 637.) Denial does not raise issue of misjoinder of plaintiffs. Where two are joined as plaintiffs in an action for the recovery of possession of land, a denial in the answer that the plaintiffs were in possession of the land does not present the issue of a misjoinder of either of the plaintiffs. Id. 48. Unnecessary Party Defendant. Where a co-defendant claimed that he wa an unnecessary party to a suit, he should have demurred to the petition, and could not in the course of the trial demand that his name be stricken out. Seeding v. Bartlett, 35 Mo. 90. 49. Waiver of Objection. Where plaintiffs offer to strike out such parties demurred to, and defendant successfully resists: Held, that such action on the part of defendants is a waiver of misjoinder. Summers v. Farrish. 10 Cal. 347. No. 548. vii. On Ground of Misjoinder of Causes of Action. [TITLE.] The defendant demurs to the complaint, and for cause of demurrer alleges: That several causes of action have been improperly united [state /iaw."\ FORMS OF DEMURRERS. 627 50. Actions, Legal and Equitable. Two causes of action, the one legal and the other equitable, cannot be joined, and demurrer will lie. Stone v. Fouse, 3 Cal. 292. 51. Actions not Separately Stated. It seems that in many of the States a demurrer does not lie to a complaint under this subdivision, for the defect of not separately stat- ing two or more causes of action, they being such as might be united in one complaint if properly stated. See the following au- thorities: (Badger v, Benedict, 4 Abb. Pr. 176; i Hilt. 415; Cook v. Chase, 3 Duer, 643; Dorman v. Kellam, 14 How. Pr. 184; 4 Alb. Pr. 202; Fickett v. Brice, 22 How. Pr. 195; Forsyth v. Edmiston, u Id. 408; Gooding v. McAllister, 9 Id. 123; Harsen v. Bayard, 5 Duer, 656; Hess v. Buffalo R.R. Co., 29 Barb. 395; Stannard v. Mattice, 7 How. Pr. 4; Moore v. Smith, 10 How. Pr. 361; Welles v. Webster, 9 Hoiv. Pr. 251; Peckham -v. Smith, Id. 4.36; Robinson v. Judd, Id. 378; Benedict v. Seymour, 6 Id. 298; Wallar v. Raskan, 12 Id. 28; Cheney v. Fisk, 22 Id. 236; Woodbury v. Sackrider, 2 Abb. Pr. 402; State v. Davis, 35 Mb. 406; Township of Hartford v. Bennett, 10 Ohio, 441.) But that a demurrer maybe interposed for this cause, see 15 Cal. 150; Acome v. Amer. Min. Co., n How. Pr. 27; Durkee v. Saratoga and Wash. R.R. Co., 4 Id. 227; Getty v. Hudson Riv. R.R. Co., 8 Id. 177; Pike v. Van Wormer, 5 Id. 171; Struss v. Parker, 9 Id. 342; Van Namee v. Peoble, 9 Id. 198. 52. Conversion of Chattels. Where the complaint alleged that defendant had become possessed of a chattel, the property of plaintiff, and wrongfully converted it to his, defendant's, use, and then demanded damages for such taking and detention, and a restitution of the chattel: Held demurrable for improper joinder of causes of action. (Maxwell v. Farnham, 7 How. Pr. 236.) The objection must be specially assigned as the cause of demurrer. Washington v. Eames, 6 Allen, 417. 53. Demurrer Lies. Demurrer may also be interposed when it appears on the face of the complaint, " that several causes of action have been improperly united." It is one of the leading and distinguish- ing principles of our statute that litigation must not be conducted by piecemeal, and whenever the differences between the parties arise out of: First, The same transaction; Second, Out of money transactions of like character; Third, When but one kind of relief is prayed for; so that 628 FORMS OF DEMURRERS. one writ will afford the remedy; a demurrer will not be sustained under this subdivision. By one kind of relief is meant ultimate relief. A remedy at law and equitable relief may be asked for in the same com- plaint. Thus, A. may sue B. for trespass and in the same complaint show that the acts of trespass are irreparable, and ask for an injunction. (Gates v. Kieff, 7 Cal. 124.) The writ of injunction is not in such a case asked for as the ultimate writ in the case, nor for the reason that it will afford the whole of the remedy; but as a protection of the subject matter of the action pending the litigation. So allegations of fraud, in support of a cause of action, and not as constituting a separate cause, do not make improper joinder of actions. Campbell v. Wright, 21 How. Pr. 9; Durant v. Gardner, 19 How. Pr. 94; 10 Abb. Pr. 445; Meyer v. Van Collem, 7 Abb. Pr. 222; 28 Barb. 230. 54. Demurrer -will not Lie. If a demurrer be interposed against two causes of action in the complaint, the -demurrer must be overruled if either of the causes of action is well pleaded. (Ketchum v. The State, Laws Oregon, 1866, p. 38; Butler v. Wood, 10 How. Pr. 222; Martin v. Mattison, 8 Abb. Pr. 3.) As to manner of objection to mis- joinder of causes of action, see (Smith v. Orser, 43 Barb. 187; Malone v. Stillwell, 15 Abb. Pr. 421. If, in fact, the complaint contains but a single cause of action, although a part of the facts constituting it are set forth, some in one count as constituting one cause of action, and some in another as constituting a separate cause of action, the defend- ant cannot successfully demur on the ground that the causes of action are improperly united. Hillman v. Hillman, 14 How. Pr. 456. 55. Fraudulent Conveyance. The plaintiff having a claim against A., brought suit against him to enforce the claim, and, in the same action, sought to set aside a conveyance of real estate from A. to B., on the ground that it was executed in fraud of the creditors of A., and made B. a party to the suit: Held, there having been no objection taken, either by demurrer or answer, on the ground of an improper joinder of several causes of action, that the plaintiff was entitled to contest the validity of the conveyance from A. to B. (Macondray v. Simmons, I Cal. 393.) The demurrer must be entirely sustained or fail together. Peabody v. Mut. Ins. Co., 20 Barb. 342: Cooper v. Classon, i Code Rep. (N.S.) 347; People v. Mayor of N.Y., 17 How. Pr. 57; Wait v. Ferguson, 14 Abb. Pr. 387; Cook v. Chase 3 Duer, 634. 56. Husband, and Wife. There is no misjoinder of actions in an FORMS OF DEMURRERS. 629 action against husband and wife to foreclose a mortgage executed by husband and wife to secure a note given by the husband alone, where the prayer of the complaint was for judgment against the husband, and a decree against the husband and wife for a sale of the premises. Rol- lins v. Forbes, 10 Cal. 299. 57. Injuries to Person and Property. Injuries to person and injuries to property are not a misjoinder of causes of action in New York. (Grogan v. Lindeman, i Code R. (N.S.) 287.) But the practice differs in California, where such would be a misjoinder and would be demurrable. Especially is this the case unless it arises out of same transaction. (McCarty v. Freemont, 23 Cal. 197.) Damages for a personal tort cannot be united with claim for equitable relief. (Mayo v. Maddox, 4 Cal. 27.) So, a claim for possession of real property and damages for its detention cannot be united with a claim for consequential damages. (Bowles v. Sacramento Turnpike Co., 5 Cal. 224.) So, a claim in tres- pass quare clausum fregit ejectment and prayer for relief is demurrable. So, where several matters are united against one defendant, perfectly dis-' tinct and unconnected, or where relief is demanded against several de- fendants of matters of a distinct and independent nature. (Wilson v. Castro, 31 Cal. 420. 58. Joint Demurrer. If complaint state a cause of action against one or some of several defendants, a joint demurrer cannot be sustained. (People v. Mayor of N.Y., 28 Barb. 240.) But where complaint dis- closed a separate cause of action against each defendant, a joint demur- rer for misjoinder was sustained. Hess v. Buffalo and Niagara Falls R.R., 29 Barb. 391; Eldridge v. Bell, 12 How. Pr. 549; Phillips v. Northrup, Id. 17; Brownson v. Gifford, 8 Id. 392; Woodbury v. Sack- rider, 2 Abb. Pr. 402. 59. Objections must be Taken. Objections to the misjoinder of causes of action should be taken by demurrer or answer, or they are deemed waived. (Macondry v. Summons, i Cal. 393; Jacks v. Cooke, 6 Cal. 164; Gates v. Kieff, 7 Id. 124; Marius v. Bicknell, 20 Id. 217; Weaver v. Conger, Id. 237; Mead v. Bagnall, 15 Wis. 156; Jones v. Hughes, 1 6 Wis. 683; Fairfield v. Burt, n Pick. 245; Barlow v. Leavitt, 12 Cush. 483; Youngs v. Seely, 13 How. Pr. 395; White v. Delschneider, i Or. 254.) Misjoinder of actions cannot be taken advantage of on general demurrer. Ruhling v. Hackett, i Nev. 360. 60. Objection, how taken. Where a plaintiff brought eleven 630 FORMS OF DEMURRERS. qui tarn, actions for penalties against the same defendant, who demurred specially to each declaration, and the plaintiff joined in demurrer, a motion that one demurrer be argued, and that proceedings in the other cases be stayed to abide the event of the one argued, was denied. A party bringing a multiplicity of suits must take the respons- ibility of meeting them in the usual way. Firrett v. Atwill, i Blatchf. 151; S.C., 4 N.Y. Leg. Obs. 215. 61. Objections Waived. If two causes of action have been improperly joined without properly stating them, the objection must be taken b^demurrer, or it is considered waived. Fuhn v. Webber, Cal. Sup. Ct., Oct. T., 1869. 62. Parties. Where there is a misjoinder of causes of action, any defendant may demur; but where there is a joinder of improper parties as defendants, the defendant or defendants improperly joined can alone demur. (Ashby v. Winson, 26 Mo. 210.) Where the parties joined as plaintiffs are all interested in the principal question raised in the bill, and the issues tendered are simple, and a multiplicity of suits may be avoided, a demurrer for multifariousness will not be sustained. People v. Harrill, 26 Cal. 360; Garner v. Wright, 28 How. Pr. 92. 63. Recognizance. Suit on a recognizance given before a justice for the appearance of defendant S. to answer a criminal charge. The complaint, after setting out the cause of action on the recognizance, avers that S., to secure his sureties, executed a trust deed to T. of cer- tain warrants and money. This deed provides that in case the recog- nizance be forfeited and the sureties become liable thereon, the trustee is to apply the property to the payment, so far as it will go, of the recognizance. The complaint asks to have this property so applied. Held, that a demurrer for misjoinder of causes of action lies; that the trust deed has nothing to do with the liability of the sureties. People v. Skidmore, 17 Cal. 260. 64. Sheriff) Action against. Where in an action against the Sheriff, the plaintiffs declaration contained one count in case against him as sheriff, for so negligently executing the writ as to cause plaintiff to lose his debt, and another in trover and conversion, against him individually for the value of the goods, such joinder is not error, for they are both actions on the case, the plea and judgment being the . same in each; and the demurrer of the defendant to the declaration, FORMS OF DEMURRERS. 631 on the ground of misjoinder, was properly overruled. (Patterson v. Anderson, 40 Penn. 359.) But where a complaint against a sheriff and his official bondsmen alleges only a cause of action against him as a trespasser, and against his sureties as signers of the bond, and not otherwise, the complaint is demurrable. Ghirardelli v. Bowland, 32 Cal. 585. 65. Trespass. In an Action for trespass, where the value of the property and damages were claimed: Held, that demurrer would not lie for misjoinder of actions. Tendeson v. Marshall, 3 Cal. 440. JVo. 549. viii. On the Ground thai the Complaint does not State Facts Sufficient to Constitute a Cause of Action. [TITLE.] The defendant demurs to the complaint filed* in this action, and for cause of demurrer alleges : That the complaint does not state facts sufficient to constitute a cause of action. 66. Action Premature. Where the action was premature, de- fendant may demur for insufficient facts. (Harvey v. Chilton, 1 1 Cal. 114; Hicks v. Branton, 21 Ark. 186.) The Court will not presume, in support of the demurrer, that the debt was not due when action was commenced. (Maynard &. Talcott, n Barb. 569.) In an action on a bond dated May loth, 1853, conditioned for the payment of a sum " in two years from the first day of April last, with annual interest," a de- murrer, on the ground that no cause of action was stated, was tried in June, 1854. Held, that as interest was due before the time of trial, the plaintiff was entitled to judgment upon the demurrer. A demurrer is not the mode of raising the objection that the cause of action had not accrued when the action was commenced. Smith v. Holmes, 19 N.Y. 271. 67. Attachment. A writ of entry contained a command to attach the property of the defendant, and for want thereof to take the body; queer e, whether a demurrer is a proper mode of taking advantage 632 FORMS OF DEMURRERS. of the error. (Clement v. Clement, 1 8 N.H, 6 1 1 .) Where the defend- ant, as sheriff, collects money onan attachment more than sufficient to satisfy the attaching creditor, and after the expiration of his term of office another attaching creditor attaches the surplus, and seeks to make the ex-sheriff liable therefor on his official bond: Held, that the demur- rer to the complaint was properly sustained, as there was no relation be- tween the defendant and plaintiff to rendei%he defendant officially lia- ble. Graham v. Endicott, 7 Cal. 144. 68. Bill of Exchange. It seems, that in an action against drawer and acceptor of a bill, the complaint cannot be held bad on a joint demurrer by both defendants, put upon the ground that it does not state facts sufficient to constitute a cause of action, if it states a cause of action against either defendant. (Woodbury v. Sackrider, 2 Abb. Pr. 402.) And compare Peabody 'v. The Washington County Mutual Ins. Co., 20 Barb. 339. 69. Bond Delivery. An omission to aver delivery in suit on a bond must be taken advantage of on demurrer. Garcia v. De Satrus- tegui, 4 Cal. 244. TO. Cloud on Title. The objection that the complaint does not present a case for the exercise of the Court to remove a cloud on title may be demurred to, under this cause of demurrer. Hotchkiss v. Elting, 36 Barb. 39. 71. Company Membership. Suing a party as member of a company, and failing in body of complaint to aver membership, is ground for demurrer. Tolmie v. Dean, Wash. T., 1864, p. 61. 72. Date Illegal. Where the day of making the contract is im- material, that the day laid in the declaration would be illegal is not a ground of demurrer. Amory v. McGregor, 12 Johns. 287. 73. Departure. Thus, it is not good ground of demurrer that an amended petition departs from the cause of action set out in the orig- inal petition. Hord v. Chandler, 13 B. Monr. 403. 74. Defective Complaint. Where a complaint, though de- fective, states facts sufficient to constitute a cause of action, the objec- tion to it should be taken by demurrer. (Greenfield v. Steamer "Gun- nell," 6 Cal. 67; Lafleur v. Douglass, Wash. T., 1864, p. 215.) As the want of- profert of letters of administration in New York. (Alii- FORMS OF DEMURRERS. t 633 son v. Wilkin, i Wend. 153.) So, for duplicity in the allegations of the complaint, (i Chitt. 512; Bradner v. Demick, 20 Johns. 404; Win- terson v. Eighth Av. R.R. Co., 2 Hill, 389; Wolfer v. Luyster, i Hall, 146.) A demurrer for duplicity must point it out specifically. (Currie v. Henry, 2 Johns. 433; see, also, Goodingz;. McAllister, 9 Barb. 123.) In Alabama, a demurrer will not lie for this ground. (Waynne v. Whisenant, I Ala. 282.) Nor will it lie for a variance between judgment and execution in an action for an escape. (Dakin v. Hud- son, 6 Cow. 221.) In New York, a demurrer on this ground can only be sustained where the complaint presents defects so substantial in their nature and so fatal in their character as to authorize the Court to say that, taking all the facts to be admitted, they furnish no cause of action whatever. (Richards v. Edick, 17 Barb. 260; Graham v. Camman, 5 Duer, 697; De Witt ads. Swift, 3 How. Pr. 280; S.C., i Code R. ^.) For a substantial and radical defect in the complaint, the proper ground for demurrer is that complaint does not state facts sufficient to consti- tute a cause of action. 4 Hoiv Pr. 226; 14 Id. 282; 17; Id. 487; 5 N.Y. 359; Spear v. Downing, 12 Abb. Pr. 437; 34 Barb. 523; Struver v. Ocean Ins. Co., 2 Hilt. 475. 75. Defect of Parties. A demurrer to a complaint on the ground that it does not state facts sufficient to constitute a cause of ac- . tion does not raise the question of a defect of parties defendant. But the court below having sustained such a demurrer in the present case, pro forma, with a view to a more speedy decision by this Court of the question involved, and the question of a defect of parties having been discussed by counsel on both sides, as though it were raised by the de- murrer, the order sustaining the demurer is reversed, without prejudice to the right of the respondent to object to the want of proper parties. Burhop v. Milwaukee, 18 Wis. 431. 76. Definition of Terms. The words " the complaint does not state a sufficient cause of action " held equivalent to the language of the Code. (DeWitt ads. Swift, 3 How. Pr. 280; i C. R. 25; 6 N.Y. Leg. Obs. 314.) And is sufficient. (Hoogland v. Hudson, 8 How. Pr. 343.) And when certain allegations are specified, all 'other grounds of objection are excluded. Nellis v. De Forest, ID Barb. 61. 77. Demand. A complaint for money had and received, which fails to allege a demand, is bad on demurrer. Greenfield v. Steamer " Gunnell," 6 Col. 68. 634 FORMS OF DEMURRERS. 78. Demurrer Lies. In the sixth subdivision, a demurrer to a complaint will be sustained, " when the complaint does not state facts sufficient to constitute a cause of action." It applies only to such defects as would render the count bad on general demurrer at law, or bad for want of equity in chancery. The complaint, therefore, to be over- thrown by such a demurrer, must present defects so substantial in their nature, and so fatal in their character, as to authorize the Court to say, taking all the facts to be admitted, that they furnish no cause of action whatever. Where the demurrer admits facts enough to constitute a cause of action, the complaint will be sustained ; and if the defendant requires a greater degree of certainty than is found in the complaint, he must seek his relief by a motion that the pleading be made more cer- tain and definite. (Summers v. Farrish, 10 Cal. 347; Cudlipp v. Whip- pie, i Abb. Pr. R. 106; Allen v. Patterson, 3 Seld. 496; Richards v. Belfcs, 28 Eng. L. & Eq. R. 157; Richards v. Edick, if 'Barb. 260; Graham v. Camman, 13 How. Pr. R. 360; People v. Mayor of N.Y., 8 Abb. Pr. 7; Sinclair v. Fitch, 3 E. D. Smith, 677; Thompson v. O'Sullivan, 6 Allen (Mass.) 303; Witt ads. Swift, How. Pr. 280; S.CJ i Code R. 25.) Where a complaint fails to state a cause of action, and the defendant, at the trial, objects, on that ground, to the intro- duction of any evidence, such objection is equivalent to a general demurrer, and a judgment for the plaintiff must be reversed. Hays v. Lewis, 17 Wis. 210. 79. Demurrer, when Taken. Demurrer under this subdivi- sion may be taken at any stage of the case. (Budd v. Bingham, 18 Barb. 494; Gould v. Glass; 19 Barb. 186; Higgings v. Freeman, 2 Duer, 650; Montgomery Co. Bank v. Albany City Bank, 3 Seld. 464; Hayes v. Lewis, 17 Wis. 210; People v. Booth, 32 N.Y. 397.) Nor is the failure to demur upon this ground a waiver of the objection. Cat. Pr. Act, 45; 3 How. Pr. 280; Andrews v. Lynch, 27 Mo. 167; Lud- ington v. Taft, 10 Barb. 447. 80. Demurrer -will not Lie. But under this subdivision de- fendant cannot bring objections to the form of the action; (3 How. Pr. 280; i C. R. 25; 17 Barb. 260; 5 Duer, 697; Taylor v. Richards, 9 Bosw. 679; Loomis v. Tifft, 16 Barb. 541; Phillips v. Bartlett, 9 Bosw. 678;) nor that the Court has no jurisdiction; (Wilson v. Mayor of N.Y., 6 Abb. Pr. 6; 15 How. Pr. 500; 4 E. D. Smith, 706, note; nor that there is an improper joinder of parties; (Eldridge v. Bell, 12 How. Pr. 547;) nor that the plaintiff has not legal capacity to sue; (Vibert FORMS OF DEMURRERS. 635 v. Frost, 3 Abb. Pr. 120; Hobart v. Frost, 5 Duer, 671;) nor that the right to sue is in third person not a party to the action; (Myers v. Ma- chado, 6 Abb. Pr. 198; but see Palmer v. Smedly, Id. 205; De Witt v. Chandler, n Abb. Pr. 459;) nor that complaint does not show authority to sue. (Bank of Lowville v. Edwards, n How. Pr. 216; Bank of Havana v. Wicktnan, 7 Abb. Pr. 134.) The objection that the money sued for, if due at all, is due to plaintiff and another as partners, is not a demurrer. (Andrews v. Mok. Hill Co., 7 Cal. 330.) So, when the bill alleges a parol trust, a general demurrer will not lie. Peralta v. Castro, 6 Cal. 354. 81. Divorce. An- objection that a complaint in an action for divorce, stating the existence of common property, is uncertain and defective in not stating the facts showing the property to be common, must be raised by demurrer, or it will be deemed waived. Gimmy*. Gimmy, 22 Cal. 633. 82. Effect of Demurrer. A demurrer on this subdivision puts in issue the validity of the entire complaint. (White v. Brown, 14 Hoiv. Pr. 282; Spear v. Downing, 12 Abb. Pr. 442; 34 Barb. 523.) And if it specifies certain allegations deemed essential, it excludes all other grounds of objection than those which are particularly set forth. (Nellis v. De Forest, 26 Barb. 61.) And the statement that certain parts of the complaint are immaterial and redundant does not vitiate the demurrer. (Smith v. Brown, 6 How. Pr. 383.) But defendants cannot by demurrer refuse to grant a compensation which the demur- rer admits the right of. Selkirk v. Sacramento Co., 3 Cal. 323. 83. Enforcement of Judgment. When the bill shows that the complainant, who seeks to enforce a judgment at law, is chargeable with laches, the defendant may take advantage of it by demurrer. Maxwell v. Kennedy, 8 How. Pr. 210. 84. Forcible Entry and Detainer. The statute does not require an allegation in the complaint of possession. An averment that the premises are unlawfully withheld from plaintiff is somewhat general, yet not insufficient, in a justice's court, except on demurrer. Cronise v. Carghill, 4 Cal. 122. 85. Guaranty. A complaint, alleging that the defendants sold to plaintiffs a certain share of fruit growing in an orchard, and after the sale executed a warranty that the share of plaintiffs should 636 FORMS OF DEMURRERS. be at their disposal, and further alleging a demand for the same, and the refusal of the defendant to deliver, is demurrable, as it should have contained an assignment of the breach of the contract or guaranty. Dabovich v. Emeric, 7 Cal, 109. 86. Interest of Parties. Under this subdivision, defendant may demur on the objection that plaintiff has no interest in the action. (Palmer v. Davis, 28 N.F. 272; Walrath v. Handy, 24 How. Pr. 353.) That plaintiff is not the real party in interest. Westervelt v. Alcock, 3 E. D. Smith, 243; Jackson v. Weedon, i Id. 142; Savage v. Corn Ex. Ins. Co., 4 Bosw. 2. 87. Kind of Money. If the kind of money is not distinctly averred in the complaint, defendant may demur. McComb v. Reed, 29 Cal. 281. 88. Liens An objection to a lien for want of dates may be made on demurrer or on a motion to strike off, but after pleading to the scire facias, it must be considered as waived. Howell v. The City of Philadelphia, 38 Penn. 471. 89. Performance. Where complaint was a condition precedent, but fails to aver performance, defendant may demur. (Happe v. Stout, 2 Cal. 460.) So, in case of a promissory note. (Rogers v. Cody, 8 Cal. 324.) A demurrer for the cause that complaint does not state facts sufficient to constitute a cause of action may be disregarded, if defend- ant choose to answer instead of standing on the demurrer. Levey v. Fargo, i Nev. 415. 90. Presentation of Claim. Where, in an action of fore- closure, the complaint fails to state the presentation to and rejection by the adminstrator of the claim against the State, defendant may demur on the ground of insufficient facts. (Ellison v. Halleck, 6 Cal. 386; Falkner v. Folsom, Id. 412; Hentsch v. Porter, 10 Id. 558.) These cases are overruled by(Fallon#. Butler, 21 Cal. 24;) and the correct- ness of the latter decision is doubted by the case of (Ellis v. Polhemus, 27 Cal. 354.) The case of Ellisen v. Halleck, 6 Cal. 393, is either discussed or referred to in the following cases: 6 Cal. 412; 7 Cal. 124; 9 Cal. 501; 10 Cal. 30; 24 Cal. 498. 91. Quo Warranto. In quo warranlo for an alleged usurpation of the office of pilot for the port of San Francisco, the complaint avers FORMS OF DEMURRERS. 637 that defendants hold, use, exercise, usurp, and enjoy the office without a license, and also certain allegations as to the right of relator to the office: Held, that these allegations as to relator's rights cannot be reached by general demurrer, the complaint being good as against the defend- ants; that they are not interested in the question as to the right of relator, but only in the determination of then- own right to the office. Flynn v. Abbott, 16 CaL 358. 92. Res Adjudicata. Demurrer will not lie to a bill on the ground of res adjudicata, unless it avers that everything in controversy, as the foundation of the suit, was in controversy in the former suit. (Moss v. Anglo-Egyptian Navigation Co., Law Rep. i Ch. 108.) The judgment of a court of competent jurisdiction upon a material matter put directly in issue by the pleadings is res adjudicata as to that issue, ' and the parties are estopped by the judgment from litigating it again. Jackson v. Lodge, 36 CaL 28. 93. Securities. The objection that securities sued on are not promissory notes must be made on demurrer. Powell v. Ross, 4 Cal. 197. 94. Services of Physician. In a suit by a physician against a county on a contract for his services for one year as examining physi- cian of the hospital, the objection that he is not a graduate of a legally constituted medical institute, if good at all, cannot be taken by demur- rer, unless the demurrer distinctly present the objection. McDaniel v. Yuba County, 14 Cal. 444. 95. Specific Relief. To entitle the plaintiff to subject the assets of an absent debtor in the payment of his claim, he must show that he is without a remedy at law, and if the bill discloses such remedy at law it will be dismissed upon demurrer. Lupton v. Lupton, 3 Cal. 220. 96. Stamp on Note. A demurrer will not lie to a complaint on a promissory note which fails to aver or show that the note was duly stamped. Hallock v. Jandin, 34 Cal. 1 67. 97. Statement of Grounds. The demurrer is sufficient with- out a specification of the reason why the facts stated are not sufficient. (Kent v. Snyder, 30 Cal. 666.) It is sufficient under this subdivision to state that the complaint does not state facts sufficient to constitute a cause of action. Haire v. Baker, 5 N.F. 357; Paine v. Smith, 2 Duer, 638 FORMS OF DEMURRERS. 298; to the sameeffect, De Witt ads. Smith, 3 Hmu. Pr. 280; S.C., i Code R. 25; 6 N.Y. L?g. Obs. 314; Durkee v. Saratoga and Wash. R.R. Co., 4 How. Pr. 226; S.C., 2 Code R. 145; Hyde v. Conrad, 5 How. Pr. 112; S.C., 3 Code R. 162; Johnson v. Wetmore, 12 Barb. 433; White v. Brown, 14 How. Pr. 282; to the contrary, Purdyp. Car- penter, 6 How. Pr. 361; citing Van Santv. PI. 421; Hunds v. Twed- dle, 7 Id. 278; to same effect Grant v. Lesher, 2 Code R. 2; Hunter v. Frisbee, Id. 59; Loomis v. Tifft, 16 Barb. 541. 98. Statute of Frauds. The Statute of Frauds may be taken advantage of on demurrer to a bill which on its face states a case cov- ered by the Statute. Randall v. Howard, 2 Black. U.S. 585. 99. Statute of Limitations. If it appear on the face of the complaint that the demand is barred by the Statute of Limitation, de- murrer will be sustained. But the bar of the Statute must clearly appear on the face of the complaint. (Sublette v. Tinney, 9 Cal. 423; Bar- ringer v. Warden, 12 Id. 311; Smith v. Hall, 19 Id. 85; Smith v. Richmond, Id. 476; Ord v. De La Guerra, 18 Id. 67; but see on this point Sands v. St. John, 36 Barb. 628; 23 How. Pr. 140.) It should be distinctly stated in the demurrer. (Brown v. Martin, 25 Cal. 89; Farwell v. Jackson, 28 Id. 106.) It is a personal privilege which must be set up or be deemed waived. (Grattan v. Wiggins, 23 Cal. 16.) Under our system the rule is the same in law and equity; and if it appear upon the face of the complaint that the action is barred, and no facts are alleged taking the demand from the operation of the Statute, the complaint is defective, and demurrer lies. (Smith v. Richmond, 19 Cal. 476; Maxwell v. Kennedy, 8 How. U.S. 210.) If the demand be in truth barred, but the fact does not appear upon the face of the complaint, the defense must be made in answer. Where a bill in equity states a case to which the Act of Limitations applies, without bringing it within some of the savings, the defendant may take advant- age of the bars by demurrer. (Wisner v. Barnet, 4 Wash. C. Ct. 631.) Where the Statute creates an absolute bar by mere lapse of time, with- out exception, the defense may be made by demurrer, if the necessary facts appear in the complaint. (States. Bird, 22 Mo. 470.) But the demurrer should be resorted to only where it clearly appears that the plaintiffs case has been fully stated, and that being so stated no recovery can be had. (McNair v. Lott, 25 Mo. 182.) By the practice in New York, it appears that the defense of the Statute of Limitations can only FORMS OF DEMURRERS. 639 be taken by answer. N.F. Code, 74; 10 How. Pr. 383;- 16 Id. 546; Sands v. St. John, 36 Barb. 628; S.C., 23 How. Pr. 140. 100. Statutory Penalty. In an action to recover damages by the owner of a licensed ferry, against a party alleged to have run a ferry within the limits prohibited by law, it was held that the complaint should have alleged that defendant ran his ferry for a fee or reward, or the promise or expectation of it, or that he ran it for other than his own personal use or that of his family; and the omission of those allegations was fatal. Hanson v. Webb, 3 Cal. 237. 101. Undertaking on Attachment. In an action on an un- dertaking executed to release property from attachment, the complaint should allege that the property attached was released upon the delivery of the undertaking. (Williamson v. Blattan, 9 Cal. 500.) A failure to do so is fatal, and the defect may be taken advantage of by demurrer, on the ground that the complaint does not state facts sufficient to con- stitute a cause of action. Id. 102. Undertakings Penal Bonds. In an action by the Post- master-General against a deputy postmaster and his sureties, on the bond executed by them, the sureties pleaded that plaintiff did not, as he was bound by law to do, call upon his deputies to settle his accounts, or cause suits to be brought against him for not so doing; nor did he give notice to the sureties of the defaults, but fraudulently, and in violation of his duty to the United States and to the sureties, neglected to bring such actions, and to give notice. Held, that the demurrer having admitted the fraud stated in the plea, the plaintiff could not recover. Postmaster- General v. Ustick, 4 Wash C. Ct. 347; United States v. Sawyer, i Gall. 86; Bockee v. Crosby, 2 Paine, 432; Egberts v. Dibble, 2 McLean, 86; Bank of Illinois v. Brady, 3 Id. 268; Greathouse v. Dunlap, Id. 303; Hart v. Rose, Hempst. 238; Hartfield v. Patton, Id. 268; McCue v. Corporation of Washington, 3 Cranch. C. Ct. 639. 103. What it Admits. Demurrer on the ground that the com- plaint does not state facts sufficient to constitute a cause of action admits the validity of the statute authorizing plaintiff to sue. Litchfield v. McComber, 42 Barb. 288. 104. Written Instrument. An objection to the pleading of a written instrument, by stating its legal effect, instead of setting forth its contents, can be taken only by demurrer. Kellogg v. Baker, 1 5 Abb. Pr. 286. 640 FORMS OF DEMURRERS. No. 550. ix. On' the Ground of Ambiguity. [TITLE.] The defendant demurs to the complaint, and for cause of demurrer alleges: That the complaint is ambiguous, unintelligible, or uncertain. \_Point out specially in what the ambiguity or uncertainty consists^ 105. Demurrer Lies. This cause of demurrer may be inter- posed when the complaint is " ambiguous, unintelligible, or uncertain." Under this subdivision it is necessary for the pleader to point out wherein the complaint is ambiguous, unintelligible, or uncertain (Blanc v, Klumpke, 29 Cal. 156), or it will be deemed waived. Brown v. Martin, 25 Cal. 82. 106. Ejectment. In ejectment, where the complaint avers that " the plaintiff on a day named was, and ever since has been, and still is, the owner in fee simple, seized and possessed," etc.; " that, on a day thereafter named, and while the plaintiff was so the owner in fee simple, seized and possessed, defendants entered and ousted him, and from thence hitherto have and still do withhold the same," etc., may be de- murred to for ambiguity. Brown v. Martin, 25 Cal. 82. 107. New York. Mere indefiniteness and uncertainty are not enough to sustain a demurrer in the State of New York. Chesbrough v. N.Y. and Erie R.R. Co., 13 How Pr. 557; Richards v. Edick, 17 Barb. 260; People ex rel. Crane v. Ryder, 12 N.Y. 433; Martin v. Kanouse, 2 Abb. Pr. 327; Clark v. Dales, 20 Barb. 42; Welles v. Web- ster, 9 How. Pr. 251; Finnerty v. Barker, 7 N.Y. Leg.^Obs. 316; Roeder v. Ormsby, 13 Alb. Pr. 334; Village of Warren v. Philips, 30 Barb. 646. 108. Official Bond. In an action on an official bond, if a copy of the bond annexed should not contain the signature of the principal, de- FORMS OF DEMURRERS. 641 fendant may demur for ambiguity. (Mendocino Co. v. Morris, 32 Cal. 145.) A complaint in an action on the bond given by a tax col- lector is not ambiguous and uncertain because it does not aver that any of the money sued for was collected on account of foreign miners' licenses. People v. Love, 25 Cal, 520. 109. Sale and Delivery. A declaration setting forth that plaintiff had purchased a quantity of goods from W. and P., "then and there acting as agent of the defendant," is only another form of declar- ing that he had purchased from the defendant, and is sufficiently cer- tain to prevent any misapprehension of its meaning, and is good on demurrer. Cochran v. Goodman, 3 Cal. 245. 110. Statement Essential. A demurrer to a complaint, on the ground that it is ambiguous, unintelligible, and uncertain, must speci- fically state in what the ambiguity or uncertainty consists, or it will be disregarded. Yolo County v. City of Sacramento, 36 Cal.. 193. 111. When Demurrer -will not Lie. In Ohio, demurrer will not lie for indefiniteness or uncertainty. (Spice v. Steinruck, 4 Ohio (N.S.) 213.) So, a demurrer will not lie for uncertainty in New York. The omission to state the time and place of slander is not a ground for demurrer; the remedy is by motion. (Finnerty v. Barker, 7 N.Y. Leg. Obs. 316.) So, where an executor united notes payable to his testator. (Welles v. Webster, 9 How. Pr. 251.) But a demurrer will lie for uncertainty in California. Cal. Pr. Act, 40, Subd. 7. JVo. 551. x. Several Grounds of Demurrer. [TITLE.] The defendant demurs to plaintiff's complaint on the following grounds: I. That the court has no jurisdiction of the person of the defendant [or, as the case may be, of the subject of the action. State wherein the want of jurisdiction lies.~\ 41 642 FORMS OF DEMURRERS. II. That plaintiff has not legal capacity to sue [state why] III. That there is another action pending between the same parties, for the same cause of action. IV. That there is a defect or rnisjoinder of parties plaintiff or defendant [state in what the defect or mis- joinder consists.] V. That several causes of action have been improp- erly united in this [state how improperly united] VI. That the complaint does not state facts sufficient to constitute a cause of action. [No reasons need be as- signed under this subdivision] VII. That the complaint is ambiguous, unintelligible or uncertain \_point out specially in what the ambigiiity or uncertainty consists] 112. Note. A pleading should not be demurred to: First, Unless it is clearly demurrable; and, Second, Except for cause which clearly ap- pears upon the face of the complaint. (Davy v. Betts, 23 How. Pr. 395; Dillaye v. Wilson, 43 Barb. 261.) The fact that the statute gives several instances wherein a demurrer may be made affords no excuse for exhausting the list on every complaint demurred to; though sev- eral causes of demurrer may be assigned. PART FIFTH. DEFENSES TO THE ACTION. CHAPTER I. ANSWERS IN GENERAL. 1. In the ordinary sense, an answer means a reply. In pleading, it may be a reply which either admits or de- nies the facts alleged in the complaint, or it may admit, and then avoid the effect of the admission by making a counter statement; or the answer may be in the nature of a cross complaint, asking for affirmative relief. In either case the object of an answer is to make an issue. Without an issue no trial can be had, because there is no question of difference between the plaintiff and de- fendant in other words plaintiff asks for nothing which defendant refuses to grant him. Burrell, in his Law Dictionary, Vol. i., defines an answer to be any pleading, except a demurrer, 'framed to meet a previous pleading. 2. Under our practice, where the complaint is sworn to, the defendant must deny specifically each allegation in the complaint. But by each allegation is meant each material allegation; for if plaintiff makes averments in 644 ANSWERS IN GENERAL. his complaint not necessary or material to present his cause of action, or if he avers conclusions of law, or sets out evidence, these need not be traversed, for they are not issuable facts, or, if issuable, they are not pertinent to the case. Because plaintiff makes a history of his complaint, is no reason, necessity, or excuse for defend- ant to deny the truth of that history. Nor is it proper to seek out the very words of the complaint, and then negative each and every one of them. An issue is not as well or as clearly made by negativing the language of the complaint in terms as by denying the facts ex- pressed by such language. 3. If plaintiff has been wronged, some one has in- jured him, and defendant, to make an issue, only needs to deny the ultimate/acts. In general, the reasons which caused the injury need not be pleaded The commis- sion of the injury, the time and. place, extent of the inju- ry, and the person who did it, in most cases should be traversed. 4. For example, in a case of forcible entry, defend- ant (the person] denies that on the .... day of January, 1870, or at any other time (the time], he broke or en- tered into the premises described (the wrong], or dam- aged plaintiff in any amount (extent of injury]. If, for instance, and which is frequently the case, the plaintiff alleges that at the time stated defendant wrongfully and unlawfully broke, etc. etc., defendant need only deny the breaking; the Court will be competent to say whether it was wrongful or unlawful after the proofs . /V. 203; Mullen v. Kearney, 2 C. R. 18; Fosdick z>. Groff, 22 How. Pr. 158; Holgate v. Brown, 8 Minn. 243; Hoopes v. Meyer, i Nev. 433; Seeley v. Engell, 17 Barb. 530; Fleury z/. Roget, 9 /?W>. Pr. 215; Flam- mer v. Kline, Id. 216; Hoxie v. Cushman, 7 N.Y. Leg. Obs. 149.) And the facts stated in the complaint will be deemed admitted. Nelson v. Murray, 23 Cal. 338. 40. A denial that the defendant became or was law- full^ bound by a judgment declared on, is only a denial of a conclusion of law. (People v. Supervisors of San Francisco, 27 Cal. 655.) Nor is it a denial in an action ANSWERS IN GENERAL. 66 1 for the possession of personal property to allege that defendant did not at any time wrongfully take and de- tain the property from the plaintiff. (Richardson v. Smith, 29 Cat. 529.) Or in ejectment that defendant did not wrong/idly and unlawfully enter and dispossess the plaintiff. This is an admission rather than denial. (Busenius v. Coffee, 14 Cal. 93; Layz>. Neville, 25 Cal. 549.) So, a denial that the plaintiff has any interest whatever in the premises mentioned in the complaint is insufficient. (Bentley v. Jones, 4 How. Pr. 202.) So of an averment that " the plaintiff is not the real party in interest, nor is he an executor," etc. (Russell v. Clapp, 3 Code R. 64; S.C., 4 How. Pr. 347.) So of an answer which, without deny ing any fact stated in the complaint, merely says that " the defendant denies that the plaintiff is entitled to the money demanded." Drake v. Cockroft, i Abb. Pr. 203; and compare Hig- gins v. Freeman, 2 Duer, 650. 41. Where, however, the allegation of the plaintiff is itself couched in the form of a conclusion of law, a denial in the same form will be admissible, and efficient for, all purposes. (Morrow v. Cougan, 3 Abb. Pr. 328; Anon., 2 C. ^.67; Wagers. Ide, 14 Barb. 468; Davis v. Hoppock, 6 Duer, 256; McKnight v. Hunt, 3 Id. 615.) A mixed question of law and facts was under the old system traversable. (Steph.Pl. 19.) With certain limits this rule is applicable to the present system. (Dows v. Hotchkiss, 10 Leg. Obs. 281.) As where plaintiff alleged that defendant owed him a certain sum, an answer denying the indebtedness is sufficient. (Kin- ney v. Osborne, 14 Cal. 112; Westlake v. Moore, 19 Mo. 556.) A denial which is itself a conclusion of law raises no issue, as where ah answer states in general 662 ANSWERS IN GENERAL. terms that a municipal ordinance is illegal and void. People v. Super, of San Francisco, 27 Cat. 655. SHAM, IRRELEVANT, AND FRIVOLOUS ANSWERS. 42. Immaterial averments in a pleading need not be denied. (Racouillat v. Rene, 32 Cat. 450; Toland v. Sprague, 12 Pet. 300.) And if it be done, both the complaint and answer, so far as they relate thereto, will be disregarded when the sufficiency of the pleadings and issues are brought in question. (Jones v. City of Peta- luma, 36 Cal. 220; see, also, Fry v. Bennett, i Code R. (JV.S.) 238; St Mark's Fire Ins. Co. v. Harris, 13 How. Pr. 95.) Such was the rule in chancery. (Utica Ins. Co. v. Lynch, 3 Paige, 210.; Wiswall v. Wandell, 3 Barb. Ck. 312.) But a denial of immaterial circumstances may in some cases be treated as sufficient at the trial, if not previously objected to. Wall v. Buffalo Water Works Co., 18 N.Y. 119. 43. Matter not well pleaded need not be denied. (Society for the Prop, of the Gosp. v. Town of Pawlett, 4 Pet. 480.) For if a defendant denies what is non- essential in the averments of a complaint, it is an admis- sion of all that is essential to a recovery. (Leffingwell v. Griffing, 31 Cal. 231.) For examples, see (Landers v. Bolton, 26 Id. 416; Camden v. Mullen, 29 Id. 564.) And the denial of such averments is unnecessary. Sands v. St John, 23 How. Pr. 140; Fry v. Bennett, 5 Sandf. 54; 9 L.O. 330; i C. R. (N.S.) 238; Parshall v. Tillon, 13 How. Pr. 7; Isham v. Williamson, 7 L.O. 340; Newman v. Otto, ^.Sandf. 668; 10 L.O. 14; Bar- ton v. Sackett, 3 How. Pr. 358; i C. R. 96; Do van v. Dinsmore, 33 Barb. 86; 20 How. Pr. 503; Fairchild v. ANSWERS IN GENERAL. 663 Ogdensburg R.R. Co., 15 N. Y. 337; Simonton v. Win- ter, 5 Pet. 140; Greathouse v. Dunlop, 3 McLean, 303; Hogan v. Ross, 13 How. S. Ct. 173.) Non-issuable matter need not be traversed. Harbeck v. Craft, 4 Duer, 122; Edgertonz/. Smith, 3 Id. 614. 44. Hypothetical allegations in an answer are insuffi- cient. (Weis v. Fanning, 9 How. Pr. 543.) But where under the peculiar circumstances of the case, as payment could not be directly alleged, it might be stated in this way. (E)ovan v. Dinsmore, 20 How. Pr. 503; Brown v. Ryckman, 12 Id. 313.) So, in order to avoid the cause of action alleged, a defendant need not confess it; he may aver that if any such contract was made, it was made jointly with others. Taylor v. Richards, 9 Bosw. 679. 45. Averment of plaintiff's belief is not traversable. (Radway v. Mather, 5 Sand. 654; Howell v. Fraser, i Code Rep. (MS.) 270; Patterson v. Caldwell, i Mete. Ky. 492; Walters v. Chinn, Id. 502.) Allegations an- ticipating a defense need not be denied. (Caufield v. Tobias, 21 Cal. 349.) Persons who make contracts with a corporation cannot deny its legal existence. (White v. Ross. 15 Abb. Pr. 66; East River Bank v. Rogers, 7 Bosw. 494; Mechanics' Building Association v. Stevens, 5 Duer, 676; Steam Navigation Co. v. Weed, 17 Barb. 378; Park Bank v. Tilton, 15 Abb. Pr. 384.) The credit given on an account in the com- plaint is not a traversable fact. Hodgins v. Hancock, . & W. 120. 46. The amount of damages need not be denied. ( Van Santv. PI. 249 ; Lewis v. Coulter, i o O. St. Rep. ^5 1 .) So, the amount of damages on a breach of covenant need not be denied. (Hackett v. Richards, 3 E. D. Smith, 1 3 ; 664 ANSWERS IN GENERAL. Gilbert v. Rounds, 14 Haw. Pr. 49; Connoss v. Mier, 2 E. D. Smith, 314; McKenzie v. Farrell, 4 Bosw. 192; Molony v. Dows, 15 How. Pr. 261; Raymond v. Traf- farn, 12 Abb. Pr. 52.) So, circumstances of aggravation are not traversable. (Bates v. Loomis, 5 Wend. 134; Gilbert v. Rounds, 14 How. Pr. 49; Schnaderbeck v. Worth, 8 Abb. Pr. 37; Lane v. Gilbert, 9 Id. 150.) Nor allegations of special damages, unless of the gist of the action. (Moloney v. Dows, 1 5 How. Pr. 265 ; Perring v. Harris, 2 M. & Rob. 5.) In Indiana, matters in mitigation of damages only, except in actions for libel and slander, cannot be specially pleaded or set up in the answer, but should be given in evidence under the gen- eral denial. Smith v. Lisher, 23 Ind. 500. 47. Allegations of matters of evidence in a pleading are not issuable facts. If the answer puts in issue the ultimate facts resulting from the evidence, it is a suffi- cient denial. (Moore z>. Murdock, 26 Cat. 524; Racouil- lat v. Rene, 32 Cat. 450.) Where plaintiff's declaration averred that defendants promised to pay plaintiffs as "the heirs of C," a denial that plaintiffs were the heirs of C. was held bad, as not denying any material allega- tion. (Chandler v. Chandler, 21 Ark. 95.) Allegations of intention showing express malice are not issuable facts. Fry v. Bennett, 5 Sandf. 54; Code Rep. S. 238. 48. The denial of time or place at which an act is alleged to have been done is frivolous, where time or place are not the substance of the action. (Castro v. Wetmore, 16 Cal. 379; Kuhland v. Sedgwick, 17 Cat. 123; Livingston v. Hammer, 7 Bosw. 670; Davison v. Powell, 1 6 How Pr. 467; Baker v. Bailey, 16 Barb. 5.4; Salinger v. Lusck, 7 How. Pr. 430.) Value, in deten- ANSWERS IN GENERAL. 665 tion of property, should not be denied. (Connoss v. Meir, 2 E. D. Smith, 314; McKenzie v. Farrell, 4 Bosw. 193; Hackett v. Richards, 3 Id. 13; Woodruff v. Cook, 25 Barb. 505; see, however, Archers. Boudinet, i Code Rep. (N~.S.) 373.) The denial as to value, being based on the want of knowledge or information, is insufficient. (Kuhland v. Sedgwick, 17 Cat. 123.) Such a denial is evasive of the issue tendered. (Humphreys v. McCall, 9 Cat. 59; Brown v. Scott, 25 Id. 194; Vassault v. Austin, 32 Id. 597; Edwards v. Lent, 8 How. Pr. 28; Ketcham v. Zerega, i E. D. Smith, 554; Kellogg v. Baker, 15 Abb. Pr. 287; Taylor v. Luther, 2 Sumn. 228.) In a verified answer, an evasion of the control- ling fact in issue is a strong circumstance against the defendant. Bakers. Baker, 13 Cat. 87. 49. A denial clearly evasive is insufficient to raise an issue. (Beebe v. Marvin, 17 Abb. Pr. 194; Law- rence v. Derby, 24 How. Pr. 133; 15 Abb. Pr. 346.) In order to determine whether the denials of an answer are evasive, each separate denial of each separate alle- gation must be taken by itself. If the answer to a par- ticular allegation is a denial of it, and there is no admission in the answer inconsistent with this denial, an issue is fairly made. Racouillat v. Rene, 32 Cal. 450. 50. An answer containing a different version of the transaction to that contained in the complaint is not a de- nial; (Wests'. Amer. Ex. Bk., \^Barb. 176;) as it does not specifically controvert the allegations contained in the complaint. (Wood v. Whiting, 21 Barb. 190; Elton v. Markham, 20 Barb. 343; Gilbert v. Cram, 12 How. Pr. 455; Levy v. Bend, i E. D. Smith, 169; Hamilton v. Hough, 13 How. Pr. 14; Whitlock v. McKetchnie, 666 ANSWERS IN GENERAL. i Bo&v. 427; Isles v. Tucker, 5 Duer, 393; Corwin v. Corwin, 9 Barb. 219; Loosey v. Orser, 4 Bosw. 392.) See, as to its implying a denial of plaintiff's title to relief, (Peck v. Brown, 26 How. Pr. 350.) Where a defendant gives a different version of the matter in con- troversy, it should be accompanied by a specific denial of all the allegations of the complaint not consistent with the allegations in the answer. See, also, Wood v. Whiting, 21 Barb. 190; compare Dykers v. Wood- ward, 7 How. Pr. 313. 51. A denial manifestly inconsistent with state- ments of fact in other parts of the same pleading is bad. (Livingston v. Harrison, 2 E. D. Smith, 197.) A mere denial of interest or ownership in the plaintiff will be insufficient where no statement of fact is made to sus- tain it. Russell v. Clapp, 7 Barb. 482 ; 4 How. Pr. 347; 3 C. R. 64; Catlin v. Gunter, i Dtier, 253; n L. O. 201. 52. So, also, allegations in an answer in some re- spects inconsistent with the allegations in the complaint, do not amount to a denial. (21 Barb. 190; West v. American Ex. Bank, 44 Barb. 175.) Where a nega- tive allegation is necessary in stating the cause of action, although it must, of course, precede an averment by the opposite party of the fact negatived, it neverthe- less constitutes the basis of the issue joined by the sub- sequent averment, and the latter operates as a traverse and not as an averment of new matter. Frisch v. Caler, 21 Cat. 71. 53. A denial which argumentatively disputes a fact averred in the complaint is demurrable, as the traverse ANSWERS IN GENERAL. 667 must be direct. (Gallagher v. Dunlap, 2 Nev. 326; Mower v. Burdick, 4 McLean, 7; Frisbee v. Lindley, 23 Ind. 511.) Denials must not be in the alternative, as they are defective in form, and leave it uncertain what is denied. (Otis v. Ross, 8 How. Pr. 193; Cor- bin v. George, 2 Abb. Pr. 467.) A party cannot con- trovert the declaration he has made by deed. (Tartar v. Hall, 3 Cat. 263; United States v. Thompson, i Gall. 388.) Under the provision of Section fifty of the Practice Act, denials contained in an answer, which do not explicitly traverse the material allegations of the complaint, may be stricken out on motion, as sham and irrelevant. Tynan v. Walker, 35 Cal. 634. ADMISSIONS TN THE ANSWER. 54. But no proof is required of facts admitted, or not denied. (Patterson v. Ely, 19 Cal. 28.) But where matter is not well pleaded and is no answer to the breach assigned, it cannot be considered an admission of the cause of action stated in the complaint. (So- ciety for Propagating the Gospel v. Town of Pawlett, 4 Pet. 480.) An admission in an answer is not avoided by a special averment. (Reed v. Calderwood, 32 Cal. 109.) Nor is an admission in one defense available on another defense; each must stand by itself. Siter v. Jewett, 33 Cal. 92; Swift v. Kingsley, 24 Barb. 541. 55. When a defense is founded on a written instru- ment, and a copy is contained in the answer or annexed thereto, the genuineness and due execution will be deemed admitted, but not by a failure to controvert the same on oath, unless the plaintiff be permitted to in- spect the original. (Cal. Pr. Act, 54.) A plea 668 ANSWERS IN GENERAL. which admits the execution of the instrument, and sets up matter in avoidance, is not objectionable as amount- ing- to the general issue. Thomas v. Page, 3 McLean, 167. 56. Where the -answer avers that defendant has in all respects faithfully kept the terms and complied with the conditions of the contract, but does not specifically deny the breaches set out in the complaint, if not de- murred to, the plaintiff cannot claim that the allegations charging certain breaches are admitted. (Loler v. Cool, 37 Mo. 85.) Proceedings which are void by reason of the infirmity of the statute under which they are had, are not cured by an averment in a complaint that they were duly and legally had; and a failure to deny the averment in the answer is not an admission that the proceedings were valid or legal. People v. Hastings, 29 Cat. 449.) An admission by an attorney of record of the correctness of an amount due, for which judgment is taken, when not done in fraud of the rights of his client, destroys the effect of a denial in an answer. Taylor v. Randall, 5 Cat. 76. ANSWER NOT EVIDENCE. 57. An answer responsive to and denying the charges in a bill of equity is not evidence for the de- fendant. (Goodwins. Hammond, 13 CaL 198; Bosticz>. Love, 1 6 Id. 69; Blankman v. Vallejo, 15 Id. 638; Goodwin v. Hammond, 13 Id. 169.) An answer under our statute is not proof for defendant, but an admission in the answer of a fact stated in the complaint is conclusive evidence against him. (Fremont v. Seals, 18 Cat. 433; Blankman v. Vallejo, 15 CaL 638.) Omission to plead a defense specially is not cured by the introduction of ANSWERS IN GENERAL. 669 evidence without objection in support of it. Smith v. Owen, 21 Cat. u; McComb v. Reed, 28 Cat. 289. VERIFICATION OF ANSWER. 58. An answer unverified to a verified complaint may be stricken out on motion. (Drum v. Whiting, 9 Cat, 422.) When the complaint is verified, the answer shall be verified also; (Cal. Pr. Act, 51 ;) except when the admission of the truth of the complaint might sub- ject the party to prosecution for felony or misdemeanor. (Cal Pr. Act, 52; N.Y. Code, 157.) By verifica- tion of the complaint the plaintiff can prevent the de- fendant from interposing a general denial in suits on promissory notes or bills of exchange, by requiring a sworn answer. Brooks v. Chilton, 6 Cal. 640. 59. A plea that denies the execution of the instru- ment, when required to be sworn to, if filed without affidavit, admits the execution of the instrument, but may be good for other purposes. Cal. Pr. Act, 53; Horn v. Volcano Water Co., 13 Cal. 62; McClintick v. John- ston, i McLean, 414. 60. If a fact, which is directly averred in one part of a verified pleading, is in another part directly denied, whether it be in the statement of several causes of ac- tion in a complaint, or of several defenses in an answer, the party verifying it is guilty of perjury, and, on the trial, that averment which bears most strongly against the pleader will be taken as true. (Bell v. Brown, 22 Cal. 671.) Verification or affidavit to a plea field, necessary in particular cases. Bullock v. Van Pelt, i Baldw. 463; Contee v. Garner, 2 Cranch C. Ct. 162; Edmonson v. Barrell, Id. 288; Fenwick v. Grimes, 5 6/O ANSWERS IN GENERAL. Id. 603; McClintick v. Cummins, 2 McLean, 98; Thomas v. Clark, Id. 194; Benedict v. Maynard, 6 Id. 21. 61. It is no error to allow the defendant to verify his answer before trial, unless it is shown that the plaintiff is thereby taken by surprise. (Angier v. Masterson, 6 Cal. 6 1.) To a complaint verified the defendant filed a copy of the original verified answer, by mistake. Parties took deposition under the pleading, and subse- quently went to trial. After the close of the plaintiff's evidence, his counsel then for the first time brought the mistake to the notice of the Court, by moving for judg- ment by default, which motion the Court sustained, and refused to allow defendant to then verify his answer. Held, that the Court erred, and should have" allowed the defendant to have verified his answer. Arrington v, Tupper, 10 Cal. 464. NEW MATTER. 62. Under Section forty-six of the Code, there are only two classes of defense allowed. The first consists of a simple denial ; and the second, of the allegation of new affirmative matter. And as the Code has abolished all distinctions in the forms of action, and requires only a simple statement of the facts constituting the cause of action or defense, these two classes of defenses must be the same in all cases. (Piercy v. Sabin, 10 Cal. 22.) New matter is where defendant seeks to introduce into the case a defense not disclosed by the pleadings, and is such as defendant must affirmatively establish. (Id.; Bridges .v. Paige, 13 Cal. 640.) Such matter must be specially pleaded. Coles v. Soulsby, 21 Cal. 47; Morrill v. Irving Ins. Co., 33 N.Y. 429. ANSWERS IN GENERAL. 63. The Code makes no difference in the classes of new matter, for whatever admits, either directly or by way of necessary implication, that a cause of action as stated in the complaint once existed, but at the same time avoids it and shows that it has ceased to exist, is new matter. (Coles v. Soulsby, 21 Cal. 47; Piercy v. Sabin, 10 Cal. 22; Glazier v. Clift, Id. 303; Gilbert v. Cram, 12 How. Pr. 455; Raddle v. Ruckgaber, 3 Duer, 685 ; Brazil v. Isham, 2 Kern. 1 7 ; Bellinger v. Craigue, 21 Barb. 537; Carter v. Koezley, \^ Abb. Pr. 147; Walrod v. Bennett, 6 Barb. 144.) But if the facts averred in the answer only show that some essential allegation of the complaint is untrue, then they are not new matter, but only a traverse. Goddard v. Fulton, 21 Cal. 430. 64. The Code provides that: Second, The complaint shall contain a statement of matter in avoidance, a counter claim constituting a defense, or the subject matter of cross complaint, which may entitle the defend- ant to relief against the plaintiff alone, or against the plaintiff and a co-defendant. Cal. Pr. Act, 46; Code of N.. 149; Oregon, 71; Ohio, 92; Arizona, 46; Wash. Terr. 58; Idaho, 46; 3 Paige, 210; 8 Barb. 189, 250; 3 Sandf. 738; 8 How. Pr. 193; 14 Barb. 533; i Van Santv. PI. p. 452; 2 Whitt. Pr. 149. 65. The answer must allege those facts which when the case of the plaintiff is admitted or proved, the defendant must prove in order to defeat a recovery. Piercy v. Sabin, 10 Cal. 22; Glazier v. Clift, Id. 303; Catlin v. Gunter, i Duer, 266; Ayrault v. Chamberlin, 33 Barb. 237; Carter v. Koezley, 14 Abb. Pr. 147; 672 ANSWERS IN GENERAL. Jacobs v. Rensen, 12 Abb. Pr. 390; Pier v. Finch, 29 Barb. 170; Rapalee v. Stewart, 27 N.Y. 310; Fry v. Bennett, 28 N.Y. 324; Morrell v. Irving Fire Ins. Co., 33 N.Y. 429; Simmons v. Law, 8 Bosw. 213; Dingle- dein v. Third Av. R.R. Co., 9 Bosw. 79; Beatty v. Swarthout, 32 Barb. 293; Savage v. Corn Exch. Ins. Co., 4 Bosw. 2 ; Horton v. Rushling, 3 Nev. 498. 66. Such allegations must be affirmatively established ; therefore if the onus of proof is thrown upon the defend- ant, it is new matter. (Thompson v. Lee, 8 Cat. 275; Piercy v. Sabin, 10 Cal. 22; Glazier v. Clift, Id. 303.) For under the statute of California, the affirmative allegations of an answer stand controverted by the plaintiff, and the burden is on defendant to prove the truth of such allegations. (Bryan v. Maume, 28 Cal. 238.) To admit evidence of such new matter, therefore, it must be specially pleaded. Walton v. Minturn, i Cal. 362; Piercy v. Sabin, 10 Cal. 30; Andrews v. Bond, 10 Barb. 633; Baker v. Bailey, 16 Id. 57; Buck- man v. Brett, 1 3 Abb. Pr. 119; Button v. McCauley, 38 Barb. 413; Diefendorff v. Gage, 7 Barb. 18; Dewey v. Hoag, 1 6 Id. 365; Fay v. Grimstead, 10 IcA. 321; Field v. Mayor of N.Y., 2 Seld. 179; Johnson v. Mcln- tosh, 31 Barb. 267; Kelsey v. Western, 2 Corns. 501; McKyring v. Bull, 16 N.Y. 297; N.Y. Cent. Ins. Co. v. Nat. Pro. Ins. Co., 20 Barb. 468; Sandford v. Travers, 7 Bosw. 497; Wright v. Delafield, 25 N.Y. 266. 67. Affirmative allegations in the answer, in effect only denials, are not new matter. (Goddard v. Fulton, 21 Cal. 430; Woodworth v. Knowlton, 22 Id. 164.) For new matter confesses and avoids expressly or impliedly the cause of action set up in the complaint. ANSWERS IN GENERAL. 673 (Simonton v. Winter, 5 Pet. 140; Greathouse v. Dun- lap, 3 McLean, 303; Gregory v. Trainor, 4 E. D. Smith, 58; Annibal v. Hunter, 6 How. Pr. 255; i Code R. (IV. S.) 403; Sayles v. Wooden, 6 How. Pr. 84; i Code R. (JV.S.) 409; Porter v. McCreedy, i Code R. (MS.) 88; Lewis v. Kendall, 6 How. Pr. 59; Arthur v. Brooks, 14 Barb. 533.) An answer or a count seeking to avoid the cause of action stated in the com- plaint by new matter, should confess, directly or by implication, that, but for the new matter, justification, or avoidance, the action could be maintained. Anson v. D wight, 1 8 Iowa, 241. 68. It is essential to the sufficiency of an answer stat- ing new matter as a defense that it state facts which, if true, will bar the action, or so much of it as is attempted to be answered. (Carter v. Koezley, 9 Bosw. (JV.Y.) 1,583.) A special plea, containing new matter, but with no appropiate conclusion, is bad upon special demurrer. (Leslies. Harlow, 18 N.H. 5i8.) New matter occur- ring after issue joined must be set up by supplemental answer. (Jessup v. King, 4 Cat. 331.) A levy by a sheriff set forth in the answer as a defense is new matter. Mulford v. Estudillo, 23 Cat. 94. WHAT MUST 'BE SPECIALLY PLEADED. 69. Abandonment of land. (30 Cal. 192; 26 Cat. 266.) Abatement. (3 Cal. 348; 10 Cal. 555.) As of another action pending. (29 Cal. 314; 30 Cal. 325; 10 Cal. 522; 3 Cal. 438; 14 Cal. 39; 24 Cal. 73.) Accord and sat- isfaction. '(10 Cal. 30; 21 Cal. 47.) Pleas in justifica- tion, as an attachment or execution. (7 Cal. 554; 15 Cal. 66; 10 Cal. 303; 21 Cal. 47; 12 Cal. 73; 22 Cal. 650; 43 674 ANSWERS IN GENERAL. 29 Cal. 529; 28 Cat. 281.) Composition with creditors should be specially pleaded. (21 Cal. n) A counter claim should be specially pleaded. (9 Cal. 74.) So of disclaimers. (14 Cal. 576; 27 Cal. 331.) Equitable titles, defenses, and estoppels. (25 Cal. 597; 30 Cal. 439; 23 Cal. 354; 24 Cal. 146, 124.) Eviction must be specially pleaded. (10 Cal. 30.) So, former recovery (27 Cal. 358; 32 Cal. 176) must be specially set up in the answer. 70. Fraud (27 Cal. 656) must be specially pleaded. So, a grant of an easement or servitude. (27 Cal. 368.) New matter must be specially pleaded. (21 Cal. 47.) Payment. (21 Cal. 47, 71; 10 Cal. 30.) That plaintiff is not the real party in interest. Release. (17 Cal. 431; 21 Cal. 50.) Statute of Frauds. (6 Cal. 149.) Statute of Limitations. (23 Cal. 16; 27 Cal. 278; 19 Cal. 476; 2 Cal. 409.) Subsequently acquired title. (30 Cal. 468.) Tax titles. (22 Cal. 132; 27 Cal. 246.) Unworkmanlike manner of doing work. (i Cal. 371.) Want of capacity to sue. (8 Cal. 585.) That items are overcharged in an account. (13 Cal. 427.) Prior claim to water in a third person must be specially pleaded. 9 Cal. 59. MATTER IN AVOIDANCE. 71. The cases are so numerous where defendant should specially plead matters in avoidance or estoppel, that it is scarcely possible to make more than a refer- ence to those coming under this general proposition. Matters in avoidance must be specially pleaded; they cannot be used as defenses, under an answer which is a simple denial of the allegations. (Gaskill v. Moore, ANSWERS IN GENERAL. 675 4 Cal. 233.) Matter of avoidance arising since suit brought, but pleaded at the first term at which the de- fendant appears, need not be pleaded puis day-rein con- tinuance. ' (Cutter v. Folsom, 17 N.H. 139.) Such a plea (Davenport v. Mitchell, 15 Iowa, 194) must have the same certainty as to time and place as other pleas, and if it does not allege the day on which the matter pleaded happens, it is bad. Cummings v. Smith, 50 Maine, 568. 72. A plea/^'^ darrein continuance is a relinquish- ment of all preceding pleas; (Tanner v. Robers i Mo. 416;) and its allowance is in the discretion of the Court. (Nettles v. Sweazea, 2 Mo. 100; Thomas v. Van Doren, 6 Mo. 201; Cummings v. Smith, 50 Maine, 568.) The plea puis darrein continuance is a relin- quishment of all preceding pleas, (i Burr. Pr. 424; 26 Vt. 305; Tanner v. Roberts, i Mo. 416; Wallace v. McConnell, 13 Pet. U.S. 136; Yeaton v. Lynn, 5 Id. 223; Stafford v. Woodruff, 2 McLean U.S. 191; Good v. Davis, Hempst. U.S. 16; Wisdom v. Williams, Id. 460.) When this plea is adjudged bad on demurrer, judgment is final against the defendant. McKeen v. Parker, 51 Maine, 389. PLEAS IN ABATEMENT. 73. A plea in abatement defeats the present pro- ceeding; (i Chitt. 145;) but a plea in bar goes to the merits, and admits that plaintiff once had a right of ac- tion, but insists that it is determined, (i Chitt. 469.) And an answer in abatement, when taken with a plea in bar, cannot be made available. (Spencer v. Lapsley, 20 How. U.S. 264; King v. Vanderbilt, 7 How. Pr. 676 ANSWERS IN GENERAL. 385; Monteith v. Cast, i Smith's Com. PI. R. 112; Andrews v. Thorp, Id. 615; contra, see Bridge v. Pay- son, 5 Sand. 210; followed by Sweet v. Tuttle, 10 How, Pr. 40; and Mayhew v. Robinson, 10 How. Pr. 162.) The matter, however, is left in some doubt. See Bridge v. Payson, i Duer, 614. 74. It is a bad mode of pleading to unite pleas in abatement, and pleas to the merits, and if, after pleas in abatement, a defense be interposed going to the merits of the controversy, the grounds alleged in abate- ment become thereby immaterial, and are waived. (Sheppard v. Graves, 14 How. U.S. 505; Fenwick v. Grimes, 5 Cranch C. Ct. 603.) Where there is a plea to the merits, and issue joined thereon, and the parties go to trial accordingly, irregularities previously set up by pleas in abatement, and demurrers to them, are waived. (Bell v. R.R. Co., 4 Wall. U.S. 598; and see Fenwick v. Grimes, 5 Cranch C. Ct. 603.) But a plead- ing in abatement does not waive a defense on the merits contained in the same answer. Gardner v. Clark, 21 N.Y. 399; overruling S.C., 6 How. Pr. 449. 75. Matter in abatement which merely defeats the present proceeding must be specially set up in the answer, with such particularity as to exclude every con- clusion to the contrary. (Hentsch v. Porter, 10 Cal. 555; Toombs v. Randall 3 Cal. 438.) Such pleas are not favored. The party pleading them relies on tech- nical law to defeat the plaintiff's action, and is held to "technical exactness in his pleading." Thompson v. Lyon, 14 Cal. 42; Anoymous, Hempst. 215. 76. The answer to a complaint for damages for ANSWERS IN GENERAL. 677 breach of a contract contained two defenses: the first to the merits of the action; the second set up that cer- tain four other persons were joint contractors with the defendant, in making the contract sued on. The plaintiff moved that the second defense be stricken out, on the ground that it contained onjy matter in abatement, which was waived by putting in an an answer on the merits. Held, following Gardner v. Clark, 6 How. Pr. R. 449; King v. Vanderbilt, 7 Id. 385; Smith v. Compton, 7 Dist., Gen. T., June 1855, M. S.; Zabriskie v. Smith, 3 Kern, 322; and disapproving of Sweet v. Tuttle, 10 How. Pr. R. 40; Mayhew v. Robinson, 10 Id. 162;, Bridge v. Payson, 5 Sandf. 210. 77. A defense consisting of matter in abatement only, and which is not a bar to the action, cannot be set up in an answer containing matter in bar of the action. The question is simply one of the order, not of the form " of pleading." That each defense or counter claim must refer to " the causes of action which it is in- tended to answer," shows that the defenses contemplated in that section are defenses to the cause or causes of action stated in the complaint, and nothing else. Van Buskirk v. Roberts, 14 How. Pr. 61. PLEAS IN BAR. 78. Wherever the subject matter of the plea or defense is, that the plaintiff cannot maintain any action at any time, whether present or future, in respect of the supposed cause of action, it may and usually must be pleaded in bar, and must be specially set up; but matter which merely defeats the present proceeding, and does not show that the plaintiff is forever con- cluded, should in general be pleaded in abatement. 678 ANSWERS IN GENERAL. (Hentsch v. Porter, 10 Cal. 555.) Where a plea in answer is but notice of special matter by way of abate- ment, and goes to but part of the cause of action, it cannot be relied on as a plea in bar. United States v. Dashiel, 4 Wallace U.S. 182; Leslie v. Harlow, 18 N.H. 518; Feaster v. Woodfid, 23 Ind. 493; Fitzsim- mons v. City etc. Ins. Co., 18 Wis. 234. 79. It is not a sufficient objection to the plea, that it avers that the obligation was obtained from him by fraudulent representations, or that it concludes with a general prayer for judgment. Pleas in bar are not to receive a narrow and merely technical construction, but are to be construed according to their entire sub- ject-matter. In this respect there is a difference between pleas in bar and pleas in abatement. (Withers v. Greene, 9 How. U.S. 213.) Upon a hearing on issue on a plea in bar to a bill in chancery, no ques- tion arises as to the sufficiency of the plea in point of law; it is only necessary to be proved in point of fact. (Hughes v. Blake, i Mas. 515.) Pleas in bar, which seek to avoid the equity of the case, are not to be favored. See Piatt v. Oliver, 1 1 McLean, 295. 80. An answer setting up in bar to a whole cause of action a matter which constitutes a bar to only a part of it, is bad. (Piatt v. Oliver, i McLean, 295; Lewis v. Baird, 3 Id. 56; Milligan v. Milledge, i Mc- Lean, 295; McDougle v. Gates, 21 Ind. U.S.6$\ Louis v. Arford, Id. 235; McClintic v. Cary, 22 Id. 170; Richardson v. Hickman, Id. 244; Postmaster- General v. Reeder, 4 Wash. C. Ct. 678; Culbertson v. Wabash Navigation Co., 4 McLean, 544; and see Parker v. Lewis, Hempst. 72; Peyatte v. English, Id. 24.) Where ANSWERS IN GENERAL. 679 there are several items in a plea in bar, there must be enough items in the whole, each one well pleaded, to meet the whole of the demand. Mullanphy v. Phillip- son, i Mo. 1 88. 81. An error in the prayer for judgment in a plea in bar will not prevent the rendition of the judgment appropriate to the substance of the plea, confessed by general demurrer. (Withers v. Greene, 9 How. U.S. 213.) A plea to a bill in equity may be good in part, and not so in the whole ; and the Court will allow it as to so much of the bill as it is properly applicable to, unless it has the vice of duplicity in it. (Kirkpatrick v. White, 4 Wash. C. Ct. 595.) So, if any one of several pleas, going to the whole merits of the case, is well pleaded, and contains a full and sufficient answer, it will entitle the defendant to judgment. Brown v. Duchesne, 2 Curt. C. Ct. 97; Vermont #. Soci. for Prop., 2 Paine, 545. EFFECT OF SPECIAL PLEAS. 82. A plea to the merits is a waiver of all pleas in abatement subsequent to it. (Winter v. Norton, i Or. 42, Gossling v. Broach, i Hilt. 49; Potter v. Smith, 7 Rhode Island, 55; Potter v. James, Id. 313; Fugate v. Glasscock, 7 Mo. 577.) And of all former irregular- ities. (Bell v. Railroad Co., 4 Wall U.S. 598.) Hence it is too late to object that a writ has no seal after the defendant has pleaded to its merits. (7 R.I. 312.) Or to a mistake in the writ, or variance between the count and the writ, which must be taken advantage of by a plea in abatement. (Chirac v. Reinicker, n Wheat. 280; McKenna v. Fisk, i How. Pr. 241; compare Miller 68O ANSWERS IN GENERAL. v. Gages, 4 McLean, 436; Burrow v. Dickson, i Overt. 366.) It cannot be taken advantage of on gen- eral demurrer. (Duvall v. Craig, 2 Wheat. 45; Wilder v. McCormick, 2 Blatchf. 3 1 ; Triplet v. Warfield, 2 Cranch C. Ct. 237.) Nor by motion in arrest of judg- ment. (Wilson v. Berry, 2 Cranch C. Ct. 707.) So of omission to indorse writ. (Miller v. Gages, 4 McLean U.S. 436.) In California, the remedy for such variance is by motion. 83. If a party fail to plead matter in bar to the original action, and judgment pass against him, he cannot after- wards plead it in another action founded on that judg- ment, nor in a scire facias. 'Dickson v. Wilkinson, 3 How. US. 57. 84. Special pleas, the averments of which amount only to the general issue, are bad. (Matthews v. Mat- thews, 2 Curt. C. Ct. 105; Halsted v. Lyon, 2 McLean U.S. 226; Dibbles. Duncan, Id. 553; Curtis v. Central Railway, 6 Id. 401; Parker v. Lewis, Hempst. U.S. 72; Vowell v. Lyles, i Cranch C. Ct. 329; Liter v. Creen, 2 Wheat. U.S. 306; Van Ness, v. Forest, 8 Cranch U.S. 30.) A special plea, simply a traverse of a portion of the facts which plaintiff is bound to prove to establish a prima facie right to recover, is bad, as amounting to the general issue. (Knoebel v. Kirchet, 33 ///. 308.) In Alabama, it is no objection that a special plea presents matter of defense available under the general issue, which is also pleaded. Hopkinson v. Shelton, i Ala. S.C. 303. 85. Bad pleas which are cured by verdict are those, which, although they would be bad on demurrer, be- ANSWERS IN GENERAL. 68 1 cause wrong in form, yet still contain enough of sub- stance to put in issue all the material points of the declaration. (Garland v. Davies, 4 How. U.S. 131.) Where the pleas are bad, they should be demurred to by the plaintiff, and not traversed; but after the verdict of the jury, the same effect will be given to them as if they had been demurred to; and they are not aided by the fact that immaterial issues tfiave been % formed upon them, and found for the defAlant. (Tarns v. Lewis, 42 Penn. 402.) Where an a^rjaient in a plea purports to be made by the plaintiff, inSread of the defendant, it is bad on demurrerr. Barclay v. Ross, 32 ///. 211. CHAPTER II. FORMS OF DENIALS IN ANSWER. No. 552. i. General Denial Positive. [TITLE.] The defendant answers [or, if only part of the de- fendants join, the defendants A. B. and C. D. answer] to the complaint: That no allegation thereof is true [or that he denies generally and specifically each and every allegation in the plaintiff's complaint contained.] 1. Copyright Law. Persons sued for any matter, act, or thing done under the copyright law, may plead the general issue, and give 682 FORMS OF DENIALS. the special matter in evidence. Act of Congress, Feb. 3, 1831, 10; 4 S/a/. at L. 438; I Bright. 196. 2. Debt. In an action on an indebtedness, the defendant, under the general denial, may prove that he was never indebted at all, or that he owes less than is claimed, or that services were rendered as a gra- tuity, in whole or in part, or that plaintiff had himself fixed a less price for his services than he claims to recover. (Schermerhorn v. Van Allen, 1 8 Barb. 29; Andrews v. Bond, 16 Barb. 633.) Denial of indebted- ness alleged in th,e complaint bfeld available as equivalent to plea of nil debit. Simmons v. Sisson, 26 Rl*. 264. 3. Definition. A genei^Jlenial is a denial in gross of all the allegations of the complaint. (Dennison v. Dennison, 9 How. Pr. 246; Seward v. Miller, 6 Id. 312.) Such a denial only puts in issue the allegations of the complaint. Glazier v. Clift, 10 Cal. 303; Coles v. Soulsby, 21 Cal. 47. 4. Evidence, Admission of. Under the general denial au- thorized by the Code, evidence of a distinct affirmative defense is not admissible. The defendant is limited to contradicting the plaintiff's proof, and disproving the case made by him. Beatty v. Swarthout, 32 Barb. 293. 5. Form of Denial. The mere form of the denial is not ma- terial, provided it directly traverses the allegation which it is intended to meet. (Hill v. Smiih, 27 Cal. 476.) Thus, negative averments may be employed. (Channon v. San Francisco, Cal. Sup. C/., Jul. T., 1869). A general denial, which " denies each and every allegation alleged in said complaint," is sufficient. (Kellogg v. Church, 4 OhioPr. R. 339; Dennison v. Dennison, 9 How. Pr. 246; Rosenthral v. Brush, i Code R.(N.S.} 228; Seward v. Miller, 6 How. Pr. 312.) But a denial of each and every material allegation of complaint is bad, as being evasive. (Mattison v. Smith, 19 Abb. Pr. 288.) The legal effect of such denials is not changed by expressions showing that they were intended to be specific. (Hensley v. Tartar, 14 Cal. 508.) The denial should not be of " all the allegations," but of " each and all," or, " each and every," and a denial of all the material allegations, though good on demurrer, is not sufficiently certain and specific. (Lewis v. Coulter, 10 Ohio St. 451.) "That no allegation thereof is true," was recommended by the Code Commissioners of New York. See Report, p. 128, for the reasoning thereon. '' Denies each and every allegation FORMS OF DENIALS. 683 in said complaint contained, not herein specifically admitted or specifi- cally controverted," was sustained in Parshall v. Tilton, 13 Hoiu. Pr, 7; Hunt v. Bennett, 4 E. D. Smith, 647; Daison v. Schermerhorn, i Barb. 480. 6. How to Deny. There are but two forms in which a defend- ant can controvert the allegations of a verified complaint: First, Posi- tively, when the facts are within his personal knowledge; and, Second, Upon information and belief, when they are not. Curtis v. Richards, 9 CaL 33; Gas Company v. San Francisco, Id. 453; Kellogg v. Church, 4 How. Pr. 349; Ruddle v. Ruckgaber, 3 Duer, 684. 7. Rent. Defendant may prove an eviction on a claim for rent in arrear, under the plea nil debit, or general denial. (McLaren v. Spaulding, 2 Cal. 510; overruled in Piercy v. Tobin, 10 CaL 30.) And consequently an eviction must be set up in the answer. 8. When Allowed. A defendant, after specifically admitting some of the allegations, may make a general denial as to the rest; (Parshall v. Tillou, 13 How. Pr. 7; Blaisdell v. Raymond, 6 Abb. Pr. 148; 5 Id. 144; Genessee Mut. Ins. Co. v. Moynihen, 5 Id. 321; Smith v. Wells, 20 How. Pr. 158, 144; 6 Id. 148;) or as to all within certain specified folios. Gassett v. Crocker, 9 Abb. Pr. 39; Blake v. Eldred, 18 How. Pr. 240. 9. When Essential. Where the facts alleged were presump- tively within the defendant's knowledge, he must admit or deny posi- tively, unless there be something special in the circumstances of the case. (Thorn & Maynard v. The New York Mills, 10 How Pr. 19; Vassault v. Austin, 32 CaL 597; Humphreys v. McCall, 9 CaL 59; Brown v. Scott, 25 CaL 194; Nichols v. Jones, 6 How. Pr. 355; Sherman v. N.Y. Cent. Mills, i Abb. Pr. 187; Thorne v. The Same, 10 How. Pr. 19; Lewis v. Acker, n How.^Pr. 163; Edwards v. Lent, 8 How. Pr. 28; Fales v. Hicks, 12 How. Pr. 153; Slater v. Maxwell, 6 Wall. U.S. 268; Chapman v. Palmer, 12 How. Pr. 38; Lewis v. Acker, n How. Pr. 163; Buddington v. Davis, 6 How. Pr. 401; Sayles v. Wooden, Id. 84; Porter v. McCreedy, Code Rep. (N.S.) 88.) So held in action for assault. (Richardson v. Wilton, 4 Sand. 708.) So of bond exe- cuted by defendant as surety. (Hance v. Rumming, i Code Rep. (N.S.) 204.) So in contract, where complaint specifically alleges contract. (Ord v. Stmr. "Uncle Sam," 13 Cal. 369; Gas Co. v. San Francisco, 9 CaL 453.) So in defendant causing process to issue. (Lawrance v. Derby, 684 FORMS OF DENIALS. 1 5 Abb. Pr. 346.) So of fact admitted by original defendant. (Forbes v. Waller, 25 N.Y. 430.) So of goods sold and delivered to partner. Chapman v. Palmer, 12 How. Pr. 38. No. 553. ii. General Denial as to Part of a Pleading. [TITLE.] The defendant answers to the complaint: I. That he denies each and every allegation con- tained in the paragraphs numbered .... and . . . . , on folios .... and . . . ., of plaintiff's complaint. 10. Part Denial. Where the cause of action is divisible, or where several causes of action are stated, defendant in his answer may deny part, or some, or one of the causes of action, and leave the residue unanswered. Cal. Pr. Act, 42; N.Y. Code, 151; Smith v. Shu- feldt, 3 Code Rep. 175; Tracy v. Humphrey, Id. 190; Willis v. Tag- gard, 6 Hoiv. Pr. 433; Genessee Mut. Ins. Co. v. Moynihen, 5 Id. 322; Snyder v. White, 6 Id. 321; Longworthy v. Knapp, 4 Abb. Pr. 115; Otis v. Ross, 8 How. Pr. R. 193; 3 C. R. 175. 11. Part Denial, Effect of. But the effect of partial denial will be limited to the precise ground covered. Gas Co. v. San Fran- cisco, 9 Cal. 453; Seward v. Miller, 6 How. Pr; 312. Rosenthal v. Brush, Code Rep. (N.S.) 228; Anable v. Conklin, 25 N.Y. 470; affirming S.C., 1 6 Abb. Pr. 286; Fairchild v. Rushmore, 8 Bosw. 698; King v. Utica Ins. Co., 6 How. Pr. ^.485. | JVo. 554. iii. General Denial of One of Several Causes of Action. [TITLE.] The defendant answers to the first cause of action contained in the complaint herein, and denies each and every allegation in the complaint respecting the same. FORMS OF DENIALS. 685 JVo. 555. iv. Denial by Articles. [TITLE.] The defendant answers to the complaint: I. That no allegation contained in the [third and fifth] articles thereof is true. 12. Indivisible Facts. Where defendant relies on a state of facts single and indivisible, it is not necessary to separately and dis- tinctly state and number each mitigating circumstance. Kinyon v . Palmer, 20 Iowa, 138. 13. Must be Specific. If the pleadings are under oath, and the replications in response to a material averment Of the answer under- take to deny, by saying " it is not true," etc., the replication is evasive, and does not specifically deny the averment. (Verzan v. McGregor, 23 Cal. 339.) And only such allegations should be denied as defend- ant intends to controvert. (Newell v. Doty, 33 N.Y. 83.) A denial can- not be made by implication. (West v. Am. Bk., 44 Barb. 175.) Each proposition should be separately denied. Cal. Pr Act, 46; Moore v. Del Valle, 28 Cal. 170; Fitch v. Bunch, 30 Id. 208; Woodworth v. Knowlton, 22 Id. 164. 14. Several Grounds. Nor should two or more grounds for defense be stated, when one of them would be as effectual in law as all of them. (Lord v. Tyler, 14 Pick. 164.) Such denials would be bad for duplicity, which must be avoided. (Cal. Pr. Act, 39; N.Y. Code, 142; Oregon Code, 65; Laws of Wash. T. 53; Dunning v. Owen, 14 Mass. 157; Hooper v. Jellison, 22 Pick. 250; Van Namee v. Peo- ble, 9 How. Pr. 198; Strauss v. Parker, Id. 342; Cahoon v. Bank of Utica, 3 Seld. 486.) Such allegations as are not specifically denied, will for the purposes of the action be taken as true. (De Ro v. Cordes, 4 Cal. 117; Caulfield v. Sanders, 17 Id. 569; Whitlock v. McKetchnie, I Bosw. 427; Pardee v. Schenck, u How. Pr. 500; Archer v. Boudi- nett, i C. R. (N.S.) 372; Corwin v. Corwin, 9 Barb. 219; Reilly v. Cook, 22 How. Pr. 93; 13 Abb. Pr. 255; see Walrod v. Bennett, 6 Barb. 144; Harbeck v. Craft, 4 Duer, 122. 686 FORMS OF DENIALS. 15. Single Defense. Denials of several allegations are but one defense. Otis v. Ross, 8 How. Pr. 193; S.C., n N.Y. Leg Obs. 343. 16. Special Traverse. A special traverse, as originally de- vised and used, was simply a mode by which the pleader in the in- ducement spread his own right or title upon the record, adding to this implied denial of the opposing claim a direct denial under the absque hoc. (Fox v. Nathans, 32 Conn. 348.) The inducement in such a traverse must on its face give the pleader a good right or title, or the whole plea is bad. Id. 17. Specific Application. Each denial of an answer must be regarded as applying to the specific allegation it purports to answer, and not as forming a part of an answer to some other specific and entirely independent allegation. (Racouillat v Rene, 32 Cal. 450.) A denial in an answer should by its words so describe the allegations of the complaint which the pleader intends to controvert, that any person of intelligence can identify them. Mattison v. Smith, 19 Abb. Pr. 288. JVo. 556. v. Denial of the Agreement Alleged. [TITLE.] The defendant answers to the plaintiffs complaint: That he did not contract or agree with the said plaintiff in manner or form as alleged in the complaint, or in any manner or form, or at all. No. 557. vi. Another Form. [TITLE.] The defendant answers the complaint, and alleges: That he never promised [or warranted, or cove- nanted] as alleged in the complaint [or that he never made the agreement mentioned in the complaint, or any agreement, at any time or place.] FORMS OF DENIALS. 687 No. 558. vii. Another Form. [TiTH.J The defendant answers to the plaintiff's complaint: I. That he did not make with said plaintiff the said agreement by the said plaintiff set forth and alleged in his said complaint. No. 559. vii. Controverting Conditions Precedent. [TITLE.] The defendant answers to the complaint, and denies: That the plaintiff did perform the conditions prece- dent of said [contract] on his part to be performed, or any one of them, or at all, or that he made any de- posit, or tender, or [state what, as in the contract required^ 18. Conditions Precedent. Objections that conditions have not been performed must be specially set up. People v. Jackson, 24 Cal. 632 ; Happe v. Stout, 2 Cal. 460; Rogers v. Cady, 8 Id. 324. 19. Excuse for Non-Performance. Where performance is prevented by the act of the plaintiff, excuse for non-performance should be set out in the answer. Clark v. Crandall, 3 Barb. 612; 27 Barb. 73; Garvey v. Fowler, 4 Sand, 665; Crist v. Armour, 34 Barb. 378; Rhivara^. Ohio, 3 E. D. Smith, 264. FORMS OF DENIALS. No. 560. ix. Denial of Deed. [TITLE.] , The defendant answers the complaint, and denies: That the "deed mentioned therein is his deed, or that the defendant did execute such deed to the plaintiff, as alleged, or that the defendant did convey to the plaintiff the possession [or equity of redemption] in said premises as alleged, or at all. 19. On Information and Belief. An allegation in an answer by an administrator that the defendant ' ' avers, on information and belief, that no such gieed or deeds were ever executed," is a sufficient denial of an averment in the complaint that defendant's intestate executed and delivered the particular deeds referred to. (Thompson v. Lynch, 29 Cal. 189.) That defendant may deny on information and belief in the New York Practice, see (Sackett v. Havens, 7 Abb. Pr. 371, note; Dunham v. Gates, Hoffm. 185; but in Therasson v. McSpedon, 2 Hilt, i,) a denial upon information and belief was held not sufficient. 20. Effect of Admissions. The intent of the statute is fully carried out by excluding parol testimony to contradict a deed ; but where parties admit the real facts of the transaction in their pleadings, these admissions are to be taken as modifications of the instrument. Lee v. Evans, 8 Cal. 424. No. 561. . x. Denial of Conditional Delivery. [TITLE.] The defendant answers to the complaint: That the said promissory note [or deed] was not ex- ecuted nor delivered by the plaintiff, on the condition and understanding alleged, but was delivered by him absolutely and without condition. FORMS OF DENIALS. 689 / JVo. 562. xi. Denial of Demand. [TITLE.] The defendant answers to the complaint: That the plaintiff did not demand the proceeds of the goods therein mentioned before the commencement of this action. 21. Contract. In an action of contract, the defense that no de- mand was made before the commencement of the suit, cannot be taken advantage of, unless pleaded in the answer. Rabsuhl v. Lack, 35 Mo. 316. 22. Date. A denial that the demand was made on a certain day, as alleged, is a denial that the demand was made on the particular day stated in the complaint, when the statement of the demand is not qual- ified as to the manner of its being made. Hoopes v . Meyer, i Nev. 433. No. 563. xii. Denial of Falsity. [TITLE.] The defendant answers to the complaint: That the representations alleged to have been made by the defendant to the plaintiff were true. 44 690 FORMS OF DENIALS. No. 564. xiii. Denial of Fraud [TITLE.] The defendant answers to the complaint: That he did not make the said representations in manner and form as the same are in the said com- plaint alleged. 23. Denial of Fraud. Defendant may deny fraud in a trans- action which is actually tainted by it; for what constitutes fraud, partic- ularly fraud in law, is often a matter of much diversity of opinion. He therefore must answer to every material allegation. Pettit v. Chandler, 3 Wend. 618; i Paige, 427. JV0. 565. xiv. The Same Another Form. [TITLE.] The defendant answers to the plaintiff's complaint: That the said defendant did not [obtain the said deed from the plaintiff] by fraud and misrepresentation, in manner and form as the said plaintiff hath in his said com- plaint alleged. 24. When Insufficient. Such a general denial of fraud as the above is not enough where facts are alleged in the complaint from which the Court may infer fraud. Litchfield v. Pelton, 6 Barb. 187; Drykers v. Woodard, 7 How. Pr. 313; Churchill v. Bennett, 8 Id. 309. FORMS OF DENIALS. 69! No. 566. xv. Special Denial of Part Performance. [TITLE.] The defendant answers to the complaint: I. That he did not put plaintiff into, nor consent to plaintiff 's taking possession of the said premises, under and in part execution of the said pretended sale and contract of the said premises, as charged in said com- plaint, or at all. II. The defendant avers that the said , of his own wrong, and without the license and against the consent of said defendant, entered into said premises, and occupied and improved the same. No. 567. xvi. Denial of Partnership. [TITLE. 1 The defendant answers the complaint: That the said [naming them], were not partners as alleged; or that the said A. B. was not a partner with the said [naming them~\ as assigned. No. 568. xvii. Denial of Representations, [TITLE.] The defendant answers to the complaint: That he did not make any of the representations alleged. 692 FORMS OF DENIALS. No. 569. xviii. Denial of Sale. [TrrLE.1 The defendant answers to the complaint: That he did not sell the ........ to the plaintiff. No. 570. xix. Denial of a Trust. [TITLE.] The said defendant answers to the complaint of plaintiff: And denies ttfat he received the said , in said complaint mentioned, for the purposes and on the trusts aforesaid, or any of them, or in trust at all, in manner alleged in said complaint, or in any manner. No. 571. xx. Another Form. [TITLE.] The defendant answers to the complaint of plaintiff: I. That the said plaintiff did not deliver, and the said defendant did not receive the said [describe what\ in the said complaint mentioned, upon the trust and con- fidence therein alleged. II. The said defendant avers that he received the same as and foa his own property, absolutely, and with- out any trust thereto attached. FORMS OF DENIALS. 693 JVo. 572. i. Denial on Information and Belief. [TITLE.] The defendant answers to the complaint: That according to his information and belief, he denies generally and specifically each and every allega- tion in the plaintiff's complaint contained. 25. Belief. Belief, as used in the statute, is to be taken in its ordinary sense, and means the actual conclusion of the defendant drawn from information. (Humphreys #. McCall, 9 Cal. 59.) Belief maybe founded on the statement of others, not competent witnesses, and not under oath. (Humpereys z>. McCall, 9 Cal. 59.) Yet, if he has formed a belief from this source, he must state it. He cannot be the judge as to whether his information is legal testimony. Id. 26. Damage. A denial upon information and belief that the plaintiff suffered or sustained damages in the amount of 2 5,000, and an averment, upon information and belief, that the plaintiff has not sustained any damage or damages whatsoever to exceed the sum of $2,500, which sum, and none other, is admitted by defendant as the damages suffered, with an offer to pay the same, the pleadings not being verified, was not considered a model answer for imitation. (Chamon z>. San Francisco, Cal. Sup. Ct., Jul. T., 1869.) It being the employment of negative averments instead of denials. But in (Hill v. Smith, 27 Cal. 476), an answer of this character was upheld," upon the principle that the mere form of a denial is not material, pro- vided it directly traverse the allegation which it is intended to meet. A denial of the full amount claimed, and admission of a certain amount to be due, and a tender of that amount, all properly go to constitute one defense. Spencer v. Tooker, 12 Abb. Pr. 354. 27. Form Sufficient. A denial "on information and belief" is sufficient, without following the precise words of the Statute, " on his information and belief." (i Van Santv. 430; Thompson v. Lynch, 29 694 FORMS OF DENIALS. Col. 189; Roussin v. Stewart, 33 Cal. 208; doubted in Hackett v. Rich- ards, 3 E. D. Smith, 13.) But if the facts are inconsistent with the answer, it is insufficient. (Blake v. Eldred, 18 How Pr. 240; Edwards v. Lent, 8 How. Pr. 28; but see Davis v. Potter, 4 How. Pr. 155; The- rasson v. Me Sheldon, 2 Hilt. \ . 28. Judgment. If the complaint aver the recovery of a judg- ment against one of several defendants, the court in which it was re- covered, and the date and amount of the same, the defendants, in their answer, may deny the same upon information and belief. Vassault v. Austin, 32 Cal. 597. 29. On Information and Belief. An answer that denies a material averment of a complaint " on information and belief," is a sufficient denial to raise an issue thereon, under the forty-sixth and fifty-fifth Sections of the Practice Act. Vassault v. Austin, 32 Cal. 597; Roussin v. Stewart, 33 Cal. 208; Nelson v. Murray, 23 Cal. 338; affirmed in Jones v. City of Petaluma, 36 Cal. 230. 30. Recollection and Belief. Where the plaintiff, in his bill, directly charged upon the defendant that he had made and entered into a certain agreement, a simple denial by the defendant in his answer, " according to his recollection and belief," is insufficient, and must be treated as a mere evasion. Harr. Ch. Pr. 181, 182; Coop. Eq. Plead. 341; Taylor v. Luther, 8 Sumn. 228. 31. Upon Information and Belief. Where the denials are " upon his information and belief," instead of the statutory language "according to his information and belief," it may well be doubted whether the former mode of denial does not allow a little wider field for evasion, but it has been widely adopted by pleaders, and it is now settled that it is sufficient. Vassault v. Austin, 32 Cal. 606; Roussin *v. Stewart, 33 Id. 211; Jones v. City of Petaluma, 36 Cal. 230; Kierstein v. Madden, Cal. Sup. Ct.,Jul. T., 1869. FORMS OF DENIALS. 695 No. 573. ii. Denial of Knowledge Sufficient to Form a Belief. [TITLE.] The defendant answers to the complaint: That he has no knowledge or information sufficient to form a belief whether any one allegation is true. \_Or, where there are several defendants, and if only part of them join, name them the defendants answer to the complaint, each for himself, that he has no knowledge, etc.] NOTE. This form is applicable to Oregon, and to other states, but not to California. Code of Oregon, 71; N.Y. Code, 149. 33. Allegation of Ignorance. A mere allegation of ignorance of the facts alleged will be insufficient to raise an issue, and the facts so attempted to be controverted will be held admitted. (Wood v. Staniels, 3 Code R. 152; Elton v. Markham, 20 Barb. 343; Sayne v. Gushing, 7 Abb. Pr. 371; Chapman v. Palmer, 12 How. Pr. 37.) In what cases a party may deny the allegation of a pleading from want of sufficient knowledge or information to form a belief, see Lewis v. Acker, ii How.Pr. R. 163. 34. California Rule. In no case under the California Practice can the allegations of a verified complaint be controverted by a denial of sufficient knowledge or information upon the subject to form a belief. (Andersons. Parker, 6 Cal. 197; Curtis v. Richards, 9 Cal. 33; Hum- phreys v. McCall, Id. 59; Gas Company v. San Francisco, Id. 453; Ord v. Steamer "Uncle Sam," 13 Id. 369.) Even where defendant is a cor- poration. (S. F. Gas Co. v. City, 9 Cal. 453.) Nor is it a denial to aver in the answer, where complaint and answer are both verified, that the defendants deny for want of information to enable them to admit the sale and transfer of said Georgia ditch to them, the said plaintiffs as alleged. (Humphries v. McCall, 9 Cal. 59.) In such case he must answer positively, or state how it is that he is without knowledge of such facts. (Vassault v. Austin, 32 Cal. 597; Brown v. Scott, 25 Cal. 189; 696 FORMS OF DENIALS. Richardson v. Wilton, 4 Sand/. 708; Ketchum v. Zerega, i E. D. Smith, 553; Shearman v. N.Y. Cent. Mills, i Abb. /V.fey; Fales v. Hick, 12 How. Pr. 153.) The duty of acquiring the requisite knowl- edge or information is imposed by statute on the defendant, to enable him to answer in the proper form. Gas Co. v. San Francisco, 9 Cal. 453; Brown v. Scott, 25 Cal. 189; Fish v. Redington, 31 Id. 185; Fales v. Hicks, 12 How. Pr. 184; Richardson v. Wilton, 4 Sand/. 708: Hance v. Reming, i Code R. (N.S.) 204; Mott v. Burnett, 2 E. D. Smith, 50; Shearman v. N.Y. Cent. Mills, i Add. Pr. 187; to the same effect, Curtis v. Richards, 9 Cal. 37. 35. Forms Insufficient. A denial of knowledge merely is not sufficient. If not positive, the denial must be of knowledge or inform- ation sufficient. (Edwards .v. Lent, 8 How. Pr. 28; Ketcham v. Zer- ega, i E. D. Smith. 553; People v. McCumber, 15 How. Pr. 189.) That defendant "does not know of his information or otherwise" (Sayre v. Gushing, 7 Abb. Pr. 371), or that defendant "is not in- formed and cannot state" (Elton v. Markham, 20 Barb. 348), or " that defendant has no knowledge," or " that defendant is ignorant whether," or " that defendant has not sufficient knowledge or information whereon to founds belief," or "that defendant does not know or believe," are not sufficient denials. (Mott v. Burnett, i Code R. (N.S.) 225; approved, 2 E. D. Smith, 50; Robinson v. Woodgate, 3 Edw. 422.) Nor that he has no " recollection concerning it." (Nichols v. Jones, 6 How. Pr. 355.) Nor "that he is ignorant of whether, etc." (Wood v. Staniels, 3 Code Rep. 152.) But if he admitted his belief, he need not deny information. (Davis v. Mapes, 2 Paige, 105.) So, where he has the means of informing himself, such a denial would be insufficient. (Hance v. Rumming, 2 E. D. Smith, 48.) But in other cases such a denial is sufficient in New York. Dovan v. Dinsmore, 33 Barb. 36; 20 How. Pr. 503; Ketcham v. Zerega, i E. D. Smith, 587; Brown v. Ryckman, 12 How. Pr. 313; Van Renselaer v. Laman, 10 How. Pr. 505. 36. New York Rule. A denial as to a material allegation, or as to all the allegations of a complaint, of any knowledge or information sufficient to form a belief, forms a complete issue. N.Y. Code, 149; Hutchings v. Moore, 4 Met. (Ky.) no; Chadwick v. Booth, 22 How. Pr. 23; 13 Abb. Pr. 247; Brown v . Rockman, 12 How. Pr. 313; Cas- well v. Bushnell, 14 Barb. 393; Genessee Mut. Ins. Co. v. Moynihen, 5 How. Pr. 321; Sherman v. Bushnell, 7 How. Pr. 171; Duncan v. FORMS OF DENIALS. 6o7 '* Lawrence, 3 Bosw. 103; Livingston v. Hammer, 7 Bosw. 670; Metro- politan Bank *z>. Lord, 4 Duer, 630; Townsend v. Platt, 3 Abb. Pr. 325; Edwards v. Lent, 8 How. Pr. 28; Ketcham z. Zerega, i E. D. Smith, 554; Chapman v. Palmer, 12 How. Pr. 38; Flood z>. Reynolds, 13 How. Pr. 112; King v. Ray, u Paz^, 236; Leach v. Boynton, 3 Add. Pr. 3; Wesson v. Judd, T Abb. Pr. 254; Temple v. Murray, 6 How. Pr. 329; Snyder v. White, 6 How. Pr. 321; De Sants v. Searle, n How. Pr. 477. 37. Notice. Where an answer denied ' ' any knowledge or inform- ation sufficient to form a belief, whether or not a notice was served on " the defendant " as required by law," it was held that the averment made issue only as to the lawfulness of the notice, and not as to the fact of notice. Solding v. Bartlett, 35 Mo. 90. 38. Presumption of Knowledge. When suit is upon a prom- issory note, it is presumed the defendant knows whether or not he made the note. (Gas Company v. San Francisco, 9 Cal. 465.) In an action to recover from the defendants a deposit made in their hands in California, it was alleged in the complaint that they were co-part- ners, and, as such, doing business in California, and elsewhere, as bank- ers and common carriers. The answer alleged that the defendants had never been in California, had never personally transacted business there, and had no personal knowledge and no information sufficient to form belief, and therefore denied that the plaintiff made such deposit. Held, that such allegation was not irrelevant. From the allegation in the complaint, without explanations, the presumption would be that the money was deposited with the defendants in person, and that they had personal knowledge thereof, and consequently they could not be per- mitted to deny that allegation on information and belief, without first rebutting the presumption; and the statement was relevant and proper for that purpose. Dovan v. Dinsmore, 20 How. Pr. 503. 39. Surplusage. It is not necessary to add, " and therefore de- nies;" (Flood v. Reynolds, 13 How. Pr. 112; Sacket v. Havens, 7 Abb.Pr. 371; Morris v. Parker, 3 Johns. Ch. 297;) unless it be acts of the defendant which are charged in the complaint. Sloan v. Little, 3 Paige, 103. 40. When Insufficient. A denial of any knowledge or inform- ation that the instrument was executed by defendant, was held a friv- olous denial. (Wesson v. Judd, 2 Abb.Pr. 254; see, however, Kel- 698 FORMS OF .DENIALS. logg v. Baker, 15 Id, 287.) Or that judgment was obtained against de- fendant. (Ketcham v. Zerega, i E. D. Smith, 555.) Or of a note made by partner. (Mott v. Burnett, i Code Rep. (N.S.) 225; 2 E. D. Smith, 50.) Or that the note was transferred by defendant. (Fales v. Hicks, 1 2 How. Pr. 1 53.) Or whether plaintiff is owner and holder of a note, indorsed and delivered by defendant. (Kamlah v. Salter, 6 Abb. Pr. 226; see, contra, Temple v. Murray, 6 How. Pr. 329; Snyder v. White, Id. 321; Genessee Mut. Ins. Co. v. Moynihen, 5 Id. 321.) That an answer which denies that the defendant has any knowledge of the facts charged, without adding that he had no information or belief of them, is defective, see (Bradford v. Geiss, 4 Wash. C. Ct. 513.) The alle- gation of the death of plaintiff's ancestor in a verified complaint is not sufficiently controverted by the averment in the answer " that de- fendant has not sufficient knowledge to form a belief," and therefore neither admits nor denies. Anderson v. Parker, 6 Cal. 197. 41. Written Instrument. If the defendant admits that he executed an instrument upon which he is sued, he cannot deny inform- ation sufficient to form a belief as to the facts recited in the instrument, or that the instrument is correctly stated in the complaint. But he is entitled to an inspection of the original, to enable him to answer. (Wes- son v. Judd, i Abb. Pr. 254.) But a party is not presumed to recol- lect the date or contents of a written instrument not in his possession. Kellog v. Baker, 15 Abb. Pr. 286. No. 574. iii. Another Form. [TITLE.] Alleges that he has no knowledge or information other than is afforded by said [pleading], that [reciting allegation] and cannot therefore admit, but on the con- trary he denies, etc. 43. Documents, Facts in. Has no knowledge or information of certain facts except from certain documents, is insufficient, if they are not set forth and not answered according to belief. Cuyler v. Bo- gert, 3 Paige, 186. FORMS OF DENIALS. 699 44. Form of Denial. This mode of denial is sanctioned by the Code of Ohio; and this form is sustained by (State of Ohio ex rel. Treadwell v. Commissioners of Hancock, n Ohio St. 183.) But it would be useless as- a denial under our practice, and on motion would be stricken out. 45. Several Denial. Where the answer is verified, one de- fendant cannot deny knowledge, etc., on the part of the other. The denial, therefore, should in general be made severally. See Kinkaid v. Kipp, i Duer, 692. 46. Written Instrument. In cases in which a copy of an in- strument in writing is annexed to the petition as part thereof, the cor- rectness of the copy cannot be regarded as the material allegation in the petition; but the petition is to be regarded as alleging the substan- tial effect of the instrument, which is shown by the copy. An answer must meet the allegations as if such was the form of the petition. (Bentley v. Dorcas, n Ohio St. 398-) This is the rule under the Ohio practice. No. 575. iv. Denial of Knowledge, Explaining Cause of Ignorance. [TITLE.] The defendant answers to the plaintiff's complaint: I. That he denies that he has ever been within the State of , that he ever personally transacted any business therein. II. Denies that he did at the time stated, or at any other time, do or say [state whatl\ 47, Corporation Acts of Agents. Acts done by the agent of the defendant are also within this rule; and it applies to the case of a corporation e fendant, for a corporation can as well know the acts of their agent as any thing else. Shearman v. New York Central Mills^ i Abb. Pr. 187; affirming S.C. sub nom. Thorn v. New York Central Mills, 10 How. Pr. 19. CHAPTER, III. FORMS OF SPECIAL PLEAS. JVo. 576. Accord and Satisfaction, [TITLE.] The defendant answers to the complaint: I. That on the .... day of , 1 8 . . , at , he delivered to the plaintiff the promissory note of B. C. for dollars. II. That the plaintiff accepted the same in full satis- faction of the claim \pr demand] set up in tne com- plaint. 1. Essential Averments. A plea of accord and satisfaction must aver the payment and receipt in satisfaction, Maze v . Miller, i Wash. C. Ct. 338;* United States v. Clarke, Hempst. 315. 52. Form of Defense. For a form in the defense of accord and satisfaction, see 2 Greenl. on Ev. 28; note and authorities there cited. 3. Insufficient Averment. A mere readiness to perform the accord, or a tender of performance, or even part performance and readiness to perform the rest, is not enough. (Hearn v . Kiehl, 38 Penn. 147.) A plea which alleges that the defendant executed to the plaintiff a deed of certain property, which was to be absolute in case the note sued on was not paid by a certain day, without alleging that the deed was accepted as a satisfaction, is bad. Shaw v. Burton, 5 Mo. 478. FORMS OF SPECIAL PLEAS. 7OI 4. Must be Specially Pleaded. Accord and satisfaction must be specially pleaded. (Piercy v. Sabin, 10 Cal. 30; Coles v. Soulsby, 21 Id. 47; Good v. Davis, Hempst. 16; Shaw v. Burton, 5 Mo. 478.) And evidence of the discharge of the debt sued on, pend- ing the action, is admissible only under this plea. (Jessup v. King, 4 Cal. 331.) The plaintiff on an execution may receive promissory notes by a special agreement, as an absolute payment of the same, but the agreement must be proved by testimony other than the sheriffs certificate. (Mitchell v. Hackett, 25 Cal. 542.) An accord and satisfaction after issue joined must be pleaded specially as happening since the last continuance. Good v. Davis, Hempst. 16. 5. When Allowed. This plea is allowed to be put in after the defendant has already pleaded, where some new matter of defense arises after issue joined, such as payment, a release by the plaintiff, the discharge of the defendant under an insolvent or bankrupt law, and the like. 2 Burr. L. Diet. 353; 3 Blk. Com. 316; 2 Tidd's Pr. 847; I Burr. Pr. 232; Steph. PI. 64. No. 577. Alteration of Contract. [TITLE.] The defendant answers to the complaint: I. That on the day of , 18 . . , at , the plaintiff agreed with C. D. in the com- plaint mentioned, in consideration of dollars, to extend the time of payment of the rent guarantied by the defendant .... days. II. That the defendant had no knowledge of-[or did not assent to] the said [extension]. 7O2 FORMS OF SPECIAL PLEAS. No. 578. Another Action Pending. [TITLE.] The defendant answers to the complaint: That there was, at the commencement of this action, and still is another action pending in the Court of the [describe the court], between the same parties, and for the same caus of action as in the com- plaint herein. 6. Discontinuance, Effects of It would seem that under the decision of the New York courts a discontinuance of the other action, even after the answer, avoids this defense. Beals v. Cameron, 3 How. Pr. 414; Averill v. Patterson, 10 Id. 85. 7. Foreign Suit Pending. That a prior suit in personam, between the same parties, and for the same cause of action, was pending in another State at the time of bringing the action, is not a defense. (Seevers v. Clement, 28 Md. 426.) But the pendency of a suit between the same parties and respecting the same subject matter, in another State, may be pleaded in abatement in the courts of the United States. (Ex parte Balch, 3 McLean, 221.) Where an appearance in a foreign attachment suit in another State is after the service of the writ in an action between the same parties in this State, the pendency of the foreign suit cannot be pleaded in bar or abatement of the action here. Wilson v. The Mechanics' Bank, 45 Penn. 488. 8. Form of Plea. For form of a plea of a foreign attachment, see Wheeler v. Raymond, 8 Cow. 311; Russell v. Ruckman, 3 E. D. Smith, 419; Embree v. Hanna, 5 Johns. 101; Donovan v. Hunt, 7 Abb. Pr. 29; Hecker v. Mitchell, 5 Id. 453. 9. Identity of Cause. To sustain this defense, it must appear that the two actions are for the same identical cause; but where the plaintiff seeks to split an entire demand, and brings a suit for a part, .and then another suit for the residue, the pendency of the former may FORMS OF SPECIAL PLEAS. 703 be pleaded in abatement or bar of the second action. (Bendernagle v. Cocks, 19 Wend. 207.) Our practice discountenances litigation by piecemeal. 10. Identity of Parties. The defense of a prior lit pendens is available only where the plaintiff, at least, in both actions is the same. (O'Conner v. Blake, 29 Cal. 312.) It is enough to state merely that the action was between the same parties. Describing the parties is unnecessary. Ward v. Dewey, 12 How. Pr. 193. 11. Multifariousness, "what Constitutes. There is no definite rule as to what constitutes multifariousness in a pleading in chancery. Each case must depend upon its own circumstances, and much must be left to the sound discretion of the Court. Story Eq. Plead. 530; Gaines v. Chew, 2 How. Pr. 619, 642; Oliver v. Piatt, 3 Id. 333, 411; affirming S.C., 3 McLean, 27; McLean v. Lafay- ette Banks, 3 McLean, 415. 12. Verification Essential. In a plea in abatement that a prior suit is pending, the absence of an affidavit, verifying allegations in the plea that the parties and cause of action are the same, is fatal. 4 Hals. 83; White v. Whitman, i Curt. C. Ct. 494. 13. What must be Alleged. In New York, it is not enough to allege service of process for the same cause, without showing a declaration or complaint for the same cause. Gardner v. Clark, 21 14. What must be Shown. A plea to abate an action, by reason of another action pending, is not good unless it shows that the pending action was brought for the same cause as the one in which the plea is interposed. (Calaveras Co. v. Brockway, 30 Cal. 325.) To support a plea in abatement, founded on the pendency of a prior action, it is necessary to show that process was issued in such action. (Primm v. Gray, 10 Cal. 521.) A plea which sets up, in bar of an action upon a contract, that property was attached in a previous suit to answer for the same demand, and was lost, should show how the loss occurred. (Starr v. Moore, 3 McLean, 354.) A plea in abatement, setting up pendency of a prior suit, must show that the other court has jurisdiction of the action there pending. (10 Pick. 470; White v. Whitman, i Curt. C. Ct. 494; Ex parte Balch, 3 McLean, 221.) It has been held in New York that the answer should show where the 704 FORMS OF SPECIAL PLEAS. action is pending. But pendency of another action in a court of another state, or in a court of the United States, is not generally a good defense. Cook v. Litchfield, 5 Sand/. 330; Burrows v. Miller, 5 How. Pr. 51; Strong v. Stevens, 4 JDuer, 668; and see Republic of Mexico v. Arrangois, i Abb, Pr. 437; People v. The Sheriff, i Park. Cr. 659; Hecker v. Mitchell, 5 Abb. Pr. 453; Bowne v. Joy, 9 Johns. 22i', Walsh v. Durkin, 12 Id. 99. 15. When Defense Lies. A plea in abatement may be inter- posed to the entire action, on the ground that another suit was pending for the same cause of action, if the copy of the record be annexed. Still, the proofs must show that the first cause of action is for the same matter sued for in the second suit. (Thompson v. Lyons, 14 Cal. 42.) See, also, on abatements, Calaveras Co. v. Brockway, 30 Cal. 325. The People v. De La Guerra, 24 Cal. 73; Hentsch v. Oorter, loCal. 555; Whitney v. Stark, 8 Cal.. 51 4; Ex parte Balch, 3 McLean, 221; Whiter. Whitman, i Curt. C. Ct. 494.) It would also appear that proceedings other than an action e.g., by petition may be pleaded as a defence, in the same way. See Groshon v. Lyon, 16 Barb. 461; and see Ogden v. Bodle, 2 Duer, 611. 16. When Defense -will not Lie. Where defendant pleads another suit pending, and it appears no summons was ever issued on the complaint, and there was no voluntary appearance on the part of the defendant: Held, that there was no suit pending. (Weaver v. Con- ger, 10 Cal. 233; Primm v. Gray, Id. 522.) So, where the complaint is so defective that a judgment entered thereon would be a nullity. (Reynolds v. Harris, 9 Cal. 338.) So, where the other suit pending was for only a part of the same matter sued for in the second suit. Thompson v. Lyon, 14 Cal. 39. No. 579. Arbitration and Award. [TITLE,] The defendant answers to the complaint: I. That on the day of , 1 8 . . , the plaintiff and defendant mutually submitted the demand FORMS OF SPECIAL PLEAS. 705 set forth in the complaint to the arbitration of A. B. and C.D. II. That on the .....' day of , 18 . , at , the said A. B. and C. D. made and published their award [by which they declared the plaintiff not entitled to any part of his said demand]. NOTE. This applies more especially to the practice in New York. 17. Award Set Forth. Although it may not be necessary to set forth its terms, its substance must be set forth so fully as to enable the Court to say that if such an award was made the action is barred. Gihon v. Levy, 2 Duer, 176. 18. New Matter. An award or former recovery for the same cause is new matter, which must be specially stated in the answer, and is not otherwise available, even though it appears by plaintiff's evidence. (Brazil v. Isham, 12 N.Y. g; \ E.D. Smith, 437.) The decision in (20 Barb. 460) turning on the same point was reversed on the ground that as plaintiff did not appear to have been misled or surprised, and not having objected that the evidence of a defense not pleaded was not admissible, he could not have the judgment reversed because it had been admitted. N.Y. Cent Ins. Co. v. National Protection Ins. Co., 14 N.Y. 85. 19. Performance, -when Alleged. An award which merely settles the amount due cannot be pleaded in bar to the action without alleging performance; for the money until paid is due in respect of the original debt. Brazil v. Isham, i E. D. Smith, 457. No. 580. Bankruptcy. [TITLE.] The defendant answers to the complaint: That on the day of , 1 8 . . , at , the Honorable the United States District Court, of the District of , made and 45 7O5 FORMS OF SPECIAL PLEAS. granted to the defendant a decree of discharge from his debts, as a bankrupt, of which decree of discharge a a copy is annexed [annex copy of decree], and made a part hereof. 20. Bankruptcy. The plea of bankruptcy is not favored, and may be defeated by proof of fraud. (Fellows v. Hall, 2 McLean, 281.) The bankruptcy of the plaintiff must be specially pleaded. (Cook v. Lansing, 3 McLean, 571.) So, bankruptcy of the defendant must be specially pleaded. (Fellows v . Hall, 3 McLean, 281 ; Cutter v. Folsom, 17 N.H. 139.) It is not properly a plea in abatement, but it is rather a plea in bar; and until such plea is interposed, the plaintiff is not bound to take notice of the bankruptcy of the defendant. Fellows v. Hall, 3 McLean, 281. 21. Bankruptcy of Plaintiff To a suit brought in the name of a bankrupt subsequent to the appointment of his assignee, the de- fendant may plead the bankruptcy of the plaintiff, and the appointment of the assignee, in abatement. Cook v. Lansing, 3 McLean, 571. 22. Debt. It is not essential to admit the existence of the debt. (McCormic v. Pickering, 4 N.Y. 276.) But /it should be averred to have been provable under the Act. (Sackett v. Andross, 5 Hill, 327.) A special averment that the demand in suit was included in the list of creditors contained in the petition is unnecessary. McCormic v. Pick- ering, 4 N.Y, 276. 23. Discharge. It has been held in New York, a plea of dis- charge under the voluntary provisions of the Bankrupt Act must aver positively that the defendant, at the time of presenting the petition, owed debts. Averring that the petition so alleged is not sufficient. (Varnum v. Wheeler, i Den. 331; Dresser v. Brooks, 3 Barb. 429.) In plead- ing an insolvent's discharge, it is not necessary to state the facts confer- ring jurisdiction on the officer who granted it. Livingston v. Oak- smith, 13 Abb. Pr. 183. 24. Excepted Class of Debts. A plea that defendant did owe debts which are not within the excepted classes, and that he pre- sented a petition, etc., imports that he was bankrupt within the Act. McNulty v. Frame, i Sandf. 128. FORMS OF SPECIAL PLEAS. 7O/ 25. Exceptions under the Act. It should be averred that the plaintiff's debt did not arise by reason of a defalcation as a public officer, etc., which debts are excepted by the Act. (Sackett v. Andross, 5 Hill, 327; Maples v. Burnside, i Den. 332; Dresser v. Brooks, 3 t Barb. 429.) These decisions, as will be seen, were not made under the present Bankruptcy Act. 26. How Pleaded. A discharge duly granted under the Bank- rupt Act of 1867 may be pleaded by a simple averment that on the day of its date such discharge was granted to him, setting the same forth in hcec verba, as a full and complete bar to all suits brought, the certifi- cate to be conclusive evidence of the .facts of the discharge. (Act of Congress, March 2d., 1867; 14 Stat. at Large, 533.) This is the rule to be followed in this class of answers. For form of pleading a dis- charge under the Act of 1 84 1 , see (Exparte Balch, 3 McLean, 221; White i). How, Id. 291; see "Chitty's Form of Practice," no; McNulty v. Frame, i Sandf. 128; McCormick v. Pickering, 4 N.Y. 276; see, also, Sackett v. Andross, 5 Hill, 327; Stephens v. Ely, 6 Id. 607; Seaman v. Stoughton, 3 Barb. Ch. 344; Johnson v. Fitzhugh, Id. 360; McCabe' v. Cooney, 3 Sandf. Ch. 314; Dresser v. Brooks, 3 Barb. 429; Moore v. Cloyes, n Id. 100; Varnum z>. Wheeler, i Den. 331; Maples v. Burnside, Id. 33*2; Ruckman v. Cowell, i N.Y. 505.) For a brief form, see Stephens v. Ely, 6 Hill, 607. 27. Form. For a form showing defendant is a bankrupt, see Gil- Ion v. Bruen, 5 N.Y. Leg. Obs. 227. 28. Presentation of Papers. A general allegation that such affidavits, schedules, and other necessary and proper papers as are required by the Bankrupt Act were presented, is not enough, but the plea should state what papers were presented. (Sackett v. Andross, 5 Hill, 327.) It should be averred that the petition of the bankrupt was presented to the Court, and the discharge granted by the Court, and not by the Judge. Gillon v. Bruen, 5 N.Y. Leg. Obs. 227; Sackett v. And- ross, 5 Hill, 327. 29. Voluntary Assignment. A voluntary assignment by debtors for the benefit of their creditors, which would have been good at com- mon law, and was permitted by the State Insolvency Law, was held valid, although the United States Bankrupt Law was in force and applicable at the time of the assignment. (Hawkins' Appeal, 34 Conn. 548; Sedg- wick v. Place, Id. 552.) Debt resulting from the neglect of an attor- 708 FORMS OF SPECIAL PLEAS. ney at law to pay over to his client money which he had collected for him is not a debt contracted while acting in a fiduciary capacity, and was not as such excepted from being discharged by a certificate under the United States Bankrupt Act of 1841. Wolcott v. Hodge, 15 Gray, 547. No. 581. The Same By Composition Deed. [TITLE.] The defendant answers to the complaint: I. That he admits that on the .... day of , 1 8 . . , he was indebted to the plaintiffs, as alleged in the complaint. II. That afterwards, on the .... day of , 1 8*. . , at , the plaintiffs, by their deed under seal, agreed with the defendant that they would accept ........ dollars, then and there paid them by the defendant, and by the plaintiffs then and there accepted and received in full satisfaction of said indebtedness, a copy of which deed is hereto annexed as a part hereof. [Insert copy.~\ 30. Assignment. For the allegations of an answer setting up an assignment for benefit of creditors made as a composition, see (Wat- kinson v. Ingslesby, 5 Johns. 386.) Such a plea is bad on demurrer if it does not aver payment or a tender of the composition, although it stated that defendant was "always ready and willing to pay the same. Fessard v. Mugnier, 18 C.B. (S.C.) 286. 31. Renewal Notes. For the allegations of an answer alleging composition by giving renewal notes which the plaintiff subsequently refused to receive, see (Warbury v. Wilcox, 7 Abb. Pr. 336.) A note given in consideration of an antecedent indebtedness does not per se discharge the debt. In the absence of an agreement to the contrary, the only effect is to suspend the remedy until the maturity of the note. Smith v. Owens, 21 Cal. u. FORMS OF SPECIAL PLEAS. 709 32. Securities. If the creditors of a failing debtor agree among themselves, with the assent of the debtor, to a composition of their respective debts, and to receive in lieu thereof securities of a certain character, and one of the creditors subsequently obtains from the debtor new notes of a character more favorable to the creditor than those provided for^in the composition "agreement, such new notes are void for fraud, not only as to the other creditors, but as to the assenting debtor. Smith v. Owens, 2 1 Cal. 1 1 . Compromise. [TITLE.] The defendantfanswerSjto the complaint: I. \State demand set up by plaintiff ^\ II. That afterwards on the .... day of , 1 8 . . , at , the defendant agreed to pay and the plaintiff agreed to accept dollars, in full satisfaction of said claim, as a compromise thereof. III. That on the .... day of , 18 . . , at , the defendant paid and the plaintiff so accepted said sum. 33. Agreement. By agreement between creditor and debtor, a less sum than the whole amount may be paid and received in full pay- ment and discharge of any indebtedness, if such agreement be fuHy manifested by a receipt or instrument in writing signed by such cred- itor. Stat. of Cal 1867-8, p. 31. 7IO . FORMS OF SPECIAL PLEAS. No. 583. Credit Unexpired. [TITLE.] The defendant answers to the complaint: I. That the goods mentioned therein were sold to him upon a credit of months from the .... day of , 1 8 ... II. That such period had not elapsed before the com- mencement of this action. 34. How Pleaded. An allegation in an answer that certain goods were sold on a credit which had not expired is a conclusion of law. (Levinson v. Shwartz, 22 Cal. 229.) The facts from which the conclusion is drawn should be stated. Such a plea is held to be not new matter requiring a reply, but a special denial that the defendant is indebted, as alleged in the complaint. Gilbert v. Cram, 12 How. Pr. 455- 35. Must be Specially Pleaded. It would seem that in Pennsylvania, the fact that a suit was brought in violation of an agree- ment to give time is not a reason for dismissing the action. It should have been regularly pleaded and tried. (Murdock v. Steiner, 45 Penn. 349.) A covenant not to sue for five years is no bar to an action within that time. Howland v. Marvin, 5 Cal. 501. 36. Objection, how Taken. The objection that the suit was commenced before the cause of action accrued should be taken by answer. Smith v. Holmes, 19 N. Y. 271, FORMS OF SPECIAL PLEAS. Jll No. 584. Death of Defendant Before Suit. [TITLE.] The defendant answers to the complaint: That A. B., one of the defendants in this action, died at , before this action, and on or about the .... day of 37. Action -will not Abate. An action shall not abate by the death or other disability of a party, or by the transfer of any interest therein, if the cause of action survives. But the Court on motion may allow the action to be continued by or against his representative or suc- cessor in interest. In case of any other transfer of interest, the action may be continued in the name of the original party, or the person to whom the transfer is made may be substituted. (Cal. Pr. Act, 16; N.Y. Code, 121 ; Laws of Oregon, 38; Idaho, 16; Nevada, 16; Wash. T., 38; 2 Whitt. Pr. 204.) ' Sections i6anli 17 of our Prac- tice Act give a party the right to intervene in case of a transfer of any interest during the pendency of suit, either before or after issue joined. Brooks v. Hager, 5 Cal. 281. 38. Cause of Action. Whether the cause of action survives on the death of a party depends upon local law. (Hatfield v. Bashnell, 1 Blatchf. 393.) But causes of action ex delicto die with the defendant. (Jones v. Vanzant, 4 McLean, 604; Henshaw v. Miller, 17 How. Pr. 212.) So, actions in trespass do not survive. (Dyckman v. Allen, 2 How. Pr. 17.) This section applies only where the cause of action survives against the surviving defendant. (Williams v . Kent, 1 5 Wend. 360.) Although technically sounding in tort, an action for injury to property survives in the same manner as an action on contract. Hayt v. Hayt, 19 N.Y. 464. 39. Common Law Rule. The Statute has cfianged the prac- tice in this respect, for at common law all personal actions die with the party. (Wilber v. Gilmore, 21 Pick. 250.) So, at common law, in actions ex delicto, where the wrong doer acquired no real gain, although 712 FORMS OF SPECIAL PLEAS. the injured party may have much loss, the death of either party de- stroyed the right of action. Middleton v. Robinson, i Bay R. 58; Pitts v. Hale, 3 Mass. R.$2i; Millenz*. Baldwin, 4 Mass. 480; Holmes v. Moore, 5 Pick. R. 257. 40. Death of Sole Plaintiff. On the death of a sole plaintiff, the action may be continued in the name of the representative of the decedent. Ridgeway v. Bulkeley, 7 How. Pr. 269; Green v. Bates, Id. 296; Banta v. Marcellus, 2 Barb. 373; Bain v. Pine, i Hill, 616; Jarvis v. Felch, 14 Abb. Pr. 46; Reed v. Butler, n Abb. Pr. 128; Scranton v. Baxter, i Code R. (N.S.) 88. 41. Death of Sole Defendant. On the death of sole defend- ant before verdict or judgment, his representatives cannot be substi- tuted against the wishes of plaintiff. (Keene v. LaFarge, i Bosw. 671.) An action in such case for the recovery of possession of specific per- sonal or real property wholly abates. (Hopkins v. Adams, 5 Abb. Pr. 351; Mosely v. Mosely, n Abb. Pr. 105; Putnam v. Van Buren, 7 How. Pr. 31; Mosely v. Albany N. R.R. Co., 14 How. Pr. 71.) In an action to recover damages for death by a wrongful act, the action may be continued against personal representatives of deceased. Yer- tore v. Wiswell, 16 How. Pr. 8; Doedt v. Wiswell, 15 How. Pr. 128. 42. Death of One of Several Defendants. In case of the death of one of several defendants, the action may be continued as to the others. (Gardners. Walker, 22 How. Pr. 405; Gordon v. Sterling, 13 How. Pr. 405.) Where defendants are executors, trustees, joint ten- ants , or co-partners, the action continues against the survivors. Lachaise v. Libby, 13 Abb. Pr. 7; Buckman v. Brett, 13 Abb. Pr. 119. 43. Death of Husband. A wife may proceed or not, at her election, and is not liable for costs if she refuses. (2 Dick. 866; Mitf. PI. 59; Dewall v. Covenhoven, 5 Paige, 581.) A demand in right of the wife does not abate on death of the husband. (Id.; McDowl v. Charles, 6 Johns. Ch. 132.) If, after decree of divorce, directing division of common property, the husband dies, the heirs must be substituted as parties in his stead. (Ewald v. Corbett, 32 Cal. 493.) In New York, an action to recover a wife's separate estate does not abate in conse- quence of the dea'th of the husband. McDowl v. Charles, 6 Johns. Ch. 132; Dewell v. Covenhover, 5 Paige, 581. 44. Death of Wife. An action against husband and wife, for FORMS OF SPECIAL PLEAS. 713 the debt of the wife contracted while zfemme sole, abates on her death before judgment. (Williams v. Kent, 1 5 Wend. 360.) The death of a wife defeats a recovery by the husband in an action for the homestead. Gee v. Moore, 14 Cal. 472. 45. Death of Appellant. In action on a personal tort, on the death of appellant during appeal from a judgment against him, the ap- peal may be continued by his representatives in their name. (Miller v. Gunn, 7 How. Pr. 159; but see Hastings v. McKinley, 8 How. Pr. 175.) In writs of error in the Supreme Court, U.S., see (Green v. Wat- kins, 6 Wheat. S. Ct. 260; McKinney v. Carroll, 12 Pet. S. Ct. 66; McNutt, v. Bland, 2 How. S. Ct. 9.) As to limitation of time for sug- gestion of death, see (Phillips v. Preston, n ffozv. S. Ct. 294.) The death of appellant, after argument of the case upon appeal, does not con- stitute a ground for delaying decision or departing from the ordinary course of procedure. Judgment may be entered, but it should be on a day anterior to appellant's death. Black v. Shaw, 20 Cal. 68 ; Beach v. Gregory, 2 Abb. Pr. 203. 46. Death before Trial. Where plaintiff in an action died before trial, and the subsequent order for judgment contained a recital as follows: "This action having been continued, in consequence of death of plaintiff, by his executor, Samuel Webb, and jury having found verdict for plaintiff, and then awarded judgment in favor of plaintiff:" Held, that a recital sufficiently showed a suggestion of death of original plaintiff, and continuance and revival of the cause in the name of the executor. Sanchez v. Roach, 5 Cal. 248; Gregory v. Haynes, 21 Cal. 443; Warren v. Eddy, 13 Abb. Pr. 28. 47. Death before Argument. The rule is different if the death occurs previous to argument. In that event, proceedings can only be had upon leave given after suggestion of death is made. Black v. Shaw, 20 Cal. 68. 48. Death after Verdict. Where a party to an action dies after verdict or other decision thereon, judgment in pursuance of such verdict or decision may nevertheless be rendered, as provided in Section two hundred and two of the Practice Act, but in no other such case can judgment be rendered so as to affect the interests of the representatives or successors of the party deceased, without the proper substitution of such representatives or successors. Judson v. Love, 35 Cal. Rep. 463. 714 FORMS OF SPECIAL PLEAS. 49. Death before Judgment. Death of defendant before judgment destroys the lien of an attachment, and the property passes into possession of the administrator. (Myers v. Mott, 29 Cal. 359.) The death of a party before judgment, when presumed, though not proved, renders any subsequent proceedings irregular. (Gerry v. Post, 13 How. Pr. 1 1 8.) The death of a party after hearing, but before actual decision, works no abatement; judgment may be entered nunc pro tune. Ehle v. Mayer, 8 How. Pr. 244; Diefendorf v. House, 9 How. Pr. 243; Crawford z>. Wilson, 4 Barb. 504. 50. Death after Judgment. Death of party after decree works no abatement. Cowell v. Buckelew, 14 Cal. 641; Thwing v. Thwing, 18 How. Pr. 458; 9 Abb. Pr. 323; Lynde v. O'Donnell, 21 How. Pr. 34; 12 Abb. Pr. 286. 51. Death Pending Supplementary Proceedings. The proceedings abate on the death of sole judgment-debtor. Hasewell v. Penman, 2 Abb. Pr. 230. * 52. Equity. In equity the suit does not abate by death of a co- plaintiff or co-defendant; the suit maybe amended by adding the neces- sary parties. Fisher v. Rutherford, Baldw. 188. 53. Party Civilly Dead. When plaintiff or defendant is sen- tenced to states prison, the action abates. Graham v. Adams, 2 Johns. Cas. 408; O'Brien v. Hagan, i Duer, 664; Freeman v. Frank, 10 Abb. Pr. 370. 54. Suggestion of Death. It is regular and proper to suggest the death of a party to an action in any court, and at any stage of the proceedings, and the death of a party occuring before the appeal taken may be shown in this court by affidavit of the fact. Judson v. Love, 35 Cal. 463. 'No. 585. Duress. [TITLE.] The defendant answers to the complaint: I. That the [bond] mentioned therein was extorted from him by threats of personal violence, and was exe- FORMS OF SPECIAL PLEAS. 715 cuted by him under fear of the same [or from fear while in prison, etc. state force, etc.~\ II. That the said [bond] was executed by him with- out any consideration therefor. JVo. 586. Former Judgment. [TITLE.] The defendant answers to the complaint: That on the .... day of , 1 8 . . , at , in an action then pending in the Court, between A. B. plaintiff, and C. D. defendant, and for the same cause of action as that set forth in the complaint herein, judgment was duly rendered [describe the judgment]. 55. Dismissal of Suit. A dismissal of the complaint upon the merits bars a fresh action, especially where the complaint is in equity. (Bostwick v. Abbott, 40 Barb. 331; 16 Abb. Pr. 417.) Dismissal of suit to obtain probate of a will is no bar to introduction of evidence to show its fraudulent destruction, to establish title in partition. (Harris v. Harris, 26 N.Y. 433.) But judgment of dismissal of premature suit is no bar to a fresh action on the demand, when matured. (Wilcox v. Lee, 26 How. Pr. 418; i Abb. Pr. (N.S.) 250.) So, also, dismissal on ground of want of capacity to sue is no bar to subsequent action legally instituted. (Robbins v. Wells, 26 How. Pr. 15; 18 Abb. Pr. 191.) And when dismissal of complaint is relied upon in bar, it must be shown that it was a judicial determination of the same point. (Smith v. Ferris, I Daly, 1 8.) Ordinarily, where an action is dismissed without any judicial determination of the controversy, it is no bar to another suit. 56. Effect of Former Judgment. Where a court in a former action between the same parties had jurisdiction over the subject and the parties, and the questions of fact were the same as in the subsequent action, and were necessary to its decision, and either were or might have been litigated in the suit, and the final hearing was upon its merits, 716 FORMS OF SPECIAL PLEAS. the judgment is res adjudicate, as to all those things that were, or, under the pleadings, might have been controverted in that action whose ad- judication was necessary to the final disposition of the case. Keene v. Clark, 5 Rob. 38. 57. Effect of Plea. If parties go to trial on a plea of former recovery in an attachment execution, without a replication, this does not amount to a confession of the truth of the facts stated in the pi ea. Tarns v. Bullitt, 36 Penn. 308. 58. Essential Allegations. It is not necessary to allege that the former judgment is in full force. (Southern Life Ins. and Trust Co. v. Davis, 4 Edw. 588.) In Iowa and Indiana, such a plea must be accompanied with an exhibit of the record. (19 Ind. 392; u Iowa, 480.) A plea cannot contradict the record of a former suit. Errors in the original suit should have been corrected as they occured. Hall v. Singer, 3 McLean, 17. 59. Foreign Adjudication. If defendant relies upon proceed- ings under the statute of another State, he must set out the statute, that the Court may see whether the proceedings were warranted by the statute or not; and the general allegation that the proceedings were pursuant to the statute is not sufficient. Walker v. Maxwell, i Mass. 104; Holmes v. Broughton, 10 Wend. 75. 60. Foreign Judgment. A plea which sets up a foreign judg- ment must contain an allegation that the court had jurisdiction, or so much of the proceedings must be spread on the record as will show affirmatively that the court had jurisdiction. (Burnham v. Webster, Daives, 236.) Judgment of a foreign tribunal, having full cognizance of the same controversy, held conclusive upon the merits, and only impeachable for want of jurisdiction or fraud, Lazier v. Westcott, 26 N.F. 146; Phillips v. Godfrey, 7 Bosw. 150; Jarvis v. Sewall, 40 Barb. 449. 61. Forms of Plea. For a plea of an adjudication that the assignment under which plaintiffs claimed was fraudulent and void, see (Southern Life Ins. Trust Co. v. Davis, 4 Edw. 588.) Under what plea former adjudication may be presented as a defense, see (Welsh v. Lindo, Cranch C. Ct. 508.) For an insufficient plea of attachment in former action, see (New England Screw Co. v. Bliven, 3 B latch/. 240; compare Stone v. Stone, Cranch C. Ct. 119.) A FORMS OF SPECIAL PLEAS. plea which sets up in bar of an action upon a contract that property was attached in a previous suit to answer for the same demand, and was lost, should show how the loss occurred. Starr v. Moore, 3 Mc- Lean, 354. 62. How Pleaded. Where a judgment in a prior suit is set up in defence to an action, a complete record of all the pleadings and proceedings in the case in which it was rendered should be made part of the answer. (Willeainson v. Foreman, 23 Ind. 540; Ringle v. Weston, Id. 588.) The rule thatadecree must be enrolled before it can be pleaded in bar of a second bill for the same matter, is not applicable to a case where the bill is filed to impeach a decree on the ground of fraud. Pearse v. Dobinson, Law Rep. i Eq. 244. 63. Must be Specially Pleaded. A judgment in a former suit between the same parties, for the same cause, and in the same firm, is a bar to any other suit. (McKnight v. Taylor, i Mo. 282.) But such judgment must be specially pleaded. (Love v. Waltz, 7 Cal. 250; Uhlfelder v. Levy, 9 Id. 607; Piercy v. Sabin, 10 Id. 22; Vance v. Olinger, 27 Cal. 358; Marshall v. Shafter, 32 Cal. 176; Brazil v. Isham, 2 Kern. 17; Hendricks v. Decker, 35 Barb. 298; Hopkins v. Sheltonj i Ala. 303; Richards v. Hickman, 22 Ind. 244; see Welsh v. Lindo, i Cranch C. Ct. 508.) For evidence of a former recovery for the same cause of action cannot be given in any action whatever, under an answer containing only denials of the complaint, or an allegation of the pendency of another action. (N.Y. Code- 149; Hendricks v. Decker, 35 Barb. 298.) The rule of the old practice, permitting such evidence to be given under the general issue in actions of ejectment and trover (2 Hill, 478; 5 Id. 61; 6 Id. 125; 6 Wend. 284; 9 Id. 9), is abrogated by the Code. Hendricks v. Decker, 35 Barb. 298. 64. Parties. If the parties are not the same, allegations to show their privity with the present parties must be Inserted. Goddard v. Benson, 15 Abb. Pr. 191. 65. Offer of Testimony in Former Suit. The judgment or decree of a court of competent jurisdiction is not only final as to the matter actually determined, but as to every other matter which the parties might have litigated and had decided under the pleadings. (La Guen v. Gonverneur, I John. Cas. 436; approved in Bruen v. Hone, 2 Barb. 596; Southgate v. Montgomery, i Paige, 47; Simpson v. Hart, 71 8 FORMS OF SPECIAL PLEAS. \\John, 77.) The rule is, however, more properly and less broadly stated in (Miller v. Maniee, 6 Hill, 121), a case where the general declaration embraced several causes of action. It was held that the plaintiff in a second suit may show that he " offered " no evidence as to one of the causes, and that the cause went to the jury upon a differ- ent part of his claim from that for which his second suit is brought, in which case the judgment in the first will be no bar to the second. But where he attempts to give evidence, and submits the question to the jury without withdrawing any part of his claim, the defendant may insist upon the first judgment as a bar. Barnum v. Reynolds, Cal. Sup. Ci., Oct. T., 1869. 66. When a Bar. A former judgment rendered in an action tried upon its merits, between the same parties, and upon the same subject matter, is, if properly pleaded, an effectual bar to another action between the same parties on the same cause; but it is no defense to a cause of action accrued after the rendition of such judgment. (Jones v. City of Petaluma, 36 Cal. 230; Barnum v. Reynolds, Cal. Sup. Ct., Oct. T., 1869.) Where the same subject matter has been fairly put in issue and once tried upon its merits, it cannot be again litigated, and a former judgment is a bar -so long as it remains unreversed. (McKnight v. Taylor, i Mo. 282.) A judgment in a justice's court for damages caused by the alleged diversion of a stream of water is a bar to a sub- sequent action in the Supreme [District] Court involving the same issues. (Boyer v. Schofield, 2 Keyes, 628.) Adjudication in former suit conclusive as to defense then existent, but not so as to another subsequently arising, and which could not then have been interposed. Smiths. McCluskey, 45 Barb. 610. 67. When not a Bar. A judgment in a former action is not a bar to a subsequent action, although the pleadings present the same matter, if it appear either by the record, or, it seems, by extraneous evi- dence, that the matter ^question was not litigated, and actual evidence was not given as to it, and it was not submitted to the Court, but that the trial and verdict proceeded upon other grounds. (Burwell v. Knight, 51 Barb. 267.) A decree dismissing a bill for matters not involving merits is no bar to a subsequent suit. (Hughes v. United States, 4 Wallace U.S. 232; see, also, Tutton v. Addams, 45 Penn. 67.) A judgment against one of two several obligors is no bar to an action against the other.. (Armstrong v. Prewett, 5 Mo. 476.) In an action against an infant for damages, a judgment of discontinuance in a FORMS OF SPECIAL PLEAS. 719 former action for the same cause, brought in the court of a justice of the peace, the judgment being rendered on the ground that the defend- ant was an infant and no guardian had been appointed, is no bar. A justice has no jurisdiction to proceed against an infant defendant, after the return of process, until a guardian has been appointed. (Harvey v. Large, 51 Barb. 222.) When court rendering judgment has failed to acquire jurisdiction, over the person or subjecl, matter in controversy, its action is null, and no bar to future proceeding. (Sagendorph v. Schult, 41 Barb. 102; Gage v. Hill, 43 Barb. 44; Porter v. Bronson, 29 How. Pr. 292; 19 Abb. Pr. 256.) So, also, where such court has not exercised its jurisdiction within the limits imposed by statute. Bloomer v. Merrill, 29 How. Pr. 259. 68. When an Estoppel. If on the case made by the com- plaint, the defendant is not called upon or has no opportunity to plead a former judgment as an estoppel, it may be received in evidence as matter of estoppel without having been pleaded. (Jackson v. Lodge, 36 Cal. 28.) A judgment to operate as an estoppel must be a judg- ment of a court of competent jurisdiction, upon the same subject mat- ter, in a cause regularly tried on its merits, upon issue duly joined by proper pleadings in such court, between the same parties or their privies. (Boggs v. Clark, Cal. Sup. Ct., Apl. T., 1869.) Suffering judgment for whole amount claimed by plaintiff held to estop defendant from bring- ing subsequent suit for an omitted credit, which he might have set up as a defense, (Binck v. Wood, 43 Barb. 315.) And recovery of part of an entire demand estops any suit being brought for the residue. (Hopf v. Myers, 42 Barb. 270; Bancroft v. Winspear, 44 Barb. 209.) Disallowance of claim, as set-off in one action, estops another being brought for it. (Rogers v. Rogers, i Daly, 194.) See, also, as* to sim- ilar effect of setting up demand by way of counter-claim, (Collyer v Collins, 17 Abb. Pr. 467.) A judgment obtained pendente lite in an action previously brought may operate as an estoppel. (Bank of Be- loit v. Beale, 7 Bosw. 61.) See, on the other hand, as to course to be pursued when judgment relied upon as an estoppel is reversed pendente Hie, Gilchrist v. Comfort, 26 How. Pr. 394. 72O FORMS OF SPECIAL PLEAS. No. 587. Fraud. [TITLE.] The defendant answers to the complaint: I. That the plaintiff induced him to make the note mentioned in the complaint, by representing that he was authorized by one A. B., to whom the defendant owed the amount of the same, to take a note to him- self in satisfaction of such debt [or otherwise state the fraudulent misrepresentation, etc.~\ II. That the said representations were false. III. That the defendant received no consideration for the said note. NOTE. This form is from the Code Commissioners' Book, of New York. 69. Actual Fraud must be Shown. To set aside for fraud a decree signed and enrolled, actual, positive fraud must be shown. Mere constructive fraud is not sufficient, at all events after long delay. Patch v. Ward, Law Rep. 3 Ch. 203. 70. Fraudulent Misrepresentations. An answer seeking to avoid a contract, by reason of fraudulent misrepresentations of the plaintiff in procuring it, must state in what the misrepresentations con- sisted, and they must be of matter of fact of which defendant was ignorant, and not of law. People v. Supervisors of San Francisco, 27 Cal. 656. 71. How Alleged. The answer was held fatally defective, in not charging the representations to have been fraudulently made, or that there was a warranty of some particular quantity. (Kinney v. Osborne, 14 Cal. 112.) Where an answer contains a general allegation of fraud, and plaintiffs go to trial upon the issue thus joined, without taking any exception to the answer on the ground of sufficiency, and FORMS OF SPECIAL PLEAS. 721 there is no objection made by the plaintiffs to the testimony introduced by defendants in support of the issue of fraud, an objection to the answer, on the ground that it does not not contain a statement of the particular facts and circumstances constituting the alleged fraud, can- not be entertained by the Supreme Court on appeal. King v. Davis, 34 Cal. 100. 72. Must be Specially Pleaded. Fraud must be specially pleaded, and the circumstances constituting fraud must be set up. People v. Supervisors of San Francisco, 27 Cal. 656; Gushee v. Leavitt, 5 Cal. 1 60; Gifford v. Carville, 29 Id. 589; Lamott v. Butler, 18 Id. 32. 13. Sufficient Averment. An answer alleging that a judgment relied on by the plaintiff was obtained by fraud and collusion between parties named is sufficiently definite and certain, without specifying the acts which show fraud and collusion. (Culver v. Hollister, 17 Abb. Pr. 405; S.C., less fully, 29 How. Pr. 479.) An answer presents a good defense to an action which is brought on the ground of fraud, if it states circumstances from which it can be reasonably inferred that the fraud charged could not have been practiced. (Burk v. Stewig, 21 Tex. 418.) Case where it was held the answer sufficiently presented the question of fraud, Lamott v. Butler, 18 Cal 32. No. 588. Infancy of Plaintiff. [TITLE.] The defendant answers to the complaint: That the plaintiff is not of the age of twenty-one years \if a female, eighteen years]; or, that at the commence- ment of this action the plaintiff was not of the age of [twenty-one] years. 74. Account. The defendant, being of age, signed the following statement at the foot of an account of the items and prices of goods furnished to him, while an infant, by the plaintiff: " Particulars of account to the end of 1867, amounting to 162. us. 6d. I certify to be correct and satisfactory." Held, that this was not such a ratification 46 722 FORMS OF SPECIAL PLEAS. in writing of the contract, within (9 Geo. IV. 14, 5), as to render him liable. Rowez>. Hopwood, Law Rep. 4 Q. B. i. 75. Majority of Females. In California, females are deemed of full and legal age when they are eighteen years old. Gen. Laws of Cal. 1 4,433- 76. Must be Specially Pleaded. That infancy must be spe- cially pleaded, see Young v. Bell, i Cranch C. Ct. 342. JVo. 589. Infancy of Defendant. [TrTLE.] The defendant answers to the complaint: That at the time of making the agreement [or of the delivery of the goods] mentioned therein, he was not of the age of [twenty-one] years. 77. Note. In all this class of actions, where the disability of defendant is claimed, such as infancy, lunacy, etc. etc., the facts causing such disability should be in all cases specially pleaded ; for in general such disability cannot be proven unless pleaded. See Young v. Bell, i Cranch C. Ct. 342. No. 590. Marriage of Plaintiff, [TITLE.] The defendant answers to the complaint: I. That the plaintiff was, at the commencment of this action, and still is the wife of one A. B. II. That this action does not concern her separate property. FORMS OF SPECIAL PLEAS. 723 78. Disability must Appear. Where the disability of the plaintiff, who is a married woman, does not appear upon the face of the complaint, the defendant, if he intends to avail himself of the coverture as a defence to the action, should set it up in his answer. (Aitken v. Clark, 16 Abb. Pr. 328.) Such objection is waived by a general denial. Dillaye v. Parks, 31 Barb, 132. 79. Divorce. An action brought in the names of husband and wife, to recover wife's separate estate, does not abate in consequence of divorce and subsequent marriage of wife with another. Calderwood v. Peyser, 31 Cal 333. 80. Must be Specifically Pleaded. That marriage of plaintiff must be specifically pleaded. See Castree v. Grewell, 4 E. D. Smith, 425; Cheirac v. Reinicker, n Wheat. 280. 81. Name of Wife Surplusage. Where the husband and wife are joined as plaintiffs, and the contract sued on and set forth in the complaint was made between the husband only and the defendants, the name of the wife was mere surplusage, and not a defect of parties under the Code, and might have been stricken out on notice, if insisted. Warner and Wife v. Steamship " Uncle Sam," 9 Cal. 697. JVo. 591. Marriage of Defendant. [TITLE.] The defendant answers to the complaint: That at the time of making the agreement [or of the delivery of the goods mentioned therein] she was the wife of J. K. 82. Marriage. The marriage of a female defendant does not abate an action. (Campbell v. Bowne, 5 Paige, 34.) But the marriage of a female complainant abates the suit, and it must be revived either in favor of or against her husband. Quackenbush v. Leonard, 10 Paige, 131. 724 FORMS OF SPECIAL PLEAS. No. 592. Marriage of Defendant after the Contract and before the Action. [TITLE.] , The defendant answers to the complaint; I. That she was, at the commencement of this action, and still is the wife of A. B., who now resides at II. That this action does not concern her separate property. 83. Arbitration and Award. The plea of coverture, and that the defendant's husband did not consent to the arbitration upon the award in which a judgment was founded, is not sufficient in proceeding by scire facias to review the judgment. Though this plea might be a good defence to an action on the judgment, yet, until such judgment is set aside, the defendant cannot resist the scire facias, the object of which is to enforce process upon such judgment. Taylor v. Harris, 21 Texas, 438. 84. Charging Separate' Estate. In an action brought to charge the separate estate of a married woman, when the coverture is alleged in the complaint, a defense that the defendant is a married woman is bad on demurrer, for it sets up no new matter. (Aitken v. Clark, 1 6 Abb. Pr. 328.) And such an answer is insufficient. Id. 85. Homestead. A married woman may answer separately, where homestead is involved. Moss v. Warner, 10 Cal. 292; Harlay v. Ritter, 18 How. Pr. 147; Phillips v. Burr, 4 Duer, 113. 86. Impotence. Impotence does not render a marriage void, but only voidable, and the validity of a marriage cannot be impeached on that ground after the death of one of the parties. Therefore the right of a husband to administer his wife's estate cannot be disputed on the ground of the nullity of the marriage, by reason of his impotence. A. v. B., Law. Rep. i P. & D. 559. FORMS OF SPECIAL PLEAS. 725 87. Promissory Note. An answer upon a promissory note that the maker is a married woman, is sufficient as a confession and avoid- ance. Scudderz>. Gori, 18 Abb. Pr. 223; 28 How. Pr. 155, No. 593. Misjoinder of Parties. [TITLE.] The defendant answers to the complaint: I. That A. B. is improperly joined as a plaintiff [or defendant] in this, that he has no interest in the subject matter in controversy [or otherwise state reasons]. 83. Misjoinder of Parties. Where a misjoinder of parties plaintiff does not appear upon the face of the complaint, and the ob- jection is not taken by answer, it is deemed waived. (Hastings v. Stark, 36 Cal. 122.) As to non-joinder of parties plaintiff in partition, see (Sutler v. San Francisco, 36 Cal. 112.) Misjoinder of parties plaintiff, owing to matters which have occured pending the action, must be taken by supplemental answer, or it is waived. Calderwood v. Pyser, 31 Cal. 333; Barstow v. Newman, 34 Cal. 90. 89. Objection must be Taken. Objection should be taken by demurrer or answer to the misjoinder of parties defendant. An answer will not be treated as a plea in abatement for a misjoinder of parties defendant, after the testimony has disclosed a proper cause of action against them. (Warner v. Wilson, 4 Cal. 310; Dunn v. Tozer, 10 Cal. 170.) The objection that there is a misjoinder of defendants must be raised by demurrer or answer; and if not so raised, the plaintiff will be entitled to recovery against all the defendants. Story v. Livingston, 13 Pet. 359; Minor v. Mechanics' Bank of Alexandria, i Pet. 46; Oilman v. Rives, 10 Id. 298; Chandler v. Byrd, Hempst. U.S. 222] Fosgate v. The Herkimer Manf. and Hydraulic Co., 2 Kern. 580; compare Bates v. James, 3 Duer, 45. 723 FORMS OF SPECIAL PLEAS. JVo. 594. Misnomer. [TITLE.] The defendant answers to the complaint: I. That the true name of the plaintiff [or of defend- ant] is and ever has been , and not , . . , in which name he sues [or is sued]. 90. Must be Pleaded. Misnomer of plaintiff or defendant must be pleaded in abatement. (Mann v. Carley, 4 Cow. 148; Rule of 1825, Id. 157; Collman v. Collins, 2 Hall, 569; Miller v. Stettiner, 7 Bosiv. 692.) And this is so even in case of a corporation. (Bank of Utica v. Smalley, 2 Cow. 770; Methodist Episcopal Church v.. Tiyon, i Den. 451.) In suits or proceedings by or against any corpor- ation, a mistake in the name is waived if not pleaded in abatement. Misnomer of the plaintiff cannot be taken advantage of on the trial or by plea in bar, but must be pleaded in abatement. Hanly v. Blanton, i Mo. 49; Boisse v. Langham, Id. 572; Thompson v. Elliott, 5 Id. 118. 91. Note. It is a familiar rule that a person may be sued by a fic- titious name, bnt a personal judgment against a fictitious person or agains* a person not the party to the suit would of course be worthless, assum- ing that such judgment could be obtained. This relates to defendant. A plaintiff ought to know his own name. 92. Objection must be Taken. A misnomer of parties plaintiff must be objected to by demurrer or answer, and cannot, in the absence of such objection, be made a ground for nonsuiting such of the plaintiffs as show themselves entitled to recover. Rowe v. Bacci- galluppi, 21 Cal. 632. FORMS OF SPECIAL PLEAS. 727 No. 595. Mistake. [TITLE.] The defendant answers to the complaint: I. That when he signed the note therein mentioned, he supposed it to be for [one thousand] dollars, but by mistake it was drawn for [ten thousand] dollars. II. That he received no consideration for more than [one thousand] dollars. No. 596. Non-Joinder of a Necessary Party Plaintiff. [TITLE.] The defendant answers to the complaint: I. That the goods, wares and merchandizes described in the complaint were sold by plaintiff and one C. D. as partners, under the name of A. B. & C. D. II. That the said C. D. is still living. 93. Non-Joinder. A failure to join may be pleaded in abate- ment. (Whitney v. Stark, 8 Cal. 514.) An objection for a defect of parties, e.g., the non-joinder of a co-partner as plaintiff, which is not apparent upon the face of the complaint, must be taken by demurrer or answer. (Code of Pro. of N.Y. 144, 147.) And if not thus in- terposed, the defendant must be held to have waived the objection. (Alvarez v. Brannan, 7 Cal. 503; Dunn v. Tozer, 10 Id. 167; Gillain^ v. Sigman, 29 Cal. 637; Wendt v. Ross, 33 Cal. 650; 3 Kern. 336; 33 Barb. 527; 31 Id. 238; Conklin v. Barton, 43 Barb. 435.) And an answer upon the merits waives all such defects. Gillam v. Sigman, 29 Cal. 637; Wendt v. Ross, 33 Cal. 650; Scranton v. Farmers' and Me- chanics' Bank, 33 Barb. 527; Byxbie v. Wood, 22 N.Y. 607; Mer- 728 FORMS OF SPECIAL PLEAS. ritt v. Walsh, 32 N.Y. 685; Walrod v. Bennett, 6 Barb. 144; Abbe v. Clark, 31 Barb. 238. No. 597. Non-Joinder of Owners in Actions Betiveen Tenants in Common. \ TITLE.] The defendant answers to the complaint: That and , residing at , are tenants in common with the plaintiff in said lands, and necessary parties to this action. No. 598. Non-Joinder of a Co- Administrator. [TITLE.] The defendant answers to the complaint: I. That after the death of said A. B., and on or about the .... day of , 1 8 . . , letters of ad- ministration were duly issued to one C. D., together with the plaintiff, by the Probate Court of the County of , and said C. D. thereupon duly qualified as administrator, and as such entered upon the duties of his trust, and still is such administrator. 94. A Special Plea. In an action in a joint contract, the omis- sion to sue all the joint contractors may be specially pleaded. (Leavitt v. Turtle, 4 Kern. 465.) The same in an action against an attorney, one of a partnership composed of several attorneys. Wooster v. Chamberlin, 28 Barb. 602. 95. Names must be Given. The plea must give the names truly, so that the plaintiff may proceed correctly the second time. I FORMS OF SPECIAL PLEAS. 729 it appear on the trial that another not named by the plea was also a joint contractor, the proof fails. (Mechanics' and Farmers' Bank v. Dakin, 24 Wend. 411; Hawks v. Hunger, 2 Hill, 200.) This rule is not changed by the Code. Fowler v. Kennedy, 2 Abb. Pr. 347; Dennis v. Kennedy, 19 Barb. 517. 96. Objection must be Taken. The fact that other persons, jointly responsible, have not been made defendants, must be pleaded in abatement, or it cannot be taken advantage of on the trial. The rule applies to all joint contracts, as well as to those arising particularly from mercantile partnerships. (Ziele v. Cambell, 2 Johns. Cas. 382; Wil- liams v. Allen, 7 Cow. 316; Robertson v. Smith, 18 Johns. 459; Le Paige v. McCrea, 7 Wend. 164, 97. Setting Aside Conveyance. In a bill to set aside a con- veyance, as made without consideration, and in fraud of creditors, the alleged fraudulent grantor is a necessary defendant in the bill. Gay- lords v. Kelshaw, i Wall. U.S. 81. 98. Still Living. The answer should allege that they are still living; (see Bergess v. Abbott, 6 Hill, 135; affirming S.C., i Id. 476;) or, if a corporation, that it is still in existence. (State of Indiana v. Woram, 6 Id. 33.) But the omission to allege this is cured by proof on the trial that they were still living. Objection to such proof should be dis- regarded, or the answer amended to conform to the proof. (Wooster v. Chamberlin, 28 Barb. 602.) It sufficiently alleges that they are still living, if it alleges that they reside at a place named. Taylor v. Rich- ards, 9 Barb. 679. 99. Surplusage. After showing the facts which make it appear that other parties are necessary, and naming the parties, it is unneces- sary to add a formal allegation that they are necessary parties. Cook v. Mancius, 3 Johns. Ch. 427 73O FORMS OF SPECIAL PLEAS. No. 599. Non-Joinder of one who was a Party to the Contract. [TITLE.] The defendant answers to the complaint: I . That the supposed contract [or other cause of action] mentioned in the complaint was made with said , plaintiff [or defendant], and one A. B., jointly. II, That the said A. B. is still living. JVo. 600. i. Payment. [TITLE.] The defendant answers to the complaint: That on the .... day of , 1 8 . . , at , he paid to the plaintiff the money demanded in the com- plaint [or dollars, on account of the demand in the complaint]. 98. Effect of Plea. By the pleas of payment and payment with leave, the defendant does not put in issue his original legal liability. Under such pleadings he can only show that he has paid the debt, or that he has an equitable defense to the action. Loose v. Loose, 36 Penn. 538. 99. Excuse for Non-Payment. What amounts to an alle- gation, in pleading, of impossibility, to excuse non-payment, O'Reily . Mutual Life Ins. Co., 2 Abb. Pr. R. (N.S.) 167. 100. Evidence of Payment. Under a simple allegation of payment, evidence of any facts which amount to actual payment by the person alleged to have made it, is admissible. Farmers' and FORMS OF SPECIAL PLEAS. 731 Citizens' Bank of Long Island z>. Sherman, 6 Bosw. 181; Calkins v. Packer, 21 Barb. 125. 101. How Alleged. The answer should disclose the particulars of the transaction relied on as constituting payment. (Farmers' and Citizens' Bank v. Sherman, 33 N.Y. 69.) An answer setting up payment after suit brought is good, although it demand that the complaint be dis- missed, and judgment granted for costs. Under the Code, no formal conclusion is required, and no judgment or relief is required to be prayed for, except when the defendant asks affirmative relief against the plaintiff. (Bendit v. Annestey, 42 Barb. 192; S.C., 27 How. Pr. 184.) For another form of plea, see Chitty's Forms, 109. 102. Interest. Alleging that the defendant paid the plaintiff the several, etc., pursuing the terms of the complaint, imports payment of interest as well as the principal, and it is therefore unnecessary to aver its receipt in fulteatisfaction. Chew v. Wooley, 7 Johns. 399. 103. Must be Specially Pleaded. Payment or part payment (McKyring v. Bull, 16 N.Y. 297) may be set up in the answer as new matter, and must be specially pleaded. (Glazier v. Clift, 10 Cal. 303; Piercy v. Sabin, Id. 27; Green v. Palmer, 15 Id. 417; Coles v. Soulsby, 21 Id. 47; McDonald v. Davidson, 30 Id. 173; Fort v. Gooding, 9 Barb. 371; Texier v. Guion, 5 Duer, 389; Morrell v. Irving Fi. Ins. Co., 33 N.Y. 429; Field v. Mayor of N.Y., 2 Seld. 189; Texier v. Guion, 5 Duer, 392; Calkins v. Palmer, 21 Barb. 275; Henderson v. Henderson, 3 Den. 314; Fellers v. Lee, 2 Barb. 489; Morey v. Farmers' Loan and Trust Co., 18 Barb. 406; Pattisonz*. Taylor, i Code R. (N.S.} 174; Martin v. Gage, 5 Seld. 398; N.Y. Li. Ins. and Trust Co. v. Covert, 29 Barb. 436; Morrell v. Irving Ins. Co., 33 N.Y. 429.) And the current authorities hold that neither payment nor part payment can be given in evidence under the general issue. (N.Y. Code, 274; Id. 284; i Van Santv. PI. 454; Piercy v. Sabin, 10 Cal. 30; Calkins v. Parker, 21 Barb. 275; Brazil v. Isham, 2 Keenan, 17; McKyring v. Bull, 1 6 N.Y. 297.) Per contra where it was held that it is not new matter, and need not be specially pleaded, see Frisch v. Caler, 31 Cal. 71; Fairchild v. Amsbaugh, 22 Id. 575. 104. Nature of Plea. In Pennsylvania, payment with leave is a general issued plea, and with notice of special matter, admits any- thing which proves fraud, mistake, want or failure of consideration, and shows that, ex equo et bono, a part or whole of the amount claimed 732 FORMS OF SPECIAL PLEAS. should not be recovered. (Uhler v. Sanderson, 38 Penn. 128.) Such a plea admits all the allegations in the complaint essential to support the action. (Archer v. Morehouse, Hempst. 184.) And shows the affirmative of the issue on the defendant. Gebhart v. Frances, 32 Penn. 78; North Penn. R.R. Co. v. Adams, 54 Penn. 94. 105. Payment, how Pleaded. In pleading payment, it is not necessary that the answer should describe the particulars of the trans- action relied on as constituting payment. Under the averment that the demand has been paid, it is competent to prove how it has been paid, whether in cash or otherwise. (Farmers' and Citizens' Bank v. Sher- man, 33 N. Y. 69; Boyd v. Weeks, 2 Den. 322.) So, where payment was made to wife of plaintiff. (Offley v. Clay, 2 Man. & G. 172; 2 Scott (N.R.) 372.) So, where payment was made by check. (Strong v. Stevens, 4 Duer, 668; Bradford v. Fox, 16 Abb. Pr. 51; Hoogland v. Wright, 7 Bosw. 394.) Or by negotiable note. (Geller v. Seixis, 4 Abb. Pr. 103.) Held, that in such case it must be averred that such note was. taken in payment. (Homas v. McConnell, 3 McLean, 381.) So, also, a surety for rent may set up payment made by tenant for repairs agreed to be done by the landlord, by way of reduction for the claim of rent. (Rosenbaum v. Gunter, 3 ED Smith, 203.) And, under the plea of payment, a surety may show that the plaintiff has taken a draft of the principal debtor, payable at a future day in payment of the debt. (Albany Ins. Co. v. Devendorf, 43 Barb. 444.) It would be bad plead- ing to allege evidence of the payment, instead of averring the fact itself. Farmers' and Citizens' Bank v. Sherman, 33 N.Y. 69. 106. Payment by Remittance. For an answer by a defend- ant sued as factor under a del credere commission, showing a remittance by instruction of his principal, see Heubach v. Rother, 2 Duer, 227. 107. Payment to Sheriff. Payment to the sheriff on an execu- tion against the creditor must be specially pleaded. (Calkins v. Packer, 21 Barb. 275.) For the necessary allegation in such case, see (Handly v. Green, 15 Id. 601.) And wherever the plaintiff could be surprised by a general allegation of payment, it will be better to plead the facts specially, as in the following forms. 108. Presumption of Payment. An answer alleging payment is the proper form in which to set up the defense of a presumption of payment arising from lapse of time, under 2 Rev. Stat. 301, 46. Hen- FORMS OF SPECIAL PLEAS. 733' derson v. Henderson, 3 Den. 314; Pattison v. Taylor, 8 Barb. 250; N.Y. Life Ins. Co. v. Covert, 29 Id. 435. 109. Receipt. A receipt in full, given by the plaintiff .after suit is brought, is a good defense by way of plea. Wade v. Emerson, 17 Mo. 267; Wade v. Goldsberry, 17 Mo. 270. 110. Time of Payment. That the time of payment has been extended must be specially pleaded. Allen v. Bruesing, 32 ///. 505; Newell v. Salmonds, 22 Barb. 647; see, also, Goddard v. Fulton, 21 Cal. 430. 111. Time Alleged. It is not essential to designate the time, though it ought to appear to have been before suit. Bird v. Caritat, 2 Johns. 342. No. 601. ii. Payment by Note. [TITLE.] The defendant answers to the complaint: That on the .... day of , 1 8 . . , at , at the request of the plaintiff, he made his promissory note to one C. D. for dollars, in discharge of the indebtedness stated in the complaint. 112. Payment by Note. Under an answer averring payment by note, evidence of payment in money or by check is inadmissable. (Canfield v. Miller, 13 Gray (Mass.) 274.) This rule is only to be applied to avoid surprise or prejudice to the defendant. Farmers' and Citizens' Bank v. Sherman, 6 Bosw. 181. 734 FORMS OF SPECIAL PLEAS. No. 602. iii. Payment by Bill Accepted in Discharge, which Plaintiff has Lost. [TITLE.] The defendant answers to the complaint: I. That before this action the plaintiff drew his bill on the defendant for the amount of said account [or other indebtedness alleged], dated on the .... day of , 1 8 . . , and payable months after said date ; which the defendant then accepted. II. That the plaintiff received said acceptance on ac- count of said indebtedness, and afterwards, and before the same became due and payable, lost the same, and cannot produce it to the defendant. 113. Acceptance of Negotiable Paper. The acceptance of a negotiable promise of payment from a debtor suspends the remedy upon the original indebtedness, but acceptance of a non-negotiable promise does not, unless it is founded upon a new consideration. Gel- ler v. Seixas, 4 Abb. Pr. 103; Ranken v. Deforest, 18 Barb. 144. 114. Payment by Check. An answer which states that defend- and gave his check, for the sum lent, and interest to the time it was given, and that the plaintiffs have not returned it, and that it is still outstanding, is insufficient, unless it also avers that plaintiffs have negoti- ated it to a third person, who holds or owns it. Strong v. Stevens 4 Duer, 668; compare Geller v. Seixas, 4 Abb. Pr. 103; Crowe v. Clay, 25 Eng. L. and Eq. 451; Thayerz;. King, 15 Ohio, 242. FORMS OF SPECIAL PLEAS. 735 No. 603. iv. Payment in Services. [TITLE. J The defendant answers to the complaint: I. That after the said promissory note became pay- able, and before this action, to wit: on the .... day of , 1 8 . . , the plaintiff agreed to receive and the defendant agreed to render to the said plaintiff his ser- vices as [teamster] to the amount of said note. II. That defendant afterwards, according to the said agreement, rendered such services to the plaintiff, to the full amount due and payable on the said note. 115. Form. This form is sustained by Louden v. Birt, 4 Ind. 566. No. 604. Release. [TITLE.] The defendant answers to the complaint: That on the .... day of , 1 8 . . , at , the plaintiff, by deed, released the defendant from the claim set up in the complaint. 116. Covenant as a Release. To avoid circuity of action, a covenant may be pleaded as a release, but it must be a covenant to the original obligation, and must contain words that will give the cove- nanter a right of action, which will precisely countervail that to which he is liable. Garnett v. Macon, 2 Brock. Marsh. 185; S.C., 6 Call, 308. 117. Effect of Release. A release by one of several joint plaintiffs is a bar to the action. (Austin v. Hall, 13 Johns. 286; and 73 -> FORMS OF SPECIAL PLEAS. see Mott v. Burnett, 2 E, D. Smith, 50.) A sealed release to one of several joint obligors inures to the benefit of all. (Rowley v. Stoddard, 7 Johns. 207.) Otherwise of a covenant not to sue. Harrison v, Close, 2 Id. 448. 118. Equitable Discharge. An equitable discharge from judgment does not support a plea of payment, but should be specially pleaded as a release, and a defendant, being surety, having thus incor- rectly pleaded, was allowed to amend, on the condition that he should recover no costs of action. Shelton v. Kurd, 7 Rhode Isl. 403. 119. Form of Release. A release under seal of one of several joint or joint and several debtors or obligors, is a release to all. (Armstrong v. Hayward, 6 Cal. 185; Rowley v. Stoddard, 7 Johns. 210; Cheatham v. Ward, i Bos. & Pul. 633; Nicholson v. Revill, i Ad. & El. 683; American Bk. v. Doolittle, 14 Pick. 126; Tucker- man v. Newhall, 17 Mass. 583; Goodenow v. Smith, 18 Pick. 415.) And that a release extinguishes the obligation, McCrea v. Piermont, 1 6 Wend. 474; cited in Prince v. Lynch, Cal. Sup. Ct., Jul. T., 1869. 120. Release. If any matter of defense has arisen after an issue in fact, it may be pleaded by the defendants; as that the plaintiff has given him a release, or in an action by an administrator, that the plaintiffs letters of administration have been revoked. (Yeaton v. Lynn, 5 Pet. 223.) A release by the plaintiff must be specially pleaded, (i Van Santv. 403; Turners. Caruthers, 17 Cal. 431; Coles v. Soulsby, 21 Id. 50.) But a lost, release cannot be pleaded. Warder v. Evans, 2 Mo. 205. 121. Release after Issue Joined. A release given after issue is joined in an action can properly only be the subject of a supplemental answer, and not of an amendment to that originally put in. Matthews v. Chicopee Manuf. Co., 3 Robertson, 711. 122. Release Implied. The law implies the release and dis- charge of a right of action, where the creditor voluntarily delivers to his debtor the bond, note or other evidence of his claim. Path. Obi. n. 608, 609; Bouv. Law Die., Title Release ; 3 Barr. 251; 29 Penn. Rep. 50; Beach v. Endress, 51 Barb. 570. 123. Release of Property. Release of property from levy on execution discharges third parties who are liable collaterally, or as sureties therefor. Mulford v. Estudillo, 23 Cal. 94. FORMS OF SPECIAL PLEAS. 737 No. 605. i. Statute of Frauds. [TITLE.] The defendant answers to the complaint: I. That no note or memorandum in writing, express- ing the consideration, was ever made of any such con- tract, as is alleged in the complaint, or of any contract whatever [or state other facts as they exist\. II. That he did not receive any part of the goods, wares or merchandise mentioned in the complaint.. III. That he did not pay any part of the purchase- money. 124. Essential Averments. A plea of the Statute of Frauds should expressly aver that the contract concerning the lands sought to be enforced was not in writing. (Bean v. Valle, 2 Mo. 126.) In an action on a contract not in writing, but which to be binding on defend- ant should be in writing, under general denial the existence of the con- tract is in issue. (Livingston v. Smith, 14 How. Pr. 492; Amburger v. Marvin, 4 E. D. Smith, 393; Champlin v. Parish, n Paige, 408; Haight v. Child, 34 Barb. 191.) Or defendant may deny that contract is in writing or that it is subscribed. Id.; Cozine v. Graham, 2 Paige, 181; Ontario Bank v. Root, 3 Id. 478; Harris v. Knickerbocker, 5 Wend. 638. 125. How Pleaded. The rule under the former practice, that when the terms of a contract are in dispute, and the answer does not deny the contract, the terms of it cannot be proved by parol, is altered by the Code (N.Y.), and now an answer is sufficient which admits the making of a contract and sets out its terms, although it omits to set up the Statute of Frauds as a bar. (Haight v. Child, 34 Barb. 186.) The title being no part of an act, it need not be recited. Eckert v. Head, i Mo. 593. 126. Lease. That neither the defendant, nor any person by him 47 738 FORMS OF SPECIAL PLEAS. lawfully authorized, did ever make or sign any contract or agreement in writing, for making or executing any lease to the said plaintiff, of the same premises, or any of them, or of any part thereof, or to any such effect as is alleged; or any memorandum or note in writing of any agreement whatsoever, for or cpncerning the demising or leasing, or making or executing any lease of the said premises, or any of them, or any part thereof, to the plaintiff. Eq. Draftsman, 654. 127. Must be Specially Pleaded. A plaintiff's recover)- can- not be barred by the Statute of Frauds, unless the statute be pleaded. (Osborne v. Endicott, 6 Cal. 149; Maynard v. Johnson, 2 Nev. 16.) Where contract is void ab initio, a general plea of non est faclum is proper. Where it is merely voidable, a special plea setting forth the special circumstances is necessary. 2 S/ra. 1,104; Bull.N.P. 172; 16 Mass. 348; 14 Pick. 303; Bottomley v. United States, i Story C. Ct. 135; Marine Ins. Co. v. Hodgson, 6 Cranch U.S. 206; Greathouse v. Dunlap, 3 McLean U.S. 303. 128. Note. There are other agreements which by our Statute must be in writing, to wit, for the sale of lands, etc., references to which appear under their appropriate headings. 129. Real Actions. The provisions of the sixth section, chap, i., of the Statute of Frauds, relate exclusively to contracts in relation to real estate. Sandfoss v. Jones, 35 Cal. 481. 130. Statute of Frauds. In the following cases every agree- ment shall be void, unless such agreement, or some note or memoran- dum thereof, expressing the consideration, be in writing, and subscribed by the party charged therewith: First, Every agreement that by the terms is not to be performed within one year from the making thereof. Second, Every special promise to answer for the debt, default, or mis- carriage of another. Third, Every agreement, promise, or undertaking, made upon consideration of marriage, except mutual promises to marry. Gen. Laws of Cal. 3,156. FORMS OF SPECIAL PLEAS. 739 No. 606. ii. Statute of Frauds Another Form, [TITLE.] The defendant answers to the complaint: That plaintiff" ought not to have his said action; be- cause neither defendant, nor any person by him legally authorized, did ever make or sign any contract or agree- ment in writing, binding this defendant to make any such conveyance of the said premises to the plaintiff as he has in said complaint demanded. 131. Agreement not to be Performed -within a Year. That although the said agreement by its terms was not to be performed within one year from the making thereof, neither said agreement nor any note or memorandum thereof was or is in writing and subscribed by the said , who is sought to be charged therewith, or by his lawful agent, or by any other person. No. 607. \\i. Statute of Frauds Another Form, [TITLE.] The defendant answers to the complaint, and alleges: I. Etc. II. Defendant, for a further defense, alleges that the promise set forth in the complaint was a special promise to answer for the debt, default, or miscarriage of A. B. [or as the case may be], in the complaint named. III. That no note or memorandum of said promise or agreement was made in writing, and signed by de- fendant or any other person by his authority, or at all. 74-O FORMS OF SPECIAL PLEAS. No. 608. iv. Statute of Frauds Agreement in Consideration of Marriag e. [TITLE.] The defendant answers to the complaint, and alleges: That the said alleged agreement was made upon con- sideration of marriage, and that neither said agreement nor any note or memorandum thereof was ever in writ- ing, and subscribed by said , who is sought to be charged therewith, or by his lawful agent, or at all. No. 609. Statute of Frauds Lltra Vires Corporation. [TITLE.] The defendant answers to the complaint, and alleges: I. That the plaintiff was not and is not authorized by law to take, hold, and convey real property, except for the following purposes, and in the following manner \Jiere set forth the power of the corporation]. II. That the deed alleged in the complaint was exe- cuted and accepted on the part of said corporation, for the purpose of \jiere state purpose not within the power\. 131. Corporation. Assuming that the corporation under such circumstances was authorized to take and transfer real estate by deed, it rests with the defendant to show by allegation and proof that the plaintiff did not take or transfer the title to the premises in question for any purpose, and in the form authorized by law. Farmers' Loan and Trust Co. v. Curtis, 7 N.F. 466. FORMS OF SPECIAL PLEAS. 741 No. 610. Statute of Limitations. [TITLE.] The defendant answers to the complaint: That the cause of action set forth therein did not accrue within .... years before the commencement of this action. 132. Application of Statute. In California, the Statute of Lim- itations applies equally to actions at law and to suits in equity. It is directed to the subject matter, and not to the form of the action, or to the forum in which the action is prosecuted. Nor is there any distinc- tion in the limitation prescribed between simple contracts in writing and specialties. Lord v. Morris, 18 Cal. 482; Boyd v. Blankman, 29 Cal. 20. 133. Construction of Answer. An answer stating that the cause -of action has not accrued within five years is sufficient for five years, and for any period of limitation named in the Statute less than five years. (Boyd v. Blankman, 29 Cal. 20.) The words " preceding the commencement of this action," in such answer, are equivalent to the words preceding the filing of this complaint. Adams v. Patterson, 35 Cal. 122. 134. Construction of Statute. Statutes of limitation do not act retrospectively; they do not begin lo run until they are passed, and consequently cannot be pleaded until the period fixed by them has fully run since their passage. (Nelson v. Nelson, 6 Cal. 430.) The Statute runs not from the time of the promise, but from the time of the breach. (Stilwellz*. Hasbrouck, i Hill, 561; United States v. White, 2 Id. 59; Tracy v. Rathbun, 3 Barb. 543.) The mere statement in the com- plaint that the claim was due at a certain time does not conclude the plaintiff under the Statute of Limitations, if it appears from the facts stated that the right of action did not accrue till a later date. Walden v. Craft, 2 Abb. Pr. 301. 742 FORMS OF SPECIAL PLEAS. 135. Defense under the Statute. It is not necessary that the defense of the Statute of Limitations should be accompanied by a denial of the allegations of the complaint intended to avoid or head off that defense, to prevent the Court taking them as true. Sands v. St. John, 36 Barb. 628. 136. Delivery. Delivery, to take the case out of the Statute, must be actual, and not merely constructive. (Bissell v. Balcom, 40 Barb. 98; Good v. Curtiss, 31 How. Pr. 4.) Nor will possession of bill of lading by the purchaser, fraudulently obtained, suffice for that purpose. (Brand v. Fecht, 30 How. Pr. 313.) See, as to whether delivery is or is not actually made, under doubtful circumstances, being a question of fact, (Wylie v. Kelly, 41 Barb. 594.) But delivery at any time whilst the contract remains unrevoked will be sufficient to take the case out of the Statute. (Good v. Curtiss, 31 How. Pr. 4; Swift v. Opdyke, 43 Barb. 274.) See, as to the effect of a partial delivery of goods, comprised within two separate contracts, Swift v. Opdyke, 43 Barb. 274. 137. Effect of Statute. The Statute of Limitations does not have the effect to extinguish a debt, nor raise a presumption of its pay- ment; it only bars the remedy, and thus becomes a statute of repose. (McCormick v. Brown, 36 CaL 180.) The rule held in this case, as to what constitutes a sufficient acknowledgment of a debt, to take it out of the Statute, affirmed in Farrell v. Palmer, Id. 187. 138. Exceptions under the Statute. The defendant is not bound to negative the exceptions from the general rule that the statute establishes. It lies upon the plaintiff to aver and prove the facts that create the exception. (Ford v. Babcock, 2 Sandf. 518; Huntington v. Brinckerhoff, 10 Wend. 278.) And if so averred, a pure plea of the Statute is no bar, unless accompanied with an answer destroying the force of those circumstances, by issuable averments. {Beanies' PI. 1 69 ; Kane v. Bloodgood, 7 Johns. Ch. 90; Goodrich v. Pendleton, 3 Id. 384; Story's Eq. PI. 672, 754.) But it has been held, also, that such allegations are immaterial, and need not be answered. Sands v. St. Johns, 36 Barb. 628; S.C., 23 How. Pr. 140. 139. Form of Answer. For form of answer, see (Angell on Limitations, 287, 309, and case there cited; see, also, Soulden v. Van Rensselaer, 3 Wend. 472; Fisher v. Pond, 2 Hill, 338; Bell v. FORMS OF SPECIAL PLEAS. 743 Yates, 33 Barb. 627.) A defendant relying on the Statute of Limita- tions should not allege matter of law, but the facts which bring him within the Statute. Boyd v. Blankman, 29 Cal. 20. 140. How Pleaded. To rely upon the presumption of pay- ment from lapse of time, the defendant should plead, not the Statute, but payment, and if he cannot swear to this, his affidavit may state the facts which raise the presumption of payment. (Giles v. Baremore, 5 Johns. Ch. 545.) The Statute should not be pleaded as a bar to the whole demand, if it is a good defense to a part only. Wood v. Riker, i Paige, 6 1 6. 141. Insufficient Allegations. An allegation of lapse of time held not to amount to a plea of the Statute of Limitation, in a case where leave to plead the Statute had been refused. (People ex rel. Bar- ton v. Rensselaer Ins. Co., 38 Barb. 323.) The general allegation in answer, that the action is barred by the Statute prescribing two or any other number of years as the limitation for bringing the action, is not the correct method of pleading the Statute of Limitations. (Schroeder v. Johns, 27 Cal. 278; see, also, McKay v. Petaluma Lodge, Cal. Sup. Ct., Apl. '1 ''., 1866.) Where the Statute of Limitations imposes a bar upon certain species of contracts after three years, and upon others after two years, and the plea did not show that the contract in question was of the latter class, the plea was bad. Lyon v. Bertram, 20 How- ard U.S. 150. 142. Judgment. An action on a new promise to pay a judg- ment, so as to avoid the bar of the Statute, must be brought within four years from the making of the new promise. McCormick v. Brown, $6 Cal. 1 80. 143. Married Woman. In this State (California), prior to 1863,. if a married woman was entitled to maintain an action on a promissory note, the Statute did not run as against her right of action during her right of coverture. Since 1863, the Statute runs against a married woman in all those actions to which her husband is not a necessary party plaintiff with her. Wilson v. Wilson, 36 Cal. 447. 144. Must be Specially Pleaded. The Statute of Limita- tions must be specially pleaded. (Steamer " Senorita " v. Simonds, i Or. 274; Lyon v. Bertram, 20 How. U.S. 149; Bihin v. Bihin, 17 Abb. Pr. 19; Fogal v. Pirro, 10 Bosw. 100; 17 Abb. Pr.*ii$; Sands 744 FORMS OF SPECIAL PLEAS. v. St. John, 36 Barb. 628.) If the demand be in truth barred, but the fact does not appear upon the face of the complaint, the defense must be made in the answer. (Smith v. Richmond, 19 Cal. 476.) In New York, it seems it can only be taken by answer, and not by demur- rer. (N.Y. Code, 74; Lefferts v. Hollister, 10 Hoiu. Pr. 383; 16 Id, 546; and see Butler v. Mason, 5 Abb. Pr. 40; Sands v. St. John, 36 Barb. 628.) And is not favored unless in aid of justice. (Cooke v. Spears, 2 Cal. 409.) It must be directly pleaded; inferential allega- tions will not avail. People v. Rensselaer Ins. Co., 38 Barb. 323. 146. Parol Agreements. As to parol agreement to assume mortgage as part of purchase-money, valid and enforceable, (Ely v. McNight, 30 How. Pr. 97.) On the subject of the plea of the statute limitation, consult the following recent New York decisions: To extend time for payment of mortgage, for valuable consideration. (Dodge v . Crandall, 30 N.Y. 294.) Parol guaranty was valid, when given for consideration moving to the guarantor. (Dauber v. Blackney, 38 Barb. 432.) Agreement to be answerable for work done for, or goods supplied to another, collateral, and within the Statute. (Knox v. Nutt, I Daly, 213; Brown v. Weber, 24 How. Pr. 306.) But where prom- isor has himself assumed the benefit of work previously done for another, his agreement to pay for it will be held direct, and not col- lateral. (Benedict v. Dunning, i Daly, 241; Huber v. Ely, 45 Barb. 169.) So, also, as to promise of vendee to pay debt due to creditor of vendor, assumed by him as a part of consideration for sale. (Winfield v. Potter, 10 Bosw. 226.) See, generally, as to nullity of a parol exec- utory agreement, in the absence of any writing or part payment, Hagar v. King, 38 Barb. 200. 147. Part Payment. Part payment, to take the case out of the Statute, must be made at the time; if made afterwards, it will not avail. (Bissell v. Balcom, 40 Barb. 98.) And giving note of purchaser, not payment for that purpose. (Wylie v. Kelly, 41 Barb. 594; Ireland v. Johnson, 20 How. Pr. 463; 18 Abb. Pr. 392.) Nor will a counter- credit, agreed to be given, but not actually made at the time, have the effect of a payment. Feed v. Feed, 44 Barb. 96; Wylie v. Kelly, 41 Barb. 594. 148. Personal Privilege. See, as to absolute right to interpose this defense, where existent, (Sheldon v. Adams, 41 Barb. 54; 27 Hmv. Pr.^ijq; 18 Abb. Pr. 405; Harriott v. Wells, .9 Bosw. 631.) FORMS OF SPECIAL PLEAS. 745 Pleading the Statute of Limitations is a personal privilege, which the defendant may assert or waive at his option, but must be set up in some form, either by demurrer or answer, and if not so set up is deemed waived. (Grattan v. Wiggins, 23 Cal. 16.) The Statute of Limita- tions may be allowed to be pleaded at any time when in furtherance of justice. (Cooke v. Spears, 2 Cal. 409.) So, in case of the allowance of a several plea after a joint plea filed. (Robinson v. Smith, 14 Id. 254.) Or the Court may refuse permission to set up the Statute after pleading to the merits. (Stuart v. Landers, 16 Id. 372.) If the Statute of Limitations is pleaded, and the plea is overruled, it cannot be put in again by the same parties or their privies. (Fisher v. Rutherford, Bald. 1 88.) How pleaded, see Bank of California v . Ott, 2 Cranch C. Ci. 575; Union Bank of Georgetown v. Eliason, Id. 667. 149. Statutes of Different States Rule. Where the cause of action accrued in one State, and suit was brought upon it in another State, a plea of the Statute of Limitations of the former State was not a good plea; but the same was demurrable, and the Court sustained the demurrer. (Townsend v. Jennison, 9 How. U.S. 467.) The rule is that the Statute of Limitations of the country in which the suit is brought may be pleaded to bar a recovery upon a contract made out -of its po- litical jurisdiction, and that the rule of lex loci conlractus cannot prevail. (Id.) But see the following statute: When a cause of action has arisen in another State, or in a foreign country, and by the laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this State, except in favor of a citizen thereof, who has held the cause of action from the time it accrued. (Cal. Pr. Act, 532.) It is a universally accepted rule that statutes of limitations are to be strictly construed. (Tyman v. Walker, 35 Cal. 634.) General words in the Statute must receive general construction, and if there be no express exception the Court can make none. Tyman v. Walker, 35 Cal. 634. 74-5 FORMS OF SPECIAL PLEAS. JVo. 611. Tender. [TITLE.] The defendant answers to the complaint: I. That on the .... day of , 1 8 . . , at , before the commencement of this action, he tendered to the plaintiff dollars [in gold and silver coin of the United States], in payment of the [contract, note, or indebtedness] in the complaint . set forth. II. That the defendant has always been and still is ready and willing to pay the same to the plaintiff, and now pays the same into this court [or slate the fact s\. 149. Affirmative Pleas. Payment, tender, and readiness to pay are affirmative pleas, and cast the burden of proof on the defendant. (North Pennsylvania Railroad v. Adams, 54 Penn. 94.) And the plea of tender must be specially stated; (Bryan v. Maume, 28 Cal. 238;) with great particularity as to time and place. (Duff v. Fisher, 15 Cal. 375.) And that the defendant has always been and still is ready to pay the sum tendered, and the money must be brought into court. (Bryan v. Maume, 28 Cal. 238.) And it is essential in setting up a tender to aver that the money has been actually brought into court. (Hill v. Place, 5 Abb. Pr. (N.S.) 18.) As to this defense generally, see Wilder v. Seelye, 8 Barb. 408 ; People v. Banker, 8 How. Pr. 258; Livingston v. Harrison, 2 E. D. Smith, 197. 150. Effect of Plea. Where the defendant pleads tender before suit, and pays the amount of his tender into court, and the plaintiff fails to show himself entitled to a larger sum, it is proper to render judgment for the defendant, but the sum paid into court belongs to plaintiff. (Curiac v. Abadie, 25 Cal. 502; Logue v. Gillick, i E. D. Smith's C. P. R. 398.) In such case the plaintiff shall not recover costs, but shall pay the costs of suit to the defendant. Cal. Pr. Act, 506.) A tender does not extinguish or satisfy the obligation, and an FORMS OF SPECIAL PLEAS. 747 offer to comply with the demand of a judgment does not amount to a satisfaction thereof. Reddington v. Chase, 34 Cal. 666. 151. How Made. Actual production and offer of money to creditor, prerequisites to a valid tender, (Strong v. Blake, 46 Barb. 227.) And it must be unconditional; if receipt or satisfaction piece be asked for, it vitiates it. Rosevelt v. Bull's Head Bank, 45 Barb. 576. 152. Issue Joined. Where the plaintiff joins issue on such a plea, without questioning its sufficiency, he cannot afterwards object that it was not duly filed, or that the money was not paid into court at the first term. (Rudolph v. Wagner, 36 Ala. 698.) If^ by the laws of the United States, there is more than one kind of lawful money, a legal tender in payment of debts, and the plaintiff in an action is entitled to a judgment payable in a particular kind of money, a plea of tender which avers the tender to have been made in lawful money of the United States, is insufficient. The plea should aver that the tender was made in the kind of money the plaintiff is entitled to receive. (Magraw v. Mc- Glynn, 26 Cal. 428.) The Legal Tender Act is held constitutional. (Lick v. Faulkner, 25 0/404; Currier v. Abadie, Id. 502; Kierski v. Matthews, Id. 591; People v. Mayhew, 26 Id. 655; Higgins v. B. R- and A.W. and M. Co., 27 Id. 152; Reese v. Stearns, 29 Id. 273; Poett v. Stearns, 31 Id. 78; cited in Belioc v. Davis, Cal. Sup. Ct, Jul. T., 1869.) It is competent for the State Legislature to enact that all tolls, dockage, and wharfage charges payable into the public treasury, shall be due and collectable exclusively in gold and silver money of the United States. People v. Steamer "America," 34 Cal. 576. 153. Legal Tender. The legal tender law is constitutional as to debts contracted before its passage. Wilson v. Triblecock, 23 Iowa, 130; contra, Riley v. Sharp, i Bush. 348; see Hallz^. Hiles, 2 Bush, 532. No. 612. ii. Payment as to Part, and Tender as to Residue. [TITLE.] The defendant answers to the complaint: I. \_Allege payment of part '.] II. That on the .... day of , 18. ., at 748 FORMS OF SPECIAL PLEAS. , he tendered to the plaintiff the residue of said claim, to wit: the amount of dollars, etc. [as in preceding form^\ No. 613. iii. Denial as to Part, and Tender as to Residue. [TITLE.] The defendant answers to the complaint: I. That he agreed to pay to the plaintiff dollars only [or that the goods, or services, mentioned therein were reasonably worth no more than dollars]. II. That before this action, on the .... day of , 1 8 . . , at , he tendered to the plaintiff, in gold and silver coin of the United States, dollars, in payment of said sum. [ Continue as in preceding form^\ No. 614. i. Want of Capacity Alien Enemy. [TITLE.] The plaintiff answers to the complaint: I. That the plaintiff was not, at the commencement of this action, and is not now a citizen of the United States, but was and is an alien, born in , out of the allegiance of the United States, and within the kingdom of II. That at the commencement of this action the government of said was, and still is at war with, and is an enemy of the United States. FORMS OF SPECIAL PLEAS. 749 III. That the plaintiff then was and still is an alien enemy, abiding without the United States, and at , within said , and adhering to the said enemies of the United States. 154. Form. This form is sustained by (Bell v. Chapman, 10 Johns. 183.) The disability only continues during the war. Hamersley v. Lambert, 2 Johns. Ch. 508. 155. Residence. Residence within the United States presump- tively defeats the plea. Clarke v. Morey, 10 Johns. 69. 156. Timek Where an alien commences action in time of peace, it is competent on a declaration of war with the country of his domicile to interpose this plea. Society for the Propagation of the Gospel v. Wheeler, 2 Gall. U.S. 105. No. 615. ii. Want of Capacity Assignment. [TITLE.] The defendant answers to the complaint: That before the commencement of this action, and on or about the .... day of , 1 8 . . , at , the plaintiff duly assigned the subject matter and cause of action set forth in the complaint to one R. S., who then was and has been ever since the holder thereof. 157. Assignee. An. answer setting up that another party than the plaintiff is the real party in interest, should allege facts which would show as a matter of law that another person should have brought the suit. Raymond v. Pritchard, 24 Ind. 318. 158. Assignee of Plaintiff's Interest. It is optional with Court, on death of plaintiff, to allow assignee of plaintiff's interest to be 75O FORMS OF SPECIAL PLEAS. substituted, and the action to continue in his name. (Barstow v. Newman, 34 Cal. 90; Sheldon v. Havens, 7 How. Pr. 258; Harris v. Bennett, i Code R. (N.S.) 203; Murray v. Gen. Mut. Ins. Co., 2 Duer, 607; Ford v. David, i Bosw. 571; Howard v. Taylor, ii How. Pr. 380; 7 Duer, 604; Banks v. Maher, 2 Bosw. 690; Terry v. Roberts, 15 How. Pr. 65; but see Barribeau v. Brant, 17 How. U.S. 43.) Upon the death of an assignee for the benefit of creditors, pend- ing an action in the nature of replevin, brought by him to recover damages from a sheriff for the tortious taking of assets, the proper parties to be substituted are the personal representatives of the deceased, since the action relates to personal property. Emerson v. Bleakley, 5 Abb. Pr. (N.S.) 350. 159. Facts must be Alleged. An answer should allege the facts, showing why the plaintiff is not a real party in interest. (Russell v. Clapp, 7 Barb. 482; Fosdick v. Groff, 22 How. Pr. 158.) But it is not necessarily frivolous. (Tamissier v. Cassard, 17 Abb. Pr. 187.) The answer is not frivolous for neglecting to name the assignee, or designating him as John Doe. (Smith v. Mead, 14 Abb. Pr. 262; Metropolitan Bank v. Lord, i Id. 185.) If it appears by the pleadings that the assignment was in trust, it should be also alleged that the assignee accepted it. Whitlock v. Fiske, 3 Edw. 131. 160. Insufficient Pleas. A plea entirely addressed to the right to recover of a third person for whose use the suit is brought, is bad on demurrer. (Sydam v. Cannon, i Houst. 431.) So, on the ground that the title of the plaintiff is merely colorable. (Boyreau v. Camp- bell, i Me All. 119.) Or that a demand has been colorably assigned, in order to evade a discharge under the insolvent law, is not to be treated as dilatory and captious. Wallace v. Clark, 3 Woodb. & M. 357. 161. Must be Specially Set up. The objection that the plaintiff is not the real party in interest must be set up in the answer, to enable defendant to rely upon it, or it will be unavailing on the trial, even if the fact should appear from the examination of witnesses. (Jackson v. Whedon, i E. D. Smith, 141; Savage v. Corn Exchange etc. Ins. Co., 4 Bosw. i.) But if it appear from the face of the com- plaint that defendant is not the real or true party plaintiff, then the objection should be made by demurrer. 162. Set-Off. In an action by the assignee of a claim, a demand existing prior to the assignment, in favor of defendant, and against the FORMS OF SPECIAL PLEAS. 751 assignor, is unavailable as a counter claim, and if so pleaded no reply is necessary. (Dillaye v. Niles, 4 Abb. Pr. 253; Ferreira v. Depew, 4 Id. 131.) To render it available as an equitable defense, it must be pleaded as a defense. (Ferreira v. Depew, 4 Id. 131: Wolf v. H., 13 How. Pr. R. 84.) In an action brought by an assignee of a demand, an answer interposing as a set-off a claim subsisting in favor of the defendant against the assignor, is not to be regarded as setting up a counter claim ; and the plaintiff need not put in a reply of the Statute of Limitations in order to avail himself of such Statute against the claim so set up. (Thompson v. Sickles, 46 Barb. 49.) A demand against the plaintiff's assignor, who is not a pa*r|y, is not generally available. (Cunmings v. Morris, 25 N. Y. 625; Dillaye v. Niles, 4 Abb. Pr. 253; Ferreira v. Depew, 4 Id. 131; Spencer v. Babcock, 22 Barb. 326.) But when a creditor, having a debt due him by mortgage, assigns the debt and mortgage, a judgment in favor of a third person against the creditor purchased by the debtor after the assignment, but before notice to him, constitutes an offset pro tanto to the debt in an action upon it by the assignee. McCabe v. Grey, 20 Cal. 509. No. 616. iii. Want of Capacity Denial of Plaintiff 's Corporation. [TITLE.] The defendant answers to the complaint: That there was not at the commencement of this ac- tion, nor is there now any such corporation as the Mining Company, named as plaintiff in this action. 163. Consolidated Corporation. Where by state statute, power is given to connecting railway corporations to merge and Consolidate their stock, and such merger and consolidation has been judicially de- cided by the Supreme Court of the State to be a dissolution in law of the previous companies, and the creation of a new corporation with new liabilities; in such case, where the declaration avers that the de- fendant had agreed that stocks of one of the connecting railroads should 752 FORMS OF SPECIAL PLEAS. be worth a certain price, at a certain time and in a certain place, and the plea sets up that under the Statute the stock of the railway named was merged and consolidated by the consent of the party suing, with a second railway named, so forming "one joint stock company of the said two corporations," under a corporate name stated, such plea is good, though it do not aver that the consolidation was done without the con- sent of the defendants. (Clearwater v. Meredith, i Wallace U.S. 25.) Such a plea contains two points only which the plaintiff can traverse, the fact of consolidation, and the fact of consent; and these must be denied separately. If denied together, the replication is double and bad. Id. 164. Denial of Incorporation. The want of capacity to sue or be sued must be specially alleged. (Brooks v. Chilton, 6 Cal. 640; Cal. Stm. Nav. Co. v. Wright, 8 Cal. 585; White v. Moses, n Id. 69; Society for Prop, of Gosp. v. Town of Pawlet, 4 Pel. 480; Philadelphia R. R. Co. v. Quigley, 21 How. U.S. 202; Dillaye v. Parks, 31 Barb. 132.) By pleading to the merits the objection is waived. (Conrad v. Atlantic Ins. Co., i Pet. 386; Society for Prop, of Gosp. v. Town of Pawlet, 4 Pet. 480; Yeaton v. Lyman, 5 Id. 223.) While under the Statutes of California, 1862, p. 10, the due incorporation of a corporation can- not be inquired into collaterally, yet a private person is not thereby pre- cluded from denying that it is a corporation dejure or de facto. Oroville and Virginia City Railroad Co. v. Plumas Co., Cal. Sup. Ct., Apl. T., 1869. 165. Denial not New Matter. Where the defendants are sued by a corporate name, though the complaint does not allege that the defendants are incorporated, still plaintiff must prove the fact, and a denial that defendants are a corporation is not new matter. (Stod- dard v. Onondaga Ann. Conf., 12 Barb. 573.) Before the Revised Statutes of New York, the denial of incorporation amounted only to the general issue. (Hartford Bank v. Murrell, i Wend. 87; Welland Canal Co. v. Hathaway, 8 Id. 480; Wood v. Jefferson County Bank, 9 Coiv. 194.) And it was equally bad when applied to foreign corporations. (Farmers' and Mechanics' Bank v. Rayner, 2 Hall, 195.) But under the revised statutes, to require a domestic corporation plaintiff to prove its corporate organization, the defendant must specially plead the non- existence of such corporation; and this plea was a good plea in bar. (Methodist Episcopal Church v. Tryon, i Den. 451; see, also, Bank of Genesee v. Patchin Bank, 13 N.Y. 309; Park Bank v. Tilton, 15 Abb. FORMS OF SPECIAL PLEAS. 753 Pr. 384.) But such a denial cannot be made on information and be- lief. East River Bank v . Rogers, 7 Bosw. 493. 166. Dissolution. An action by a corporation is not abated by dissolution, but may be continued in corporate name. N.Y. Marbled Iron Works v. Smith, 4 Duer, 362; Talmage v. Pell, 9 Paige, 410. 167. Estoppel. As a general rule, corporations have power to waive their rights, and are bound by estoppels in pat's, like natural per- sons. (Hale v. Union Ins. Co., 32 N.H. 295.) When an association assumes a name and exercises the powers of a corporation, it is estopped from denying its corporate liabilities. (United States Express Co. v. Bedbury, 34 III. 459.) A corporation which has entered into con- tracts in its corporate capacity is estopped, when sued thereon, from denying its corporate existence. (Callender v. Painesville and Hudson River R.R. Co. 1 1 Ohio, 516.) Where defendant accepted the office of treasurer of an incorporation, and served for several years as such, he was estopped from denying its corporate existence. (14 Johns. 238; All Saints' Church v. Lovett, i Hall, 191.) One entering into a con- tract with a corporation is estopped from setting up in an action upon such contract that the corporation was not legally framed. 3 Sandf. 170; 17 Barb. 378; 17 Ohio, 407; White v. Coventry, 29 Barb. 305; to same effect, White v. Ross, 15 Abb. Pr. 66; Hyatt v. Esmond, 37 Barb. 60 1 ; Hyatt v. Whipple, Id. 595; Cooper v. Shaver, 41 Barb. 151 ; but compare Welland Canal Co. v. Hathaway, 8 Wend. 480. 168. General Denial. To put the plaintiff to proof of his cor- porate capacity in this case, a general denial is not sufficient, but the answer must deny the existence of such a corporation. Park Bank v. Tilton, 15 Abb. Pr. 384; Bank of Havana v. Wickham, 7 Abb. Pr. 134. 169. Money Count. A denial of knowledge or information that the corporation was indebted in the sum of $744, or any other sum. Second, And allegations that the plaintiff was instructed, by resolution of the directors, to expend the earnings of the corporation which should come into his hands, and no more; and that, with knowledge of the amount of earnings and of such resolution, he made further ad- vances in his own name. Held, that the answer did not admit but de- nied that the sum of $800 was expended by direction of the Corpora- tion. The second defense is not the less a denial of the allegations of the complaint, if it be conceded that other portions of that answer 48 754 FORMS OF SPECIAL PLEAS. introduce new matter. (Simmons v . Sisson, 26 N.F. 264.) The first defense, it seems, is not a mere denial of a legal conclusion, but is equivalent to nil debet, and puts the plaintiff to proof of his cause of action. If insufficient, it was too late to object at the close of the trial. Id. 170. Must be Denied. If evidence is required on that point, it must be because that is a point in issue; and it cannot be in issue unless it is affirmed in the pleadings on one side, and denied on the other. See Ang. and Ames on Corp. 631, and cases cited; Oroville and Virginia City Railroad Company v. Supervisors of Plumas County, Cal. Sup. Ct., Apr. T., 1869. 171. Positive Denial. The rule which requires a defendant to answer positively as to the facts alleged in a verified complaint, which are presumptively within in his own knowledge, applies to municipal corporations. The statute makes no distinction between the rules of pleading applicable to natural persons, and those applicable to artificial persons. (San Francisco Gas Co. v. The City, 9 Cal. 453.) There may exist the best reasons for a different rule of pleading when a mu- nicipal corporation is a defendant; but this Court can make no distinc- tion, because the Code makes none. It is a matter for the Legislature, and not for the Court. Id. 172. Sufficient Denial. Where the complaint averred a con- tract between plaintiff and the Board of Supervisors, on behalf of the County, and the answer admitted a contract between the plaintiff and another on the one side, and the County on the other, and averred that this was the only contract made by the County in relation to the matter, and denied that any other was made by the Board of Supervisors : Held, that this denial was sufficient to put the plaintiff on proof of the con- tract. (Murphy v. Napa County, 20 Cal. 497.) In an action against a corporation, to recover dividends which have accrued on its stock, if the plaintiff avers, " that from a date named, she was, has been, and still is, the owner in her own right, and as her separate property, of the stock," the answer raises an issue, if it denies that, at the date named, "the plaintiff was, has since been, or still is, the owner in her own right and as her separate property " of the stock. The qualifications of the denial by the words " in her own right and as her separate prop- erty" are mere surplusage. Dow v. Gould and Curry Mining Co., 31 Cal. 630. FORMS OF SPECIAL PLEAS. 755 173. Want of Power to Act. Where the answer in a suit against a corporation, on its note, relies simply on the want of power of the corporation to issue notes, the defendant cannot afterwards object that the plaintiff has not shown that the officers executing the note were empowered by the corporation to do so. Smith v. Eureka Flour Mills Co., 6 Cal. i. No. 617. iv. Want of Capacity Denial of Trusteeship. [TITLE.] The defendant answers to the complaint: That since the expiration of said first year [or after the .... day of , 18 . .], he has not been a trustee of said campany, and has not in any way man- aged the affairs or concerns of said company, as such. 174. Denial of Subrcriptions to Stock. That he never subscribed for any stock of the corporation mentioned in the complaint, and never became a stockholder in or the holder or owner of any stock of the said corporation, in his own right, or in trust for others. 175. Denial of Interest Stock Sold. That on or about the .... day of , 1 8 . . , he sold and transferred all his stock and interest in the said company; and that he had not then, nor has he had since that time, nor has he now, any property or interest of any nature or kind whatsoever in the said company, as stockholder, or trustee, or otherwise. 176. Individual Answer. Stockholders of a corporation, who have been allowed to put in answers in the name of the corporation, cannot be regarded as answering for the corporation itself. In a special case however, a stockholder may be allowed to become a party defend- ant, for the purpose of protecting his own interests, and the interest of such stockholders as choose to join with him in the defense. Bronson v. La Crosse R.R. Co., 2 Wall. 283. 756 FORMS OF SPECIAL PLEAS. 177. Non-Joinder of Parties. Stockholders of insolvent cor- porations, when sued by creditors, may, under the plea of payment with leave, take advantage of non-joinder of proper parties, and need not plead specially in abatement. Hoard v. Wilcox, 47 Penn. 51. No. 618. v. Want of Capacity Denial of Official Capacity. [TITLE.] The defendant answers to the complaint, and denies that the plaintiff is [executor or administrator of the said deceased, or otherwise], as alleged, or at all. JVo. 619. vi. Want of Capacity Partnership of Plaintiff. [TITLE.] The defendant answers to the complaint, and alleges: I. That the cause of action set forth in the complaint did not accrue to the plaintiff individually, but to the plaintiff and one R. S. under the firm name \_giving name of firm\, and that said partners, as such, when this ac- tion was brought, held and owned the said cause of action jointly. II. That the said R. S. is still living. 178. Denial. A mere denial of the act is not a denial of the partnership. Anable v. Steam Engine Co., 16 Alb. Pr. 286. FORMS OF SPECIAL PLEAS. 757 JVo. 620. vii. Want of Capacity Partnership of the Defendant. [TITLE.] The defendant answers to the complaint, and alleges: I. That the contract set forth in the complaint was not made by him individually, but by him and one R. S. jointly as partners, under the firm name [give the firm name~\. II. That the said R.S. is still living. No. 621. i. Want of Consideration Common Form. [TITLE.] The defendant answers to the complaint: That he received no consideration for the [promisory note] mentioned therein. \Mistake or any fact showing fraud should be alleged^ 179. How Pleaded. In pleading failure of consideration, an issue of law must not be tendered. (Bennett v. Martin, 6 Mo. 460.) An answer of an entire or partial failure of consideration, which does not set out the facts showing the failure, or show how much the whole consideration for the property was, and gives no data by which the Court can determine what deduction, if any, should be made, is bad. Billian v. Hecklebrath, 23 Ind. 71. 180. Insufficient Plea. An answer setting up in defense a fail- ure to perform an agreemnnt to execute an idemnifying bond, is bad, when it does not set forth any injury resulting from such failure, but shows that injury can never happen. Billian v. Hercklebrath, 23 Ind. 71. 758 FORMS OF SPECIAL PLEAS. 181. Must be Affirmatively Pleaded. All matters in con- fession and avoidance, showing that the contract sued upon was void or voidable in point of law, must be affirmatively pleaded.. (Finley v. Quirk, 9 Min, 194.) It seems that illegality in a contract sued on, though shown by the testimony, cannot avail the defendant, unless it is alleged in the pleadings; and that an allegation in the answer that the contract was illegal, coupled with an enumeration in the same para- graph of specific grounds of illegality, does not entitle the defendant to prove any grounds of illegality not so specified. (Dingeldein v. Third Av. R.R.Co., 9 Bosw. 79.) A plea seeking to avoid a bond for being illegally taken should specially state all the facts which show that illegality. United States v. Sawyer, i Gall. 86. 182. Partial and Total Failure. An answer setting up for a defense a failure of consideration must show whether it is a partial or total failure. (Clough v, Murray, 19 Abb. Pr. 97.) A partial failure of consideration cannot be pleaded in bar of an action upon a note given for the purchase-money of land. (Reese v. Gordon, 19 Cal. 147.)' It is generally no defense to a promissory note. (Varnam v. Manro, 2 Cranch, 425.) Partial failure of consideration could not be given in evidence, unless specially pleaded. Wallace v. Boston, 10 Mo. 660. 183. Sufficient Averment. Where the obligor of a single bill was sued by an assignee, and pleaded that the bill was given for the purchase of horses which were not as sound nor of as high a pedigree as had been represented by the seller, such a plea was admissable. Withers v. Green, 9 How. U.S. 213. No. 622. ii. The Same That the 'Debt was for Money Lost at Play. [TITLE.] The defendant answers to the complaint: I. That the defendant and the plaintiff played together at a game of chance called , for stakes, upon credit, and not for ready money; and at said games the plaintiff won dollars of the defend- ant, which he did not pay. FORMS OF SPECIAL PLEAS. 759 II. That thereafter the defendant gave the plaintiff the note mentioned in the complaint for said money so staked and lost. No. 623. in. The Same Thai the Note was Given to Compound a Felony. [TITLE.] The defendant answers to the complaint, and alleges: I. That heretofore, on, etc., at, etc., one C. R., the son of the said defendant, had feloniously \here designate the crime e.g., thus: stolen, taken, and carried away , the property of the plaintiff] . II. That the said defendant, in order to compound and settle said felony, gave the said note ; in considera- tion of which the plaintiff and others desisted from in- forming and prosecuting upon said felony. III. That there was no other consideration for said note. \ 185. Form. From Abbotts' Forms, No. 801. No. 624. i. Want of Jurisdiction of the Person. [TITLE.] The defendant answers to the complaint: That he was, at the commencement of this action, and is now Consul of , for the City of , 760 FORMS OF SPECIAL PLEAS. duly accredited to the President of the United States, and by him received and acknowledged as such [or otherwise]. 186. Character of the Defense. Defenses in abatement of the suit or going to the jurisdiction, being preliminary in their nature, must be taken advantage of by plea, and cannot be taken advantage of in a general answer, which necessarily admits the right and capacity of the party to sue. Livingstone. Story, n Pet. 351. 187. Corporation. The fact that a corporation aggregate appears and pleads by attorney to the jurisdiction, is not a waiver of the ob- jection. Commercial and Railroad Bank of Vicksburg v. Slocomb, 14 Pet. 60. 188. Foreclosure of Mortgage. The question of jurisdiction arising in a case where a mortgagor and mortgagee were citizens of the same state, and the mortgagee had assigned the mortgage to a citizen of another state, should have been raised by a plea in abatement. Upon a trial of the merits it was too late. Smith v. Kernochen, 7 How. U.S. 198. 189. Must be Specially Pleaded. A plea to the jurisdiction in equity is like a plea in abatement at law, which cannot be put in after a general imparlance, or be received when it does not give the plaintiff a better writ. Baker v. Biddle, Baldw. 394. 190. Remedy at Law. The objection that a court of equity has not jurisdiction of the suit, because complainant has an adequate remedy at law, should be taken by plea or answer. It is too late to raise it for the first time upon appeal, unless the want of jurisdiction is apparent on the face of the bill. Wylie v. Coxe, 15 How. U.S. 415. 191. Residence. A defendant who is sued out of his district may plead his personal privilege. Teese v. Phelps, i Me All. 17. 192. Statement as to Time. A plea in abatement, denying the truth of the averments as to residence, etc., in the present tense instead of in the past tense, so as to make issue with reference to the time of the commencement of the suit, is not so clearly frivolous as FORMS OF SPECIAL PLEAS. 761 to require the Court to set it aside or disregard it. 10 Ad. &. E. 17; Eberly v. Morse, 24 How. U.S. 147. 193. United States Courts. Where v the jurisdiction of the Circuit Court of the United States appears by proper averments upon the record, the defendant can only impugn it on a special plea; the objection cannot be taken by answer. Rule 39 in Equity; Wickliffe v. Owings, 17 How. U.S. 47. 194. When a Defense. This defense is sustainable only where the person is not subject to the jurisdiction of the Court, and not where the objection is merely that original process has not been duly served. Nones v. Hope Mutual Life Ins. Co., 5 How. Pr. 96; Bridge v. Pay- son, i Duer, 614. 195. When Waived. If a plea to the jurisdiction and a plea non assumpsit be put in, and the issue be made up on the latter plea only, no notice being taken of the former, and upon this state of the pleadings the cause goes on trial, the plea to the jurisdiction is con- sidered as waived. Bailey v. Dozies, 6 How. U.S. 23. No. 625. ii. The Same By Foreign Corporation. [TITLE.] The defendant answers to the complaint, and alleges: I. That the defendant [foreign corporation] is a corporation created by the laws of the State of [or other foreign government or country\, and not by the laws of this State. II. That the plaintiff is not a resident of this State, but resides at , in the State of III. That the said \Jiere state facts showing that the cause of action arose without the State, and is not upon a contract made, executed, or delivered in this State~\. 752 FORMS OF SPECIAL PLEAS. No. 626. iii. Want of Jurisdiction of the Subject. [TITLE.] The defendant answers to the complaint, and alleges: That the supposed cause of action accrued to the said plaintiff, if at all, out of the jurisdiction of this court; that is to say, at , in the County of , t and not at , in the County of , or elsewhere within the jurisdiction of this Court, or within the said last named County. 196. Note. Under our practice, when the action is brought in the wrong county, it is usual to move the Court to change the place of trial before answering. If not made before answering, it cannot be made at all. 197. What must be Shown. In Massachusetts, a plea to the jurisdiction should show that some other court in the same State has jurisdiction. Lawrence v. Smith, 5 Mass. 362; Otis v. Wakeman, I Hill. 604; The King v. Johnson, 6 East. 583, 600. 198. A Bar to the Action. A plea to the jurisdiction, on account of limited jurisdiction, is a plea in bar. (Smith v. McCleod, I Cranch C. Ct. 43.) A question as to the jurisdiction of the court cannot be raised under the general issue, but must be specially pleaded. (6 How. Pr. i; Eberly v. Morse, 24 How. U.S. 147; Teese v. Phelps, i Me All. U.S. 17; The " Abby," i Mass. 360.) But where the subject matter is not within the jurisdiction of the court, the exception may be taken under the general issue. (Marssonnaire v. Keating, 2 Gall. 325.) Although a plea in bar admits the jurisdiction, the District Court have power, after such a plea has been put in, to permit the defendant to withdraw it, and plead in abatement a denial that the averments relied on to show jurisdiction were true. It is proper to give leave to amend thus where the defendant shows by affidavit that the averments as to jurisdiction were false and fraudulent. Eberly v. Moore, 24 How. U.S. 147. CHAPTER IV. COUNTER CLAIM. Wo. 627. Counter Claim Alone. [TITLE.] The defendant answers to the complaint, and for a counter claim alleges: That, etc. \_State a cause of action precisely as in a Wherefore the defendant demands judgment for . dollars. "L Cross Complaint. Where the answer set up a set-off and counter claim, and prayed for a judgment against the plaintiff for the amount alleged to be due, it is not a cross complaint within the mean- ing of 38, 46, 50 and 65 of the Practice Act, and therefore does not require to be answered by the plaintiff. (Herold v. Smith, 34 Cal. 122; Jones v. Jones, Cal. Sup. Ct., Oct. T., 1869.) A cross bill being an auxiliary bill, simply must be a bill touching matters in question in the original bill. (Cross v. Del Valle, i Wall. U.S. 5.) In the United States Courts, the filing of a cross bill on a petition, without the leave of the Court, in an irregularity, and such cross bill may be properly set aside. Bronson v. La Crosse R.R. Co., 2 Wall U.S. 283. 2. Cross Demands, When cross demands have existed between persons, under such circumstances that if one had brought an action against the other, a counter claim could have been set up, neither shall be deprived of the benefit thereof by the assignment or death of the 764 FORMS OF ANSWERS. other; but the two demands shall be deemed compensated, so far as they equal each other. (Cal. Pr. Act, 48.) A debtor has a right to purchase cross demands against a partnership, and set them up as a defense against a debt due by him to the partnership. Naglee v . Minturn, 8 Cal. 540; Marye v. Jones, 9 Cal. 335. 3. Counter Claim Defined. A counter claim is a cause of action, in which a several judgment might be obtained against the plaintiff in favor of the defendant, in an action arising out of the trans- action set forth in the complaint and answer, or connected with the subject of the action. (Drake v. Cockroft, 4 E. D. Smith. 34; S.C., i Abb. Pr. 203; Askins v. Hearns, 3 Abb. Pr. 184; Schnaderbeck v Worth, 8 Id. 37; Xenia Branch Bank v. Lee, 2 Bosw. 694; S.C., 7 Abb. Pr. 372; De Leyer v. Michaels, 5 Abb. Pr. 203; Cottier v. Babcock, 7 Id. 392; Barhyte v. Hughes, 33 Barb. 320; Mayor etc. of N.Y. v. Parker Vein Steamship Co., 12 Abb. Pr. 300.) In an action arising upon contract, it is any other cause of action arising also upon contract, and existing at the commencement of the action. (Cal. Pr. Act, 47; N.Y. Code, 150.) Or, in other words, a cause of action in favor of the defendant, upon which he might have sued the plaintiff and ob- tained affirmative relief in a separate action. (Howard v. Shores, 20 Cal. 277; Belleau v. Thompson, 33 Cal. 495.) The subject of counter claim will be found fully discussed, and the extent of the term denned, in The Xenia Branch of State Bank of Ohio v. Lee, 2 Bosw. 694; see Lemon v. Trull, 13 Hoiv. Pr. 248; affirmed by 16 How. Pr. 576; see, also, Pattison v. Richards, 22 Barb. 143; Vassar v. Livingston, 3 Kern. 248; affirming 4 Duer, 285; Kneedler v. Sternburgh, 10 How. Pr. 67; Welch v. Hazelton, 14 How. Pr. 97; Wolf v. H., 13 How. Pr. 84. 4. Damages Set Off! If plaintiff's cause of action is for dam- ages for breach on the part of the defendant, defendant may interpose a counter claim for damages, for a breach of the same contract by plaintiffs. Dennis v. Belt, 30 Cal. 247. 5. Damages, when not Available. Damages which do not legally result from the breach of the contract cannot be recovered un- less they are specially claimed and set forth in the pleading. Thus, dam- ages sustained by vendee of goods by reason of his inability to comply with a contract made by him with a third person, do not legally result from a breach of the contract of his vendor to deliver the goods to COUNTER CLAIM. 765 him; and in an action by his vendor against him, cannot be recouped from the plaintiff's claim, unless such damages are specially alleged and set forth in an answer. Cole v. Swanston, i Cal, 51. 6. Election of Remedy. The provision of the Code allowing counter claims is permissive; and, in general, defendant is not bound to set up a demand as a counter claim, but may enfore its recovery in a separate action. (Hobbs v. Duff, 23 Cal. 596; Halsey v. Carter, i Duer, 667; Barth v. Burt, 43 Barb. 628; Collyer v. Collins, 17 Abb. Pr. 467.) Nor does a party lose his right to bring an action for demand, which he might have pleaded as a set-off in a former action, but neg- lected to do. (Hobbs v. Duff, 23 Cal. 596.) So, an omission to assert a cross-claim, when a demand is presented for payment, does not in- volve a waiver of the counter claim; nor is a failure to discharge an unfaithful servant, before his term of service has expired, a release of damages arising from his neglect. Stoddard v. Treadwell, 26 Cal. 300. 7. Essential Conditions. The counter claim mentioned in this section shall be one existing in favor of the defendant, and against the plaintiff. (4 Abb. Pr. 131, 253; Duncan v. Stanton, 30 Barb. 533; Wiltsie v. Northam, 3 Bosw. 162; Cummings v. Morris, Id. 560; Boyd v. Foot, 5 Id. no; Gleason v. Moen, 2 Duer, 639; Van Valen v. Lap- ham, 13 How. Pr. 240; Spencer v. Babcock, 22 Barb. 326; Auburn City Park v. Leonard, 20 How. Pr. 193; Bissell v. Pearson, 21 How. Pr. 130; Boyd v. Foot, 5 Bosw. no; Chaffre v. Cox, i Hilt, 78; Da- vidson v. Remington, 12 How. Pr. 310; Gillespie v. Torrance, 4 Bosw. 36; Ogden v. Coddington, 2 E. D. Smith, 317; Ives v. Goddard, i Hilt. 434; Merrick v. Gordon, 20 N.Y. 93; Reed v. Latseen, 15 Barb. 9; Tyler v. Willis, 33 Barb. 327; Van de Sande v. Hall, 13 How. Pr. 458; Weeks v. Pryor, 27 Barb. 79; Vassar v. Livingston, 13 NY. 248; Wolf v. H., 13 How. Pr. 84.) And it must be existing at the com- mencement of the action; (Rice v. O'Connor, 10 Abb. Pr. 362;) and at the time belong to the defendant. (Van Valen v . Lapham, 5 Duer, 689; S.C., 13 How. Pr. 240; Chambers v. Lewis, n Abb. Pr. 210; affirming S.C., 2 Hilt. 591 ; and 10 Abb. Pr. 206.) To authorize a set- off at law, the debts must be between the parties in their own rights, and must be of the same kind and quality, and be clearly ascertained or liquidated; they must be certain and determined debts. Naglee v. Palmer, 7 Cal. 543; commented on in Duff v. Hobbs, 19 Cal. 646; and approved in Hobbs v . Duff, 23 Cal. 627. 8. Equitable Defenses. The defendant may set up an equita- 766 FORMS OF ANSWERS. ble defense in an action at law, but if he relies on an equitable right of action as a defense, he must plead the same as fully as if he were bring- ing an action in equity. (Carpentier v. The City of Oakland, 30 Cal. 439.) Equitable as well as legal demands may be set up as counter claims. (Bartlett v. Judd, 23 Barb. 262; Currie v. Cowles, 6 Bosiv. 452; and see Lemon v. Trull, 13 How. Pr. 248.) Thus, a mistake in a contract, and a claim to have it reformed, may be set up as a counter claim. (Wemple v. Stewart, 22 Barb. 154.) But in cases of an equi- table nature, substantially the same limitation is applied as was in respect to filing cross bills in chancery, which were allowed only as to matters touching the matters in the original bill. Burns v. Kevins, 27 Barb. 493. 9. Equitable Set-Off A court of equity will compel an equi- table set off, when parties have mutual demands against each other. (Russell v. Conway, n Cal. 93; Hobbs v. Duff, 23 Cal. 596.) Equity will not set off the claim of an individual creditor of one joint owner of a judgment against the judgment; and if the judgment be partner- ship assets, the individual creditor has no claim to any part of it until adjustment of the firm accounts. Collins v. Butler, 14 Cal. 227. 10. How Alleged. It is enough if'the answer states a cause of action against the plaintiff, arising out of the contract or transaction set forth in the complaint, as the foundation of the plaintiff's claim, or connected with the subject of the action. (Allen v. Haskins, 5 Duer, 332.) Though certain defenses, by way of set-off, are pleaded in the answer in a very informal and inartificial manner, still, if the facts showing that they constitute valid claims against the plaintiff are suffi- ciently stated, the defenses ought not to be stricken out. (See facts, Wallace v. Bear River Water and Mining Co., 18 Cal. 461.) The facts as to how it arose out of the transaction must be stated in the answer. Brown v. Buckingham, n Abb. Pr. 387. 11. Joint Claim. To justify the allowance of a set-off of joint debt due from plaintiff, and another against the individual claim of plaintiff, upon equitable grounds, it is not sufficient to show that the joint debtors owe a considerable amount, and that their property is encumbered by judgements, mortgages, and attachments, without show- ing that they are insolvent, or that the defendants are in danger of losing their demand. Howard v. Shores, 20 Cal. 277. 12. Joint and Several Claims. A joint claim by two persons COUNTER CLAIM. 767 cannot be pleaded as a counter-claim by one defendant, but he may amend, and allege^that the whole interest therein had been transferred to him. (Stearns v. Martin, 4 Cal. 229; Russel v. Conway, n Id. 101; Collins v. Butler, 14 Id. 223.) Demands being joint and several are not, strictly speaking, due in the same right; 'yet, if the legal and equi- table liabilities on claims of money become vested in or may be urged against one, they may be set off against separate demands, and vice versa. Russell v. Conway, II Cal. 101. 13. Must be Specially Pleaded. Under the plea of general issue, evidence of a counter-claim is not admissible. It should be spe- cially pleaded. (Hicks v. Green, 9 Cal. 75; Deneale v. Young, 2 Cranch C. Ct. 418.) It is not enough to allege in general terms that the demand is a counter claim. It must be stated specifically. (Van Valen v. Lapman, 5 Duer, 689.) To entitle a defendant to set off a claim against a demand of the plaintiff, he must set forth in his answer the nature of the claim which he intends to set off, and when this was not done : Held, that the Court below properly rejected evidence of the claim proposed to be set off. Bernard v. Mullot, i Cal. 368. 14. Must Defeat Plaintiff's Right. The demand of a counter claim must operate in whole or in part to defeat the plaintiff's right of recovery in the action. (Nat. Fire Ins. Co. v. McKay, 2\ N.Y. 191; Mattoon v. Baker, 24 How. Pr. 329.) The defendant may not only defeat the plaintiff's claim by pleading a set-off, but may recover a balance in excess of that claim. Ogden v. Coddington, 2 E. D. Smith, 317. 15. Principal and Surety. A surety cannot avail himself of a right his principal may have to recover damages for a breach of the principal contract. Gillespie v. Torrance, 25 N.Y. 306; affirming S.C., 4 Bosw. 36; 7 Abb. Pr. 462; Lafarge v. Halsey, 4 Id. 397. 16. New Matter. New matter in the answer, which does not constitue a counter claim, is deemed controverted. Garner v. The Manhattan Building Association, 6 Duer, 539. 17. Recoupment. Counter claims by way of recoupment may be set off against the claim of plaintiff, in an action arising out of a contract. (McGinley v. Hardy, 18 Cal. 115; Stoddard v. Treadwell, 26 Id. 300; Vassar v. Livingston, 3 Kern. 248; Branch of State B'k of Ohio v. Lee, 2 Bosw. 694; Gleason v. Moen, 2 Duer, 639; Spencer v. 768 FORMS OF ANSWERS. Babcock, 22 Barb. 326.) In such a case, damages may be pleaded as a set off, and evidence adduced to prove the damages embraced in the counter claim of defendant. (McGurley v. Hardy, 18 Cal. 115; Stoddard v. Treadwell, 26 Id. 300.) But they must be specially claimed; (Cole v. Swanston, i Cal. 51; Hicks v. Green, 9 Cal. 74; Stoddard v. Treadwell, 26 Id. 306;) or they will not be allowed. Byxbie v. Wood, 24 N.K 607. 18. Rule of Pleading. The nature of the claim must be set forth. (Bernard v. Mallot, i Cal. 368.) And if sufficiently pleaded, it should not be stricken out. (Wallace v. Bear Riv. Wat. and Min. Co., 1 8 Cal. 471.) It must contain the substance necessary to sustain an action on behalf of the defendant against the plaintiff, if the plaintiff had not sued the defendant. (Vassear v. Livingston, 13 N.Y. 248; affirming S.C., 4 Duer, 285.) And must be separately stated. (Kinney v. Miller, 25 Mo. 576.) Although the Code (N.Y.) does not expressly require the defendant in his answer to state the relief he demands, he must set forth whether he interposes a mere defense or a counter claim. Clough v. Murray, 19 Abb.Pr. 97. 19. Statement must be Express. The statement should be expressly as a counter claim; for if it is only in the form of a defense to the action, the defendant may lose the benefit of affirmative relief. Davidson v. Remington, 12 How. Pr. 310; Bates v. Rosekrans, 23 Id. 89; compare Burrall v. De Groot, 5 Duer, 379. 20. Unliquidated Claims. So, unliquidated claim for damages is not the subject of off-set, legal or equitable. Ricketson v. Richardson, 19 Cal. 331; Mcdougal v. Maguire, 35 Cal. 274; Schubart v. Harteau, 34 Barb. 447; Mayor etc. of N.Y. v. Mabie, 13 N.F. 151; Gage v. Angell, 8 How. Pr. 335. 21. Tort. A counter claim sounding in tort cannot be relied on. The defendant cannot recover upon it as upon a contract. Mayor etc. of N.Y. v. Parker Vein Steamship Co., 12 Abb. Pr. 300; Piser v. Stearns, i Hilt. 86. 22. What it Admits. In considering a counter claim upon demurrer to it for alleged insufficiency, the facts alleged in the com- plaint, which are not inconsistent with the averments in the counter claim, are to be taken as admitted. Graham v. Dunnigan, 4 Abb. Pr. 426. CHAPTER V. SEVERAL DEFENSES. J\To. 628. Demurrer and Answer. [TITLE.] The defendant demurs [or the defendants, naming them, if only a part of them join, demur] to the first [or other] count of the complaint, on the following grounds: First [State the grounds."] Second And for answer to the plaintiff's complaint, the defendant alleges: That, etc. 1. Demurrer and Answer. The defendant may demur to the whole complaint, or to one or more of several causes of action stated therein, and answer the residue, or may demur and answer at the same time. (Cal. Pr. Ac/, 42; N.Y. Code, 151; People v. McClellan, 31 'Cal. 101; Clarkson v. Mitchell, 3 E. D. Smith, C.P.R. 269.) This however does not justify the mixing of law and fact in the same answer. (Brooks v. Douglass, 32 CaL 208.) But he cannot demur to part of an entire cause of action, and answer the residue.. (Ingraham v. Baldman, 12 Barb. 10; affirmed 9 N.Y. 45; Gassett v. Crocker, 10 Abb. Pr. 133; Struver v. Ocean Ins. Co., 16 How. Pr.. 422; Munn v. Barnum, 12 Id. 563; i Abb. Pr. 281; Spellman v. Weider, 5 How. Pr. 5; Slocum v. Wheeler, 4 Id. 373; S.C., 3 Code R. 59; or to the same matter, Munn v. Barnum, i Abb. Pr. 281.) This is similar to the rule in chancery. (Clarke v. Phelps, 6 Johns. Ch. 49 77O FORMS OF ANSWERS. 214; Bruen v. Bruen, 4 Edw. 640; Souzer v. De Meyar, 2 Paige, 574; Jarvis v. Palmer, n Id. 650; Spoffard v. Manning, 6 Id. 383.) A demurrer to a part of a bill, followed by an answer as to the rest, is not deemed overruled or withdrawn. (Pierpont v. Fowle, 2 Woodb. & M. 23.) When the objection must be taken by demurrer, when by answer, see Brainard v. Jones, n How. Pr. R. 569. 2. Objections, how Taken. Defects which appear on the face of the complaint must be objected to by demurrer, or they are waived, and cannot be objected to by answer; so with a defect of parties. (Cat. Pr. Act, 45; Zabriskie v. Smith, 13 N. Y. 322.) And the same cause of action cannot be demurred to and answered at the same time. (Slocum v. Wheeler, 4 How. Pr. 373; Spellman v. Weider, 5 How. Pr. 5; Munn v. Barnum, i Abb. Pr. 281; Ingraham v. Baldwin, 12 Barb. 9; Clark v. Phelps, 6 Johns. Ch. 214; Bruen v. Bruen, 4 Edw. 640; Souzer v. Demeyer, 2 Paige, 574.) As the answer overrides the demurrer. (Jarvis v. Palmer, n Id. 650; Spofford v. Manning, 6 Id. 383.) Nor will the Court allow a party to withdraw his answer and demurrer. (Finch v. Pindon, 19 Abb. Pr. 96.) But the defendant may demur to one count and answer to the other. (Ingraham v. Baldwin, 12 Barb. 9.) An objection to the jurisdiction of the court, and that the complaint does not state facts sufficient to constitute a cause of action, can be taken at any time. Col. Pr. Act, 45. 3. Several Modes of Defense. It is an established and universal rule of pleading in chancery, that a defendant may meet a complainant's bill by several modes of defense he may demur, answer, and plead to different parts of the bill; so that if a bill for discovery and relief contain proper matter for the one, and not for the other, the defendant should answer the proper, and demur to the improper matter; and if he demur to the whole, the demurrer will be over- ruled. 5 Johns. Ch. 186; i John. Cas. 433; Livingston v. Story, 9 Pet. 632. 4. What Answer Waives. An answer and demurrer may be interposed at the same time. But filing an answer is a waiver of the demurrer previously interposed; (De Boom v. Priestly, i Cal. 206; Pierce v. Minturn, Id. 470; Brooks v. Minturn, Id. 481; Bibend v. Kreutz, 20 Id. 109; Hodgson v. Marine Ins. Co., i Cranch C. Ct. 569; Irwin v. Henderson, 2 Id. 167;) and of irregularities previously SEVERAL DEFENSES. 77 I set up in demurrer. (Bell v. Railroad Co., 4 Wall. U.S. 598.) It is also a waiver of alleged error as to change of parties by substituting one defendant for another without notice. Smith v. Curtis, 7 Cal. 584. No. 629. Several Defenses, and a Connter Claim. [TITLE.] The defendant answers to the complaint: First To the first claim: I. That no allegation in the first article thereof is true. II. [That as to the second article thereof, he has no knowledge or information sufficient to form a belief as to the truth of the same.] Second To the second claim: That the note mentioned therein is not his note. Third To the third claim: 1. For a first defense: I. That it was a part of the agreement referred to in the complaint, that the plaintiff should not sell goods for any other person than the defendant. II. That the plaintiff, during the period of his service mentioned in the complaint, sold sundry goods for one B. S., and for other persons whose names are unknown to the defendant, without the defendant's consent. 2. For a second defense. That he has fully paid the plaintiff for his services. 772 FORMS OF ANSWERS. Fourth For a counter claim: I. That between the day of , 18 . . , and the .... day of , 1 8 . . , the plaintiff re- ceived from D. A dollars, 'for the use of the defendant. III. That he has not paid the same. Wherefore* the defendant demands judgment for dollars, with interest from the .... day of , 18... 5. Cross Complaint. A cross complaint bears a close resem- blance to a counter claim. The distinction is subtle, but is none the less definite. The cross complaint brings in more comprehensive matter than a counter claim, and includes any just cause of action as* a set-off to the plea of plaintiff. When the answer contains a cross complaint, a reply is necessary, in default of which all matters alleged in cross complaint will be taken as confessed. Such replication is not necces- sary to a counter claim. Herold v. Smith, 34 Cal. 122. [TITLE.] No. 630. Several Defenses Another Form. The defendant [or defendants severally, each for himself], answers to the complaint: ' First For a first defense: I. As to the first cause of action set forth in the complaint, that no allegation thereof is true. II. That on, etc. \Set out defense^ Second For a second defense: As to the second cause of action set forth in the com- plaint, the defendant alleges:' \Setforth defense^ SEVERAL DEFENSES. 773 Third For a third defense: And by way of counter claim [or set-off, or cross complaint] to the [first] cause of action set forth in the complaint, the defendant alleges: \Setfortk a cause of action against the plaintiff I\ 1. Commencement and Conclusion. It is proper that each defense should indicate distinctly, by fit and appropriate words, where it commences and where it concludes. (Lippencott v. Goodwin, 8 How. Pr. 242; Benedict v. Seymour, 6 Id. 298.) But no formal com- mencement or conclusion is prescribed. Bridge v. Payson, 5 Sandf. 210. 8. Each Defense must be Complete. One defense cannot refer to another in the same answer for support. (Xenia Branch Bank v. Lee, 2 Bosw. 694; S.C., 7 Abb. Pr. 372; Spencer v. Babcock, 22 Barb. 326.) But it was held in (Rice v. O'Connor, 10 Abb. Pr. R. 362), that several defenses in one statement is not bad on demurrer. Upon a demurrer to a distinct defense, stated separately in an answer, no resort can be had to other portions of the answer to sustain such defense; for each defense must be complete in itself. (Siter v. Jewett, 33 Cal. 92; 7 Abb. Pr. 372; 10 Id. 246; 4 Bosw. 391; Jackson v. Van Slyke, 44 Barb. 116.) One separate defense, if defective in any material averment, cannot be aided by the averments of another sepa- rate defense. Catlin v. Pedrick, 17 Wis. 88. 9. Each Defense Specific. When the complaint contains more than one cause of action, the answer should indicate to which cause of action each defense is interposed. (Kneedler v. Sternbergh, 10 How. Pr. 67.) If the substance of the defense clearly shows to which cause of action it is addressed, it is sufficient on demurrer. Willis v. Taggard, 7 How. Pr. 433. 10. Issues on Several Defenses. If one of several pleas of a defendant going to the whole cause of action is sustained, it bars re- covery by the plaintiff, notwithstanding some other issues may be found in favor of the plaintiff. (Curtis v. Jones, i How. App. Cases, 137.) What judgment should be rendered when one of two pleas is found for the plaintiff, and the other for the defendant, see Dorsey v. Chenault, 2 Crunch C. Ct. 316; Kerr v. Force, 3 Id. 8. 774 FORMS OF ANSWERS. 11. Joint Answer. A joint answer to a bill in chancery, if sworn to by all the parties, is sufficient; a joint and several form is not indis- pensable. (Davis v. Davidson, 4 McLean, 136.) Where a joint answer of several defendants denies an allegation in the complaint which the plaintiff must prove to establish his cause of action against some of the defendants, but which he need not prove to entitle him to recover against the others, the answer raises material issue for the defendants as to whom the plaintiff must prove such allegation. (Bank of Coopers- town v. Corlies, i Abb. Pr. R. (N.S.) 412.) Where a plea states that the defendants c*ne and defend, etc., it will be construed that all de- fendants are joined. Kerr v. Swallow, 33 ///. 379. 12. Must be Consistent. Several defenses may be set up in an answer (Cal. Pr. Act, 49), but if they are contradictory, it is bad. (Bell v. Brown, 22 Cal. 671; Hopper v. Hopper, n Paige, 46.) A sworn answer must be consistent, and not deny in one sentence what it admits in another sentence. (Kuhland v. Sedgwick, 17 Cal. 123; Hensley v. Tartar, 14 Cal. 508; Robinson v. Stewart, 10 N.Y. 189; Storer v. Coe, 2 Bosw. 662; Manice v. N.Y. Dry Dock Co., 3 Edw. Ch. R. 146; Willett v. Metropolitan Ins. Co., 2 Bosw. 678; .9 Abb. Pr. 444.) Several defenses, inconsistent with each other, may, under proper circumstances, be set up in a verified answer. (Bell v. Brown, 22 Cal. 671.) But where an answer is susceptible of being construed to contain either of two defenses, one of payment, and the other of counter claim, it should be construed as setting up only the defense of payment and requiring no reply. (Burke v. Thorne, 44 Barb. 363.) As to inconsistencies in the answer, see (Hollenbeck v. Clow, 9 How. Pr. 289; Lansingh v. Parker, Id. 288; Stiles v. Comstock, Id. 48.) The inconsistent defenses which are allowed to be pleaded in a verified answer, are not such as require in their statement a direct contradiction of any fact elsewhere directly averred. They are those in which the inconsistency arises rather by implication of law, being in the nature of pleas of confession and avoidance, as contradistinguished from denials where the party impliedly or hypothetically admits, for the purpose of that particular defense, a fact which he notwithstanding insists does not in truth exist. (Bell v. Brown, 22 Cal. 671.) If no objection be taken to an answer, by a motion to strike out, or by demurrer which sets np inconsistent defenses, defendant may on the trial rely on any one of such defenses. Klink v. Cohen, 13 Cal. 623; Uridias v. Morrell, 25 Cal. 35. SEVERAL DEFENSES. 7,75 13. Prayer in Answer. In an action to recover personal property, or to obtain the value of the property on judgment of dis missal against the plaintiff for failure to appear, the answer must con- tain some allegation or prayer relative to the change of possession from defendant to plaintiff. (Gould v. Scannell, 13 Cal. 430.) A formal prayer is not necessary in an answer, when no counter claim is set up. Bendit v. Annesley, 42 Barb. 192. 14. Separate Answer. In actions against several defendants, each may answer separately. (2 Saund. PI. and Ev. 18-19.) But dila- tory defenses must be common to all. (Hurley v. Sec. Sierra Nevada Lake W T ater and Mining Co., 18 Cal 171. CHAPTER X. ANSWERS FOR USE AND OCCUPATION. JVo. 655. i. Denial of Indebtedness. [TITLE.] The defendant answers to the complaint: That he denies that he is indebted to said plaintiff, in manner and form as alleged in the said complaint, or in any manner, or at all. 1. Set-Off A defendant who entered under a bond for a deed cannot set off his improvements against damages for use and occupa- tion. Kilburnz>. Ritchie, 2 Cal. 145. JVo. 656. ii. The Same Denial of Use and Occupation. [TITLE.] The defendant answers to the complaint: That he did not occupy the premises as alleged, or at all. JVo. 657. iii. The Same Denial of Hiring. [TITLE.] The defendant answers to the complaint: That he did not hire said premises of the plaintiff, as alleged, or in any manner, or at all. 804 FORMS OF ANSWERS. 2. Admission The plea of no rent in arrear admits the demise as laid in the avowry. (Alexander v Harris, 4 Cranch, 299; affirming i Cranch C. Ct. 243.) An omission to join issue upon an avowry for rent in arrear, or otherwise to notice it on the record, is a mere irregu- larity, cured by the verdict. Dermott v. Wallach, i Black. 96. 3. Request. "Hired" implies a request. Emery v. Fell, 2 T. R. 28. No. 658. iv. The Same Denial by Assignee. [TITLE.] The defendant answers to the complaint: That said [lessee] did not hire the premises from the defendant as alleged; and that no assignment of any such lease was made to, or accepted by the defendant as alleged; and that the defendant did not occupy the premises under the lease, or under any lease. 4. Effect of Denial. This will not admit evidence that, before the commencement of the action, he had parted with all interest in the lease and assignment. (Keteltas v. Maybee, i Code R. (N.S.) 363.) The occupation under a parol transfer might be sufficient to bind the ..defendant. Carter v. Hammett, 12 Barb. 253. No. 659. v. The Same Assignee's Assignment to Third Person. , [TITLE.] 'The defendant answers to the complaint: That before the rent claimed in the complaint became due, and on or about the .... day of , 18 . . , FOR USE AND OCCUPATION. 805 the defendant assigned all his interest in said lease to one C. D., who then entered into possession, and so continued when said rent became due. 5. Assignment. One of the Van Rensselaer leases was exe- cuted in 1799. It did not appear that rent was ever paid under it, and it was proved that rent had not been paid for twenty-two years. Held, that as the so called lease was in fee, it was an assignment, and did not create the relation of landlord and tenant, and that the claim against the grantee on his covenant was barred. Lyon v. Chase, 51 Barb. 13; see Cruger v. McClaughry, 51 Barb. 641; Van Rensselaer v. Barringer, 39 N.Y. 9; Hosford v. Ballard, 39 N.Y. 147. JVo. 660. vi. The Same Eviction. [TITLE.] The defendant answers to the complaint: That on the .... day of , 1 8 . . , the plaintiff evicted him from the premises mentioned in the com- plaint, and has ever since kept him out of the posses- sion thereof [or state the facts\. NOTE. See Vernam v. Smith, 15 N.Y. 333; also, New York Code Commissioners' Book of Forms. 6. How Averred. The eviction, to constitute a bar, must be averred to have taken place before the rent claimed fell due. (McCarty v. Hudsons, 24 Wend. 291.) It must be stated that the tenant was evicted or expelled from the premises, and kept out of possession until after the rent became due. Vernam v. Smith, 15 N.Y. 327. 7. Insufficient Defense. In an action for rent, the complaint alleged that the letting was by an agreement in writing (not stated to be under seal), by which the plaintiff leased the premises, and the de- fendant agreed to pay the rent; but it did not allege that the defend- ant took possession. The answer set up two defenses: Fir si, That 806 FORMS OF ANSWERS. although the plaintiff, at the time of making the lease, represented that he was the owner of the premises, and entitled to lease them, he was not, but that the premises were owned by third parties, "to whom the defendant was liable for the use and occupation thereof," and that no estate or interest vested in the defendant by the lease. Second, That the lease contained an agreement for quiet enjoyment; that shortly after defendant entered into possession, one W. brought an action of ejectment against him, and, after defense, recovered judgment against him for the possession, with costs; that W. made claim on the de- fendant for mesne profits in a sum equal to the rent claimed by the plaintiff, and defendant demanded judgment against the plaintiff for his damages by failure of the plaintiff's title. Held, on demurrer to the answer, that since the defendant had voluntarily shown the fact of occu- pation, which the plaintiff had omitted to state, the rule precluding the tenant from denying his landlord's title, in an action for use and occu- pation, must be held to apply, and that the first defense was insufficient. If there was any other party who had an apparent claim for the use of the premises, the defendant should have sought a remedy by inter- pleader. That the second defense was insufficient, it showing no evic- tion. Vernam v. Smith, 15 N.Y. 327. 8. Must be Specially Set up. Where the answer of the defendant, on a claim for rent in arrear, " denies that he is indebted to said plaintiff in manner and form as said plaintiff has above thereof complained against him," it is substantially the plea of nil debet at com- mon law, and under it the defendant may prove an eviction. (McLarren v. Spalding, 2 Cal. 510; Piercy v. Sabin, 10 Cal. 22; and Glasier v. Cliff, Id. 303); as to the necessity of pleading new matter in defense, affirmed and held to have overruled the doctrine of (Gavin v. Annan, 2 Cal. 494, and McLarren v. Spalding, Id. 510; Coles v. Soulsby, 21 Cal. 47.) In an action for rent, the defendant pleaded that the plaintiff dur- ing the term leased to another person, and excluded the defendant from a part of the premises, in the use of which by the second lessee large quantities of water, etc., were discharged on the defendants' part, and so damaged their goods that they were forced to quit the premises; and they claimed damages therefor in the action. Held, that the aver- ment in the plea constituted eviction, and were not set off. Dun- woody v. Raynor, 52 Penn. 292. FOR USE AND OCCUPATION. 807 No. 661. vii. The Same Surrender. [TITLE.] The defendant answers to the complaint: That on the .... day of , 1 8 . . , he surren- dered to the plaintiff the premises mentioned in the complaint, and the plaintiff accepted the same. No. 662. viii. The Same A Defense to One Installment. [TlTLE.] The defendant answers to the complaint: That to the last installment mentioned in the com- plaint, the defendant alleges, that after the alleged lease was made [or after the alleged letting], and before said installment became due, the plaintiff evicted him from the premises, and has ever since kept him out of the possession thereof. CHAPTER XI. ANSWERS UPON WRITTEN INSTRUMENTS FOR THE PAYMENT OF MONEY ONLY.- No. 663- i. Bills of Exchange Denial of Acceptance. [TITLE.] The defendant answers to the complaint, and denies that he did accept the bill mentioned therein. 8b8 FORiMS OF ANSWERS. No. 664. ii. The Same Thai Acceptance was Unauthorized. [TITLE.] The defendant answers to the complaint, and alleges: That the said bill was made without the authority or consent of these defendants, and out of the course of their regular business, and without consideration to them, accepted in their name by one A.B., fraudulently pretending to act under their authority. No. 665. iii. The Same Denial of Presentment. [TITLE.] The defendant answers to the complaint, and alleges: That the bill mentioned therein was never presented to A.B., as alleged, or at all. 1. Presentment Time. The holder of a check djd not pre- sent it for payment until twenty-five days after it was drawn, the drawees having failed meantime. The deposit with the drawee was made in funds which had became depreciated, but which did not appear to have been so at the time of the deposit. In a suit on the check as a bill of exchange, held, that the drawer was discharged. (Willets v. Paine, 43 '///. 433.) Plaintiff took from her debtor's agent the agent's check for the amount of the debt, and did not present it for payment for four weeks. When presented it was dishonored, but there was a reasonable chance, though not a certainty, that it would have been paid if pre- sented at once. The debtor, a week after the check was made, paid his agent a part of the amount, the rest being in the agent's hands already. The agent absconded. Held, that the debtor was discharged. (Hop- kins v. Ware, L.R. 4 Exch. 268.) The mere fact that one in a regular ON WRITTEN INSTRUMENTS. 809- course of business, in good faith, and for value, receives a check ten days after it was drawn and dated, does not subject him to the equities between the original parties to the same. Ames v. Merriam, 98 Mass. 294. 2. Place. The failure to make presentment at the place named would not discharge the debt, but could only be pleaded in defense as to the question of costs and damages. (Montgomery v. Tutt, n Cal. 307.) A plea that a bill of exchange, on which the action is founded; was not drawn and accepted at the place alleged, is bad on demurrer. Jones v. Heaton, i McLean, 317. No. 666. iv. The Same That Acceptance was for Accommodation. [TITLE.] The defendant answers to the complaint, and alleges: That he accepted the bill mentioned in the com- plaint for the accommodation of the plaintiff; and that there was never any value or consideration for the acceptance or payment of said bill by the defendant. 3. Accommodation Indorser. Accommodation indorser may set up any defense available to the maker, asserted (Sawyer v. Cham- bers, 44 Barb. 42.) But diversion of accommodation note from its original purpose is no defense in the mouth of the maker, unless injury to him is shown. Corbitt v. Miller, 43 Barb. 305. 4. Authority, Denial of. Where a bill in equity alleges that the defendant gave authority to A. to draw a bill of exchange, the answer, to completely negative such allegation, must deny the authority, and also any subsequent ratification. Clark v. Van Reinsdyke, 9 Cranch, 153. 5. Check Set Off The drawee of a check, certified as "good " cannot set off a claim on the holder against the amount so transferred. 8lO FORMS OF ANSWERS. Brown v, Leckie, 43 HI. 497; Bickford v. First Nat. B'k of Chicago, 42 HI. 238; Rounds v. Smith, Id. 245. 6. Want of Consideration. An answer in an action, by an indorser of a note, alleging that the plaintiff gave no value for the note, but took the same as security for an old debt, and showing that the plaintiff's indorser is indebted to the defendant, sets up no defense, and no evidence can be admitted under it. It is necessary to show that the indorser was so indebted at the time of the transfer to the plaintiff, as the latter takes the note free from subsequent equities. (Elwell v. Dodge, 33 Barb. 336.) For form of answer in such a case, see (Rodman v. Munson, 13 Barb. 64; Dubois v. Baker, 40 Barb. 556; Nichols v. Smith, 42 Barb. 381.) But partial failure of consider- ation cannot be alleged in bar. (Lewis v. McMillan, 41 Barb. 420.) The defense of want of consideration is personal between the parties to the original transaction. It cannot be set up against an independent liability of maker or indorser of negotiable paper given in payment. Gillispie v. Torrence, 25 N.Y. 306; Delano v. Rawson, 10 Bosiv. 286; see, also, Agawam Bank v. Egerton, 10 Bosw. 669. No. 667. v. The Same Denial of Acceptance, Presentment, and Protest. [TITLE.] The defendant answers to the complaint, and alleys: That the bill of exchange mentioned in the com- plaint was not presented for acceptance nor accepted, as alleged, or at all, and that it was not presented for pay- ment, nor was it protested for non-payment. ON WRITTEN INSTRUMENTS. 8 1 I No. 668. vi'. The Same Controverting Excuse for Non-Presentment. [TITLE.] % The defendant answers to the complaint, and denies: That any search was made, when the said bill of exchange became due, to discover the residence and person of the said , at , or elsewhere, or at all, in order that the said bill might be pre- sented to the said for payment. 7. Unreasonable Delay. When an unreasonable delay in the presentment of a check is meant to be relied on as a defense in an action against the drawer, such delay should be so averred as to raise a distinct issue in the answer. Harbeck v. Craft, 4 Duer, 122. . 669. vii. The Same Payment before Indorsement. The defendant answers to the complaint: I. That after the bill mentioned in the complaint was due, and while said \drawer\ was the holder thereof, and before this action, the defendant satisfied and dis- charged the principal and interest [and damages] due on said bill, by payment to the said \_drawer\. II. That said \drawer\ indorsed said bill to the plaintiff after said payment. 8. Part Payment. See, as to consequences of omitting to set up an available defense of part payment, (Binck v. Wood, 43 Barb. 315.) As to defense of incautious payment of stolen, over-due note 8l2 FORMS OF ANSWERS. being available, see (Cothram v. Collins, 29 How. Pr. 113.) So, also, as to the defense that holder of note has received moneys applicable to its payment. Burrall v. Jones, 7 Bosw, 404. No. 670. i. Promissory Note Denial of Note. [TITLE.] The defendant answers to the complaint, and denies that the note mentioned [or set forth] therein is his note. 9. Bankruptcy. If the defendant plead the bankruptcy of the indorser in bar, a replication stating that the note was given to the indorser in trust for the plaintiff is good, and is not a departure from a declaration which alleges the note to be for value received. (Wilson v. Codman, 3 Cranch, 193.) The answer to a suit on a note set up defendant's discharge in insolvency. Held, that under section fifty-nine of the Practice Act, it was sufficient to allege in the answer that a judg- ment had been duly rendered, discharging defendant from the demand sued on; and that whether the demand was sufficiently described in defendant's schedule was matter of evidence, to be determined at the trial, by inspection of the record. Hanscom v. Tower, 17 Cal. 518. 10. Composition. Where, to an action upon a promissory note, an agreement of composition between the debtor and his creditors, including the plaintiff, is relied upon as a defense, such agreement must be specially pleaded, and cannot be considered under a plea of accord and satisfaction by the giving of new notes. (Smith v. Owens, 21 Cal. n.) In an action against the maker of a promissory note, he answered, that the plaintiff, with other creditors, signed a composition deed, agreeing to exchange the notes they had against the defendant, for other extended notes to be drawn by him; and it appeared on the trial, that the defendant called on the plaintiff and offered him the new notes which the agreement provided for, but the plaintiff refused to receive them ; but that he had not the new notes drawn at the time of the offer; to complete such defense, the party must plead and prove, not only tender of the new notes, but also aver a readiness at all times to per- ON WRITTEN INSTRUMENTS. 813 form his part of the agreement, and must bring the new notes thus tendered into court on the trial. Warburg v. Wilcox, 7 Abb. Pr. 336. 11. Conclusion of Law. In an action on a promissory note, where the complaint contains a copy of the same, a denial of indebted- ness is no denial at all. (Kinney v. Osborne, 14 Cal. 112; Sneed v. Wishar, 8 Wheat. 690; United States v. Spencer, 2 McLean, 405.) A denial that the plaintiff is " owner and holder" of a note, is a denial of a conclusion of law; and an answer admitting the other facts, but deny- ing this, raises no material issue. (Poorman v. Mills, 35 Cal. 113; Wedderspoon v. Rogers, 32 Cal. 569; Oliver v. Depew, 14 Iowa, 490; McKnightz'. Hunt, 3 Duer, 615.) So of an averment that the note in suit " was obtained from the said defendant by fraud, and is without consideration and void." M'Murray v. Gifford, 5 How. Pr. 1 4. 12. Counter Claim. It is enough if the answer states a cause of action against the plaintiff, arising out of contract or transaction set forth in the complaint, as the foundation of the plaintiff's claim, or connected with the subject of the action. (Allen v. Haskins, 5 Duer, 332.) In an action on a promissory note, by the payee, against one of two joint and several obligors, the defendant pleaded a demand, as a counter claim, for damages for the unskillful construction of a mill by the plaintiff for the defendant, his co-obligor, and T., for the construction of which the note in suit was given in part payment. Held, that said counter claim being for unliquidated damages, and in part a demand in favor of a stranger to the note and suit, it was unavailable as a defense to the action. Hook v. White, 36 Cal. 299. 13. Counter Claim Set-Off Where a negotiable promissory note, not yet due, is taken bona fide as collateral security for a pre-exist- ing debt, it is not subject to any defense existing at the date of the assignment between the parties. Payne v. Bensley, 8 Cal. 260; affirmed in Robinson v. Smith, 14 Cal. 94. 14. Delivery. To a complaint on a promissory note, where plaintiff alleged the making of the note by defendant, and delivery to plaintiff, and the answer denied the delivery to plaintiff: Held, that de- nial raised the issue on the making of the note so far as making includes delivery. Russell z>. Whipple, 2 Cow. 256; Sawyer v. Warner, 15 Barb. 286; Raynor v. Timerson, 46 Barb. 518. 15. Denial of Non-Payment. A specific denial of the allega- 8 14 FORMS OF ANSWERS. tion in the complaint that the note was not paid, and the answer stated that on, etc., the note had been paid, forms a good issue between the parties. Van Giesen v. Van Giesen, 12 Barb. 520. 16. Duress. A plea of duress by the maker of a note, as against the assignee, is bad, unless there be an averment of notice to the assignee. McClintick v. Johnson, i McLean, 414. 17. Former Judgment. In an action against an indorser of a promissory note, a former verdict and judgment in favor of the defend- ant, in an action where the note was offered in evidence under a count on an account stated, is no bar. (Lindell v. Liggett, i Mo. 432.) Judg- ment against plaintiff, as holder of a note under one title, is no estoppel to a subsequent suit upon it under another. Wheeler v. Ruckman, 2 Abb.Pr.(N.S.) 1 8 6. 18. General Issue. Where a declaration was upon a joint note, and the defendant pleaded that the note was the separate note of one of the defendants, and was given to and accepted by the plaintiff in full sat- isfaction of a debt: Held, that the plea was bad upon special demurrer, as amounting to the general issue. Van Ness v. Forrest, 8 Cranch, 30. 19. General Denial. Suit on a promissory note made by de- fendants. The complaint, not verified, sets out the note, and avers assignment thereof by payee to plaintiff. Answer, general denial. Held, that the answer does not admit, but denies the assignment, and hence the plaintiff must prove it, and is not entitled to judgment on the pleadings. (Hastings v. Dollarhide, 18 Cal. 392.) That the plaintiff is not the owner and holder of the note in suit may be proved under a general denial of a complaint which alleges that he is. (Wedderspoon v. Rogers, 23 Cal. 569; Poorman v. Mills, 35 Cal. 118; Hull v. Wheeler, 7 Abb. Pr. 411; Butterfield v. McComber, 22 How. Pr. 150; Flammer v. Kline, 9 How. Pr. 216; Catlin v. Gunter, i Duer, 265; Seely v. Engel, 17 Barb. 530; Higgins v. Rockwell, 2 Duer, 650; Tay- lor v. Corbiere, 8 How. Pr. 388; Holstein v. Rice, 1 5 How. Pr. i ; see, contra, Hatch v. Peet, 23 Barb. 582; Witherspoon v. Van Dolar, 15 How. Pr. 266; Brown v. Ryckman, 12 How. Pr. 313; Fleuret v. Roget, 5 Sand. 646; Seeley v. Engel, 17 Barb. 530; reversed in 3 Kern. 542.) But it is otherwise where no indorsement or delivery is averred. (McKnight v. Hunt, 3 Duer, 615; Metropolitan Bank v. Lord, 4 Id. 630; i Abb. Pr. 185; Hull v. Wheeler, 9 Abb. Pr. 411.) ON WRITTEN INSTRUMENTS. 815 If the complaint is not verified, and it sets out the note and avers assign- ment thereof by payee to plaintiff; answer, general denial: Held, that the answer does not admit, but denies the assignment, and hence plaintiff must prove it, and is not entitled to judgment on the pleadings. (Hastings z>. Dollarhide, 18 CaL 390.) A complaint to subject to sale a contract for the sale and purchase of land held as collateral security for the payment of promissory notes, where the general denial is in a para- graph of the answer, alleging that the defendant was not a maker but merely an indorser of the notes, and did not assign the contract for the sale of the land to the plaintiff, either by delivery or indorsement, is demurrable. Vaughn v. Gushing, 23 Ind, 184. 20. Holder in Good Faith. A negotiable note taken after maturity is taken subject to all the equities between maker and payee. (Vinton v. Crowe, 4 CaL 309.) So with a certificate of deposit. (Coye v. Palmer, i6Cal. 158.) An indorsee after maturity takes the same interest that the indorser had, and his claim is subject to the same defense. Folsom v. Bartlett, 2 CaL 163. 21. Information and Belief. In a suit brought by a firm upon a note, an answer which denies any knowledge sufficient to form a belief as to whether plaintiffs comprise the firm to whose order the note was payable is erroneously stricken out. Wales v. Chamblin, 19 Mo. 500. 22. Injurious Diversion of Note. An answer, setting up that the note was made as an accomodation note, does not show a misappro- priation of the note sufficient to constitute a defense, by merely alleging that it was expected and intended that the plaintiff should have the pro- ceeds of the note after it was negotiated, and that instead he had taken the note. The answer should show a diversion of the note injurious to the defendant. Corbitt v. Miller, 43 Barb. 305. 23. Insufficient Denials. The complaint set out the note in hac verba, and averred ' ' that said note had not been paid, nor any part thereof," etc.; the answer thereto denied that said note had not been paid, and further denied " that there is due the plaintiff on said note any sum of money, or anything:" Held, that said denials were of immaterial averments only; that said answer raised no issue, and was sham and irrelevant. (Hook v. White, 36 CaL 299.) In an answer by the maker which admits the making and dishonor of the note, and notice of non-payment given to the indorsers, and merely denies the 8l6 FORMS OF ANSWERS. corporate character of the plaintiffs, the partnership of the indorse rs and plaintiff's title to the note is insufficient. (18 N.F. 315; Pres. of the Agawam Bank v. Edgerton, 10 Bosw. 669.) Where the pleadings are verified, and it is alleged in the complaint that the note sued on was assigned to plaintiff for a valuble consideration, the fact of the assign- ment is not put in issue by denying that it was in writing and for a valuable consideration. Randolphs. Harris, 28 Cal. 561. 24. Insufficient Answers. Where the complaint contained two counts, each upon a promissory note, an answer referring simply to "the note mentioned in the complaint," was held bad for uncertainty. (Kneedlerz;. Sternbergh, 10 How. Pr. 67.) A declaration in assump- sit contained a special count on a due bill and the common counts. A special plea commenced thus: "Now comes the defendant, and de- fends the wrong and injury, etc., and says that after making and deliver- ing said due bill, in said plaintiffs first count in said declaration men- tioned, to wit, etc.," proceeding to allege payment of the bill. Held, that the plea did not purport to answer the whole allegation, but only the special count on the due bill. Allen v. Bruessing, 32 ///. 505. 25. Lost Note. Where, in an action on a lost note, a verified complaint alleges that on a particular day the note in question was made by defendant, and delivered to plaintiff, an answer denying the making and delivery of the note on the day mentioned is insufficient. Such denial does not reach the substantial matter of the averment, and only raises an immaterial issue as to time. (Castro v. Wetmore, 16 Cal. 379.) Where, in an action on a lost note, the complaint, verified, alleges the loss, stating particularly the circumstances thereof, an answer denying that the note was lost as alleged, does not put in issue the fact of loss, which is the gist of the averment, but only the circumstances of the loss, which are collateral and immaterial. Id. 26. Payment. To where a note was taken in payment for another note, it must be averred that such note was taken in full satis- faction and payment. (Homas v. McConnell, ^McLean, 381.) In suit on a promissory note, an answer stating that defendant made two pay- ments, the last of which extinguished the note, is sufficient. (Joy v. Cooley, 19 Mo. 645.) One who purchases a promissory note past due, but which has been paid before the purchase, takes it subject to the defense of payment. Elgin v. Hill, 27 Cal. 372. 27. Payment, -what Constitutes. The surrender of a note ON WRITTEN INSTRUMENTS. 817 is prima facie payment. (Smiths. Harper, 5 Cal. 329.) But if sur- rendered by mistake, the maker is still liable for the balance unpaid. (Banks v. Marshall, 23 Cal. 223.) So, an assignment to* the maker amounts to payment. (Gordons. Wansey, 21 Cal. 77.) If a promis- sory note is assigned by the payee before maturity, payment to the assignor is no defense to an action brought by the assignee against the maker. (Morrill v._ Morrill, 26 Cal. 288; Patterson v. Atherton, 3 McLean, 147.) But it would be a defense if the payment were made before assignment, with notice to the assignee. Morrill v. Morrill, 26 Cal. 288. 28. Payment, what Does not Constitute. Arrangement between the indorser and the holder of a note is not pleadable as a pay- ment. (East Riv. Bk. v. Butterworth, 45 Barb. 476.) Nor can the in- dorser set up that the holder of a note past due has taken a fresh obli- gation from the maker merely as collateral security. (Taylor v. Allen, 36 Barb. 294; see Wright v. Starrs, 32 N.Y. 691.) A bill of sale made by the payee of a promissory note " of all debts, notes, and accounts of whatever nature due me," is not evidence of the payment of the note. (Morrill v. Morrill, 26 Cal. 288.) A plea to a suit brought by an assignee, that defendant paid amount of note to assignor before he had notice of assignment, cannot be sustained against assignee. It should" aver that the payment was made before the note was assigned, or before it was due. Patterson v. Atherton, 3 McLean, 147. 29. Several Answer. Where the makers and several indorsers of a note are sued in one action, an answer by the makers will not inure as an answer by the indorser, nor will the answer of one of sev- eral indorsers inure as an answer of the others. Alfred v. Watkins, i Edm. 369. 30. Several Defenses. Defendant may deny that he made the note, and may also aver that at the time of the alleged making of the note he was an infant; although it is true that if he never made the note, it is quite immaterial whether he was an infant or not. (Mott v. Burnett, 2 E. D. Smith, 50.) He may also set up as a defense that no consideration was ever given for it, and as a second defense set forth the circumstances under which it was executed and came into the plaintiff's hands. It was held that the first branch of the fnswer must be inter- preted by the second, and that so interpreted it was no defense. Kyle v. Harrington, 4 Abb. Pr. 42. 52 8l8 FORMS OF ANSWERS. 31. Sham Answer. Where a complaint, in an action on a prom- issory note, executed by two defendants, averred that the defendants were partners, and that the note was executed by them, and the answer simply denied that the defendants were partners, and did not deny that they executed the note, it is the denial of an immaterial afbrment. (White- hall v. Thomas, 9 Cal. 499.) Plaintiff sued on a note made by de- fendants to his order, the complaint not being verified, but setting out the note. Defendants pleaded payment. Plaintiff, on affidavits that the plea was false and pleaded in bad faith, moved to strike out the answer, and for judgment. Granted. Held, that the ruling of the Court was right; that under the fiftieth section of the Practice Act, "sham" an- swers and defenses are such as are good in form, but false in fact, and pleaded in bad faith; and that such answers, when consisting of affirma- tive defenses, should be stricken out. (Gostorfs v. Taaffe, 18 Cal. 385.) In a suit on a note, the complaint containing trie note or a copy, a denial of indebtedness is no denial at all. (Kenney v, Osborne, 14 Cal. in.) So, an answer which simply denies a legal conclusion will be struck out as sham. Wedderspoon v. Rogers, 32 Cal. 569. 32. Special Indorsee. In an action on a promissory note, by a special indorsee, against the maker, the plaintiff must prove at the trial the genuineness of the indorsements, although the defendant has not denied their genuineness under oath. Grogan v. Ruckle, i Cal. 158; reconsidered and affirmed in 18 Cal. 390. 33. Substitution of Parties. On death of the defendant, in action on a promissory note, the substitution of administrator and con- tinuance of the suit subjects the proceedings to such rules as are ap- plicable for the collection of claims against the estate of a deceased person. Myers v. Mott, 29 Cal. 359. 34. Surety. Where a promissoiy note is signed by two persons in the same manner, with nothing on the face of the note to show that one was merely a surety, he cannot set up in defense that he was such, and that the plaintiff had not sued in due time, and had given no no- tice of demand and protest. Kritzer v. Mills, 9 Cal. 2 1 . 35. Tender. That the maker of a note, payable at a particular place, was ready, at the time and place, to pay, is matter of affirmative defense. (Kendall v ^Badger, i McAll. 523; Wolcott v. Van Santvoord 17 Johns. 248; Caldwell v. Cassidy, 8 Cow. 271; Troy City Bank v. Grant, Hill& D. Supp. 119; Haxton v. Bishop, 3 Wend. 13.) So, also, ON WRITTEN INSTRUMENTS. 819 of a bill of exchange, as against the acceptor thereof. (Foden v. Sharp, 4 Johns. 183; Wolcott v. Van Santvoord, 17 Id. 248; Green v. Goings, 7 Barb. 652; 17 Mass. 389; Gay v. Paine, 5 How. Pr. 107; Wallace v. McConnell, 13 Pet. 236.) It would seem that in New York it is essen- tial to an answer setting upi. tender, to aver that the money has been actually brought into court. Hill v. Place, 5 Abb. Pr.(N.S.) 18. 36. Verification. A copy of the note sued on being attached to and made a part of the complaint, the answer, not verified, admits the genuineness and due execution of the note, and entitles the plaintiff to judgment. Horn v. Volcano Water Co., 1 3 Cal. 62 . No. 671. ii . Denial of Indorsement. [TITLE.] The defendant answers to the complaint: That he did not indorse the note mentioned therein. 37. Denial of Indorsement. In New York, a denial of indorse- ment and delivery of note by the payee to the plaintiffforms a material issue. (Shermans. Bushnell, 7 How. Pr. R. 171; 14 Barb. 393; Tompking v. Acer, 10 How Pr. 309.) In an action on a promissory note, an answer denying the indorsement of the note does not put in issue the partnership. (Anable v. Steam Engine Co., 16 Abb. Pr. 286.) The action being to charge the defendants as indorsers, the allegation of their partnership is material. (Id.} A plea that the defendant who is sued as principal, indorsed the note as guarantor and not as principal, is good on demurrer. Dibble v. Duncan 2 McLean, 553; compare Jauney v. Geiser, i Cranch C. Ct. 547. 38. Indorsetnent, when not Denied. A defendant is not required to deny under oath a matter of which he is not presumed to have any knowledge, and though the genuineness and due execution of a note is admitted if not specifically denied, yet it is otherwise with the indorsement where the defendant was not privy thereto, as the indorsement is alleged merely to show the de^.ignment of title to the instrument sued on. Make v. Reynolds, Cal. Sup. Ct., July T., 1869; Youngs v. Bell, 4 Cal. 201. 82O FORMS OF ANSWERS. 39. Partnership Insufficient Denial. A complaint, stating a promissory note, whereby the maker promised to pay the defendant named " doing business under the partnership name or firm of C. J. & Co.," and that said note was " duly indorsed by said defendant by their said partnership name," sufficiently 0vers the partnership; and an answer thereto denying "the indorsement in the complaint alleged," does not put the partnership in issue. Hence, under such pleadings, evidence offered by one of the defendants, that he was never a member of the firm of C. J. & Co., is inadmissible. Anable v. Conklin, 25 N.Y. 470; affirming S.C., sub nom. Anable v. Steam Engine Co., 16 Abb. Pr. 268. No. 672. ill. That Defendant Indorsed as Agent. [TITLE.] The defendant answers to the complaint: I. That he did not indorse the note mentioned therein, and that the said note was not protested for non-pay- ment. II. The defendant alleges that the following is a true copy of the promissory note made by the said firm of B. & Co., and on which this action is brought: [Copy of note and indorsement, with addition of "Treasurer" to defendant's signature^ III. That at the time of the making and indorsement of said note, this defendant was the treasurer of the Company, at , a foreign corpora- tion, duly incorporated by and under the laws of the State of ; and that he was authorized by them to receive the said note, and to indorse the same to the plaintiffs, as such treasurer, of all which facts the plaintiffs had notice. IV. That said corporation was, at the time of said ON WRITTEN INSTRUMENTS. 821 indorsement, indebted to the plaintiffs to the amount of dollars, for [state wha(\ ; and said note was re- ceived by him as such treasurer, and not in his individual capacity, and was received by the plaintiffs as an obligation of the said corporation, on account of said precedent debt due to them from the said corporation, and for and on account of no other consideration what- ever, and that the defendant received no consideration therefor. 40. Form. This form is from Abbotts' Forms, No. 833, and is in substance the answer in (Babcockz>. Beman, n N.Y. 200.) The defendant should aver and prove the authority under which he acted, and show that the plaintiffs have a right of action against some other person. White v. Skinner, 13 Johns. 306. No. 673. iv. Denial of Presentment. [TITLE.] The defendant answers to the complaint: That the bill mentioned therein was never presented to A.B., etc. 41. Controverting Presentment. That the maker of the note payable at a particular place was ready at the time and place to pay, is matter of affirmative defense. (Kendall v. Badger, i Me All. 523.) A denial of the allegation of presentment and non-payment of note is sufficient. Dickenson v. Kimball, i Code R. 49. T 822 FORMS OF ANSWERS. No. 674- v. Denial of Notice of Dishonor. [TITLE.] The defendant answers to the complaint: That notice of the dishonor of the note [or bill of exchange] mentioned in the complaint, was not given to him. 42. Notice of Protest. The denial in a verified answer of the indorsers, in action on a promissory note, that notice of protest was given to them, is not sufficient as an affidavit annexed to a plea, under 2 Revised Statutes, 212, 46, denying that notice was received. Edger- ton v. Smith, 3 Duer, 614; Arnold v. Rock River Valley Union R.R. Co., 5 Duer, 207; compare Burrall v. De Groot, 5 Id. 379, 382. No. 675. A vi. Alteration of the Instrument. [TITLE.] The defendant answers to the complaint: That after the making [or acceptance] and issue of said note [or bill], and before this action, the same was materially altered, without the consent of the defendant, by adding the signature of A. B. as a joint maker thereof [or by cutting off the signature of A.B., who was ajoint maker thereof, or by adding the words, "payable at ," or otherwise, as the case may be'}. 43. Alteration. An answer, to a suit on a promissory note by the assignee, which sets up as one defense : First, That the note was ON WRITTEN INSTRUMENTS. 823 made payable to order, and was afterwards fraudulently altered by inserting the word "bearer" in lieu of the word "order;" Second, That the defendant paid the note before assignment to plaintiff after matu- rity, etc. Held, not fatally defective. (Sherman v. Rollberg, 1 1 Cal. 38.) Where an answer contains an allegation of alteration of an instrument, it must state that such alteration was made with the knowl- edge or consent, or by the authority of the plaintiff. (Humphreys v. Crane, 5 Cal. 173.) For form of answer for mistake in amount of note, see Seeley v. Engell, 13 N.Y. 542. JV o. 676. vii. Usury as a Defense upon a Note. [TITLE.] The defendant answers to the complaint: I. That the note mentioned therein was given to the plaintiff in pursuance of a mutual agreement, between the plaintiff and defendant, that the plaintiff should lend the defendant money, at the rate of [ten] per centum per annum. II. That the defendant received from the plaintiff dollars only, as consideration for the said note; the plaintiff retaining dollars, as interest thereon. / I NOTE. In California, we have no usury law. 44. Foreign Usury Laws. To set up the defense that a foreign contract is void, by foreign usury laws, defendant should first state what those laws were at the time of the transaction, and then set out the facts which rendered the securities void, according to those laws. (Curtis v. Hasten, n Paige, 15.) A general allegation of usury is not enough; the answer should state what the usurious agreement was, and between whom it was made, and the amount of the usury; (Manning v. Tyler, 21 N.Y. 567; Griggs v. Howe, 31 Barb. 100;) as 824 FORMS OF ANSWERS. * well as the amount of the loan. (Smalley v. Doughty, 6 Bosw. 66.) The rate should be stated with definiteness. Dagal v. Simmons, 23 N.F. 491. 45. How Alleged. It is not necessary to allege in terms that the transaction was "usurious" or. "corrupt," if facts which amount to usury are stated with sufficient certainty. (Miller v. Schuyler, 20 N.K 522.) For a form of answer of usury, in the transfer of an accom- modation note, see (Cathin v. Gunter, n N.Y. 368; approved in Manning v. Tyler, 21 N.F. 567.) An answer pleading usury in the discount by the plaintiff, should show that the note never had any valid existence as a contract or promise to pay, at the time it was dis- counted by the plaintiff. Burrall v. Bowen, 21 How, Pr. 378. 46. Insufficient Allegation. An allegation that one received goods "without paying any consideration therefor," is not sustained by proof that the advances made by him were at a usurious rate of in- terest. Williams v. Birch, 6 Bosw. 299. 47. Must be Specially Pleaded. Usury is a defense which cannot be made available on the trial of a cause, unless it is specially pleaded. (Morford v. Davis, 28 N.Y. 481.) For a sufficient statement of such a defense, see (Butterworth v. Pecare, 8 Bosw. 671.) Usury can no longer be proved under a denial of making the contract. Evi- dence of it in the transfer of a note, if not alleged in the pleadings, is inadmissible, even as a circumstance to show that the holder did not take the note in good faith. Scott v. Johnson, 5 Bosw. 213. 48. Usury as a Defense. To a complaint on a note, the answer of an indorser alleged usury, and demanded judgment that his name be canceled and discharged from the note : Held, that the answer was not to be deemed as setting up a counter-claim, so that failure to reply admitted its allegations. When the facts alleged may possibly constitute a counter-claim, but are such as always constitute a flat bar at law to the action, they should be deemed to be set up as a defense merely, unless the answer expressly states that they are set up by way of counter-claim. To preclude a plaintiff from a recovery, on the idea that he has admitted the allegations of such an answer to be true by omitting to reply to it, when the same allegations viewed merely as a defense would be put at issue by the Code, would operate as a surprise in all actions in which the defense of usury is interposed. Burrall v. De Groot, 5 Duer, 379; and see Gildersleeve v. Mahony, 5 Id. 383-385. ON " WRIT TEN INSTRUMENTS. 825 JVo. 677. viii. That the Note -was for Goods Sold by Means of Deceit. [TITLE.] The defendant answers to the complaint: I. \_Allege sale as in case of an action for damages for deceit. See ante, Forms Nos. 506, 508.] II. That said note was given to the plaintiff without any other consideration than said [sale]. III.. That immediately on discovering said fraud, the defendant rescinded said [contract], and tendered to the plaintiff all that he had received under said contract, upon condition of his returning said note, which the plaintiff refused to do. 49. Deceit. It is no defense to a note given by one partner to the other for his interest in land held jointly by both, that the payee of the note had deceived his partner, the maker, in the division of partnership stock, and was indebted therefor in an amount equal to or greater than the sum due on the note. (Cass v. Maxey, 6 Cal. 276.) When such a defense was set up in the answer, in an action on the note : Held, that all of the answer, except that portion admitting the execution of the note and denying the indebtedness, was properly stricken out. Id. JVo. 678. ix. Illegal Interest in Note. [TITLE.] The defendant answers to the complaint: As to the sum of dollars, parcel of said sum of dollars, in said complaint demanded, the said defendant admits that he owes the said sum of 826 FORMS OF ANSWERS. dollars to the said plaintiff; but as to the sum of dollars, the residue of the said sum of dollars, the said defendant says that the said promissory note in the complaint mentioned was given by the said defendant to the said plaintiff for the loan of dollars for years, and no more; and that the said sum of dollars was included in said note, as interest on the said sum of dol- lars for the said term of years, at the rate of per cent, per annum. 50. Form. This form is applicable under a statute which for- feits only the usurious interest. From Nash's Ohio PL & Pr. 311. No. 679. x. Fraud Note Procured by Fraud. [TITLE.] The defendant answers to the complaint, and alleges: I. That at the time the note in the complaint set forth was made, he was indebted to one E. F., by book ac- count, in the sum of dollars. II. That the plaintiff at the time falsely and fraudu- lently represented to the defendant that he was the owner and assignee of said account and indebtedness, and thereby, and without any consideration whatever, induced the defendant to make said note to him in sat- isfaction and discharge of said account. III. That the said representations were false, and that the plaintiff never was the owner or assignee of said account, nor had he any beneficial interest in the same. ON WRITTEN INSTRUMENTS. 827 IV. That the defendant was misled by said false representations. \_Or, that the belief of the defendant in the truth of said representations induced him to make said note.] 51. Fraud. In an action on a negotiable note, by the payee, against the maker, a plea which amounts to an averment of fraud on the part of both parties and a third person, with a view to defraud the creditors of the latter, is bad, as it tenders an issue foreign to the case. (Moore v. Thompson, 6 Mo. 353.) Where the defense set up is that defend- ant executed said note as the consideration for a deed from plaintiff for certain land, under false and fraudulent representations that plaintiff had an interest therein, the defendant, if he would avoid payment, must offer to surrender the deed to be canceled, so that both parties could have been remitted to their original rights. (Tissot v. Throckmorton, 6 Cal. 471.) Where fraud is set up as a defense, the answer must aver that the de- fendant has done all in his power to restore the plaintiff to his former condition, or the fact cannot be proved. Devendorf v. Beardsley, 23 Barb. 656. 52. Fraud, how Alleged. In defense to an action on a prom- issory note, it is not sufficient to plead, in general terms, want of con- sideration, and that the note was obtained by fraud; the answer should set out the circumstances under which the note was given, and point out the facts -which constitute the fraud. (Gushee v. Leavitt, 5 Cal. 1 60.) Fraud cannot be alleged generally. (McMurray v. Gifford, 5 How. Pr. 14; Anderson v. Johnspn, 3 Sandf. i.) To avoid the con- tract sued on, by an answer setting up false representations, it must be alleged that the plaintiff knew the representations were false, and that the defendant was misled thereby, or that his belief in their truth induced him to enter into the contract. (Van de Sande v. Hall, 13 How. Pr. 458; Palmer v. Smedley, 18 Id. 321.) For substance of a sufficient answer, setting up that the defendant was induced to make the contract sued on by the fraud of a broker who was the plaintiff's agent, see Cassard v. Hinman, 6 Bosw. 8. 53. Must be Specially Pleaded. Fraud cannot be proved on the trial, if not alleged in the pleadings. (Ogden v. Raymond, 5 Bosw. 1 6.) To a complaint in the usual form upon a promissory note, an answer was filed, admitting the signing of the note, but averring that it 828 FORMS OF ANSWERS. was made, not on account of an indebtedness existing between the parties, but for the purpose of being used as collateral security for a debt due to a third person from the maker and payee jointly; that the joint debt was subsequently paid, and that the note having thus become functus officto, should have been canceled, but through fraud was taken and held by the payee, and transferred without consideration by him to the plaintiff: Held, that these allegations were not new matter, which, under the system of replication then in force, was admitted by a failure to reply; that their only effect was to deny that any obligation of the character counted upon in the complaint was ever created by the sign- ing of the instrument, and thus to traverse its essential allegations. Goddard v. Fulton, 21 CaL 430. 54. Note for Mining Stock. If a defendant would resist the payment of a promissory note given for mining stock, on the ground that the seller made fraudulent representations as to the value of the mine, the answer should set up the defense, and aver either that the stock was valueless to either party, or that the defendant had offered to return it and rescind the contract. Gifford v. Carvill, 29 Cat. 589. No. 680. xi. Thai the Note wets for Goods Sold on a False Warranty. [TITLE.] The defendant answers to the complaint: I. That the defendant made, executed, and delivered the note mentioned in the complaint for and on account of certain goods [describe them\ theretofore furnished by the plaintiff to him, the defendant, under a represent- ation and warranty by the plaintiff, at the time of so fur- nishing them made to the defendant, that the said goods were [state facts relative to the warranty}. II. That the defendant then accepted and purchased said goods for the purpose of [state purpose\, trusting in the said representation and warranty of the plaintiff, all of which the plaintiff then well knew. ON WRITTEN INSTRUMENTS. 829 III. That the same were not the kind of goods pur- chased, nor would they answer the purpose designated. 55. Form of Plea. The nature of the defect should be stated; (Castles v. Woodhouse, N.Y. Leg. Obs. 392; S.C., i Code R.Ji;} and the extent of the depreciation caused by it, as nearly as may be. (Defendorf v. Gage, 7 Barb. 18.) In an action against the maker of a note, the defendant answered, setting up a failure of consideration, in that the goods sold by the plaintiff, in payment for which the note was given, were not of the quality warranted, and claimed damages for the breach of warranty. Held, that the defense set up by the answer did not constitute a counter claim, and required no reply. (Nichols v. Boe- rum, 6 Abb. Pr. 290.) A plea to an action on a note given for mer- chandise, which avers that the goods purchased are of no value to the defendant, is not good. It should show that the goods, if they had been returned to the plaintiff, would have been valueless. (Christy v. Cum- mins, 3 McLean, 386.) Where defendants gave their note for a tract of land as a part of the public domain, defendants might plead the fact in an action on the notes. Scudder v. Andrews, 2 McLean, 464. No. 681. xii. Recoupment for Breach of Warranty. [TITLE.] The defendant answers to the complaint: I. That the said note was not, before it became due, transferred and delivered to the plaintiff for value. II. That the said note was made and delivered by the defendant jp one A. B., who was at that time an agent or servant of the plaintiff, and acting as such on behalf of the plaintiff in that transaction, in exchange for a quantity of cigars, which were sold by sample to the defendant at that time, by said A. B., as such agent. III. That when said cigars were delivered to this 830 FORMS OF ANSWERS. defendant, they did not correspond with the samples, and were not worth more than dollars. IV. That as soon as the defendant learned the char- acter of said cigars, he offered to said A. B., as such agent, to return them, which he is still ready and willing to do. Whereupon the defendant claims to recoup dollars, his damage in their behalf, from the amount of the said note. Form. This form, from " Abbotts' Forms," No. 870, is in sub- substance from Allen v. Haskins, 5 Duer, 332. 56. Counter Claim Recoupment. In an action on a prom- issory note for $ 1 20, the answer of the defendant, the maker, stated that the note was given on the purchase of goods; that the goods were not of the quality warranted, and that upon the discovery of their de- fects he offered to return them, and he claimed damages in the sum of $ 100, to be recouped from the amount of the note. Held, on de- murrer to the answer, that the answer was not insufficient because it did not present a defense to the whole demand of the plaintiff. If there was a breach of warranty, the defendant would have a cause of action against the plaintiff. Beirne v. Dord, i Seld. 95; Hargous v. Stone, i Id. 72. JVo. 682. xiii. That the Note was for Accommodation, and was Misapplied. [TITLE.] The defendant answers to the complaint: I. That the note mentioned and described in the complaint was given by this defendant to [the payee] therein named, without any other consideration than is hereinafter stated. ON WRITTEN INSTRUMENTS. 83! II. That theretofore this defendant had loaned his promissory note for dollars, dated on the .... day of , 1 8 . . , to said \J>ayee~] t without consideration, and solely for the accommodation of said [payee], and upon his promise to take up and pay the same at maturity. III. That the said note fell due on the .... day of , 1 8 . . , and that, at the request of said [payee], this defendant then gave him the note in suit, for the special purpose of enabling him therewith to take up and renew said first note of dollars, he paying the balance, and upon the agreement with him that it should be so used, and not otherwise. IV. That the plaintiff having a claim then over-due against the said [payee"], he, said [payee], wrongfully diverted said note from the purpose for which it was given, and fraudulently misapplied the same, by giving it to the plaintiff as collateral to secure the payment of said claim. V. That the plaintiff is not a bonafide holder of the note in suit for a valuable consideration; but received the same with notice of the foregoing facts, and as col- lateral to secure the payment of an antecedent debt, and without paying any consideration therefor. VI. This defendant denies each and every allegation of the complaint inconsistent with the foregoing state- ment. 57. Form. This form is from Abbotts' Forms, No. 864. It con- stitutes prima facie a good defense. It is not necessary to allege that defendant has been- injured by the diversion. It is incumbent upon the plaintiff to show that he has not been injured. Rochester v. Taylor, 23 Barb. 18. 832 FORMS OF ANSWERS. 58. Assignment before Maturity. If the complaint, in an action by the assignee of a promissory note against the maker, avers that the note was assigned to the plaintiff for a valuable consideration, before maturity, and is sworn to, an answer which denies that the note was for a valuable consideration indorsed and delivered by the payee to the plaintiff before maturity, or at any other time, does not put in issue the fact of the assignment before maturity; but if it puts in issue any- thing, it is only the allegation that the assignment was made for a valuable consideration. (Morrill v, Morrill, 26 Cal. 288.) In an action on a note, a plea that the note has been assigned should be supported by some proofs that the beneficial interest is still in the assignee. Assignments are often made to banks for the mere purpose of collection. (Conant v. Willis, i McLean, 427; compare Hartshorn v. Green, i Minn. 92.) Commercial paper transferred before maturity as collateral security for a pre-existing debt is not subject to the defenses of payor against payee. Payne v. Bensley, 8 Cal. 260; Naglee v. Lyman, 14 Cal. 450. 59. Real Party. That plaintiff is not the holder and owner of a note, nor the real party in interest, should be specially alleged, showing how and why he is not the real party in interest. (Arthur v. Beales, i Ex. 608 ; Fraser v. Welsh, 8 M. & W. 609 ; Barber v. Lemon, 1 2 Jur. 246; Rogers v. Chilton, 17 Law Jour. Ex. 8-345; De Santes v. Searle, 1 1 Hoiv. Pr. 477.) It is not a good plea to allege that a note sued on is the property of another, and not of the plaintiff, without showing some substantial matter of defense against the one asserted to be the owner, and which could not be set up against the plaintiff. Gushee v. Leavitt, 5 Cal. 16. 60. Want of Consideration. A plea of want of consideration, in an action on a bill of exchange, must, besides showing the circum- stances, distinctly allege that there was no other consideration than that mentioned. (Boden v. Wright, 12 C. B. 445.) Under an answer merely averring that the note was not for want of consideration, and that the plaintiffs are not bona fide holders, the defense of usury, though it appears by the evidence on the trial, is not available. (Mechanics' Bank of Williamsburgh v. Foster, 44 Barb. 87; S.C., 19 Alb. Pr. 47; and 29 How. Pr. 208.) A partial failure of consideration cannot be pleaded in bar of an action upon a note given for the purchase-money of land. Reese v. Gordon, 19 Cal. 147. ANSWERS SUBDIVISION SECOND. On Breaches of Contracts. CHAPTER. I. ON BUILDING CONTRACTS. JVo. 683. i. Work not Finished, and Architect's Certificate not Obtained. [TITLE.] The defendant answers to the complaint: I. That the said work was not completed in a good and workmanlike manner, on or before the day limited therefor, in the contract set forth in the complaint; but on the contrary, the said work on that day, and from thence to the commencement of this action, was, and still is, incomplete and unfinished. II. That no certificate from the said architect, that the said work had been completed to his satisfaction, was obtained by the plaintiff before this action. 1. Counter Claims. Plaintiff sues for balance due on a contract for erecting a building, and a small sum for extra work. Defendant seeks to offset a claim for two and one-third months' rent lost by him, because of the neglect of plaintiff to finish the building within the time specified in the contract, defendant having, at the date of the contract, 53 834 FORMS OF ANSWERS. leased the building to responsible tenants, the lease to take effect from the time named in the contract for its completion. Held, that defend- ant cannot offset his rents, because the circumstances show that the contract was modified by the parties as to the time for the completion of the building. McGinley v. Hardy, 18 Cal. 115. 2. Special Plea. That the work was done in an unworkmanlike manner must be specially set up in the answer. Kendall v, Vallejo, i Cal. 371; People v. Sabin, 10 Id. 22; Laraway v. Perkins, 10 N.F. 371. CHAPTER II. ON CHARTER PARTIES. No. 684. ii. Denial of Offer to Perform. [TITLE.] The defendant answers to the complaint: I. That at the time fixed by the agreement referred to in the complaint, the plaintiff was not ready or wiling or in a condition to recieve the merchandise mentioned in the said agreement [or any part thereof]. 1. Note. That no demurrage can be recovered by an owner for a detention occasioned either by the misconduct of the master, for which the owner alone was answerable, or to avoid danger, and not by any misconduct or any breach of covenant by the charterer, Hool v. Groverman, i Cranch, 214. CHAPTER III. ON COVENANTS. No. 685. i. Denial of Covenanf. [TITLE.] The defendant answers to the complaint : t That he did not covenant or agree with the plaintiff as alleged, or at all. 1. Non Est Factum. Under a plea of non est factum to an action of covenant, it is competent to show a variance between the deed offered in evidence and that declared on. (Treat v. Brush, 1 1 Mo. 310.) What defenses are admissible in actions of covenants, see Wilder v. Adams, 2 Woodb. & M. 329; United States v. Clarke, Hempst. 315; Gill v. Patton, i Cranch C. Ct. 143; Wise v. Resler, 2 / and took and carried away there- from [specify t/ie goods], being part of the said \goods\ mentioned in the said warrant, and brought the same before the said Justice, as he might lawfully do, which are the acts of which the plaintiff complains. 23. Form. This form is in substance from Abbotts' Forms, No. 999, and is sustained by Bell v. Clapp, 10 Johns. 263. 24. Warrant. In trespass, any matter done by virtue of a war- rant must be specially pleaded. Co. Lit. 282 b.; 6 Com. Dig. Pleader, E. 1.7; i Salk. 107; Dougl. 611; i Saund. 298; 13 Johns. 443; Mar- tin v. Clark, Hempst. 259. 57 FORMS OF ANSWERS SUBDIVISION FIFTH. For the Possession of Specific Property. CHAPTER I. FOR PERSONAL PROPERTY. No. 752. i. Conversion Denial of Plaintiff's Ownership. [TITLE.] The defendant answers to the complaint, and denies that at the time of the alleged conversion, the plaintiff was the owner, or entitled to the possession of the goods, wares, and merchandise, mentioned in the com- plaint [or any of them]. 1. Property of Decedent. In an action by an administrator against a person claiming to hold the decedent's property by virtue of a gift or transfer from the decedent, if the defendant in his answer denies that the plaintiff's intestate at the time of his death owned or was in possession of the property, he may on the trial claim or es- tablish a title to the property, by gift from the intestate; especially after the plaintiff has himself proved that the defendant had claimed the property as such. Woodruffs. Cook, 25 Barb, 505. FOR PERSONAL PROPERTY. 899 No. 753. ii. T^i? Same Dental of Bailment. [TITLE.] The defendant answers to the complaint, that the defendant has never received the plaintiff 's goods men- tioned in the complaint, as bailee, as alleged, or at all. 2. Issuable Fact. Whatever is the allegation of a complain* showing that defendant received possession, is issuable. Elton v. Markham, 20 Barb. 343. . 754. iii. The Same Lien upon Goods Detained. [TITLE.] I. That on the .... day of , 18 . . , the plaintiff deposited the goods mentioned in the com- plaint with the defendant, for storage, agreeing to pay for the same [one dollar] per [ton] per [month]. II. That the defendant has always been, and still is, ready and willing to deliver the said goods to the plaintiff, upon the payment of the storage -money due. III. That the plaintiff has not paid, or tendered to the defendant the storage money due. 3. Warehouseman. A person who is not engaged in ware- housing as a business, has no lien for his compensation for the chattels kept by him on storage. 3 Hill, 491; 3 E. D, Smith 267; Alt v. Weidenberg, 6 Bosw. 176. 9OO FORMS OF ANSWERS. No. 755. \ iv. The Same Lien for Services. [TITLE.] The defendant answers to the complaint, and alleges: I. That said goods were manufactured by the defend- ant, as tailor; and that he detained them by virtue of his lien as a mechanic, and the manufacturer thereof, as security for the payment of dollars, which is the amount due him from the plaintiff for work and labor in manufacturing them. II. That defendant has always been and still is ready and willing to deliver the said goods to the plaintiff, upon receiving the said amount. III. That the plaintiff has not paid or tendered to the defendant the said amount of dollars due thereon. 4. Former Recovery. A plea of former recovery, in an action based on a wrongful sale of property, must show that the conversion was identical with the sale. Hopkinson v. Shelton, 37 Ala. 306. 5. General Denial. For conversion of property, a general denial puts in issue the conversion and plaintiff's title. Robinson v. Frost, 14 Barb. 536; Corwin v. Corwin, 9 Id. 219; but see Ely v. Ehle, 3 Corns. 510; Jacobs v. Remson, 12 Abb. Pr. 390; Beaty v. Swarthout, 32 Barb. 293; Davis v. Hoppack, 6 Duer, 256; Heine v. Anderson, 2 Duer, 318; Gorham v. Gary, i Abb. Pr. 285. 6. Justification by Officer. Where an officer justifies under an execution issued by a justice, his pleading must show that the justice had jurisdiction of the cause. (Cleveland v. Rogers, 6 Wend. 438.) An officer having made a proper levy cannot be sued in trover by the debtor, for a part of the goods which was not sold, without proving a demand that he redeliver them, and a refusal. -Whitmarsh v. Angle, 3 FOR PERSONAL PROPERTY. QOI Code R. 53; S.C., i Am, Law R. (N.S.) 595; Laman v. Luce, 23 Barb. 240. 7. Plaintiff Regaining Possession. The fact that the plaintiff has regained possession before suit brought is no defense to an action for the conversion. (Murray v. Burling, 10 Johns. 172; Kerr v. Mount, 28 N. Y. 659.) It only goes to the mitigation of damages. Reynolds v. Shuler, 5 Cow. 323; Connahz>. Hale, 23 Wend. 462. 8. Principal and Agent. An action brought by an agent in his own name, for a trespass in converting coin, in which the jury found that the coin belonged to the principal; such action is no bar to an action by the principal for the coin. Pico v. Webster, 12 Cal. 140. 9. Replevin, -when a Bar. Plaintiff brought an action of replevin to recover certain property, and obtained a judgment for its restitution, and damages for its illegal detention. Defendants paid the damages, but the property was not restored. Plaintiff then brought an action of trover to recover the value; defendants pleaded the former recovery as a bar to the action of trover, the judgment in replevin not being satisfied. Held, that the judgment in replevin did not constitute a bar to the action in trover. Nickerson v. Cal. Stage Co., 10 Cal. 520. 10. Title in Another. Where, in an action for conversion, the issue under the pleadings is whether the plaintiff at the time of the con- version owned the property, and as owner was entitled to immediate possession, according to the allegation of his complaint, the defendant has a right to prove that the legal title was at the time vested in a third person, and that the plaintiff was not in possession, the above allegation not being a mere conclusion of law from facts previously stated, but the affirmation of a fact. (Davis v. Hopock, 6 Duer, 254.) A sheriff may justify in this form of action, by showing want of title in the plaintiff. (Richeyy. Stryker, 28 N.Y. 45; 26 How.Pr. 75; S.C., 31 N.Y. 140; Hall v. Stryker, 27 N.Y. 596.) In an action for wrongfully taking per- sonal property, the answer alleged that the defendant took the property as constable, under an execution against a third party, in whose posses- sion it was, but did not rebut the allegation that it was the property of the plaintiff. The answer was improperly stricken out. Barley v. Can- non, 17 Mo. 595. 11. Value. In an action in the nature of trover, the usual aver- ment in the complaint of the value of the property converted is not traversable matter. The defendant cannot take issue upon it; and his 9O2 FORMS OF ANSWERS. omission to answer it does not admit its truth. It is not a " material allegation," within the meaning of Section 168 of the Code. Hence, where the answer does not deny the averment of value, the plaintiff must, notwithstanding, prove the amount of his damages. (Connoss z>. Meir, 2 E. D. Smith' sC. P. R. 314.) In trover, trespass, or replevin, it is not necessary to deny the value of the damages alleged in the com- plaint. So held in Wisconsin. (Jenkins v. Steamka, 19 Wis. 126.) In an action for the conversion of chattels, alleged by the plaintiff to be of a certain value, defendant denied that they were of such value, or of any greater value than a certain less sum named : Held, an admission that they were worth the less sum named. Carlyon v. Lannan, 4 Nev, 156. No. 756. i. Claim and Delivery. [TITLE.] The defendant answers to the complaint, and denies: I. That the plaintiff, at the time stated in the com- plaint, or ever, or at all, was in possession of the goods described in the complaint, or any of them. II. Denies that said goods, or any of them, are or ever were the property of the plaintiff. III. Denies that said goods are or were, at the .time alleged, or at any time since, of the value of ......... dollars, or any amount greater than dollars 11. Another Action Pending. In an action against a con- stable to recover possession of personal property taken under attach- ment, the pendency of another suit for the same goods by the plaintiff's vendor is no defense. (O'Connors. Blake, 29 Cal. 312.) A plead- ing by a defendant, in an action of replevin, which admits the taking complained of, but justifies under legal process, and prays judgment, restitution of the property replevied, or for its value, contains only matter of confession and avoidance, and under the fifty-sixth sec- tion of the Practice Act is deemed controverted by plaintiff. Stringer z>. Davis, 35 Cal. 25. FOR PERSONAL PROPERTY. 903 12. Delivery to Third Person. If, during the pendency of an action to recoverthe possession of personal property, and before the trial thereof, the defendant has been required to deliver, and has delivered the property to another person entitled to its possession, as against both plaintiff and defendant, that fact may be set up in the answer, or in a supplemental answer for the purpose of defeating a recovery of the possession or of the value of the property. Bolander v. Gentry, 36 Cal. 105. 13. Demand. If the defendant does not object to the sufficiency of a demand, and refuses to deliver up the property for improper reasons, a further demand will be unnecessary. King v. Fitch, i Ktyes, 432. 14. Fraudulent Transfer. In an action against a sheriff, to recover the possession of personal property, it is a good defense for the sheriff to show that the defendant in the attachment, when insolvent, sold the property to the plaintiff, to defraud his creditors, with the knowledge of plaintiff, and that said defendant has since been declared a bankrupt, and the sheriff has, on demand of the assignee in bank- ruptcy, delivered him the goods. Bolander v. Gentry, 36 Cal. 105. 15. General Denial. In an action for the claim and delivery of personal property, the denial by the defendant of the averment in the complaint of the particular facts upon which plaintiff claims the title and right of possession, and wrongful detention, is sufficient, with a denial of the subsequent averment of the particular facts upon which his title and right of possession are claimed. (Nudd v. Thompson, 34 Cal. 39.) Evidence of a levy under an execution prior to that stated in the answer was not admissible under the general denial. If defendant had made a prior levy, and was thereby entitled to posses- sion of the goods, it was matter to be specially pleaded. (Graham v. Harrower, 18 How. Pr. 144.) In an action to recover the possession of personal property, the defendant may set up a general denial, and also a justification. Hackley v. Ogmun, 10 How. Pr. 44. 16. Insufficient Denials. Where the complaint in replevin averred that on a certain day plaintiff was the owner and in possession of the property, and that its value was $1,000; and the answer denied that on the day specified " the plaintiff was the owner and lawfully in possession," and, as to its value, averred that the defendant has no knowledge, etc., and therefore denies that it is worth 1,000: Held, 904 FORMS OF ANSWERS. that the answer is insufficient, because it raises an immaterial issue as to time; and as to the possession of the property, that it amounts merely o a conclusion of law. Kuhland v. Sedgwick, 17 Cat. 123. 17. Justification. An officer, to justify the seizure of property in possession of a stranger to the writ which he has executed, must plead specially such justification. He cannot justify under a general denial of the allegations of the complaint. (Glazier v. Clift, 10 Cal. 303; Coles v. Soulsby, 21 Cal. 47.) He may plead the property to have been in possession of the defendant in the suit. In such a case, it is not neces- sary that the defendant should specially plead want of notice and de- mand in order to make such a defense. (Killey v. Scannell, 12 Cal. 73.) In an action of replevin against a sheriff, he must justify not only the execution, but with the judgment itself, whenever he takes property which is in the possession of a stranger to the writ. (Knox v. Marshall, 19 Cal. 617.) It does not state facts constituting a defense, if it fails to allege that the defendant in the attachment suit was the owner of the property. (Richardson v. Smith, 29 Cal. 529.) It is not necessary that his answer should set forth minutely every fact relating to the attachment suit. An answer which stated the time of commence- ment of the action, the names of parties, the court, and that the goods were taken by virtue of a writ of attachment issued thereon, held to be sufficient, Towdy v. Ellis, 22 Cal. 650. 18. Non Cepit. A plea of non cepit in replevin put in issue the question of general property only, and not of special property; at least in a suit between a principal and his agent. On such a plea, the issue must be for the defendant, if there was not a wrongful taking of the goods from the possession of another; for a wrongful detainer after a lawful taking is not equivalent to a wrongful original taking. Meany v. Head, i Mass. 319. 19. Subsequent Proceedings. If he relies on matters occur- ing after issuance of attachment operating as a dissolution of the same, such matter must be specially pleaded. (McComb v. Reed, 28 Cal. 281.) If it it be necessary to aver in the answer that the writs of at- tachment and execution were returned executed by the sheriff, still the omission of this averment, though it might have been ground of de- murrer, was no ground for rejecting all evidence under such justifica- tion. Walker v. Woods, 15 Cal. 66. FOR PERSONAL PROPERTY. 905 No. 757. ii. The Same Title in Another than Plaintiff. [TITLE.] The defendant answers to the complaint, and alleges: That the property described in the complaint was, at the time stated therein, and still is the property of , and not the property of the plaintiff. 20. Denial of Plaintiff's Title. The defendant, whether he laid property in himself or in a stranger, was required to traverse prop- erty in the plaintiff. Rogers v. Arnold, 12 Wend. 30; Prosser v. Wood- ward, 21 Id. 205; Curtis v. Jones, i H. Bod- ley, 14 Id. 156; Reed v. Proprietor of locks and canals, 8 How. U.S. 274.) So, the vendee, the title of his vendor after breach of his contract and the Statute, will commence to run at the time of such disclaimer. (2 Bos. fe 3 . P. 542; 5 Barn. <5f Aid. 232; Cowp. 217; 2 Stark. Ev. 887; 7 Johns. Ch. 90; 20 Johns. 565; 4 Serg.& R. 310; 7 Wheat. 548; 3 Pet. 52; C. & #., pt. i, n. 37, 311; 2 Sch. & Lefr. 633; 2 Jac. & W. 1,191; Zeller v. Eckert, 4 How. U.S. 289.) But a clear, positive, and continued disclaimer is necessary. Zeller v. Eckert, 4 Haw. U.S. 289. 9l6 FORMS OF ANSWERS. 26. Forfeiture, Plea of. In an action of ejectment to recover mining claims, an answer to the complaint which avers that any right that plaintiffs may have ever had to the possession, etc., they forfeited by a non-compliance with the rules, customs, and regulations of the miners of the diggings, embracing the claims in dispute, prior to the defendant's entry, is insufficient, in not setting forth the rules, customs, etc. (Dutch Flat Co. v. Mooney, 12 Cal. 534.) The facts should be rated so as to enable the Court to determine whether the forfeiture did accrue. The averment of forfeiture is a legal conclusion, upon which no issue can be taken. Id. 27. Former Recovery. A plea of former recovery in eject- ment, as to a part of the demanded premises, should describe the land which was in contest in the former action, and such plea is bad, if it is pleaded as a general defense to the whole action, and there are several plaintiffs, and the former recovery was against one only of the several. (Anderson v. Fisk, 36 Cal. 625.) In an action of ejectment to recover the possession of land, where the defendant simply denied the allegation of the complaint: Held, that he could not introduce in evidence a copy of the record of a former recovery. Piercy v. Sabin, 10 Cal. 22. 28. Fact of Possession. Where a complaint for the possession tof land avers defendants to be in possession, and the answer does not deny, but affirmatively shows it, then, even if the allegation of possession be not material, and therefore not requiring a denial, the fact of posses- sion becomes a matter of admission or agreement between the parties, as an independent fact not in issue by the pleadings, but affecting the whole case. Powell v. Oullahan, 14 Cal. 114. 29. General Issue. If the defendant in ejectment pleads the general issue only, the plaintiff is entitled to recover, in case the defend- ant is found in possession of any part of the demanded premises. (Greer -v. Mezes, 24 How. U.S. 268.) The general issue plea is not guilty, and under it, coverture, or any other available defense may be taken. (Black v. Tricker, 52 Penn. 436.) In an action of ejectment, under the general issue, the question at issue is not whether the ances- tor once had title, and the right of possession, but whether the plaintiffs, at the .commencement of the action, had such title and right. Under the general ; issue, or a general denial of all the allegations of the com- plaint, -the defendant may controvert by evidence any and every fact >.which the plaintiff is bound to establish to make out his cause of action. IN EJECTMENT. 917 (16 Barb. 633.) He cannot, under such an answer, prove a discharge of a cause of action once existing in the plaintiff against him, because that is an affirmative defense, or new matter, which must be pleaded. But he may show that the plaintiff never had any such cause of action against him as is alleged in the complaint. (Raynor v. Timerson, 46 Barb. 518.) Matter that goes to affect the title may be proved under the general denial. (McCormic v. Leggett, 8 Jones L. (N.C.) 425.) So, abandonment of land may be proved. (Wilson v. Cleveland, 30 Cal. 192; Bell v. Brown, 22 Id. 671.) A general denial, in an action of ejectment, brings in issue the respective titles of plaintiff and defendant. Marshall v. Shafter, 32 Cal. 176. 30. Grant of Easement. Grant of easement or servitude must be specially pleaded. (American Co. v. Bradford, 27 Cal. 368.) The lessee of an inner close has, by necessity, a right of way over an outer close which belongs to his lessor, but he cannot by user acquire an ease- ment to deposit packages on a close which belongs to his lessor. Gayford v. Moffatt, Law. Rep. 4 Ch. 133. 31. Homestead. The husband or the wife may set up the fact of homestead, as a defense to ejectment, based upon a sheriff's deed of the premises, made in pursuance of an execution-sale on a judgmental law against the husband, there having been no abandonment of the homestead. (Williams v. Young, 17 Cal. 403.) A defendant in pos- session may show that he has entered the land under the Homestead Law of the United States, and is not estopped, by a sale and delivery of possession to him by the plaintiff, from showing that he now holds them under said laws. (Holden v. Andrews, Cal. Sup. Ct., Jul. T., 1869.) He does not thereby deny the title of the vendor, but he confesses and avoids it. He may show that the vendor's title has expired, for by the estoppel he is precluded from denying only what he has previously ad- mitted, and by executing the contract, and entering under it, he admitted the existence, but not the continuance of title in the vendor. (Jackson v. Rowland, 6 Wend. 670; Dispard v. Wallbridge, 15 N. Y. 374; Holden v. Andrews, Cal. Sup. C/., Jul. T., 1869.) And, as the right to possession depends npon title, when the vendor's title expires, his right to possession expires. 32. Misjoinder. Where two are joined as plaintiffs in an action for the recovery of possession of land, a denial in the answer that the plaintiffs were in possession of the land does not present the issue of 91 8 FORMS OF ANSWERS. a misjoinder of either of the plaintiffs. Gillman v. Sigman, 29 Cat. 637. 33. New Matter. Subsequently acquired title in defendant must be specially set up. (Moss v. Shear, 30 Cal. 468.) Title ac- quired by defendants pendenie lite, and other matters of defense arising subsequent to the commencement of the suit, must be set up by a supplemental answer in the nature of a plea puis darrein continuance. (Moss v. Shear, 30 Cal. 468; Hardy v. Johnson, i Wall U.S. 371.) So, also, a transfer of title by plaintiff must be by supplemental answer, or it cannot be given in evidence. (Moss v. Shear, 30 Cal. 468.) The interest of a mortgagor in possession was sold on execution, and eject- ment was brought against him by the purchaser, field, that the mortgagor could defend his possession by taking a lease from the mortgagees, and setting it up by a plea puis darrein continuance. Simmons v. Brown, 7 Rhode Island, 427. 34. Non-Tenure. In most actions non-tenure is, in Massachu- setts, a good plea either in bar or abatement, though in some States and in England it is good only in abatement. (Fiedler v. Carpenter, 2 Woodb. & M. 211.) A mortgagor in possession cannot, in a suit against him by his mortgagee, to recover possession of the mortgaged premises, plead special non-tenure. Marsh v. Smith, 18 N.H. 366. 35. Several Defenses. In an action to recover a mining claim, the complaint, duly verified, alleged title and possession in plaintiffs on a certain day. The answer, also verified, denied that plaintiffs ever had either title or possession, and afterwards averred that if plaintiffs ever had a title to the claim they had abandoned and forfeited it before defendants' entry. At the trial, on motion of plaintiffs, the Court ordered defendants to elect on which of the above defenses they would rely, and defendants having, after excepting to the order, elected to rely upon their denial, were precluded from introducing proof of the abandonment and forfeiture. Held, that the action of the Court was error; that defendants had the right to set up both defenses in their answers, and support both by proof. (Bell v. Brown, 22 Cal. 671.) The defendant may deny the title of the plaintiff, and also plead the Statute of Limitations. (Wilson v. Cleaveland, 30 Cal. 192.) If in ejectment there are several defenses set up in the answer, some of which are insufficiently pleaded, and the defendants have a general IN EJECTMENT. 919 verdict, and the record does not disclose on which one of the defenses the verdict was rendered, the judgment will be reversed. Anderson v. Fisk, 36 Cal. 625. No. 762. iv. By one of Several Tenants Charged as Joint Tenant. [TITLE.] The defendant answers to the complaint: That the defendants A. B. and C. D., at the times mentioned in the complaint, and ever since, have held and occupied segregated portions of the premises sep- arately, and not jointly, to wit: the defendant A. B. the part [stating whaf\, and the defendant C. D. the part [stating- whaf\. 36. Form. For a form of defense, see Fosgate v. Herkimer Manufacturing and Hydraulic Co., 12 N.Y. 580; 12 Barb. 352. 37. Improvements Set-Off! Where damages are claimed for withholding the property recovered, upon which permanent improve- ments have been made by a defendant, the value of such improve- ments may be pleaded as a set-off to the damages for withholding the property. (Cal. Pr. Act, 257; Yount v. Howell, 14 Cal. 464; Ford v. Holton, 5 Id. 319; Welch v. Sullivan, 8 Id. 165.) But where no proof is introduced to show damages, it is no error to refuse to allow the defendant to prove the value of the improvements made by him on the property. (Ford v. Holton, 5 Cal. 319.) A defendant in eject- ment, who has made permanent improvements on the land in contro- versy, is not entitled to set off the value of those improvements against the damages claimed by the plaintiff, unless the improvements have been made by him or those under whom he claims, while holding possession under color of title, adversely to the claims of plaintiff, and in good faith. (Love v. Shartzer, 31 Cal. 488; Carpentier v. Small, 35 Cal. 346; see Bay v. Pope, 18 Cal. 694.) Where one who entered as a naked trespasser, places improvements on the land, and afterwards 92O FORMS OF ANSWERS. buys an undivided interest, in an action against him to recover posses- sion of the land, by a tenant in common, who owned prior to the wrong- ful entry, the defendant cannot set off the value of his improvements against the damages. (Carpentier v. Mitchell, 29 Cat. 330.) But not where improvements were made after plaintiffs title accrued, or where the holding of the defendant is not adverse within that section. (Bay v. Pope, 1 8 Cal. 694; Love v. Shartzer, 31 Col. 487.) Nor where de- fendant entered under a bond for a deed from the plaintiff. (Kilburn v. Ritchie, 2 Cal. 145.) Value of improvements must be specially claimed by defendant. Carpentier v. Gardner, 29 Cal. 160. 33. Improvements Landlord and Tenant. In Missouri, a tenant who disclaims the title of his landlord, cannot, if defeated, have improvements. (McQueen v. Chouteau, 20 Mo. 222.) The fact that the defendant has made permanent and valuable improvements, in good faith and under color of title, is no defense to the action; but if such fact is set up in the answer, in such language as to contain the essential facts to justify a set off of the value of improvements against rents, it will be treated as a good answer for that purpose, although no offer is made of such set off. Anderson v. Fisk, 36 Cal. 625. 39. Joint and Several Tenancy. In a writ of right, where the demandant describes the land by metes and bounds, and counts against the tenants jointly, the tenants, by pleading in bar, admit their joint seizin, and lose the opportunity of pleading a several tenancy. Liter v. Green, 2 Wheat. 306. 40. Oregon Rule. By the Civil Practice Act of the State of Oregon, Section 315, the defendant is prohibited from giving in evi- dence "any estate in himself or another in the property, or any license or right to the possession thereof, unless the same be pleaded in his answer." By Section 314, a defendant, in actual possession, may for answer plead that he is in possession only as tenant of another, and thereupon the landlord, if he apply, may defend. 41. Separate Answer. Defendants may answer separately, or demand separate verdicts. (Winans v. Christy, 4 Cal. 70.) Where there are several defendants, to entitle them to separate verdicts they should set forth with specific description the parcels which they severally occupy or claim. (Patterson v. Ely, 19 Cal. 28; McGarvey v. Little, 15 Id. 31.) If the defendant in ejectment desires to defend for only a portion of the premises, and to limit his liability for mesne profits in a corres- IN EJECTMENT. 921 ponding proportion, he must frame his answer accordingly, and specify the portion of the premises for which it is intended to defend, and dis- claim as to the balance. Guy v. Hanly, 21 Cal. 397. 42. Set-off? how Pleaded. In ejectment, the fact that the de- fendant has made permanent and valuable improvements, in good faith, and under color of title, is no defense to the action ; but if such fact is set up in the answer, in such language as to contain the essential facts to justify a set-off of the value of improvements against rents, it will be treated as a good answer for that purpose, although no offer is made of such set off. (Anderson v. Fisk, 36 Cal. 625.) The right of a defend- ant in ejectment, to set off the value of improvements made by him against the claim of the plaintiff for damages, depends upon whether they were made by him, or his grantors holding under color of title adverse to plaintiff, in good faith and upon whether they are permanent or not. (Carpentier v. Small, 35 Cal. 346.) An answer in ejectment which seeks to set off the value of improvements against damages, should aver that they were made with holding under color of title adverse to plaintiff, in good faith, and that they are permanent. (Car- pentier v. Small, 35 Cal. 346.) A defendant in ejectment, who desires to set off the value of his improvements against the mesne profits, must assert his right by proper averments in his answer, or he is precluded from doing so at the trial. Moss v. Shear, 25 Cal. 44. 43. Several Answer. In an action to recover the possession of lands from several defendants, a defendant who does not set up in his answer that his occupation and possession were exclusive and in severally, and that the other defendant was in the exclusive occupation and possession of the remaining portion, thereby waives the objection that the plaintiff could not maintain the action against him and the other defendant jointly; and the plaintiff is not bound to elect at the trial against which of the defendants he will proceed. 2 Kern. 580; Dillaye v. Wilson, 43 Barb. 261. 922 FORMS OF ANSWERS. No. 763. v. Estoppel. [TITLE.] The defendant answers to the complaint: That plaintiff ought not to be admitted to allege \here state the matter to which the estoppel is inter- posed e.g.\ that the said premises belonged to C.D., because he alleged \_here state the subject-matter of the estoppel e.g>~\, that the plaintiff, on or about the .... day of , 1 8 . . , conveyed said premises to the defendant by deed, containing a full covenant of warranty. \State facts as they exist^\ 44. Doctrine of Estoppel. The doctrine of estoppel, which may be said to be founded upon the adage that " the truth is not to be spoken at all times/' is a harsh one, and is never to be applied except where to allow the truth to be told would consummate a wrong to the one party, or enable the other to secure an unfair advantage. (Frank- lin v. Merida, 35 Cal. 558.) A person who has acquired the posses- sion of lands under a contract of purchase, is precluded while he con- tinues in possession from disputing the title of his vendor; but he is not estopped from showing that his vendor's title has expired. (Holden v. Andrews, Cal. Sup. O., Jul. T., 1869.) And if, instead of a third person, the defendant has acquired the plaintiff's title, he is entitled to occupy the position that would have been held by the third person had the title vested in him. Id. 45. Estoppels in Pais. It was the old rule that only spe- cialty or record could be pleaded by way of estoppel. (Davis v. Tyler, 1 8 Johns. 49o;.Welland Canal Co. v. Hathaway, 8 Wend. 480. But later cases sanction the idea that estoppels in pais may also be thus pleaded. (Gaylord v. Van Loan, 5 Wend. 308; People v. Bristol and Rensselaerville Turnpike Co., 23 Id. 222.) Where an equitable estop- pel in pais is not properly pleaded, but on the trial evidence is intro- duced without objection, in the same manner as if it had been properly IN EJECTMENT. 923 pleaded, and a verdict is rendered upon the evidence, without objec- tion, the objection to the pleading will be deemed waived, and the case will be considered as though the estoppel had been properly pleaded. Davis v. Davis, 26 Cat. 38. 46. Estoppel. An estoppel by deed or matter of record should be pleaded as such, where there is an opportunity to plead it. Where no opportunity to plead it occurs, it is conclusive as evidence. (Flan- dreau v. Downey, 23 Cal. 354; Corkhill v. Landers, 44 Barb. 218.) So far as a deed is intended to pass or extinguish a right, it is the exclusive evidence of the contract, and the party is concluded by its terms; but the deed is not conclusive evidence of the existence of facts acknowledged in the instrument, such as its date, acknowledgement of payment, consideration, etc. (Rhine v. Ellen, 36 Cal. 362.) Where plaintiff had possession under a deed duly recorded, and the defendant entered with notice of and in subordination to plaintiffs title, he can- not be permitted to deny it in an action of ejectment. Stephens v. Mansfield, u Cal. 363. 47. Former Judgment. A judgment in an action of eject- ment, in which the landlord of the defendant defends the action for and in the name of his tenant, and puts his own title in issue, is admissible in evidence by way of estoppel in an action of ejectment, brought by the same plaintiff against such landlord. Russell v. Mallon, Cal. Sup. Ct., Jul. T., 1869; Valentine v. Mahoney, Cal. Sup. Ct., Apl. T., 1869. 48. Landlord and Tenant. A tenant is estopped to deny that his landlord has a legal reversion, though it appear from the instru- ment of demise that the landlord has only an equity of redemption. (Morton v. Woods, Law Rep, 3 Q.B. 658.) As between landlord and tenant, the estoppel is designed as a shield for the protection of the former, but not as a sword for the destruction of the latter. (Franklin v. Merida, 35 Cal. 558.) The bare possession by the tenant of the demised land at the time the lease is given, is sufficient to take the case out of the operation of the general rule, and the tenant cannot before surrendering possession, dispute the landlord's title. (Tewks- bury v. Magraff, 33 Cal. 237; affirmed, Franklin v. Merida, 35 Cal. 558.) If A. being in possession of land, deliver the possession to B. upon his request and upon his promise to return it, with or without rent, at a specified time, or at the will of A., B. cannot be allowed, while 924 FORMS OF ANSWERS. still retaining the possession, to dispute A.'s title; but it is otherwise if B. is in possession and takes a lease from A., since the latter parts with nothing, and the former has obtained nothing by the transaction. (Franklin v. Merida, 35 Cal. 558.) A tenant of the defendant in eject- ment, who acquired his lease before the commencement of the suit, is not estopped as to his term by the judgment in an action obtained against his lessor; (Satterlee v. Bliss, 36 Cal. 489;) as the estoppel of a party with respect to the assertion of one title may not avail to prevent him from setting up another, differently derived. Wheeler v. Ruckman, 2 Abb. Pr. (N.S.) 186. 49. May be Pleaded. Equitable estoppels and defenses can be entertained in actions at law, but. they must be specially stated in the answer. (Clark v. Huber, 25 Cal. 593; Davis v. Davis, 26 Id. 39.) Title acquired by deed or matter of record should be pleaded as such. (Flandreau v. Downey, 23 Cal. 354; Corkill v. Landers, 44 Barb. 218.) But equitable estoppels are waived by omission voluntarily to plead them* (Clark v. Huber, 25 Cal. 593; i Saund. 325; 2 B. & A. 668; 2 Bing. 377; 4 B'ing. N.C. 748.) If defendant has no opportunity to plead estoppel, he may exhibit the matter thereof in evidence. Philadelphia R.R. Co. v. Howard, 13 How. U.S. 308. 50. Must be Sufficiently Pleaded. The Court, and not the jury, must pass upon the equitable title set up in the answer, and it must be sufficiently pleaded to warrant the Court in granting a decree which will estop the further prosecution of the action. Arguello v. Edinger, 10 Cal. 150; Lestrade v. Earth, 19 Cal. 660; Patterson v. Ely, 19 Cal. 28; Estrade v. Murphy, Id. 248; Meador v. Parsons, Id. 294; Davis v. Davis, 26 Cal. 38; Clark v. Huber, 25 Cal. 597; Carpentier v. City of Oakland, 30 Id. 439; Flandreau v. Downey, 23 Cal. 354; Blum v. Robertson, 24 Id. 146; Downer v. Smith, 24 Id. 124. 51. Purchase of Adverse Claim. One who is in possession of and claiming to own land, does not admit title in another because he buys the other's claim of title, solely to quiet his own title and avoid liti- gation. Such purchaser is not estopped by such purchase from deny- ing the validity of the claim thus purchased. Cannon v. Stockmon, 36 Cal. 535. IN EJECTMENT. 925 JV0. 764. vi. Equitable Estate in Defendant. [TITLE.] The defendant answers to the complaint: First For a first defense: I. [Deny title in plaintiff I\ Second By way of counter claim, defendant alleges: I. That on the ... day of , 1 8 . . , the plaintiff executed and delivered to the defendant his agreement in writing, for the sale and conveyance to the defendant of the premises described in the complaint, a copy of which agreement is as follows: \_Copy the agreementl\ II. That the defendant fully performed all the con- ditions of said agreement on his part. Wherefore defendant demands that the plaintiff be adjudged to convey said premises to the defendant, in fee, by deed, with covenants, in pursuance of said agree- ment, and be enjoined from the further prosecution of this action. 53. Character of Defense. When an equitable answer is inter- posed to an action of ejectment, said answer, being a bill in equity, can only be interposed where the parties to the action are such as would be required to a bill in equity seeking the same relief. Lestrade v. Earth, 19 Cal. 660. 54. Defense may be Interposed. Under our system of prac- tice, equitable defenses may be interposed to the action of ejectment, but the defendant in such cases becomes an actor with respect to the 920 FORMS OF ANSWERS. matter presented by him, and his answer must contain all the essential averments of a bill in equity, and the equity presented must be of such a character that it may be ripened by the decree of the Court into a legal right to the premises, or such as will stop the plaintiff in the pros- ecution of the action. (Lestrade v. Murphy, 1 9 Cal. 248 ; Weber v. Mar- shall, Id. 447; Downer v. Smith, 24 Id. 124; Blum v. Robertson, Id. 146.) And he must inform the adverse party of the nature of the cause of action or defense which he will be obliged to meet, and to do this he must plead it with the same fullness and particularity as is required in cases involving like subjects of inquiry in suits of equity. Davis v. Davis, 26 Cal. 38. 55. Election of Remedy. Although a party may set up an equitable defense to an action at law, he is not confined to that proceed- ing. He may let the judgment go at law, and file his bill in equity for relief. Lorraine v. Long, 6 Cal. 452. 56. Equitable Title. An equitable title arising out of a con- tract for a sale of land, is a defense to an action instituted to recover possession of the land, the subject of the contract. Tibeau v. Tibeau, 19 Mo. 78. 57. Injunction. The defense arising from a verbal contract for the sale of land, accompanied with acts of part performance, taking the contract from the operation of the Statute, is permissible, under our system of practice, to an action of ejectment for the recovery of the premises. The only effect of this mode of asserting the rights of the defendants, instead of filing a bill in equity, is to require the Court to pass upon the questions raised by the answer in the first instance. If, upon hearing the evidence, the Court should determine there was ground for relief, it would enjoin the further prosecution of the action with its decree for a specific performance; and, on the other hand, if it should refuse the relief, it would call a jury to determine the issue upon the general denial. Arguello v. Edinger, 10 Cal. 150. 58. Must be Specially Pleaded. Equitable titles, defenses and estoppels must be specially pleaded. (Clarke v. Huber, 25 Cal. 567; Carpentier v. The City of Oakland, 30 Cal. 439; Flandreau v. Downey, 23 Cal. 354; Blum v. Robertson, 24 Cal. 146; Downer v. Smith, 24 Cal. 124.) Equitable defense is fully available under the Code in this form of action. (Murray v. Walker, 31 N.K 399; Safford v. Hynds, IN EJECTMENT. 927 39 Barb. 625; Traphagen v. Traphagen, 40 Barb. 537; McBurney v. Willman, 42 Barb. 39; Lee v. Parker, 43 Barb. 611; Corkhill v. Landers, 44 Barb. 216.) The equitable defense is first to be passed upon by the Court; (Lestrade v. Earth, 19 Cal. 660;) and until it is dis- posed of the assertion of the legal remedy is in effect stayed. Upon the determination of the Court upon the relief prayed by the answer, the necessity of proceeding with the action at law will depend. When it does proceed, the legal title will control its result. (Estrada v. Murphy, 19 Cal. 248; Martin v. Zellerbach, Cal. Sup. C/., Jul. T., 1869.) In such suit, the Court sitting in equity may direct, when proper, an issue to be framed upon the pleadings, and submitted to a jury, if questions of a purely legal character in relation to the title arise. (Curtis v. Sutler, 15 Cal. 259.) And it is irregular to submit t& the jury all the legal and equitable defenses together. Lestrade v. Barth, 19 Cal. 660. No. 765. vii. Adverse Possession. [TITLE.] The defendant answers to the complaint: That at the time of the delivery of the deed alleged in the complaint, the lands therein described were in the actual possession of one A.B., who then and ever since claimed to be the owner thereof, and now claims adversely to the said grantor. 59. Adverse Possession. Adverse possession is of two kinds: First, where possession is taken without color of title, but with intent to claim the fee against all comers: Second, where possession is taken under a claim of title founded on a written instrument or a judgment of a court of competent jurisdiction. (Kimball v. Lohmas, 31 Cal. 54.) It may be acquired to part of a tract, while the owner of the title is in possession of the .other part of the same tract. Davis v. Perley, 30 Cal. 630. 60. Adverse Possession of Water. The right to the use 928 FORMS OF ANSWERS. of a watercourse on the public lands may be held, granted, abandoned, or lost by the same means as a right of the same character issuing out of lands to which a private title exists. And on adverse possession, for the time provided by Statute of Limitations, the law will presume a grant of the right to its use. Union Water Co. v. Crary, 25 Cal. 504; see Humphreys v. McCall, 9 Cal. 59. 62. Consecutive Possession. The possession of several per- sons in succession, claiming under the same title, is the same posses- sion. (Lea v. Polk Co. Copper Co., 21 How. U.S. 493.) So, a vendee's possession may be joined with that of his vendor. (Alexander v. Pendleton, 8 Crunch, 462.) But the possession of different intruders in succession cannot be- added together to create a title in the last intruder, especially where there is no privity between them. (Potts v. Gilbert, 3 Wash. C. Ct. 475; overruled in part, see Overfield v. Christie, 7 Serg. <$f R. 173; Sheetz v. Fitzwater, 5 Perm. 126.) The decision that adverse possession is not transferable was never acknowl- edged as sound by any land lawyer or judge of Pennsylvania. (Moore v. Small, 9 Penn. 194.) Where, to ejectment on a patent to plaintiffs for land from the United States, defendants plead possession in them- selves, and the parties through whom they claim, for five years before the commencement of the action, oil the fourth of March, 1860, but admitted the issuance of the patent on the nineteenth of February, 1865: Held, that the plea is of no avail, because the admission shows plaintiffs were seized of the premises within the five years. (Fremont v. Seals, 1 8 Cal. 433.) If the possession of two or more persons in succession, holding in privity with each other, under title or color of title, makes out the prescribed time, the bar is complete. 10 Tex. 382; Christy v. Alford, 17 How. U.S. 60 1. 63. Equitable Title. The purchaser of an equitable title by bond or contract, may, equally with the purchaser of the legal title by deed, set up his possession as adverse to the vendor, as the vendor without a deed is the trustee of the vendee for the conveyance of the title. (Boone v. Chiles, 10 Pet. 177.) But a possession under a purchase, without deed or payment of purchase-money, cannot by lapse of time ripen into a title. Possession is in such case possession of the vendor, and the same as landlord and tenant. Stansbury v. Taggart, 3 McLean, 457. 64. Essential Allegations. It was held in (Clarke v. Hughes, 13 Barb. 147), that an answer of adverse possession must give the name IN EJECTMENT. 929 of the possessor, and allege that he had title, and state the facts which are necessary to show the possession adverse. This case must be #e- gardetf as overruled, so far as it relates to the exclusion of evidence at the trial where there is no such averment, in White v. Spencer 14 N.Y. 247. 65. Five Years' Possession Construed. A defendant in ejectment, who relies on the Statute of Limitations, need not prove ad- verse possession for the five years next preceding the commencement of the action. His defense is complete if he shows a five years' continued adverse possession, although not the five years next preceding the com- mencement of the suit. (Moon v. Rollins, 36 Cal. 333; Cannons. Stockmon, 36 Cal. 538.) The fee acquired by a five years' possession continues till conveyed by the possessor, or till lost by another ad- verse possession of five years. Moon v. Rollins, 36 Cal. 333. 66. Must be Specially Pleaded. Adverse possession, if set up as a defense, must be specially pleaded. But title out of the plaintiff may be shown under a general denial. (Raynor v. Timerson, 46 Barb. 518.) An answer denying that defendant is in possession, or that he unlawfully withholds possession, does not raise the question of adverse possession, or authorize a fccovery for defendant on that ground. If he seeks to prevail upon an adverse possession, or on the ground that the conveyance under which plaintiff claims was made pending an ad- verse possession, he should in his answer set up title in himself or out of the plaintiff. Ford v. Sampson,, 8 Abb. Pr. 332; S.C., 30 Barb. 183. 67. Possession as Tenants in Common. A party relying upon an advgrse possession for five years, of land owned by himself and the adverse party as tenants in common, must allege, by pleading facts from which it will affirmatively appear, that his possession was of an adverse and positive character; otherwise his possession of the land, though exclusive, will be deemed to be according to his right, and in support of the title in common. Lick v. Diaz, 30 Cal. 65. 68. Prescription. To constitute a foundation for adverse posses- sion at the common law, the instrument under which the occupant en- tered must purport in its terms to transfer the title, and the occupant must have entered under it in good faith, and with intention to hold against all the world. (Nieto v. Carpenter, 31 Cal. 455.) No title to public lands, mineral or otherwise, will accrue to any person 59 93O FORMS OF ANSWERS. against the General Government, by pre-emption or otherwise. (Dovan v. C. P. R.R. Co., 24 Cat. 245; Jackson v. Porter, i Paine, 457.) At common law, an adverse possession of fifty years, though with ftiowl- edge of a better title, constitutes a good defense against that title. Alexander v. Pendleton, 8 Cranch, 462; Ewing v. Burnett, n Pet. 41; affirming i McLean 266. 69. Statute of Limitations. The Statute of Limitations runs only in favor of parties in possession claiming title adversely to the whole world, and not in favor of those who assert the title to be in others. It, therefore, never runs in favor of the plaintiff, and the grantees of the plaintiff are in no better position. Their possession cannot be tacked on to that of the grantor, so as to render adverse the posses- sion for the entire period subsequent to the sale. (McCracken v. City of San Francisco, 16 Cal. 591,) It must be accompanied with a claim of title, and this claim, when founded "upon a written instrument, as being a conveyance of the premises," must be absolute, not dependant upon any contingencies, and must be " exclusive of any other right;" and to render the adverse possession thus commenced effectual as a bar to a recovery by the true owner, the possession must be continued without interruption, undei such claim, for five years. (Id.) If the plaintiff, in his complaint iiv ejectment, relies on a title de- rived from the Mexican Goernment, and confirmed by the Uuited States, without stating the time of confirmation, an answer which sets up as a defense the Statute of Limitations is good, without stat- ing that the Mexican Grant was finally confirmed within less than five years next before the commencement of the action. (Anderson v. Fisk, 36 Cal. 625.) A plea of the Statute of Limitations of two years under the "Settlers' Act," is no defense; (Anderson v. Fisk, 36 Cal. 625;) as this act has been decided to be unconstitutional and void. Billings v. Hall, 7 Cal. i; Lathrop v. Mills, 19 Cal. 513; Pioche v. Paul, 22 Cal. 105. 70. Statute, how Construed. It is a universally accepted rule, that Statutes of Limitations are to be strictly construed. General words in the Statute must receive a general construction, and, if there be no express exception, the Courts can make one. (Tynan v. Walker, 35 Cal. 634.) The clause in the Statute of Limitations which provides that civil actions shall be commenced within certain periods therein prescribed "after the cause of action shall have accrued," does not imply, in addition, the existence of a person legally competent to en- IN EJECTMENT. 93! force it by suit. The Statute must run in all cases not therein expressly excepted from its operation. (Tynan v. Walker, 35 Cal. 634.) An equitable action, to set aside a fraudulent deed of real estate, when the effect would be to restore the possession to the defrauded party, is an action for the recovery of real estate, and governed by the Statute of Limitations applicable to such actions. City of Oakland v. Carpentier, 13 Cal. 540. 71. Statute, how Pleaded. There is no technical rule ob- served by the Court of Chancery as to the form of a plea of the Statute of Limitations. A plea which sets up an adverse possession of forty years, while the period required by the Statute of the State to bar a re- covery is twenty years, is good ; nor is it necessary to make any express reference to the Statute of the State. (Harpending v. Reform. Dutch Church, 1 6 Pet. 455.) It must be pleaded at the proper time, with no day of grace thereafter. (Cooke v. Spear, 2 Cal. 409; to the same effect, Meeks v. Hahn, 20 Cal. 620; and American Co. v. Bradford, 27 Cal. 360.) If an action of ejectment is in the name of the plaintiff who has sold pending the action, the defendant cannot plead the Statute of Limitations as against the vendee of the plaintiff. (Moss v. Shear, 30 Cal. 468) What such a plea should state in ejectment, see Sharp v. Daugney, 33 Cal. 505; Vassault*. Seitz, 31 Cal. 225. T2. Title by Adverse Possession. A person in the adverse possession of land for five years, claiming to own the same exclusive of any other right, thereby acquires a fee simple title to the same; and if he is then ousted, even by the party having the paper title, he can re- cover possession at any time before his right of action is barred by a five years' adverse possession. (Cannon v. Stockman, 36 Cal. 535; cit- ing as authority, Arrington v. Liscom, 34 Cal. 365; Vassault z>. Seitz, 31 Cal. 225.) Evidence of acts and declarations of one in possession. The party claiming title by virtue of five years' adverse possession, may give in evidence his acts and declarations made or done at any time while in possession, for the purpose of showing the character in which he claimed. Cannon v. Stockmon, 36 Cal. 535. FORMS OF ANSWERS SUBDIVISION SIXTH, In Actions Concerning Real Property. CHAPTER I. FORECLOSURE OF MORTGAGES AND LIENS. * No. 766. Denial of Mortgage. [TITLE.] The defendant answers to the complaint: That he has not knowledge or information sufficient to form a belief as to whether the defendant \mort- gagor~\ ever executed the bond and mortgage de- scribed in the complaint, or whether the defendant \mortgagee~\ ever assigned said supposed bond and mort- gage to the plaintiff, or whether he is now the lawful owner or holder thereof. NOTE. This form of denial is applicable to Oregon. (Code of Oregon, 71), New York (Code of N.Y. 149), and other States, but is not available as a defense in California, where on motion it would be stricken out. See Ante, p. 695, et seq. 1. Conditional Deed. Where the answer, while averring that the deed was a conditional deed, admits that the money was received by de- fendant on the understanding that, if the money was repaid in six months, IN FORECLOSURE OF MORTGAGES, ETC. 933 with interest, plaintiff was to re-convey, and does not specifically deny that the money was loaned: Held, that it virtually admitted the loan. (Lee v. Eyans,8 Cal. 424.) The allegation in the answer, that unless the money was returned, the property should remain in the plaintiff, does not change the nature of the contract. This is in the usual form of a mortgage. Id. 2. Denial of Condition. In a foreclosure action, the com- plaint set forth the condition of the bond, and alleged that the mort- gage was executed "with the same conditions as the bond." The answer denied that the mortgage sustained the condition, repeating it as stated . in the complaint: Held insufficient on demurrer. It was not a denial that the mortgage contained, by reference to the bond, or otherwise, substantially the same condition. To raise that issue, the defendant should have denied the deeds, or set forth the condition of the mortgage in hcec verba, that the Court might see what it was. Di- mon v. Dunn, 15 N.Y. 498. 3. Denial of Delivery. Although an answer denies the de- livery of a bond and mortgage, still their possession by plaintiff is evi- dence of deliver}'. Blankman v. Vallejo, 15 Cal. 638. 4. Disclaimer. In a foreclosure action, a defendant who is not alleged to be personally liable, and who disclaims all interest in the mortgaged premises, cannot demand a judgment against the plaintiff on a note, a bond, or a covenant. National Fire ' Ins. Co. v. McKay, 21 N.Y. 191; compare Agate v. King, 17 Abb. Pr. 159. 5. Former Judgment. A judgment that the mortgage is not paid off, is not conclusive in another suit as to amount remainig due. (Camp- bell v. Consalus, 40 Barb. 509.) Judgment of foreclosure, entered on stipulation, as without prejudice to claim of paramount adverse title on part of defendant, is no bar to his subsequent assertion of claim so reserved. (Lee v. Parker, 43 Barb. 611.) Omission to set up para- mount title in defense to foreclosure of one incumbrance is no bar to setting it up as a defense in suit to foreclose another on the same prop- erty. Frost v. Koon, 30 N.Y. 428. 6. Fraudulent Mortgage. A mortgage fraudulently given for a sum greater than is due, and not in good faith, as a pretended security for future advances, is fraudulent in law as to the creditors of the mortgagor. (Tully v. Harlo, 35 Cal. 302.) E. made a usurious 934 FORMS OF- ANSWERS. mortgage to V., who foreclosed and sold to an innocent third party under a power of sale. Held, that E. could not set up the usury against the purchaser. (Elliott v. Wood, 53 Barb. 285.) Where the defend- ant pleaded non est factum and usury, it was held no defense. Camp v. Small, 44 ///. 37. 7. Husband and Wife. In a foreclosure suit on a note and mortgage of the homestead executed by husband and wife, the wife alone answered, but did n; verify her answer. On suit brought to vacate the decree rendered in the foreclosure suit, the wife, having been served with process, cannot complain that her answer was not verified. And her failure, by excusable negligence, to make defense to the fore- closure, is no ground to vacate the decree, if it be shown that in fact she had no defense. Pfeiffer v. Riehn, 13 Cal. 643. 8. Literal and Conjunctive Denials. Where the bond in the complaint answers to the description of the bond offered in evidence, and as the complaint avers that the mortgage was given to secure this bond, the denials in the answer being literal and conjunctive, the exe- cution of the bond and mortgage was held to be admitted by the answer, as also that the mortgage was given to secure the debt evidenced by the bond*. Blankman v. Vallejo, 15 Cal. 638. 9. Mechanics' Liens. A formal objection to a mechanic's claim, should be raised by demurrer, or by motion to* strike it off. (Lybrandt v. Eberly, 36 Penn. 347.) The formal validity of a me- chanic's lien is not put in issue by a plea of payment; and hence, under such plea, the claim may be read to the jury as an admitted cause of action, and may be sent out with them. (Lybrandt v. Eberly, 36 Penn. 347.) On Feb. 6, 1867, a lien law was approved and went into effect. Held, that no lien could attach for work done before Feb. 7. Hunter v. The Savage Consol. Silv. Min. Co., 4 Nev. 153. 10. Remedy at Law. To a bill for foreclosure, averring that no proceedings at law have been had, a plea that the complainant, be- fore bill filed, had recovered a judgment for the debt, is good. It is not necessary to add that the complainant had not exhausted his remedy at law. North River Bank v. Rogers, 8 Paige, 648. 11. Statute of Limitations. The Statute of Limitations re- quires an action to foreclose a mortgage to be commenced within four years from the time when the cause of action accrued, and the Statute IN FORECLOSURE OF MORTGAGES, ETC. 935 commences to run from the time the note is due. (Belloc v. Davis, Cal. Sup. O., Jul. T., 1869.) Of the method of pleading the Statute of Limitations, in an action brought to obtain redempion of mortgaged premises, see Fogal v. Pirro, 10 Bosw. 100; S.C., 17 Abb. Pr. 113. 12. Statute, who may Plead. In an action to recover judg- ment for the amount of the debt secured by mortgage on real estate, and also to foreclose the mortgage, the grantees of the mortgagor, purchasers subsequent to the execution of the mortgage, have a right to plead the Statute of Limitations as to that part of the claim of plaintiff which asks for a decree foreclosing the mortgage, and a sale of the mort- gaged premises. (Grattan v. Wiggins, 23 Cal. 16,) A party who, sub- sequent to the execution of a mortgage, purchases the property from the mortgagor, may avail himself of the Statute of Limitations as a defense to an action for the foreclosure of the mortgage, commenced after the Statute has run against the debt secured. McCarthy v. White, 21 Cal. 495; see Low v. Allen, 26 Cal. 141; Lent v. Shear, Id. 361. 13. Tax Title. Where a party made defendant in a foreclosure suit, as claiming some interest in the land, sets up, as a full defense, a tax title, he cannot object afterward that equity has no jurisdiction over tax titles. Kelsey v. Abbott, 1 3 Cal. 609. 14. Vendor's Lien. An answer in an action to enforce a vendor's lien, which sets up a homestead exemption, is demurrable when it does not contain such a statement of facts that the Court can determine whether the homestead right existed or not. Pratt v. Delevan, 17 Iowa, 307. No. 767. ii. Mortgage not Recorded. [TITLE.] The defendant answers to the complaint, and alleges: That the said plaintiff did not cause the said mort- gage to be recorded as alleged, or at all. 936 FORMS OF ANSWERS. No. 768. iii. Mortgage not Assigned. [TITLE.] The defendant answers to the complaint, and alleges: That the said did not, by deed duly exe- cuted, convey all his right or title, as such mortgagee, in and to the said premises, in manner and form as the said plaintiff hath in his said complaint alleged, or at all. No. 769. iv. Non-Joinder of Assignee of the Mortgagor. [TlTLE.J The defendant answers to the complaint, and alleges: That after the execution of said mortgage in the complaint described, and on the .... day of . . , 1 8 . . , he, by deed duly executed, conveyed said mort- gaged premises in fee to one R. S., who is now living and still holds said title. JVo. 770. v. No Equitable Assignment. [TITLE.] The defendant answers to the complaint, and alleges : That the said A.B. did not assign or transfer to the said defendant the note in said mortgage men- IN FORECLOSURE OF MORTGAGES, ETC. 937 tioned, or the money due thereon, in manner or form as the said plaintiff hath in his said complaint alleged, or in any manner, or at all. No. 771. vi. Equity of Redemption not Assigned. [TITLE.] The defendant answers to the complaint, and denies: That the said A. B. did convey his equity of re- demption in and to the said premises in said complaint described, in manner or form as the said plaintiff hath in his said complaint alleged, or in any manner, or at all. No. 772. vii. Answer Setting up a Judgment. [TITLE.] The defendant answers to the complaint, and alleges: I. That the defendant, on the .... day of , 1 8 . . , did recover, in the [state the court], in and for the County of aforesaid, a judgment against the said A. B., for the sum of dollars, his debt, and dollars, his costs in said action. II. That the said judgment is in full force in law, and wholly due and unpaid, and is and has been a subsist- ing lien on said premises, from the said .... day of CHAPTER II. NUISANCES. JVo. 773. i. Denial of Plaintiff' s Title. [TITLE.] The defendant answers to the complaint: That the plaintiff was not, is not now, and never was possessed of the premises described in the complaint, or any part thereof. JVo. 774- ii. Denial of Nuisance. [TITLE.] The defendant answers to the complaint: That the defendant's premises have not been used as a slaughter house, either as alleged or otherwise. Or, That defendant did not erect said [dam] , as alleged, or otherwise, or at all. 1. Diversion of Water. In an action to recover damages for the diversion of water of a stream from plaintiff's mills, an averment as to the precise quantity of water required for the use of the mills, and to which plaintiffs claim to be entitled, is an immaterial averment; and a recovery of damages would not establish plaintiff's right to the exact quantity of water claimed, so as to be res adjudicata in a subsequent suit. McDonald v. Bear River and Auburn W. and M. Co., 15 Cal. 145. FOR NUISANCES. 939 2. Irrelevant Allegations, In an action to abate a nuisance caused by running a ditch for the conveyance of water across the land of the plaintiff, the defendant set up in answer that it was mineral land belonging to the United States, and that the ditch was for mining pur- poses. Such allegations are irrelevant, and constitute no defense. Weimar v. Lowery, u Cal. 104. 3. Issues Raised. If the plaintiff sues to recover damages for flowing sand and sediment upon land averred in the complaint to be his, and the answer denies that plaintiff owns the land, and that defendant wrongfully flowed the sand and sediment upon the land, without deny- ing that he caused the same to flow upon the land, it does not admit that defendant caused such material to flow upon the plaintiff's land. (Wood v. Richardson, 35 Cal. 149.) In such case, the plaintiff's owner- ship of the land is put in issue. Wood v. Richardson, 35 Cal. 149. 4. Obstructing a Public Highway. In the case of a com- missioner suing the owner of the land for obstructing a public highway, it is the undoubted right of the defendant to question the legal existence of the highway. Such a right, however, cannot be asserted by him in any case in a justice's court. When called upon to plead, if he only intends to deny the fact that he placed the obstruction in the road, he may rely upon a general denial of the complaint. If he wishes to justify upon the ground that he had the right to put the fence across it, as owner of the land, he must allege that he is such owner; and this is sufficient to raise a question of title in a justice's court, for such an answer can mean nothing unless the defendant intends to question the public right of way over his land. Little v. Denn, 34 N. Y. 452. 5. Want of Care. The want of reasonable care on the part of another, who is injured by the breaking, cannot be set up in defense to an action for damages for the injuries thus suffered in the breaking of defendants' dam. Fraler v. Sears Union Water Co., 12 Cal. 555. CHAPTER III. PARTITION. JVo. 775. Pendency of Partnership. [TITLE.] The defendant answers to the complaint: That the premises of which the plaintiff seeks partition belong to the parties to the action as tenants in common. \Here state the nature and extent of de- fendant 's interest]. 1. Answer What to Contain. The defendants, who have been personally served with the summons, and a certified copy of the complaint, shall set forth in their answer, fully and particularly, the na- ture and extent of their interest in the property; and if such defendants claim a lien upon the property, by mortgage, judgment, or otherwise, they shall state the amount and date of the same, and the amount re- maining due thereon, and whether the amount has been secured in any other way or not, and if secured, the extent and nature of the security, or they shall be deemed to have waived their right to such lien. Cal. Pr. Act, 270. 2. Disclaimer. In an action of partition, a defendant cannot claim that the action be dismissed as to him, on the ground that his answer disclaims any interest in the land, unless he has made the dis- claimer in absolute and unconditional terms. (De Uprey z>. De Uprey, 27 Cal. 331.) A defendant in partition is not entitled to have the action dismissed by reason of the force and effect of any defense which he may set up in his answer. Id. FOR PARTITION. 94! 3. Form. For a fuller form, see Danvers v. Dorrity, 14 Abb. Pr. 206. 4. Infant. Guardians ad litem, appointed to represent an infant in a case of partition, have power to defend for the infant solely against the claim set up for partition of the common estate. (Waterman v. Lawrence, 19 Cal. 210.) The proceeding for partition is a special pro- ceeding, and the Statute prescribes its course and effect; and though, after jurisdiction has attached, errors in the course of the cause cannot be collaterally shown to impeach a judgment, yet, so far at least as the rights of infants are involved, the Court has no jurisdiction, except over the matter of partition. Id. CHAPTER IV. QUIETING TITLE. No. 776. i. Answer Containing Special Denial, Plea of Statute of Limitations, and Cross Complaint for Quieting Title. [TITLE.] The defendant answers to the complaint: first For a first defense: [Deny specially each allegation^ SecondAnd for a further and separate answer and defense: I. The defendant alleges that the said plaintiffs claim that they are owners of said lots of land and premises in complaint and hereinafter described, and claim title thereto as heirs and devisees of deceased. 942 FORMS OF ANSWERS. II. That said R. P., in his lifetime, to wit, in the month of , 1 8 . . , conveyed, by a good and suf- ficient deed, to defendant's predecessors or grantors, in fee, the lots or tracts of land hereinafter described, and that after the making and delivery of said deed, said R. P. never had, nor have the plaintiffs or any of them since had, nor have they now, either as heirs or devisees of said R. P. or otherwise, any right, title, or interest in or to the said lands, or any part thereof. III. That the said deeds so duly executed by said R. P., whereby the title of said R. P. to said lots of land was vested in this defendant's predecessors or grantors as aforesaid, were never recorded or filed for record, and were destroyed by fire on or about the .... day of , 1 8 ... Third And for a further and separate answer and defense: The defendant alleges, that he has been in the quiet and peaceable possession of the pieces or lots of land hereinafter described, holding and claiming the same adversely to the said plaintiffs, and adversely to all other persons, for more than five years before the commencement of this suit; and that neither the plaintiff nor any of them, or either of their ancestors or ancestor, predecessors or grantors, was or were seized or possessed of the said lots of land, or either of them, or any portion of the same, within five years be- fore the commencement of this action. Fourtli And for a cross complaint, the defendant alleges: I. That he is now, and was at the commencement of FOR PARTITION. 943 this suit, and for more than five years before that time, and from thence up to that time, had been in the quiet and peaceable possession and occupancy of all those certain lots or pieces of land, situate, lying, and being in the City and County of , being the same lots in the complaint described, and bounded and de- scribed as follows, to wit: \_give description of land.~\ II. That the said plaintiffs have not, nor have either or any of them, any right, title, interest or right of pos- session in or to the said described premises, or any part thereof; that the said plaintiffs claim to have some right, title, interest, or right of possession in or to the said above described pieces and lots of land adverse to de- fendant, and claim that they are owners thereof, and claim title thereto, as heirs and devisees of R. P. deceasec^ as hereinbefore, to wit, in the second aver- ment of the answer herein, is set out. III, That said R. P. duly conveyed to defendant's pre- decessors or grantors, in fee, the lots or tracts of land hereinbefore described, as in the second averment of said answer set out, and defendant alleges that the said claim of the said plaintiffs to said lots of land, what- ever it may be, is against the nights of this defendant, and is without foundation, and is a cloud upon defend- ant's title to said land and premises. Wherefore defendant prays that the said plaintiffs, and every one of them, be adjudged to produce and bring forward any and all claims which they or either of them have or make upon the above described lots or any part thereof; and that the same may, by the decree of this Court, be declared invalid and of no effect, and that the said plaintiffs be perpetually restrained and for- 944 FORMS OF ANSWERS. bidden from setting up or making any claim to or upon the said premises; and that all such claims be quieted; and that this defendant be declared and adjudged the owner, and of right in the possession of the said prem- ises and every part thereof, against any claim of the said plaintiffs or any of them; and that plaintiffs be ad- judged to execute to this defendant a deed for said lots hereinbefore described, and in default so to do that a commissioner be apppinted by this Honorable Court for that purpose; and for such other or further order, de- cree, or judgment, as may be just and equitable to defendant. 1. Insufficient Defense. Where the defendant, in an action to quiet title to a mining claim on the public lands, set up in a supple- mental answer both abandonment and forfeiture by the plaintiffs of their asserted title and possession to said claim after suit commenced, but failed to set up any subsequently acquired rights therein by defend- ants: Held, that said matters were unavailing to defendant as defenses to the action. Pralus v. Pacific G. and S. M. Co., 35 Cal. 30. 2. Parties. The plaintiff filed her bill to remove a cloud upgn her title to land, created by her husband's deed to one of the defend- ants, and she Kbined in the bill three other defendants, one of whom had bought a portion of the land from the plaintiff and her husband, and two of whom held a mortgage upon the property executed by them. Held, that the latter were unnecessary parties, as the grantee in the deed, and those claiming under him, were the only parties necessary to the complete adjudication of the case. Peralta v. Simon, 5 Cal. 313. 3. Possession. If the answer in an action to quiet title admits plaintiff's ownership in fee simple, and possession, the rightfulness of the possession follows the admission, and even if plaintiff went into possession by leave of defendant's tenant, he is not estopped from denying defendant's title. (Reed v. Calderwood, 32 Cal. 109.) If a complaint to quiet title avers plaintiff's possession, and the answer admits the averment, this admission is not avoided by a special averment that plaintiff obtained possession by collusion with defendant's tenant. FOR PARTITION. 945 (Reed v. Caldervvood, 32 Cal. 109.) The objection that the plaintiff had not, at the commencement of the action, actual possession of the premises, must be distinctly taken by the answer, and before going to trial on the merits, or it will be waived. Jones v. Collins, 16 Wis. 594. JVo. 777. ii. Disclaimer. [TITLE.] The defendant answers to the complaint: That he disclaims all right, title, and claim to any estate of inheritance or of freehold in the premises described. CHAPTER V. WASTE. No. 778. * Dental of Waste. [TITLE.] The defendant answers to the complaint, and alleges: I. That defendant is not guilty of the waste and de- struction aforesaid, in manner and form as the said plaintiff hath in his said complaint alleged, or in any manner, or at all. 60 946 FORMS OF ANSWERS. II. That defendant does not hold the said premises under and as tenant to the said plaintiff, in manner and form as the plaintiff in his complaint hath alleged, or at all. III. That the said did not demise the said premises to the said , in manner and form as the said plaintiff hath in his said complaint alleged, or in any manner, or at all. ANSWERS SUBDIVISION SEVENTH, For Specific Relief. CHAPTER. I. CREDITOR'S ACTION. No. 779. i. Specific Denials. [TITLE.] The defendant answers to the complaint, and alleges: I. That there is no record remaining in said court of such recovery as the plaintiff has alleged. II. That the said A. B. has goods and chattels, lands, and tenements, liable to execution for the satisfaction of money due on the said judgment. III. That the said A. B. has no goods or chattels or effects of the said plaintiff in his hands. "L Denial of Assignment. An allegation in the complaint that the assignment was made with the intent to hinder, delay, and defraud creditors, is sufficiently put in issue by a denial that the assignment was made with intent to hinder and defraud creditors. Read v. Worthing- ton, 9 Bosw. 617. 2. Denial that Conveyance was Fraudulent. That upon the making of the alleged assignment [or mortgage] there was an actual 948 FORMS OF ANSWERS. and continued change of the possession of the assigned [or mortgaged] property from the said [debtor} to the [transferees] , who, immediately after the execution of the assignment [or mortgage], took actual and exclusive possession of the property; and that it has at all times since the assignment [or mortgage] remained in their exclusive possession and control. See Churchill v. Bennett, 8 How, Pr. 309. 3. Denial of Possession of Assets. That he had not, at the commencement of this action, nor has he had at any time since, prop- erty of the defendant [debtor} in his possession or under his control, as alleged, or at all, or in any manner. 4. Denial of Execution. That no execution upon the said judgment was ever returned unsatisfied in whole or in part [or was ever issued to the said ] before this action. 5. Denial of Judgment. That there is no record of the said judgment. Chitt, Forms, 108. 6. Defendant has Assets. That the defendant [judgment debtor} has, and at the commencement of this action had, real property [or personal property, or both] in the County of , in this State, liable to execution, and sufficient in value to satisfy said judgment; to wit: [designating what.} 7. Relief by Motion. A complaint in an action to set aside a judgment, which contains no averment showing that relief could not have been obtained on motion, may be demurrable, but if defendant fails to demur, and answers on the merits, and the facts supplying the defect appear in the record, the objection is waived. Bibend v. Kreutz, 20 Cal. 109. No. 780. ii. Bona Fide Purchaser. [TITLE.] The defendant answers to the complaint, and alleges: I. That the plaintiff ought not to have his action aforesaid; because he avers that the said defendant did, on the .... day of , 1 8 . . , buy of the said IN CREDITOR S ACTION. 949 the said lands and tenements, bona fide, for the consideration of dollars, he, the said , being then seized in fee, and in possession there- of \Jiere state how and when paid, and if notes 'were given aver the giving of theni\ , and without any fraud or intent to hinder, or delay, or defraud the said , or the other creditors of the said , and without any knowledge, information, or belief, at that time or pre- vious thereto, that the said sold the said premises with the intent charged in the said com- plaint. 8. Conditional Sale. Where, on sale of personal property, " the right to receive payment before delivery is waived by the seller, and immediate possession is given to the purchaser, and yet, by express agreement, the title is to remain in the seller's hands until the payment of the price upon a fixed day, such payment is strictly a condition pre- cedent, and, until performance, the right of property is not vested in the purchaser." (Putnam v. Lamphier, 36 CaL 151.) A second vendee is not entitled to stand in any better situation than his vendor, in regard to the title of personal property, other than negotiable instruments, and whatever comes under the general naming of currency. Whether a further exception to the rule exists in favor of bona fide purchases from the purchaser at a conditional sale, is not decided. Id. 9. Consideration. And it was also essential to state to whom the consideration was paid on the purchase. Tompkins v. Ward, 4 Sand/. Ch. 594. 10. Denial Positive. The strict rule applied in chancery re- quired that a party claiming as a bona fide purchaser, without notice, must deny notice positively, and not evasively, though it were not charged in the bill, and every fact from which notice might be inferred. (Frost v. Beekman, i Johns. Ch. 288; Denning v. Smith, 3 Id. 332; Gallatin v. Cunningham, 8 Cow. 361; Wyckoff v. Sniffen, 2 Edw. 581.) And must deny notice to any agent. Griffith v. Griffith, 9 Paige, 315; Hoffm. 153. 950 FORMS OF -ANSWERS. 11. Essential Averments. Where a party desires in his plea or answer to claim that he was a bona fide purchaser fora valuable con- sideration, he should state the deed of purchase, with the date, parties, and contents, briefly; that the vendor was seized in fee, and in posses- sion; the consideration, with a distinct averment that it was bona fide and truly paid, independently of the recital in the deed; and how the grantor acquired title. Notice should be denied previous to and down to the time of paying the money, and the delivery of the deed. (Boone v. Chiles, 10 Pet. 193.) In a plea of a purchase for a valuable consid- eration, without notice of the plaintiff's title, it is necessary to aver that the person who conveyed was seized, or pretended to be seized, at the time when he executed the purchase deeds. 2 Atk. 630; Flagg v. Mann, 2 Sumn. 486, 557. 12. Notice. A plea denying nojtice " of the facts and circum- stances charged " was evasive and insufficient, but was cured by a sub- sequent averment that the defendant was without notice " of the matters alleged, or any of them." (Tompkins v. Anthon, 4 Sandf. Ch. 97.) The defendant must aver and prove, not only that he had no notice before his purchase, but that he had actually paid the purchase-money before such notice. Jewett v. Palmer, 7 Johns. Ch. 65. 13. Possession of Grantor. It should be averred that the de- fendant's grantor was in the actual possession, or at least that the one under whom his grantor claimed was so. Tompkins v. Anthon. 4 Sandf. Ch. 97. CHAPTER II. DISSOLUTION OF PARTNERSHIP. No. 781. i. That the Term is not Expired. [TITLE.] The defendant answers to the complaint: That the partnership between him and the plaintiff, set forth in the complaint, was not upon the terms and IN DISSOLUTION OF PARTNERSHIP. 951 according to the stipulations, agreements, or covenants alleged by plaintiff in his said complaint; but, on the contrary, that said partnership was formed, and entered into, and carried on, under and in pursuance of a writ- ten agreement, and articles of co-partnership between him and said plaintiff; a copy of which is hereto annexed, and forms part of this answer, showing that the time for the continuance of said co-partnership is not yet expired, which agreement has never been altered or varied in writing, or by parol; and that the co-partnership formed and carried on in pursuance thereof is the same set forth and alleged in said complaint. NOTE. This form is from 2 Van Santv. Eq. Pr. 579. 1. Construction of Articles. In an action between parties, for an accounting, the complaint alleged, and the articles of agreement which were set forth in the complaint stated, that the plaintiff contrib- uted $2,250 to the capital of the firm, which sum, the complaint alleged, the defendant had converted to his own use. The answer denied that the $2,250 was contributed as capital; and averred that it was to be paid by the plaintiff for an equal interest in the business; that the money was paid on that basis; and that both parties have acted upon the understanding that such was the meaning of the articles. Held, suf- ficient to present the issue, whether the articles were by mistake so drawn as not to express the actual agreement of both parties. lies z>. Tucker, 5 Duer, 393. JVo. 782. ii. Overdrawing Done by Plaintiff's Assent. [TITLE.] The defendant answers to the complaint: That he denies each and every allegation set forth in the [third separate cause of action in] said complaint, relative to the alleged misconduct of defendant, and his o 952 FORMS OF ANSWERS. alleged acts and doings in the management of the said partnership business, except the allegation of his draw- ing out from the funds of said co-partnership more than his portion of the profits thereof; to wit, the sum of dollars, and investing the same in, etc., etc. ; and as to such allegation, defendant alleges and states that it was done with the full knowledge of said plaintiff, and with his approbation and express assent. 2. Judgment, when a Bar. Judgment for winding up affairs of corporation no bar to suit to enforce individual responsibility of shareholder, (Diven, v. Duncan, 41 Barb. 520.) Suit for injunction to restrain debtor from making assignment in violation of agreement, does not preclude action upon debt itself. Paige v. Wilson, 8 Bosw. 294. CHAPTER III. ACTIONS FOR DIVORCE. No. 783. i. General Denial. [TITLE.] The defendant answers to the complaint: And admits the marriage alleged in the complaint, but denies each and every other allegation of said com- plaint. 1. Desertion. A wife, having reason to believe that her husband had been guilty of adultery, separated from him, and instituted a suit for divorce, in which she failed. The husband never thereafter FOR DIVORCE. 953 sought to resume cohabitation, nor did the wife, and it was not resumed. Held, that these facts did not constitute desertion by the husband. Fitz- gerald v. Fitzgerald, C.R. i P. & D. 694. No. 78Jf. ii. Denial of Adultery, and Counter Claim. [TITLE.] The defendant answers to the complaint: First For a first defense: That he never committed adultery with the person named in said complaint, or with any other person, at any time or place, or at all. Second For a second defense, and a counter claim, the defendant alleges: \Allege acts of adultery as in Form No. 497.] Wherefore the defendant demands judgment, etc. [as in that form.~\ 1. Inhabitancy. An answer setting up plaintiff's adultery merely as a defense need not allege the inhabitancy of the parties, or either of them, at the time of the offense, as is necessary in a complaint. (Leseuer v. Leseuer, 21 Barb. 330.) But that the offense was com- mitted without the defendant's procurement, connivance, privity, or consent, are essential in such an answer. Morrell v. Morrell, 3 Barb. 236; Anomymous, 17 Abb. Pr. 48; B. v. B., n N.Y. Leg. Obs. 350. 2. Insanity of Plaintiff? In an action for divorce on the ground of the nullity of the marriage, the defendant cannot have leave to allege, by way of amendment, that plaintiff was insane at the com- mencement of the action, for this is not an issuable fact. Appleton v. Warner, 51 Barb. 270. 3. Limitation. In an action for a divorce, the physical incapa- city of the plaintiff to enter into the marriage relation, is not, after two 954 FORMS OF ANSWERS. years from the date of the marriage, a defense. (Griffin v. Griffin, 23 How. Pr. 183.) This objection can only be taken by answer, and is applicable to actions for divorce. (Bihin v. Bihin, 17 Abb. Pr. 19.) So, where a complaint averred acts of cruelty committed more than ten years before, and the defense was not interposed in the answer, evidence of such cruelty was admissible. Id. 4. Marriage must be Denied. If the complaint in an action to obtain a divorce avers the marriage of the plaintiff and de- fendant, and the answer does not deny the averment, it is an admission of the fact for the purposes of the trial, and the marriage need not be proved. Fox v. Fox, 25 Cal. 587. 5. Recrimination. Adultery committed by the plaintiff is a perfect defense to an action for an absolute divorce, and is also a ground for affirmative relief in the same action. (Anon., 17 Abb. Pr. 48; B. v. B., N.Y. Leg. Obs. 350.) The doctrine of recrimination, or compensatio criminum, applicable in suits for divorce, and the several offenses which, by the Statute, constitute grounds of divorce, are plead- able in bar to such suits, the one to the other, within the principle of the doctrine. (Conant v. Conant, to Cal. 249; Leseuer v. Leseuer, 31 Barb. 330.) To be an absolute bar, the conduct of the plaintiff must be such as to constitute a proper basis for judicial decree against her, had suit been instituted by the defendant. (Conant v. Conant, 10 Cal. 249.) In a husband's suit for divorce for the wife's adultery, his adultery cannot be set up under the Code of New York as a counter claim, and if proved, will not entitle her to a divorce. R.F. H. v . S. H., 40 Barb. 9; see, however, Anon., 17 Abb. Pr. 48. 6. Residence. In an application by the wife for a divorce, on the ground of the willful neglect of her husband, and his failure to provide her with the necessaries of life for the period of three years, the residence of the husband with the wife within the three years is no answer to the application, where it appears that they were not living together at the commencement of the suit. Washburn v. Washburn, 9 Cal. 475. FOR DIVORCE. 955 No. 785. iii. Condonation. [TITLE.] The defendant answers to the complaint: I. That after the times mentioned in the complaint, and before this action, the plaintiff being informed, as to the matters therein alleged, freely condoned said alleg- ed adultery, and forgave the defendant thereof [and freely cohabited with him]. II. That ever since such condonation the defendant has been a faithful husband to the plaintiff, and has constantly treated her with conjugal kindness. 7. Must be Specially Pleaded. Condonation must be specially pleaded. (Smith v. Smith, 4 Paige, 432; Morrell v. Morrell, 3 Barb. 236.) This defense may be joined with a denial of the adultery charged, and also with a defense charging the plaintiff with adultery as a bar. Smith v. Smith, 4 Paige, 432; Wood v. Wood, 2 Id. 108; Hopper v. Hopper, u Id. 46. CHAPTER IV. FOR FRAUD. No. 786. i. Denial of Fraud. [TITLE.] The defendant answers to the complaint, and denies: That he obtained the said deed from the plaintiff by fraud or misrepresentation [deny specific acts alleged~\. 956 FORMS OF ANSWERS. No. 787. ii. Denial of Mistake. [TITLE.] The defendant answers to the complaint, and denies: That there are errors or mistakes in the stating of the said account, as alleged, or at all, but that the account stated which is mentioned in the complaint, is true and just. CHAPTER V. QUO WARRANTO. No. 788. i. General Denials. [TITLE.] The defendant answers to the complaint, and denies generally and specifically each and every allegation in the complaint contained. 1. Right of Office. A plea to a quo warrranlo, that the defend- ants have a right to exercise the franchise, accompanied by a negation of the allegations of the writ, is not a plea of non usurpavit, or a dis- claimer, but is a valid plea. (Commonwealth v. Cross Cut R.R., 53 Penn. 62.) The defendant in an action to try the right to an office may set forth in his answer more than one defense. People v. Strat- ton, 28 Cal. 382. 2. Ineligibility no Defense. In a proceeding to contest the election of defendant as District Judge, the ineligibility of the candidate receiving the highest number of votes, the defendant being next on the list, is no defense; because this matter, if true, could not protect the IN QUO WARRANTO. 957 incumbent from the consequences of an unauthorized possession of the office. (Saunders v. Haynes, 13 Cal. 145.) The fact that the candi- date receiving the highest number of votes at an election by the people is ineligible does not give the office to the next highest on the list. Id. CHAPTER VI. SPECIFIC PERFORMANCE OF CONTRACT. No. 789. i. Denials. [TITLE.] The defendant answers to the complaint, and alleges: I. That he did not contract and agree with the said plaintiff, in manner or form as alleged in the complaint, or in any manner or form, or at all. II. That the said plaintiff did not pay to the said de- fendant the said sum of dollars, in manner and form as he alleges, or at all. III. That the said plaintiff did not tender the said sum of dollars to the defendant, at the time alleged, or at any time. IV. That said plaintiff did not put said defendant into the possession of the said premises, at the time stated, or at any time, or in any manner. V. That the said plaintiff was not seized in fee of the said premises, and could not make to the said de- fendant a good and sufficient title thereto, as by his said contract he was bound to do, but on the contrary \state inciLm.br ances this answer like all answers must be made according to the facts o f each particular case.~\ 958 FORMS OF ANSWERS. No. 790. ii. Dental of Delivery of Possession. [TITLE.] The defendant answers to the complaint: That the plaintiff did not give possession of the said premises to the defendant at the time stated, or at any time. JVo. 791. iii. Denial of Readiness to Convey. [TITLE.] The defendant answers to the complaint: That the plaintiff was not ready or willing to convey the premises, as alleged, or to convey them at all. JVo. 792. iv. Performance. [TITLE.] The defendant answers to the complaint: I. That he duly performed said contract upon his part, in all things. II. \_State facts showing performance^ FOR SPECIFIC PERFORMANCE. 959 Wo. 793. v. Denial of Part Performance. [TITLE.] The defendant answers to the complaint: That the said A. B. did not take possession of the said premises, or do the said acts, or make the said im- provements thereon, alleged, nor has he in any part per- formed the alleged contract. JVo. 794. vi. A Demand Before or After the Plaintiff's Tender. [TITLE.] The defendant answers to the complaint: I. That before the making of the tender alleged, and on the .... day of , 1 8 . . , at , the defendant requested the plaintiff to pay him said sum. II. That the plaintiff then and ever since refused to pay the same. 1. Insurance Policy. If on a bill in equity for specific per- formance of a contract, for a policy of insurance, the answer admit that a proposal for acceptance was made and accepted, but adds that no contract was made, the Court will not intend that this denial includes any new matter of fact, but will treat it as only containing the respond- ent's view of the legal consequence of the facts admitted. Union Mut. Ins. Co. v. Commercial Mutual Ins. Co., 2 Curt. C. Ct. 524;,S.C., 8 Law Rep. (N.S.) 610. 2. Statute of Frauds. In order that a bill for specific per- formance may be taken advantage of under the plea of the Statute of Frauds, it must not only show a want of agreement, conformable to the Statute of Frauds, but must also omit to make any allegations of 960 FORMS OF ANSWERS. part performance. (Field v. Hutchinson, i Beav. 599; S.C., 3 Jur. 792; Child v. Godolphin, i Dick. 39.) Where the answer admits an agreement, the defendant must plead the Statute, or he is taken to have admitted the agreement, which is either good under the Statute, or on some other ground binding upon him. (Cruyston v. Banes, Prec. Ch, 208; Symondson v, Tweed, Id. 374.) And notwithstanding his ad- mission, the defendant is entitled to the full benefit of the Statute. (Cooth v. Jackson, 6 Ves. 12; Moore v. Edwards, 4 Ves. 23; Rowe v. Teed, 15 Ves. 375; Blagden v. Bredbear, 12 Ves. 466; see, contra, Mussell v. Cooke, Prec. Ch. 533.) But the answer, with the admission, must be to the original bill. (Spurrer v. Fitzgerald, 6 Ves. 548; Beatson v. Nicholson, 6 Jur. 621.) And the answer must distinctly claim the benefit of the Statute. Skinner v. McDowall, 2 DeG. & Sm. 265. 3. Re-Conveyance of property. If the grantee of land agrees by parol with the grantor that he may keep the land and work it one year, and at the end of the year make his election whether he will keep it and pay the purchase-money, or restore it to the grantor, the grantee is in time to avoid payment of the purchase-money, if on the first day after the end of the year, he notifies the grantor of his election, and tenders him or his agent a deed of the property. Rhine v. Ellen, 36 Cal. 362. No. 795. vii. Rescission of Contract. [TITLE.] The defendant answers to the complaint: That after the contract alleged in the complaint, and before any breach thereof, it was agreed by and between the plaintiff and the defendant that the said contract should be waived, abandoned, and rescinded; and they then waived, abandoned, and rescinded the same ac- cordingly. 4. Form of Averment. If the only materiality of the date is that it was after another event, this mode of stating it is sufficient. Kellogg v. Baker, 15 Abb. Pr. 286; see, also, Bullen & L. F. 395. ANSWERS SUBDIVISION EIGHTH. In Statutory Actions. CHAPTER I. FOR FORCIBLE ENTRY AND UNLAWFUL DETAINER. JVo. 796. i. For Forcible Entry and Detainer. . [TITLE.] The defendant answers to the complaint, and denies: I. That plaintiff was, at the time stated, or at any time, in the actual or peaceable or exclusive possession of the property described in the complaint, or any part thereof. II. Denies that defendant broke into the premises of the plaintiff, as alleged, or in any manner, or at all. III. Denies that plaintiff suffered any damage by such alleged breaking, or in any manner, or by any means, either as alleged in the complaint or at all. [ Traverse the allegations of the complaint specially^ 1. Demand. A demand for the surrender of the possession, and a refusal' for the period of five days, are essential in order to constitute 61 962 FORMS OF ANSWERS. a constructive forcible detainer, defined by the third section of the act. Brawley v. Risdon Iron Works, Cal. Sup. Ci., Oct. T., 1869. 2. Demurrer and Answer. It is provided in Sections 42 and 67 of the California Practice Act, that a defendant may demur or answer, or do both, and that if he demurs only, and his demurrer is overruled, the Court may allow him to answer, imposing terms in its discretion. The same rule applies to actions of forcible entry and detainer. Mau- mus v. Hamblon, Cal. Sup. Ct., Jul. T., 1867, not reported. 3. Easement. In forcible entry upon mining land, an answer that the defendants entered as the servants of a specified railroad com- pany, which had legally appropriated the injured property as the line of its road, would justify the entry and bar the suit. Green v. Boody, 21 Ind. 10. 4. Entry under Law. The defendant may show that the lands described in the complaint are public lands of the United States, and that he entered on a portion thereof, specifically describing the part entered on under and by virtue of the Act of Legislature prescribing the mode of maintaining possessory actions on public lands, and that the lands so entered on are lands to which the plaintiff has no right of property or possession, and no title to, or interest therein, etc. Buel v. Frazier, Cal. Sup. Ct., Oct. T., 1869. 5. Eviction. In an action by a landlord against his tenant, under the thirteenth section of Forcible Entry and Unlawful Detainer Act, the latter may defend by showing an eviction under an adverse title in a judicial proceeding, of which proper notice was given to the landlord. (Wheelock v. Warschauer, 21 Cal. 309.) Such a defense does not involve any question of title, the effect of an eviction being to dispossess the landlord as well as the tenant, and to relieve the latter from the obligation of his tenancy. (Id.) The rule which estops a tenant from disputing his landlord's title does not prevent him from showing that the tenancy has been determined, and he may treat an eviction with notice, by one having an adverse title, as a termina- tion of the tenancy, and thus resist any claim by the landlord, either for rent or possession. (Id.) The notice by a tenant to his landlord of proceedings to evict him may be oral. (Id.) An eviction of a tenant by title, both legal and paramount to that of the landlord, must of necessity determine the tenancy, and when the title of the landlord is set up in defense of the action, and the landlord appears and defends the action FOR FORCIBLE ENTRY, ETC. 963 at the request of the tenant, and in his name, he cannot be heard to say in a contest with the tenant that the tenant was not evicted by para- mount title. Wheelock v. Warshauer, 34 Cal. 265. 6. Evidence. Where the plaintiff in forcible entry and detainer is forcibly ousted by several persons, and the defendant claims that, although present, he took no part in the expression, ne should be allowed to cross examine witnesses who testify to seeing weapons, as to whose hands they were in. Steinback v. Krone, 36 Cal. 303. 7. General Denial. Where in such case the complaint verified alleges such demand, and the answer verified, instead of specifically denying the allegation, denies generally " each and every allegation " in the complaint: Held, that this general denial put plaintiff on proof of demand, and of everything necessary to maintain the action. (Sulli- van v. Car}', 17 Cal. 80.) A general denial is no longer sufficient. In an action of forcible entry and detainer, all matters of legal excuse, justification, or avoidance, can be given in evidence by the defend- ant, under a general denial of the allegations of the complaint. Watson v, Whitney, 23 Cal. 375; but see More v. Del Valle, 28 Cal. 172. 8. Insufficient Defense. Proof of prior possession of the premises in controversy does not constitute a defense to this action. (Brown v. Perry, Cal. Sup. C/.,fan. T., 1870.) The denial that the plaintiff owned the buildings on the premises in controversy does not raise an issue that can be tried in an action of forcible entry and detainer. So, new matter pleaded by defendant in respect to the lease of the premises to the plaintiff, its expiration, and the subsequent forcible and fraudulent entry and detainer by the plaintiff, his attempt to place others in possession, and the claim of the defendant against the plaintiff for the rent of the premises, do not constitute a defense to the action. A set-off is not admissible in actions of this class, and it makes no difference whether it is a demand for money or a previous forcible entry of the plaintiff. (Warburton v. Doble, Cal. Sup. Ct., Oct. T., 1869.) Proof of prior possession of the premises in contro- versy, in an action of forcible entry and detainer, does not constitute a defense to the action. Brown v. Perry, Cal. Sup. Ct., Jan. T., 1870. 9. Leave and License. An agreement made by the landlord with the tenant, after the expiration of the lease, that the tenant shall 964 FORMS OF ANSWERS. have possession of the premises one year longer, paying therefor a stipu- lated rent, to be paid if the land is included in a certain survey, vests in the tenant the present right to possess the lands until the expiration of the agreement, and, if pleaded, is admissible in evidence as a defense to an action for holding over, brought before the expiration of the time specified in the agreement. (Wheelock v. Warschauer, 34 Cal. 265; Uridias v. Morrell, 25 Cal. 35.) li seems that evidence showing the acquiesence of the plaintiff in the defendant's acts is admissible under. an answer denying the allegation that the acts were done without consent of the plaintiff, and by force, etc.; but if not, the objection must be taken at the trial, and is not available on appeal. Rowan v. Kelsey, 2 Keyes, 594. 10. Right of Possession. If the party guilty of a forcible entry has any title or right of possession, his title or right of possession can- not be tried in an action of forcible entry and detainer. He must first deliver up the possession forcibly acquired, and then he may litigate his title or right to possession in a proper action. (Mitchell v. Davis, 23 Cal. 381.) If D. and H. are in the peaceable possession of a lot of land, and S. and S., accompanied by others their employees forcibly evict them therefrom and take possession, and then lease the lot to R., who enters into peaceable possession, and five days afterwards D. and H., with others, forcibly dispossess R. and take possession, and R. brings an action for forcible entry against them, D. and H. cannot in- troduce evidence of their prior eviction by S. and S. in defense. Ross v. Duane, 27 Cal. 568. 11. Street Assessments. A denial in the answer that there is any such street as A. Street, irr the said City, and then on the assumption that there is no such street, a denial of the digging up of the earth on said A. Street, are evasive and not direct denials. Fuhn v. Webber, Cal. Sup. Ct., Oct. T., 1869. 12. Sufficient Answer. An answer specifically denying each allegation of the complaint, and affirmatively alleging that the lands described in the complaint are public lands of the United States, and that defendants entered thereon under and by virtue of an Act of the Legislature of the State, prescribing the mode of maintaining possessory actions, and that the lands so entered upon are lands to which the plaintiff has no right of property or possession, ? nd no title or interest therein, etc., was held sufficient in Buel v. Frazier, Cal. Sup. Ct., Oct. 7!, 1869, FOR FORCIBLE ENTRY, ETC. 935 13. Title Terminated. A tenant may show that his landlord's title has terminated, or that his attornment was made under mistake of facts, or fraud. McDewitt v. Sullivan, 8 Cal. 592; Tewksb'ury v. Ma- graff, 33 Cal. 327. 14. Answers in Tax Suits. Under the Statute of 1863, which provides what a defendant may answer in a suit to recover a tax, an answer which avers that the tax was fraudulently levied for an amount in excess of that authorized by law, is good. (People v. Nelson, 36 Cal. 375.) The general statute in relation to filing answers in cases for the collection of taxes applies to suits for the collection of taxes levied by school districts. Id. 15. Claim to, and Possession of< If a complaint in an action to recover judgment for taxes avers that the tax is an assessment of de- fendants' "claim to and possession of" lands, an answer setting up as new matter that the lands are public lands of the United States con- tains no defense. People v. Frisbie, 31 Cal. 146. 16. Transfer of Cause. Where an action to recover a personal judgment for a tax, commenced in a justice's court, is transferred to a district court,, an amended complaint may he filed in the district Court to enforce a lien on real estate for the tax. People v. Nelson, 36 Cal. 375. UC SOUTHERN REGIONAL LIBRARY FACILITY A 000 770 594 o 1ft.